Exhibit 1.1
Execution Copy
25,000,000 Shares
HEALTH CARE REIT, INC.
Common Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
March 1, 2011
UBS Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Barclays Capital Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
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), an aggregate of 25,000,000 shares (the Firm Shares) of
the Companys Common Stock, $1.00 par value per share (the Common Stock). The Company also
proposes to sell at the Underwriters option an aggregate of up to 3,750,000 additional shares of
the Companys Common Stock (the Option Shares) as set forth below. It is understood that the
Company proposes, and is concurrently entering into an agreement, subject to the terms and
conditions stated therein, to issue and sell to the underwriters named therein, an aggregate of
12,500,000 shares (or 14,375,000 shares if the underwriters exercise their overallotment option in
full) of 6.50% Series I Cumulative Convertible Perpetual Preferred Stock (the New Preferred
Stock). This offering is not conditioned on the completion of the offering of the New Preferred
Stock and the offering of the New Preferred Stock is not conditioned on the completion of this
offering.
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 Firm Shares set forth in Schedule I hereto, plus such Option Shares if the
Underwriters elect to exercise the over-allotment option in whole or in part for the account of the
Underwriters. The Firm Shares and the Option Shares (to the extent such option is exercised) are
herein collectively sometimes referred to as the Shares.
The Company has entered into a purchase agreement dated as of February 28, 2011 (the
Acquisition Agreement) among the Company, FC-GEN Investment, LLC (FC-GEN) and FC-GEN Operations
Investment, LLC, pursuant to which the Company will purchase (the Acquisition) 100% of the equity
interests of FC-GEN Acquisition Holding, LLC (FC-GEN Acquisition Holding), which indirectly owns
senior housing and care facilities.
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 of the date hereof, as of the Applicable Time (as defined below) and as of the
Closing Date (as defined below) 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 Shares, 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 Shares 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
Shares 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 Shares 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, the
Statutory Prospectus (as defined below) and the information included on Schedule II hereto,
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
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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 6:45 p.m. (New York time) on the date of this Agreement 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 Shares 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
Companys records pursuant to Rule 433(g) under the Securities Act.
General Use Free Writing Prospectus means any Issuer Free Writing Prospectus that is
identified on Schedule III 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 and each of its Subsidiaries (as defined below) has been duly
organized and is validly existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of the jurisdiction of its
organization, 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 and each of its Subsidiaries 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, taken as a whole or (b) prevent or materially interfere
with the consummation of the transactions contemplated by this Agreement (each of (a) and
(b) above, a Material Adverse Effect). All of the Companys subsidiaries are listed in
Schedule IV hereto (the Subsidiaries).
(iv) The information contained in the line items Preferred Stock and Common Stock
set forth in the consolidated balance sheet as of December 31, 2010 contained in the
Companys Annual Report on Form 10-K for the year ended December 31, 2010 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) 472,986 shares of Common Stock under the Companys Dividend
Reinvestment and Stock Purchase Plan, as amended. (b) 193,707 shares of Common Stock under
the Companys Amended and Restated 2005 Long-Term Incentive Plan, and (c) 349,854 shares of
the Companys Series H Convertible Preferred Stock, there has been no material change in
such information since December 31, 2010; 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; the shares of Common Stock of the Company are duly listed on the New York
Stock Exchange (NYSE); the Shares to be issued and sold by the Company have been duly
authorized and when issued and paid for as contemplated herein will be validly issued,
fully-paid and non-assessable;
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and no preemptive or similar rights of stockholders exist with respect to any of the Shares
or the issue and sale thereof.
(v) The shares of authorized capital stock of the Company, including the Shares,
conform in all material respects with the statements concerning them in the Registration
Statement, the General Disclosure Package and the Prospectus.
(vi) 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 Shares, and no proceeding for that purpose or pursuant to Section
8A of the Securities Act has been instituted or, to the Companys 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 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 or the Option Closing Date, as the case may be, 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 or the Option Closing Date, as the case may be, 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.
(vii) 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 Shares 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.
(viii) The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the offering and sale of the Shares 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.
(ix) (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) of the
Securities Act (whether such amendment was by post-effective amendment, incorporated report
filed
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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 Shares 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.
(x) (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 Shares 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 Shares as contemplated by the
Registration Statement.
(xi) 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. All pro forma financial statements or data included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus
comply with the applicable requirements of the Securities Act and the Exchange Act, and the
assumptions used in the preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate to give effect to the
transactions or circumstances described therein and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those statements and data.
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.
(xii) 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.
(xiii) 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
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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 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.
(xiv) 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.
(xv) 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, as each may be amended or supplemented (a)
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 and its Subsidiaries considered as one enterprise or the earnings, capital stock
(except that issued and outstanding capital stock of the Company has increased due to
issuances since such date of (a) 472,986 shares of Common Stock under the Companys Dividend
Reinvestment and Stock Purchase Plan, as amended, (b) 193,707 shares of Common Stock under
the Companys Amended and Restated 2005 Long-Term Incentive Plan, and (c) 349,854
shares of the Companys Series H Convertible Preferred Stock), business affairs, management,
or business prospects of the Company and its Subsidiaries considered as one enterprise,
whether or not occurring in the ordinary course of business, (b) there have been no
liabilities or obligations incurred by the Company or any of its Subsidiaries that are
material with respect to the Company and its Subsidiaries considered as one enterprise, and
(c) there have been no transactions entered into by the Company or any of its Subsidiaries
that are material with respect to the Company and its Subsidiaries considered as one
enterprise, other than transactions in the ordinary course of business. There are no
contingent obligations of the Company or any of its Subsidiaries that are material with
respect to the Company and its Subsidiaries considered as one enterprise that are not
disclosed in the Registration Statement, the General Disclosure Package and the Prospectus.
(xvi) 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
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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 Shares and the performance by the Company of all of its obligations under this
Agreement and the consummation of the transactions herein contemplated and the transactions
described in the General Disclosure Package and the Prospectus under the caption The
Acquisition and the fulfillment of the terms hereof 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, 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.
(xvii) Each approval, consent, order, authorization, designation, declaration or filing
by or with any regulatory, administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated (except such additional steps as may be required by the
Commission, the Financial Industry Regulatory Authority (FINRA) or may be necessary to
qualify the Shares for public offering by the Underwriters under state securities or Blue
Sky laws) or the Acquisition Agreement (except as provided in the Acquisition Agreement with
respect to the consummation of the Acquisition and only as to the Companys obligations
under the Acquisition Agreement) has been obtained or made by the Company, and is in full
force and effect.
(xviii) 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.
(xix) 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, 2010 and no transaction or other
event has occurred or is contemplated which would prevent the Company from so qualifying for
its current taxable year.
(xx) To the best of the Companys knowledge, the accountants 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 as required by the
Securities Act and the Rules and Regulations and the Public Company Accounting Oversight
Board (the PCAOB), in the case of the Company, or as required by Rule 101 of the Code of
Professional Conduct of the AICPA, in the case of FC-GEN Acquisition Holding.
(xxi) 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 managements general or specific authorization; (b) transactions are
recorded as necessary to permit preparation of financial statements in conformity with
generally accepted
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accounting principles and to maintain accountability for assets; (c) access to assets is
permitted only in accordance with managements 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.
(xxii) 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 Companys 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 Companys auditors and 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 Companys 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 Companys internal controls;
any material weaknesses in internal controls have been identified for the Companys
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.
(xxiii) 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.
(xxiv) To the knowledge of the Company, after inquiry of its officers and directors,
there are no affiliations with any FINRA member firm among the Companys 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.
(xxv) This Agreement has been duly authorized, executed and delivered by the Company.
(xxvi) 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 Companys Common Stock. The Company acknowledges that the
Underwriters may engage in transactions that stabilize, maintain or otherwise affect the
price of the Companys Common Stock, including stabilizing bids, syndicate covering
transactions and the imposition of penalty bids.
(xxvii) The Shares have been, or as of the Closing Date will be, approved for listing
subject to official notice of issuance on the NYSE.
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(xxviii) The Company is not, and immediately after the sale of the Shares pursuant to
the terms and conditions of this Agreement will not be, an investment company within the
meaning of the Investment Company Act of 1940.
(xxix) The Acquisition Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company, enforceable in accordance with its
terms, and, assuming the due authorization, execution and delivery thereof by the other
parties thereto, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be subject to or limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors rights generally or by general equitable
principles. The Company reasonably believes that the Acquisition will be consummated in all
material respects on the terms and by the date and as contemplated by the General Disclosure
Package, the Prospectus and the Acquisition Agreement. The consummation of the Acquisition
would not reasonably be expected to have a Material Adverse Effect, with FC-GEN
Acquisition Holding considered to be a Subsidiary of the Company for purposes of this
Section 1(xxix).
(xxx) To the knowledge of the Company, the representations and warranties contained
(A) in paragraphs (iii), (xii), (xiii), (xv), (xvi) and (xviii) of this Section 1 are true
and correct with each reference to Subsidiary deemed to include FC-GEN Acquisition Holding,
for purposes of this clause (A); (B) in paragraph (vi) of this Section 1 are true and
correct with respect to any information regarding FC-GEN Acquisition Holding contained in
the Registration Statement, the General Disclosure Package and the Prospectus; and (C) in
paragraph (xi) of this Section 1 are true and correct with respect to the financial
statements and any supporting schedules of FC-GEN Acquisition Holding included or
incorporated by reference in the Registration Statement, the General Disclosure Package and
the Prospectus; except in each of (A), (B) and (C) where the failure to be so true and
correct would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, with FC-GEN Acquisition Holding considered to be a Subsidiary of
the Company for purposes of this Section 1(xxx).
2. Purchase, Sale and Delivery of the Shares.
On the basis of the representations, warranties
and covenants herein contained, and subject to the conditions herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at a price of $47.28 per Share, the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto (plus any additional number of Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof).
Payment for the Firm Shares to be sold hereunder is to be made by Federal Funds wire transfer
to an account designated by the Company for the Firm Shares to be sold by the Company against
delivery of the Firm Shares therefor to the Representatives. Such payment and delivery are to be
made at the offices of Calfee, Halter & Griswold LLP, 1400 KeyBank Center, 800 Superior Avenue,
Cleveland, OH 44114 at 10:00 a.m. New York time, on March 7, 2011 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 NYSE
is open for trading and on which banks in New York are open for business and not permitted by law
or executive order to be closed). The Firm Shares will be delivered by Mellon Investor Services
LLC (the Transfer Agent) in such denominations and in such registrations as the Representatives
request in writing not later than the second full business day prior to the Closing Date, and will
be delivered through book entry facilities of The Depository Trust Company (DTC) and 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.
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In addition, on the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, the Company hereby grants an option to the
Underwriters to purchase severally the Option Shares at the price per share as set forth in the
first paragraph of this Section 2. The option granted hereby may be exercised in whole or in part
by giving notice at any time and from time to time within 30 days after the date of this Agreement,
by the Representatives to the Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the option and the time and date at which such Option Shares
are to be delivered. The time and date at which the Option Shares are to be delivered shall be
determined by the Representatives but shall not be earlier than three nor later than 10 full
business days after the exercise of such option, nor in any event prior to the Closing Date (such
time and date being herein referred to as the Option Closing Date). Notwithstanding the
preceding sentence, if the option is exercised at least one day prior to the Closing Date, the
notice of the exercise shall set the Closing Date as the Option Closing Date. The option with
respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in
the sale of the Firm Shares by the Underwriters. The Representatives may cancel such option at any
time prior to its expiration by giving written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment for the Option Shares shall be made by
Federal Funds wire transfer to an account designated by the Company for the Option Shares to be
sold by the Company against delivery of the Option Shares through the facilities of DTC. Such
payment and delivery are to be made at the offices of Calfee, Halter & Griswold LLP, 1400 KeyBank
Center, 800 Superior Avenue, Cleveland, OH 44114, at 10:00 a.m. New York time, on the Option
Closing Date. To the extent, if any, that the option is exercised, the Option Shares will be
delivered by the Transfer Agent in such denominations and in such registrations as the
Representatives request in writing not later than the second full business day prior to the Option
Closing Date, and will be delivered through book entry facilities of DTC and made available for
inspection by the Representatives at least one business day prior to the Option 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 Shares as soon as the Representatives deem it advisable to do so. The
Shares 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 in order to complete the distribution of the
Shares 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 Shares 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
10
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 Shares 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 III 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, 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) [Intentionally omitted.]
(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 Shares
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 Shares, or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and the Company will use its best efforts to prevent
(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 Shares 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 Shares 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 Shares 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 Shares, in a form
satisfactory to the Representatives, (c) use its best efforts to cause such registration
statement or
11
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 Shares 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
ineligible. References herein to the Registration Statement relating to the Shares 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 Shares 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 Shares, 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 Shares, 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 Shares 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 Shares 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.
12
(x) If the General Disclosure Package is being used to solicit offers to buy the Shares
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 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 Shares pursuant to
this Agreement in the manner specified under the heading Use of Proceeds in the
Prospectus.
(xiv) No offering, sale, other disposition or any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of
any Common Stock or any securities of the Company that are convertible into, exchangeable or
exercisable for, or substantially similar to the Common Stock or on parity with or senior to
the Common Stock (with respect to distribution rights or payments upon the Companys
liquidation, dissolution or winding up) 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, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Barclays Capital Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities
LLC and Wells Fargo Securities, LLC, except that the Company may, without such consent, (a)
issue securities under the Companys equity compensation plans for officers, employees, and
non-employee directors described in the Companys Annual Report on Form 10-K for the fiscal
year ended December 31, 2010; (b) issue shares upon the exercise of options or other stock
rights issued pursuant to the Companys equity compensation plans for officers, employees,
and non-employee directors described in the Companys Annual Report on Form 10-K for the
fiscal year ended December 31, 2010 and the Windrose Medical Properties Trust 2002 Stock
Incentive Plan; (c) sell shares of Common Stock pursuant to the Third Amended and Restated
Dividend Reinvestment and Stock Purchase Plan filed with the Commission on May 10, 2010; (d)
issue shares of Common Stock upon conversion of any 4.75% Convertible Senior Notes due 2026,
4.75% Convertible Senior
13
Notes due 2027 and 3.00% Convertible Senior Notes due 2029 outstanding as of the date
hereof; (e) issue shares upon conversion of any of the Companys Series H Preferred Stock or
the New Preferred Stock. Notwithstanding the foregoing, nothing in this paragraph (xiv)
shall restrict the Company from completing the offering of the New Preferred Stock
contemplated to be conducted concurrently with the offering contemplated by this Agreement.
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the
performance of its obligations under this Agreement, including, without limiting the generality of
the foregoing, the following: the fees incident to the issuance and delivery of the Shares;
accounting fees of the Company (accounting fees of FC-GEN Acquisition Holding are to be paid by
FC-GEN pursuant to the Acquisition Agreement); 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 applicable listing agreement for the NYSE; the filing fees of the
Commission; the filing fees and expenses (including legal fees and disbursements) incident to
securing any required review by FINRA of the terms of the sale of the Shares; the fees incident to
the listing of the Shares on the NYSE and the applicable listing agreement with the NYSE. Any
transfer taxes imposed on the sale of the Shares 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 Shares 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 Shares.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters
to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option Closing Date, as the
case may be, of the representations and warranties of the Company contained herein, and to the
performance by the Company of its covenants and obligations hereunder and to the following
additional conditions:
(i) No stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated 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
14
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.
(iii) The Representatives shall have received on the Closing Date and the Option
Closing Date, if any, the opinion of Shumaker, Loop & Kendrick, LLP, counsel for the
Company, dated the Closing Date or the Option Closing Date, as the case may be, and
addressed to the 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 line items Preferred Stock and Common
Stock set forth in the consolidated balance sheet as of December 31, 2010 contained
in the Companys Annual Report on Form 10-K for the year ended December 31, 2010 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; 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 certificates for the Shares or the uncertificated Shares, as the case may be,
are in due and proper form; the shares of Common Stock, including Option Shares, if
any, to be sold by the Company pursuant to this Agreement have been duly authorized
and will be validly issued, fully paid and non-assessable when issued and paid for
as contemplated by this Agreement; and no preemptive or similar rights of
stockholders exist with respect to any of the Shares or the issue and sale thereof.
(d) The Registration Statement has become effective under the Securities Act
and, to such counsels 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, and 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 Registration Statement, the General Disclosure Package and the
Prospectus (other than the financial statements, schedules and other financial or
statistical data included or incorporated by reference therein or omitted therefrom,
as to which such counsel need express no opinion), at the respective times such
documents were filed with the Commission,
15
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 caption 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
Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2010,
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 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 the provisions of 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 consummation of the
transactions herein contemplated, including the issuance and sale of the Shares and
the performance by the Company of its obligations under 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 Companys 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 which 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 Shares conform in all material respects to the descriptions thereof
contained in the Registration Statement, the General Disclosure Package and the
Prospectus.
(m) No approval, consent, order, authorization, designation, declaration or
filing by or with any regulatory, administrative or other governmental body is
necessary
16
in connection with the execution and delivery by the Company of this Agreement and
the performance by the Company of its obligations thereunder (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.
(n) The Company is not, and immediately after the sale of the Shares pursuant
to the terms and conditions of this Agreement will not be, an investment company
within the meaning of the Investment Company Act of 1940.
(o) Any required filing pursuant to Rule 433 under the Securities Act of each
Issuer Free Writing Prospectus that is identified on Schedule III hereto has been
made within the time period required by Rule 433(d) under the Securities Act and any
required filing of the Preliminary Prospectus, the Prospectus and any supplement
thereto pursuant to Rule 424 under the Securities Act has been made in the manner
and within the time period required by Rule 424 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 counsels own review of the Companys
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 counsels review of the Companys 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, 2010, 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,
2011. Furthermore, such counsel shall opine that the statements contained under the heading
Taxation in the Companys Annual Report on Form 10-K for the fiscal year ended December
31, 2010, and any amendments thereto, are correct and accurate in all material respects and
present fairly and accurately the material aspects of the federal income tax (i) treatment
of the Company and (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
17
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 or the Option Closing Date, as
the case may be, 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 that such
counsel need express no view as to financial statements, schedules and other financial data
included therein). 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 from Calfee, Halter & Griswold LLP,
counsel for the Underwriters, on the Closing Date and the Option Closing Date, if any, an
opinion dated the Closing Date or the Option Closing Date, as the case may be, with respect
to the organization of the Company, the validity of the Shares, the Registration Statement,
the 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 they reasonably request to enable them 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 (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 and the Option Closing Date, if any,
(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) At the time of execution of this Agreement, the Representatives shall have
received from KPMG 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 FC-GEN Acquisition Holding as required by
Rule 101 of the Code of Professional Conduct of the AICPA and (b) stating the conclusions
and findings of such firm with respect to the financial information of FC-GEN Acquisition
Holding 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
18
included in accountants comfort letters to underwriters in connection with
registered public offerings.
(viii) With respect to the letter of KPMG LLP referred to in the preceding paragraph
and delivered to the Representatives concurrently with the execution of this Agreement (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 and the Option Closing Date, if any, (a) confirming that
they are an independent registered public accounting firm with respect to FC-GEN Acquisition
Holding as required by Rule 101 of the Code of Professional Conduct of the AICPA, (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.
(ix) The Representatives shall have received on the Closing Date and the Option Closing
Date, if any, 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 or the Option Closing Date, as the case may be,
each of them severally represents as follows:
(a) The Registration Statement has become effective under the 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
or the Option Closing Date, as the case may be, 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.
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(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 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 or the Option Closing Date, as
the case may be, 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 or the Option Closing Date, as the case may be. The representations and
warranties made in this clause (f) shall be deemed made by the Company.
(x) 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 listed on Schedule V 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, swap or otherwise dispose of any shares of Common Stock, securities of the Company
convertible into, exchangeable or exercisable for, or substantially similar to the Common
Stock or on parity with or senior to the Common Stock (with respect to distribution rights
or payments upon the Companys liquidation, dissolution or winding up), 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, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc.,
Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and Wells Fargo 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 prior to or after the date hereof, but in no event shall the
dispositions under this subsection (b) of the Executive Officers exceed 300,000 shares of
Common Stock in the aggregate, and (c) shares obtained pursuant to the Companys equity
compensation plans for officers, employees, and non-employee directors, provided that the
Company shall have delivered to UBS Securities LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Barclays Capital Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities
LLC and Wells Fargo 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.
(xi) The Shares to be sold by the Company as of the Closing Date or the Option Closing
Date, as the case may be, shall have been duly approved for listing, 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 Calfee, Halter & Griswold LLP, counsel for the Underwriters.
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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 Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the Option Closing Date, as the case may
be, no stop order suspending the effectiveness of the Registration Statement shall have been issued
and in effect or proceedings therefor initiated or threatened.
8. Indemnification.
(i) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
as such term is defined in Rule 501(b) under the Securities Act (each, an Affiliate), 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 Affiliate,
officer, director 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 (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 Affiliate,
officer, director or controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such Affiliate, officer, director or 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
21
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 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 all 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
22
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 so reimbursable).
(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 Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8(iii) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the 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 Shares 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
23
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, to UBS Securities LLC, 299 Park Avenue, New York, NY 10171-0026, Attention: Syndicate
Department (Fax: (212) 713-3460), to Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant
Park, New York, New York 10036, Attention: Syndicate Department, with a copy to ECM Legal, to
Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate
Registration, Fax: (646) 834-8133, to Deutsche Bank Securities Inc., 60 Wall Street, 4th Floor, New
York, New York 10005, Attention: Equity Capital Markets with a copy to the General Counsel, to J.P.
Morgan Securities LLC, 383 Madison Avenue, NYC 10179, Attention: Equity Syndicate Desk and to Wells
Fargo Securities, LLC, 375 Park Avenue, New York, New York 10152 Attention: Equity Syndicate; if
to the Company, to Health Care REIT, Inc., 4500 Dorr Street, Toledo, Ohio 43615, 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 or any Option Closing Date (if different from
the Closing Date and then only as to the Option Shares) 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 Shares 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 Shares impracticable or inadvisable,
(c) trading in securities generally on the NYSE, the NYSE Amex Equities or the NASDAQ, or in
the Companys 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
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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 or the Option Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to purchase Shares 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 number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is ten percent or less of the aggregate
number of Shares to be purchased on such date, the other Underwriters may make arrangements
satisfactory to the Representatives for the purchase of such Shares 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 or the Option Closing Date, as the case may be, the
other Underwriters shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in Schedule I hereto bears to the aggregate number of Shares
set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions
as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date or the
Option Closing Date, as the case may be, any Underwriter or Underwriters shall fail or refuse to
purchase Shares and the aggregate number of Shares 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
number of Shares to be purchased, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Shares 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 or the Option Closing, as the case may be, 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 Shares 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 and tenth through
sixteenth paragraphs (provided that, with respect to such sixteenth paragraph, only the Underwriter
that maintains a website through which information relating to the sale of the Shares 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.
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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 Shares
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 Companys securities. The Company
further acknowledges that the Underwriters are acting pursuant to a contractual relationship
created solely by this Agreement entered into on an arms 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
Companys 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 Companys 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
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.]
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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/ George L. Chapman
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Name:
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George L. Chapman
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Title:
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Chairman, Chief Executive Officer and President
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
UBS SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES LLC
WELLS FARGO SECURITIES, LLC
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 DiGia
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Name:
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Robert DiGia
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Title:
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Managing Director
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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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Managing Director
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By:
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By:
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/s/ Gray Hampton
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Name:
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Gray Hampton
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Title:
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Managing Director
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By:
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BARCLAYS CAPITAL INC.
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By:
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/s/ Victoria Hale
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Name:
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Victoria Hale
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Title:
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Vice President
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By:
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DEUTSCHE BANK SECURITIES INC.
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By:
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/s/ Jeremy Fox
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Jeremy Fox
|
|
|
|
|
Title:
|
|
Managing Director
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Frank Windels
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Frank Windels
|
|
|
|
|
Title:
|
|
Director
|
|
|
|
|
|
|
|
|
|
By:
|
|
J.P. MORGAN SECURITIES LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ Thomas Grier
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
Thomas Grier
|
|
|
|
|
Title:
|
|
Managing Director
|
|
|
|
|
|
|
|
|
|
By:
|
|
WELLS FARGO SECURITIES, LLC
|
|
|
|
|
|
|
|
|
|
|
|
By:
|
|
/s/ David Herman
|
|
|
|
|
|
|
|
|
|
|
|
Name:
|
|
David Herman
|
|
|
|
|
Title:
|
|
Director
|
|
|
SCHEDULE I
Schedule of Underwriters
|
|
|
|
|
|
|
Number of
|
|
|
Shares to be
|
Underwriter
|
|
Purchased
|
UBS Securities
LLC
|
|
|
5,500,000
|
|
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
|
|
|
3,250,000
|
|
Barclays Capital
Inc.
|
|
|
3,250,000
|
|
Deutsche Bank Securities Inc.
|
|
|
3,250,000
|
|
J.P. Morgan Securities .LLC
|
|
|
3,250,000
|
|
Wells Fargo Securities, LLC
|
|
|
1,750,000
|
|
KeyBanc Capital Markets Inc.
|
|
|
1,750,000
|
|
Credit Agricole Securities (USA) Inc.
|
|
|
875,000
|
|
Raymond James & Associates, Inc.
|
|
|
625,000
|
|
Stifel, Nicolaus & Company, Incorporated
|
|
|
625,000
|
|
BMO Capital Markets Corp.
|
|
|
250,000
|
|
Morgan Keegan & Company, Inc.
|
|
|
250,000
|
|
RBS Securities
Inc.
|
|
|
125,000
|
|
Comerica Securities, Inc.
|
|
|
125,000
|
|
PNC Capital Markets LLC
|
|
|
125,000
|
|
|
|
|
|
|
Total
|
|
|
25,000,000
|
|
|
|
|
|
|
SCHEDULE II
Public Offering Price Per Share:
$49.25
Number of Shares Subject to the Offering:
25,000,000
New Preferred Stock concurrently offered
:
|
|
Title of Securities
: 6.50% Series I Cumulative Convertible Perpetual Preferred Stock
|
|
|
|
Offering Size
: $625,000,000 (12,500,000 shares)
|
|
|
|
Issue Price/Liquidation Preference
: $50 per share, plus unpaid accumulated and
accrued dividends
|
|
|
|
Initial Conversion Rate
: 0.8460 shares of Common Stock per share of New Preferred
Stock (subject to adjustment).
|
|
|
|
Initial Conversion Price
: Approximately $59.10 per share of Common Stock (subject to
adjustment).
|
SCHEDULE IV
Schedule of Subsidiaries
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
100 Knoedler Road, LLC
|
|
Delaware
|
1011 E. Pecan Grove Road, LLC
|
|
Delaware
|
10225 Cypresswood Drive, LLC
|
|
Delaware
|
111 Lazelle Road East, LLC
|
|
Delaware
|
1118 N. Stoneman Avenue, LLC
|
|
Delaware
|
1205 North Church Street, LLC
|
|
Delaware
|
1221 Seventh Street, LLC
|
|
Delaware
|
12429 Scofield Farms Drive, LLC
|
|
Delaware
|
130 Buena Vista Street, LLC
|
|
Delaware
|
1329 Brown Street, LLC
|
|
Delaware
|
1340 N. Washington Boulevard, LLC
|
|
Delaware
|
1405 Limekiln Pike, LLC
|
|
Delaware
|
1425 Yorkland Road, LLC
|
|
Delaware
|
1460 Johnson Ferry Road, LLC
|
|
Delaware
|
14707 Northville Road, LLC
|
|
Delaware
|
1500 Borden Road, LLC
|
|
Delaware
|
1565 Virginia Ranch Road, LLC
|
|
Delaware
|
1625 W. Spring Street, LLC
|
|
Delaware
|
1710 S.W. Health Parkway, LLC
|
|
Delaware
|
17231 Mill Forest Road, LLC
|
|
Delaware
|
1785 Freshley Avenue, LLC
|
|
Delaware
|
1818 Martin Drive, LLC
|
|
Delaware
|
1850 Crown Park Court, LLC
|
|
Delaware
|
1920 Cleveland Road West, LLC
|
|
Delaware
|
200 E. Village Road, LLC
|
|
Delaware
|
2005 Route 22 West, LLC
|
|
Delaware
|
209 Merriman Road, L.L.C.
|
|
Delaware
|
2101 New Hope Street, LLC
|
|
Delaware
|
222 East Beech Street Jefferson, L.L.C.
|
|
Delaware
|
2281 Country Club Drive, LLC
|
|
Delaware
|
22955 Eastex Freeway, LLC
|
|
Delaware
|
23 Southpointe Drive, LLC
|
|
Delaware
|
2325 Rockwell Drive, LLC
|
|
Delaware
|
2341 W. Norvell Bryant Highway, LLC
|
|
Delaware
|
240 E. Third Street, LLC
|
|
Delaware
|
2416 Brentwood Street, LLC
|
|
Delaware
|
2695 Valleyview Boulevard, LLC
|
|
Delaware
|
2860 Country Drive, LLC
|
|
Delaware
|
311 E. Hawkins Parkway, LLC
|
|
Delaware
|
3200 West Slaughter Lane, LLC
|
|
Delaware
|
3434 Watters Road, LLC
|
|
Delaware
|
350 Locust Drive, LLC
|
|
Delaware
|
36101 Seaside Boulevard, LLC
|
|
Delaware
|
3625 Green Crest Street, LLC
|
|
Delaware
|
3921 North Main Street, LLC
|
|
Delaware
|
402 South Colonial Drive, LLC
|
|
Delaware
|
430 North Union Road, LLC
|
|
Delaware
|
4500 Dorr Street Holdings, LLC
|
|
Delaware
|
4855 Snyder Lane, LLC
|
|
Delaware
|
500 Seven Fields Boulevard, LLC
|
|
Delaware
|
515 Jack Martin Boulevard, LLC
|
|
Delaware
|
5165 Summit Ridge Court, LLC
|
|
Delaware
|
5166 Spanson Drive SE, LLC
|
|
Delaware
|
5437 Eisenhauer Road, LLC
|
|
Delaware
|
5521 Village Creek Drive, LLC
|
|
Delaware
|
5550 Old Jacksonville Highway, LLC
|
|
Delaware
|
5700 Karl Road, LLC
|
|
Delaware
|
5902 North Street, LLC
|
|
Delaware
|
655 Mansell Road, LLC
|
|
Delaware
|
721 Hickory Street, LLC
|
|
Delaware
|
7231 East Broadway, LLC
|
|
Delaware
|
731 Old Buck Lane, LLC
|
|
Delaware
|
750 North Collegiate Drive, LLC
|
|
Delaware
|
7950 Baybranch Drive, LLC
|
|
Delaware
|
799 Yellowstone Drive, LLC
|
|
Delaware
|
800 Oregon Street, LLC
|
|
Delaware
|
8503 Mystic Park, LLC
|
|
Delaware
|
8702 South Course Drive, LLC
|
|
Delaware
|
935 Union Lake Road, LLC
|
|
Delaware
|
965 Hager Drive, LLC
|
|
Delaware
|
9802 48th Drive NE, LLC
|
|
Delaware
|
AMCO I, LLC
|
|
Wisconsin
|
Anchor HCN Doylestown, LLC
|
|
Delaware
|
Anchor HCN Properties II, LLC
|
|
Delaware
|
Anchor HCN Properties, LLC
|
|
Delaware
|
Badger RE Portfolio I, LLC
|
|
Wisconsin
|
Badger RE Portfolio II, LLC
|
|
Wisconsin
|
Badger RE Portfolio III, LLC
|
|
Wisconsin
|
Badger RE Portfolio IV, LLC
|
|
Wisconsin
|
Badger RE Portfolio V, LLC
|
|
Wisconsin
|
BAL Colts Neck LLC
|
|
Delaware
|
BAL Fenwick Island LLC
|
|
Delaware
|
BAL Governors Crossing LLC
|
|
Delaware
|
BAL Holdings I, LLC
|
|
Delaware
|
BAL Holdings II, LLC
|
|
Delaware
|
BAL Holdings III, LLC
|
|
Delaware
|
BAL Holdings VII, LLC
|
|
Delaware
|
BAL Howell LLC
|
|
Delaware
|
BAL Longwood LLC
|
|
Pennsylvania
|
BAL Reflections LLC
|
|
Delaware
|
BAL Savoy Little Neck LLC
|
|
Delaware
|
BAL Sycamore LLC
|
|
Delaware
|
BAL Toms River LLC
|
|
Delaware
|
Ballard Healthcare Investors, LLC
|
|
Delaware
|
Bardstown Physicians LLC
|
|
Delaware
|
Bellevue Healthcare Properties, LLC
|
|
Delaware
|
Bellevue Physicians, LLC
|
|
Delaware
|
Boardman Physicians LLC
|
|
Delaware
|
Brandall Central Avenue, LLC
|
|
Delaware
|
Bridgeton Healthcare Investors, LLC
|
|
Delaware
|
Brierbrook Partners, L.L.C.
|
|
Tennessee
|
BSL Huntington Terrace LLC
|
|
Delaware
|
CAL-GAT Limited Partnership
|
|
Florida
|
CAL-LAK Limited Partnership
|
|
Florida
|
Cooper Holding, L.L.C.
|
|
Florida
|
Cooper, L.L.C.
|
|
Delaware
|
CRP/BWN Litchfield L.L.C.
|
|
Delaware
|
DePaul Physicians, LLC
|
|
Delaware
|
DRF Boardman LLC
|
|
Minnesota
|
DRF Bridgeton LLC
|
|
Minnesota
|
DRF Durango LLC
|
|
Minnesota
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
DRF Great Falls LLC
|
|
Minnesota
|
DRF Lenexa LLC
|
|
Minnesota
|
DRF Lincoln LLC
|
|
Minnesota
|
DRF LSL LLC
|
|
Minnesota
|
DRF Shawnee Mission LLC
|
|
Minnesota
|
DRF South Valley LLC
|
|
Minnesota
|
DRF Southwest Medical Building LLC
|
|
Minnesota
|
DRF Westminster LLC
|
|
Minnesota
|
DSG-2010 Loans I, Inc.
|
|
Delaware
|
Dublin Senior Community DRV, LLC
|
|
Oklahoma
|
Dublin Senior Community WPP, LLC
|
|
Oklahoma
|
FC HCN University Park, LLC
|
|
Delaware
|
FLA-PALM COURT, limited partnership
|
|
Florida
|
Forest City 40 Landsdowne, LLC
|
|
Delaware
|
Forest City 88 Sidney Street, LLC
|
|
Delaware
|
Frauenshuh Ballard LLC
|
|
Minnesota
|
Frauenshuh Bridgeton LLC
|
|
Minnesota
|
Frauenshuh Greeneville LLC
|
|
Minnesota
|
Frauenshuh HealthCare Properties, LLC
|
|
Delaware
|
Frauenshuh HealthCare Real Estate Solutions, LLC
|
|
Minnesota
|
Frauenshuh HealthCare Venture Properties, LLC
|
|
Delaware
|
Frauenshuh Killeen LLC
|
|
Minnesota
|
Gemini Davenport, LLC
|
|
Oklahoma
|
Gemini Las Colinas, L.L.C.
|
|
Oklahoma
|
Gemini Romeoville, LLC
|
|
Oklahoma
|
Gemini SS Lessee, LLC
|
|
Oklahoma
|
Gemini Villa Ventura, L.L.C.
|
|
Oklahoma
|
Gemini Wexford, L.L.C.
|
|
Oklahoma
|
Gig Harbor Physicians, LLC
|
|
Delaware
|
Grand Ledge I, LLC
|
|
Delaware
|
Great Falls Clinic Frauenshuh, LLC
|
|
Minnesota
|
Greeneville Healthcare Investors, LLC
|
|
Delaware
|
Hammes Company Green Bay I, LLC
|
|
Wisconsin
|
Hammes Company Green Bay II, LLC
|
|
Wisconsin
|
HC Mill Creek I, LLC
|
|
Washington
|
HC Redmond I, LLC
|
|
Wisconsin
|
HC Summit I, LLC
|
|
Wisconsin
|
HCN Access Holdings, LLC
|
|
Delaware
|
HCN Access Las Vegas I, LLC
|
|
Delaware
|
HCN Anchor Covington, LLC
|
|
Delaware
|
HCN BCC Holdings, Inc.
|
|
Delaware
|
HCN Capital Holdings, LLC
|
|
Delaware
|
HCN Development Services Group, Inc.
|
|
Indiana
|
HCN Emerald Holdings, LLC
|
|
Delaware
|
HCN FCE Life Sciences, LLC
|
|
Delaware
|
HCN Interra Lake Travis LTACH, LLC
|
|
Delaware
|
HCN Lake Travis Holdings, LLC
|
|
Delaware
|
HCN Lake Travis Property One, LLC
|
|
Delaware
|
HCN Lake Travis Property Two, LLC
|
|
Delaware
|
HCN Medicus Holdings, LLC
|
|
Delaware
|
HCN Navvis Clarkson Valley, LLC
|
|
Delaware
|
HCN Rendina Holdings, LLC
|
|
Delaware
|
HCN Rendina Merced, LLC
|
|
Delaware
|
HCN-TH Wisconsin I, LLC
|
|
Delaware
|
HCN-TH Wisconsin II, LLC
|
|
Delaware
|
HCN-TH Wisconsin III, LLC
|
|
Delaware
|
HCN-TH Wisconsin IV, LLC
|
|
Delaware
|
HCN-TH Wisconsin V, LLC
|
|
Delaware
|
HCN-TH Wisconsin VI, LLC
|
|
Delaware
|
HCN-TH Wisconsin VII, LLC
|
|
Delaware
|
HCN-TH Wisconsin VIII, LLC
|
|
Delaware
|
HCRE Solutions, LLC
|
|
Delaware
|
HCRI Abingdon Holdings, Inc.
|
|
North Carolina
|
HCRI Abingdon Properties, LP
|
|
North Carolina
|
HCRI Akron Properties, LLC
|
|
Delaware
|
HCRI Ancillary TRS, Inc.
|
|
Delaware
|
HCRI Asheboro Holdings, Inc.
|
|
North Carolina
|
HCRI Asheboro Properties, LP
|
|
North Carolina
|
HCRI Beachwood, Inc.
|
|
Ohio
|
HCRI Boardman Properties, LLC
|
|
Delaware
|
HCRI Broadview, Inc.
|
|
Ohio
|
HCRI Burlington Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Burlington Manor Properties, LP
|
|
North Carolina
|
HCRI Cold Spring Properties, LLC
|
|
Delaware
|
HCRI Concord Place Holdings, Inc.
|
|
North Carolina
|
HCRI Concord Place Properties, LP
|
|
North Carolina
|
HCRI Cumberland Properties, LLC
|
|
Delaware
|
HCRI Dayton Place Denver Properties, LLC
|
|
Delaware
|
HCRI Draper Place Properties Trust
|
|
Massachusetts
|
HCRI Drum Hill Properties, LLC
|
|
Delaware
|
HCRI Eddy Pond Properties Trust
|
|
Massachusetts
|
HCRI Eden Holdings, Inc.
|
|
North Carolina
|
HCRI Eden Properties, LP
|
|
North Carolina
|
HCRI Emerald Holdings, LLC
|
|
Delaware
|
HCRI Exchange Management I, LLC
|
|
Delaware
|
HCRI Exchange Properties I, LLC
|
|
Delaware
|
HCRI Fairmont Properties, LLC
|
|
Delaware
|
HCRI Financial Services, LLC
|
|
Delaware
|
HCRI Financing, Inc.
|
|
Delaware
|
HCRI Forest City Holdings, Inc.
|
|
North Carolina
|
HCRI Forest City Properties, LP
|
|
North Carolina
|
HCRI Gaston Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Gaston Manor Properties, LP
|
|
North Carolina
|
HCRI Greenville Holdings, Inc.
|
|
North Carolina
|
HCRI Greenville Properties, LP
|
|
North Carolina
|
HCRI High Point Manor Holdings, Inc.
|
|
North Carolina
|
HCRI High Point Manor Properties, LP
|
|
North Carolina
|
HCRI Holdings Trust
|
|
Massachusetts
|
HCRI Hunters Glen Properties, LLC
|
|
Delaware
|
HCRI Illinois Properties II, LLC
|
|
Delaware
|
HCRI Illinois Properties, LLC
|
|
Delaware
|
HCRI Indiana Properties, Inc.
|
|
Delaware
|
HCRI Indiana Properties, LLC
|
|
Indiana
|
HCRI Investments, Inc.
|
|
Delaware
|
HCRI Kansas Properties, LLC
|
|
Delaware
|
HCRI Kentucky Properties, LLC
|
|
Kentucky
|
HCRI Kirkland Properties, LLC
|
|
Delaware
|
HCRI Limited Holdings, Inc.
|
|
Delaware
|
HCRI Logistics, Inc.
|
|
Delaware
|
HCRI Louisiana Properties, L.P.
|
|
Delaware
|
HCRI Marina Place Properties Trust
|
|
Massachusetts
|
HCRI Maryland Properties, LLC
|
|
Maryland
|
HCRI Massachusetts Properties Trust
|
|
Massachusetts
|
HCRI Massachusetts Properties Trust II
|
|
Massachusetts
|
HCRI Massachusetts Properties, Inc.
|
|
Delaware
|
HCRI Merrillville Medical Facility, LLC
|
|
Delaware
|
HCRI Mississippi Properties, Inc.
|
|
Mississippi
|
HCRI Missouri Properties, LLC
|
|
Delaware
|
HCRI Nevada Properties, Inc.
|
|
Nevada
|
HCRI New Hampshire Properties, LLC
|
|
Delaware
|
HCRI North Carolina Properties I, Inc.
|
|
North Carolina
|
HCRI North Carolina Properties II, Inc.
|
|
North Carolina
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
HCRI North Carolina Properties III, Limited Partnership
|
|
North Carolina
|
HCRI North Carolina Properties, LLC
|
|
Delaware
|
HCRI Pennsylvania Properties, Inc.
|
|
Pennsylvania
|
HCRI Prestonwood Medical Facility, LLC
|
|
Delaware
|
HCRI Provider Properties, LLC
|
|
Delaware
|
HCRI Ridgeland Pointe Properties, LLC
|
|
Delaware
|
HCRI Senior Housing Properties, Inc.
|
|
Delaware
|
HCRI Skeet Club Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Skeet Club Manor Properties, LP
|
|
North Carolina
|
HCRI Smithfield Holdings, Inc.
|
|
North Carolina
|
HCRI Smithfield Properties, LP
|
|
North Carolina
|
HCRI Southern Investments I, Inc.
|
|
Delaware
|
HCRI Statesville Place Holdings I, Inc.
|
|
North Carolina
|
HCRI Statesville Place Holdings II, Inc.
|
|
North Carolina
|
HCRI Statesville Place Properties I, LP
|
|
North Carolina
|
HCRI Statesville Place Properties II, LP
|
|
North Carolina
|
HCRI Summit Properties, LLC
|
|
Delaware
|
HCRI Tallahassee Medical Facility, LLC
|
|
Delaware
|
HCRI Tennessee Properties, Inc.
|
|
Delaware
|
HCRI Tennessee Properties, LLC
|
|
Delaware
|
HCRI Texas Properties, Inc.
|
|
Delaware
|
HCRI Texas Properties, Ltd.
|
|
Texas
|
HCRI TRS Acquirer II, LLC
|
|
Delaware
|
HCRI TRS Acquirer, LLC
|
|
Delaware
|
HCRI Tucson Properties, Inc.
|
|
Delaware
|
HCRI Van Nuys Medical Facility, LLC
|
|
Delaware
|
HCRI Weddington Park Holdings, Inc.
|
|
North Carolina
|
HCRI Weddington Park Properties, LP
|
|
North Carolina
|
HCRI Westlake, Inc.
|
|
Ohio
|
HCRI Wilburn Gardens Properties, LLC
|
|
Delaware
|
HCRI Wisconsin Properties, LLC
|
|
Wisconsin
|
Healthcare Property Managers of America, LLC
|
|
Florida
|
Heat Merger Sub, LLC
|
|
Delaware
|
Heat OP TRS, Inc.
|
|
Delaware
|
HH Florida, LLC
|
|
Delaware
|
Kaiser Gemini Burgundy, LLC
|
|
Oklahoma
|
Kaiser Gemini Woodland, LLC
|
|
Oklahoma
|
Killeen Healthcare Investors, LLC
|
|
Delaware
|
Lake Mead Medical Investors Limited Partnership
|
|
Florida
|
Lenexa Investors, LLC
|
|
Delaware
|
Med Properties Asset Group, L.L.C.
|
|
Indiana
|
Medical Real Estate Property Managers
of America, LLC
|
|
Florida
|
Merrill Gardens Harbor Court, LLC
|
|
Washington
|
Merrill Gardens Windsor Manor, LLC
|
|
Washington
|
MG Landlord, LLC
|
|
Delaware
|
MG Tenant, LLC
|
|
Delaware
|
MGP 41, LLC
|
|
Delaware
|
MGP 42, LLC
|
|
Delaware
|
MGP 43, LLC
|
|
Delaware
|
MGP I, LLC
|
|
Washington
|
MGP V, LLC
|
|
Washington
|
MGP VI, LLC
|
|
Washington
|
MGP X, LLC
|
|
Wisconsin
|
MGP XI, LLC
|
|
Wisconsin
|
MGP XII, LLC
|
|
Wisconsin
|
MGP XIII, LLC
|
|
Wisconsin
|
MGP XIV, LLC
|
|
Wisconsin
|
MGP XIX, LLC
|
|
Washington
|
MGP XL, LLC
|
|
Washington
|
MGP XV, LLC
|
|
Wisconsin
|
MGP XVI, LLC
|
|
Wisconsin
|
MGP XVII, LLC
|
|
Washington
|
MGP XXIX, LLC
|
|
Washington
|
MGP XXV, LLC
|
|
Washington
|
MGP XXXII, LLC
|
|
Washington
|
MGP XXXIII, LLC
|
|
Washington
|
MGP XXXIX, LLC
|
|
Washington
|
MGP XXXVII, LLC
|
|
Washington
|
MGP XXXVIII, LLC
|
|
Washington
|
Midland I, LLC
|
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Delaware
|
Midwest 108th & Q, LLC
|
|
Delaware
|
Midwest Ames, LLC
|
|
Delaware
|
Midwest Miracle Hills, LLC
|
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Delaware
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Midwest Prestwick, LLC
|
|
Delaware
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Midwest Van Dorn, LLC
|
|
Delaware
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Midwest Village of Columbus, LLC
|
|
Delaware
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Midwest Windermere, LLC
|
|
Delaware
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Midwest Woodbridge, LLC
|
|
Delaware
|
Mill Creek Real Estate Partners, LLC
|
|
Delaware
|
MIMA Real Estate, L.L.C.
|
|
Florida
|
Murrieta Healthcare Investors, LLC
|
|
Delaware
|
Murrieta Healthcare Properties, LLC
|
|
Delaware
|
Paramount Real Estate Services, Inc.
|
|
Delaware
|
Pennsylvania BCC Properties, Inc.
|
|
Pennsylvania
|
Petoskey I, LLC
|
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Delaware
|
Petoskey II, LLC
|
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Delaware
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Plymouth I, LLC
|
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Delaware
|
PVL Landlord Hattiesburg, LLC
|
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Delaware
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PVL Landlord STL Hills, LLC
|
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Delaware
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PVL Tenant STL Hills, LLC
|
|
Delaware
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PVL Tenant- Hattiesburg, LLC
|
|
Delaware
|
Redmond Partners, LLC
|
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Delaware
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Senior Star Investments I, LLC
|
|
Delaware
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Senior Star Tenant, LLC
|
|
Delaware
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Shawnee Mission Investors, LLC
|
|
Delaware
|
Silverado Senior Living Alhambra, Inc.
|
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California
|
Silverado Senior Living Azusa, Inc.
|
|
California
|
Silverado Senior Living Costa Mesa, Inc.
|
|
California
|
Silverado Senior Living Dallas, Inc.
|
|
Delaware
|
Silverado Senior Living Encinitas, Inc.
|
|
California
|
Silverado Senior Living Escondido, Inc.
|
|
California
|
Silverado Senior Living Houston, Inc.
|
|
Delaware
|
Silverado Senior Living Las Colinas, Inc.
|
|
Delaware
|
Silverado Senior Living Los Angeles, Inc.
|
|
California
|
Silverado Senior Living of Cypresswood, Inc.
|
|
Delaware
|
Silverado Senior Living of Kingwood, Inc.
|
|
Delaware
|
Silverado Senior Living of Sugarland, Inc.
|
|
Delaware
|
Silverado Senior Living of Woodlands, Inc.
|
|
Delaware
|
Silverado Senior Living Properties, Inc.
|
|
Delaware
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Silverado Senior Living Redondo Beach, Inc.
|
|
California
|
Silverado Senior Living Salt Lake City, Inc.
|
|
Delaware
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Silverado Senior Living San Juan Capistrano, Inc.
|
|
California
|
Silverado Senior Living Scottsdale, Inc.
|
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Delaware
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Silverado Senior Living Turtle Creek, Inc.
|
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Delaware
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Silverado Senior Living Tustin, Inc.
|
|
California
|
Silverado Senior Living, Inc.
|
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California
|
South Valley Medical Building L.L.C.
|
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Minnesota
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South Valley Venture, LLC
|
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Minnesota
|
SSL Aspen Park SPE, LLC
|
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Delaware
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SSL Landlord, LLC
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Delaware
|
|
|
|
|
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State of
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Name of Subsidiary
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Organization
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SSL Sponsor, LLC
|
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Delaware
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SSL Tenant, LLC
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Delaware
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St. Joseph Physicians, LLC
|
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Delaware
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Stafford Medical Office Pavilion, LLC
|
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Delaware
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Subtenant 10225 Cypresswood Drive, LLC
|
|
Delaware
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Subtenant 1118 N. Stoneman Avenue, LLC
|
|
Delaware
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Subtenant 1221 Seventh Street, LLC
|
|
Delaware
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Subtenant 125 W. Sierra Madre Avenue, LLC
|
|
Delaware
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Subtenant 1430 East 4500 South, LLC
|
|
Delaware
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Subtenant 1500 Borden Road, LLC
|
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Delaware
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Subtenant 22955 Eastex Freeway, LLC
|
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Delaware
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Subtenant 240 E. Third Street, LLC
|
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Delaware
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Subtenant 30311 Camino Capistrano, LLC
|
|
Delaware
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Subtenant 330 North Hayworth Avenue, LLC
|
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Delaware
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Subtenant 335 Saxony Road, LLC
|
|
Delaware
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Subtenant 350 W. Bay Street, LLC
|
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Delaware
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Subtenant 3611 Dickason Avenue, LLC
|
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Delaware
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Subtenant 514 N. Prospect Avenue, LLC
|
|
Delaware
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Subtenant 5521 Village Creek Drive, LLC
|
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Delaware
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Subtenant 7950 Baybranch Drive, LLC
|
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Delaware
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Subtenant 8855 West Valley Ranch Parkway, LLC
|
|
Delaware
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Subtenant 9410 E. Thunderbird, LLC
|
|
Delaware
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Voorhees Healthcare Properties, LLC
|
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Delaware
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Voorhees Physicians, LLC
|
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Delaware
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Warrior LP Holdco, LLC
|
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Delaware
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Waterstone I, LLC
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Delaware
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West Boynton Investors, LLLP
|
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Florida
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Westminster Junction Venture, LLC
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Minnesota
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White Lake I, LLC
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Delaware
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Windrose 310 Properties, L.L.C.
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Tennessee
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Windrose 4475 Sierra Properties, L.L.C.
|
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Delaware
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Windrose Aberdeen I Properties, L.L.C.
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Florida
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Windrose Aberdeen II Properties, L.L.C.
|
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Delaware
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Windrose Atrium Properties, L.L.C.
|
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Delaware
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Windrose AWPC II Properties, LLC
|
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Delaware
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Windrose AZ-Tempe Properties, LLC
|
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Delaware
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Windrose Bartlett Properties, LLC
|
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Delaware
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Windrose Bethesda Properties, LLC
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Delaware
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Windrose Biltmore Properties, L.L.C.
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Virginia
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Windrose Central Medical II Properties, L.L.C.
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Virginia
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Windrose Central Medical III Properties, L.L.C.
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Virginia
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Windrose Central Medical Properties, L.L.C.
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Delaware
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Windrose Claremore Properties, LLC
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Delaware
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Windrose Columbia Properties, Ltd.
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Florida
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Windrose Congress I Properties, L.P.
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Delaware
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Windrose Congress II Properties, L.P.
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Delaware
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Windrose Copley Properties, L.L.C.
|
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Virginia
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Windrose Coral Springs Properties, L.L.C.
|
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Virginia
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Windrose Cottonwood Properties, LLC
|
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Delaware
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Windrose Denton Properties, LLC
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Delaware
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Windrose Desert Springs Properties, L.P.
|
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Delaware
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Windrose East Valley Properties, LLC
|
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Delaware
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Windrose East West Properties, L.L.C.
|
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Virginia
|
Windrose Fayetteville Properties, L.L.C.
|
|
Delaware
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Windrose Fox Valley Properties, L.L.C.
|
|
Virginia
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Windrose Frisco I Properties, LLC
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Delaware
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Windrose Frisco II Properties, LLC
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Delaware
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Windrose Glendale Properties, LLC
|
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Delaware
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Windrose Gwinnett I Properties, L.L.C.
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Virginia
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Windrose Lafayette Properties, L.L.C.
|
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Delaware
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Windrose Lake Mead Properties, L.L.C.
|
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Virginia
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Windrose Lakewood Properties, L.L.C.
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Virginia
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Windrose Las Vegas Properties, LLC
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Delaware
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Windrose Los Alamitos Properties, LLC
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Delaware
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Windrose Los Gatos Properties, L.L.C.
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Virginia
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Windrose Medical Properties Management, L.L.C.
|
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Virginia
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Windrose Medical Properties, L.P.
|
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Virginia
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Windrose Mount Vernon Properties, L.L.C.
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Virginia
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Windrose Niagara Falls Properties, LLC
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Delaware
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Windrose Northside Properties, Ltd.
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Florida
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Windrose Northwest Professional Plaza Properties, LLC
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Delaware
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Windrose Ocala Urology Properties, L.L.C.
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Virginia
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Windrose Okatie I Properties, LLC
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Delaware
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Windrose Orange Centre Properties, LLC
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Delaware
|
Windrose Orange Properties, L.L.C.
|
|
Delaware
|
Windrose Palm Court Properties, L.L.C.
|
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Virginia
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Windrose Palmer Properties, LLC
|
|
Delaware
|
Windrose Palms West III Properties, Ltd.
|
|
Florida
|
Windrose Palms West IV Properties, Ltd.
|
|
Florida
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Windrose Palms West V Properties, Ltd.
|
|
Florida
|
Windrose Park Medical Properties, L.L.C.
|
|
Virginia
|
Windrose Partell Medical Center, L.L.C.
|
|
Virginia
|
Windrose Physicians Plaza Properties, LLC
|
|
Delaware
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Windrose Princeton Properties, L.L.C.
|
|
Delaware
|
Windrose Santa Anita Properties, L.L.C.
|
|
Delaware
|
Windrose Sierra Properties, Ltd.
|
|
Florida
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Windrose Southlake Properties, LLC
|
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Delaware
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Windrose Southpointe Properties, L.L.C.
|
|
Delaware
|
Windrose Southside Properties, Ltd.
|
|
Florida
|
Windrose SPE Mount Vernon Properties, Inc.
|
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Georgia
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Windrose St. Louis I Properties, LLC
|
|
Delaware
|
Windrose St. Marys Medical Professional
Building, L.L.C.
|
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Virginia
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Windrose Trussville Properties, L.L.C.
|
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Delaware
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Windrose TSM I Properties, LLC
|
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Delaware
|
Windrose Tucson Properties, LLC
|
|
Delaware
|
Windrose Tulsa Properties, L.L.C.
|
|
Delaware
|
Windrose Union City Properties, L.L.C.
|
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Virginia
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Windrose Webster Properties, L.P.
|
|
Delaware
|
Windrose Wellington Properties, LLC
|
|
Delaware
|
Windrose Wellington Properties, Ltd.
|
|
Florida
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Windrose West Boca Properties, Ltd.
|
|
Florida
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Windrose West Seneca Properties, LLC
|
|
Delaware
|
Windrose West Tower Properties, Ltd.
|
|
Florida
|
Windrose Winn Way Properties, L.L.C.
|
|
Virginia
|
Windrose WPC Jupiter Properties, LLC
|
|
Delaware
|
Windrose WPC Properties, L.P.
|
|
Delaware
|
Windrose Yorkville Properties, L.L.C.
|
|
Virginia
|
WMP AWPC II Management, LLC
|
|
Delaware
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WMP Bethesda Management, LLC
|
|
Delaware
|
WMP Boynton Beach Management, LLC
|
|
Delaware
|
WMP Cottonwood Management, LLC
|
|
Delaware
|
WMP East Valley Management, LLC
|
|
Delaware
|
WMP Niagara Falls Management, LLC
|
|
Delaware
|
WMP Northwest Professional Plaza Management, LLC
|
|
Delaware
|
WMP Physicians Plaza Management, LLC
|
|
Delaware
|
WMP Southlake Management, LLC
|
|
Delaware
|
WMP TSM I Management, LLC
|
|
Delaware
|
WMP Wellington Management, LLC
|
|
Delaware
|
WMP West Seneca Management, LLC
|
|
Delaware
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
WMPT Aberdeen I Management, L.L.C.
|
|
Delaware
|
WMPT Aberdeen II Management, L.L.C.
|
|
Delaware
|
WMPT Atrium Management, L.L.C.
|
|
Delaware
|
WMPT AZ-Tempe Management, LLC
|
|
Delaware
|
WMPT Bartlett Management, LLC
|
|
Delaware
|
WMPT Bellaire HP Properties, L.L.C.
|
|
Virginia
|
WMPT Bellaire HP, L.P.
|
|
Virginia
|
WMPT Bellaire L.P.
|
|
Virginia
|
WMPT Bellaire POB Properties, L.L.C.
|
|
Virginia
|
WMPT Bellaire POB, L.P.
|
|
Virginia
|
WMPT Bellaire Properties, L.L.C.
|
|
Virginia
|
WMPT Boynton West Management, LLC
|
|
Delaware
|
WMPT Claremore Management, LLC
|
|
Delaware
|
WMPT Columbia Management, L.L.C.
|
|
Delaware
|
WMPT Congress I Management, L.L.C.
|
|
Delaware
|
WMPT Congress II Management, L.L.C.
|
|
Delaware
|
WMPT Denton Management, LLC
|
|
Delaware
|
WMPT Desert Springs Management, L.L.C.
|
|
Delaware
|
WMPT Frisco I Management, LLC
|
|
Delaware
|
WMPT Frisco II Management, LLC
|
|
Delaware
|
WMPT Glendale Management, LLC
|
|
Delaware
|
WMPT Gwinnett II Properties, L.L.C.
|
|
Delaware
|
WMPT Lafayette Management, L.L.C.
|
|
Delaware
|
WMPT Las Vegas Management, LLC
|
|
Delaware
|
WMPT Los Alamitos Management, LLC
|
|
Delaware
|
WMPT Northside Management, L.L.C.
|
|
Delaware
|
WMPT Okatie I Management, LLC
|
|
Delaware
|
WMPT Orange Centre Management, LLC
|
|
Delaware
|
WMPT Palmer Management, LLC
|
|
Delaware
|
WMPT Palms West III Management, L.L.C.
|
|
Delaware
|
WMPT Palms West IV Management, L.L.C.
|
|
Delaware
|
WMPT Palms West V Management, L.L.C.
|
|
Delaware
|
WMPT Pearland II Properties, L.L.C.
|
|
Virginia
|
WMPT Pearland II, L.P.
|
|
Virginia
|
WMPT Pearland Properties, L.L.C.
|
|
Virginia
|
WMPT Pearland, L.P.
|
|
Virginia
|
WMPT Princeton Management, L.L.C.
|
|
Delaware
|
WMPT Sacramento Properties, L.L.C.
|
|
Virginia
|
WMPT Sacramento, L.P.
|
|
Virginia
|
WMPT Santa Anita Management, L.L.C.
|
|
Delaware
|
WMPT Sierra Management, L.L.C.
|
|
Delaware
|
WMPT Southpointe Management, L.L.C.
|
|
Delaware
|
WMPT Southside Management, L.L.C.
|
|
Delaware
|
WMPT St. Louis I Management, LLC
|
|
Delaware
|
WMPT Stone Oak Properties, L.L.C.
|
|
Virginia
|
WMPT Stone Oak, L.P.
|
|
Virginia
|
WMPT Tomball Properties, L.L.C.
|
|
Virginia
|
WMPT Tomball, L.P.
|
|
Virginia
|
WMPT Trinity Properties, L.L.C.
|
|
Virginia
|
WMPT Trinity, L.P.
|
|
Virginia
|
WMPT Trussville Management, L.L.C.
|
|
Delaware
|
WMPT Tucson Management, LLC
|
|
Delaware
|
WMPT Tulsa Management, L.L.C.
|
|
Delaware
|
WMPT Webster Management, L.L.C.
|
|
Delaware
|
WMPT Wellington Management, L.L.C.
|
|
Delaware
|
WMPT West Boca Management, L.L.C.
|
|
Delaware
|
WMPT West Tower Management, L.L.C.
|
|
Delaware
|
WMPT WPC Jupiter Management, LLC
|
|
Delaware
|
WMPT WPC Management, L.L.C
|
|
Delaware
|
WTP Healthcare Properties, LLC
|
|
Delaware
|
SCHEDULE V
Executive Officers
George L. Chapman
Charles J. Herman, Jr.
Jeffrey H. Miller
Scott A. Estes
Erin C. Ibele
Daniel R. Loftus
Michael A. Crabtree
John T. Thomas
Exhibit 1.2
Execution copy
12,500,000 Shares
HEALTH CARE REIT, INC.
6.50% Series I Cumulative Convertible Perpetual Preferred Stock
($1.00 Par Value)
UNDERWRITING AGREEMENT
March 1, 2011
UBS Securities LLC
Merrill Lynch, Pierce, Fenner & Smith
Incorporated
Barclays Capital Inc.
Deutsche Bank Securities Inc.
J.P. Morgan Securities LLC
Wells Fargo Securities, LLC
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), an aggregate of 12,500,000 shares (the Firm Shares) of
the Companys 6.50% Series I Cumulative Convertible Perpetual Preferred Stock, $1.00 par value per
share (the Preferred Stock). The Company also proposes to sell at the Underwriters option an
aggregate of up to 1,875,000 additional shares of the Companys Preferred Stock (the Option
Shares) as set forth below. The Preferred Stock shall be convertible into shares (the Conversion
Shares) of the Companys Common Stock, $1.00 par value per share (the Common Stock). The
dividend payment dates, conversion provisions, rank and other terms of the Preferred Stock are set
forth in the Certificate of Designation relating to the Preferred Stock (the Certificate) to be
filed with Secretary of State of Delaware (the Secretary). It is understood that the Company
proposes, and is concurrently entering into an agreement, subject to the terms and conditions
stated therein to issue and sell to the underwriters named therein, an aggregate of 25,000,000
shares (or 28,750,000 shares if the underwriters exercise their overallotment option in full) of
Common Stock. This offering is not conditioned on the completion of the offering of Common Stock
and the offering of Common Stock is not conditioned on the completion of this offering.
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 Firm Shares set forth in Schedule I hereto, plus such Option Shares if the
Underwriters elect to exercise the over-allotment option in whole or in part for the account of the
Underwriters. The Firm Shares and the Option Shares (to the extent such option is exercised) are
herein collectively sometimes referred to as the Shares.
The Company has entered into a purchase agreement dated as of February 28, 2011 (the
Acquisition Agreement) among the Company, FC-GEN Investment, LLC (FC-GEN) and FC-GEN
Operations Investment, LLC, pursuant to which the Company will purchase (the Acquisition) 100% of
the equity interests of FC-GEN Acquisition Holding, LLC (FC-GEN Acquisition Holding), which
indirectly owns senior housing and care facilities.
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 of the date hereof, as of the Applicable Time (as defined below) and as of the
Closing Date (as defined below) 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 Shares and the Conversion Shares, 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 Shares and the Conversion Shares 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 Shares and the Conversion Shares
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 Shares 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, the
Statutory Prospectus (as defined below) and the information included on Schedule II hereto,
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
2
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 11:20 p.m. (New York time) on the date of this Agreement 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 Shares 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
Companys records pursuant to Rule 433(g) under the Securities Act.
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 and each of its Subsidiaries (as defined below) has been duly
organized and is validly existing as a corporation, limited liability company or limited
partnership, as the case may be, in good standing under the laws of the jurisdiction of its
organization, 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 and each of its Subsidiaries 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, taken as a whole or (b) prevent or materially interfere
with the consummation of the transactions contemplated by this Agreement (each of (a) and
(b) above, a Material Adverse Effect). All of the Companys subsidiaries are listed in
Schedule IV hereto (the Subsidiaries).
(iv) The information contained in the line items Preferred Stock and Common Stock
set forth in the consolidated balance sheet as of December 31, 2010 contained in the
Companys Annual Report on Form 10-K for the year ended December 31, 2010 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) 472,986 shares of Common Stock under the Companys Dividend
Reinvestment and Stock Purchase Plan, as amended, (b) 193,707 shares of Common Stock under
the Companys Amended and Restated 2005 Long-Term Incentive Plan, and (c) 349,854 shares of
the Companys Series H Convertible Preferred Stock, there has been no material change in
such information since December 31, 2010; 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; the shares of Common Stock of the Company are duly listed on the New York
Stock Exchange (NYSE); the Shares to be issued and sold by the Company have been duly
authorized and when issued and paid for as contemplated herein will be validly issued,
fully-paid and non-assessable;
3
and no preemptive or similar rights of stockholders exist with respect to any of the Shares
or the issue and sale thereof. The Conversion Shares have been duly authorized and reserved
for issuance by the Company and, when issued and delivered upon conversion and in accordance
with the Certificate, will be validly issued, fully paid and non-assessable, and no
preemptive or similar rights of stockholders will exist with respect to any of the
Conversion Shares or the issuance thereof.
(v) The shares of authorized capital stock of the Company, including the Shares and the
Conversion Shares, conform in all material respects with the statements concerning them in
the Registration Statement, the General Disclosure Package and the Prospectus. The Shares
conform to the provisions of the Certificate and the relative rights, preferences, interests
and powers of such Shares are as set forth in the Certificate.
(vi) 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 Shares, and no proceeding for that purpose or pursuant to Section
8A of the Securities Act has been instituted or, to the Companys 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 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 or the Option Closing Date, as the case may be, 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 or the Option Closing Date, as the case may be, 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.
(vii) 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 Shares 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.
(viii) The Company has not, directly or indirectly, distributed and will not distribute
any offering material in connection with the offering and sale of the Shares other than any
Preliminary Prospectus, the Prospectus and other materials, if any, permitted under the
Securities
4
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.
(ix) (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) of 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 Shares 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.
(x) (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 Shares 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 Shares as contemplated by the
Registration Statement.
(xi) 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. All pro forma financial statements or data included or incorporated by
reference in the Registration Statement, the General Disclosure Package and the Prospectus
comply with the applicable requirements of the Securities Act and the Exchange Act, and the
assumptions used in the preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate to give effect to the
transactions or circumstances described therein and the pro forma adjustments have been
properly applied to the historical amounts in the compilation of those statements and data.
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.
5
(xii) 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.
(xiii) 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 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.
(xiv) 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.
(xv) 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, as each may be amended or supplemented (a)
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 and its Subsidiaries considered as one enterprise or the earnings, capital stock
(except that issued and outstanding capital stock of the Company has increased due to
issuances since such date of (a) 472,986 shares of Common Stock under the Companys Dividend
Reinvestment and Stock Purchase Plan, as amended, (b) 193,707 shares of Common Stock under
the Companys Amended and Restated 2005 Long-Term Incentive Plan, and (c) 349,854 shares of
the Companys Series H Convertible Preferred Stock), business affairs, management, or
business prospects of the Company and its Subsidiaries considered as one enterprise, whether
or not occurring in the ordinary course of business, (b) there have been no liabilities or
obligations incurred by the Company or any of its Subsidiaries that are material with
respect to the Company and its Subsidiaries considered as one enterprise, and (c) there have
been no transactions entered into by the Company or any of its Subsidiaries that are
material with respect to the Company and its Subsidiaries considered as one enterprise,
other than transactions in the ordinary course of business. There are no contingent
obligations of the Company or any of its Subsidiaries that are
6
material with respect to the Company and its Subsidiaries considered as one enterprise that
are not disclosed in the Registration Statement, the General Disclosure Package and the
Prospectus.
(xvi) 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 Shares and the performance by the Company of all
of its obligations under this Agreement and the consummation of the transactions herein
contemplated and the transactions described in the General Disclosure Package and the
Prospectus under the caption The Acquisition and the fulfillment of the terms hereof 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, 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.
(xvii) Each approval, consent, order, authorization, designation, declaration or filing
by or with any regulatory, administrative or other governmental body necessary in connection
with the execution and delivery by the Company of this Agreement and the consummation of the
transactions herein contemplated (except such additional steps as may be required by the
Commission, the Financial Industry Regulatory Authority (FINRA) or may be necessary to
qualify the Shares and the Conversion Shares for public offering by the Underwriters under
state securities or Blue Sky laws) or the Acquisition Agreement (except as provided in the
Acquisition Agreement with respect to the consummation of the Acquisition and only as
to the Companys obligations under the Acquisition Agreement) has been obtained or made
by the Company, and is in full force and effect.
(xviii) 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.
(xix) 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, 2010 and no transaction or other
event has occurred or is contemplated which would prevent the Company from so qualifying for
its current taxable year.
7
(xx) To the best of the Companys knowledge, the accountants 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 as required by the
Securities Act and the Rules and Regulations and the Public Company Accounting Oversight
Board (the PCAOB), in the case of the Company, or as required by Rule 101 of the Code of
Professional Conduct of the AICPA, in the case of FC-GEN Acquisition Holding.
(xxi) 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 managements 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 managements 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.
(xxii) 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 Companys 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 Companys auditors and 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 Companys 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 Companys internal controls;
any material weaknesses in internal controls have been identified for the Companys
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.
(xxiii) 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.
(xxiv) To the knowledge of the Company, after inquiry of its officers and directors,
there are no affiliations with any FINRA member firm among the Companys 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.
(xxv) This Agreement has been duly authorized, executed and delivered by the Company.
The Certificate has been, or by the Closing Date will be, duly authorized and executed by
the Company and filed by the Company with the Secretary.
8
(xxvi) 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 Companys Common Stock or Preferred Stock. The Company
acknowledges that the Underwriters may engage in transactions that stabilize, maintain or
otherwise affect the price of the Companys Common Stock and the Preferred Stock, including
stabilizing bids, syndicate covering transactions and the imposition of penalty bids.
(xxvii) The Shares and Conversion Shares have been, or as of the Closing Date will be,
approved for listing subject to official notice of issuance on the NYSE.
(xxviii) The Company is not, and immediately after the sale of the Shares pursuant to
the terms and conditions of this Agreement will not be, an investment company within the
meaning of the Investment Company Act of 1940.
(xxix) The Acquisition Agreement has been duly authorized, executed and delivered by,
and is a valid and binding agreement of, the Company, enforceable in accordance with its
terms, and, assuming the due authorization, execution and delivery thereof by the other
parties thereto, enforceable against the Company in accordance with its terms, except as
enforcement thereof may be subject to or limited by bankruptcy, insolvency or other similar
laws relating to or affecting creditors rights generally or by general equitable
principles. The Company reasonably believes that the Acquisition will be consummated in all
material respects on the terms and by the date and as contemplated by the General Disclosure
Package, the Prospectus and the Acquisition Agreement. The consummation of the Acquisition
would not reasonably be expected to have a Material Adverse Effect, with FC-GEN
Acquisition Holding considered to be a Subsidiary of the Company for purposes of this
Section 1(xxix).
(xxx) To the knowledge of the Company, the representations and warranties contained (A)
in paragraphs (iii), (xii), (xiii), (xv), (xvi) and (xviii) of this Section 1 are true and
correct with each reference to Subsidiary deemed to include FC-GEN Acquisition Holding, for
purposes of this clause (A); (B) in paragraph (vi) of this Section 1 are true and correct
with respect to any information regarding FC-GEN Acquisition Holding contained in the
Registration Statement, the General Disclosure Package and the Prospectus; and (C) in
paragraph (xi) of this Section 1 are true and correct with respect to the financial
statements and any supporting schedules of FC-GEN Acquisition Holding included or
incorporated by reference in the Registration Statement, the General Disclosure Package and
the Prospectus; except in each of (A), (B) and (C) where the failure to be so true and
correct would not, individually or in the aggregate, reasonably be expected to have a
Material Adverse Effect, with FC-GEN Acquisition Holding considered to be a Subsidiary of
the Company for purposes of this Section 1(xxx).
2. Purchase, Sale and Delivery of the Shares.
On the basis of the representations, warranties
and covenants herein contained, and subject to the conditions herein set forth, the Company agrees
to sell to each Underwriter, and each Underwriter, severally and not jointly, agrees to purchase
from the Company, at a price of $48.50 per Share, the number of Firm Shares set forth opposite the
name of such Underwriter in Schedule I hereto (plus any additional number of Shares which such
Underwriter may become obligated to purchase pursuant to the provisions of Section 11 hereof).
Payment for the Firm Shares to be sold hereunder is to be made by Federal Funds wire transfer
to an account designated by the Company for the Firm Shares to be sold by the Company against
9
delivery of the Firm Shares therefor to the Representatives. Such payment and delivery are to be
made at the offices of Calfee, Halter & Griswold LLP, 1400 KeyBank Center, 800 Superior Avenue,
Cleveland, OH 44114 at 10:00 a.m. New York time, on March 7, 2011 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 NYSE
is open for trading and on which banks in New York are open for business and not permitted by law
or executive order to be closed). The Firm Shares will be delivered by Mellon Investor Services
LLC (the Transfer Agent) in such denominations and in such registrations as the Representatives
request in writing not later than the second full business day prior to the Closing Date, and will
be delivered through book entry facilities of The Depository Trust Company (DTC) and 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.
In addition, on the basis of the representations and warranties herein contained and subject
to the terms and conditions herein set forth, the Company hereby grants an option to the
Underwriters to purchase severally the Option Shares at the price per share as set forth in the
first paragraph of this Section 2. The option granted hereby may be exercised in whole or in part
by giving notice at any time and from time to time within 30 days after the date of this Agreement,
by the Representatives to the Company setting forth the number of Option Shares as to which the
several Underwriters are exercising the option and the time and date at which such Option Shares
are to be delivered. The time and date at which the Option Shares are to be delivered shall be
determined by the Representatives but shall not be earlier than three nor later than 10 full
business days after the exercise of such option, nor in any event prior to the Closing Date (such
time and date being herein referred to as the Option Closing Date). Notwithstanding the
preceding sentence, if the option is exercised at least one day prior to the Closing Date, the
notice of the exercise shall set the Closing Date as the Option Closing Date. The option with
respect to the Option Shares granted hereunder may be exercised only to cover over-allotments in
the sale of the Firm Shares by the Underwriters. The Representatives may cancel such option at any
time prior to its expiration by giving written notice of such cancellation to the Company. To the
extent, if any, that the option is exercised, payment for the Option Shares shall be made by
Federal Funds wire transfer to an account designated by the Company for the Option Shares to be
sold by the Company against delivery of the Option Shares through the facilities of DTC. Such
payment and delivery are to be made at the offices of Calfee, Halter & Griswold LLP, 1400 KeyBank
Center, 800 Superior Avenue, Cleveland, OH 44114, at 10:00 a.m. New York time, on the Option
Closing Date. To the extent, if any, that the option is exercised, the Option Shares will be
delivered by the Transfer Agent in such denominations and in such registrations as the
Representatives request in writing not later than the second full business day prior to the Option
Closing Date, and will be delivered through book entry facilities of DTC and made available for
inspection by the Representatives at least one business day prior to the Option 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 Shares as soon as the Representatives deem it advisable to do so. The
Shares 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
10
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 in order to complete the distribution of the
Shares 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 Shares 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 Shares 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, 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 Shares, in form and substance satisfactory to the Representatives and
as described on Schedule III, 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 Shares
and the Conversion Shares 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
11
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 Shares, or of the suspension of the qualification of the Shares for
offering or sale in any jurisdiction, and the Company will use its best efforts to prevent
(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 Shares 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 Shares and the Conversion Shares 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 Shares 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 Shares and the
Conversion Shares, 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 Shares 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 ineligible. References herein to the
Registration Statement relating to the Shares and the Conversion Shares 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 Shares 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 Shares and the Conversion Shares, 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 Shares, 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 Shares 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
12
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 Shares 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 Shares
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 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
13
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 Shares pursuant to
this Agreement in the manner specified under the heading Use of Proceeds in the
Prospectus.
(xiv) No offering, sale, other disposition or any swap or other arrangement that
transfers to another, in whole or in part, any of the economic consequences of ownership of
any Preferred Stock or Common Stock or any securities of the Company that are convertible
into, exchangeable or exercisable for, or substantially similar to the Preferred Stock or
the Common Stock or on parity with or senior to the Preferred Stock or the Common Stock
(with respect to distribution rights or payments upon the Companys liquidation, dissolution
or winding up) 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, Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays
Capital Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities LLC and Wells Fargo
Securities, LLC, except that the Company may, without such consent, (a) issue securities
under the Companys equity compensation plans for officers, employees, and non-employee
directors described in the Companys Annual Report on Form 10-K for the fiscal year ended
December 31, 2010; (b) issue shares upon the exercise of options or other stock rights
issued pursuant to the Companys equity compensation plans for officers, employees, and
non-employee directors described in the Companys Annual Report on Form 10-K for the fiscal
year ended December 31, 2010 and the Windrose Medical Properties Trust 2002 Stock Incentive
Plan; (c) sell shares of Common Stock pursuant to the Third Amended and Restated Dividend
Reinvestment and Stock Purchase Plan filed with the Commission on
May 10, 2010; (d) issue shares of Common Stock upon conversion of any 4.75% Convertible Senior Notes due 2026, 4.75%
Convertible Senior Notes due 2027 and 3.00% Convertible Senior Notes due 2029 outstanding as
of the date hereof; (e) issue shares upon conversion of any of the Companys Series H
Preferred Stock or the Shares. Notwithstanding the foregoing, nothing in this paragraph
(xiv) shall restrict the Company from completing the offering of Common Stock contemplated
to be conducted concurrently with the offering contemplated by this Agreement.
(xv) The Company will use its best efforts to list the Shares and the Conversion
Shares, subject to official notice of issuance, on the NYSE and maintain the listing of the
Shares and the Conversion Shares issuable upon conversion of the Shares on the NYSE. The
Company will reserve and keep available at all times, free of preemptive rights, a
sufficient number of shares of Common Stock for the purpose of enabling the Company to
satisfy any obligation to issue Conversion Shares.
5. Costs and Expenses.
The Company will pay all costs, expenses and fees incident to the
performance of its obligations under this Agreement, including, without limiting the generality of
the foregoing, the following: the fees incident to the issuance and delivery of the Shares;
accounting fees of the Company (accounting fees of FC-GEN Acquisition Holding are to be paid by
FC-GEN pursuant to the Acquisition Agreement); 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 applicable listing agreement for the NYSE; the filing fees of the
Commission; the filing fees and expenses (including legal fees and disbursements) incident to
securing any required review by FINRA of the terms of the sale of the Shares; the fees incident to
the listing of the Shares and the Conversion Shares on the NYSE and the applicable listing
agreement with the NYSE. Any transfer taxes imposed on the sale of the
14
Shares 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 Shares 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 Shares.
6. Conditions of Obligations of the Underwriters.
The several obligations of the Underwriters
to purchase the Firm Shares on the Closing Date and the Option Shares, if any, on the Option
Closing Date are subject to the accuracy, as of the Closing Date or the Option Closing Date, as the
case may be, of the representations and warranties of the Company contained herein, and to the
performance by the Company of its covenants and obligations hereunder and to the following
additional conditions:
(i) No stop order suspending the effectiveness of the Registration Statement, as
amended from time to time, shall have been issued and no proceedings for that purpose shall
have been taken or, to the knowledge of the Company, shall be contemplated 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.
(iii) The Representatives shall have received on the Closing Date and the Option
Closing Date, if any, the opinion of Shumaker, Loop & Kendrick, LLP, counsel for the
Company, dated the Closing Date or the Option Closing Date, as the case may be, and
addressed to the 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.
15
(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 line items Preferred Stock and Common
Stock set forth in the consolidated balance sheet as of December 31, 2010 contained
in the Companys Annual Report on Form 10-K for the year ended December 31, 2010 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; 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 certificates for the Shares or the uncertificated Shares, as the case may be,
are in due and proper form; the shares of Preferred Stock, including Option Shares,
if any, to be sold by the Company pursuant to this Agreement have been duly
authorized and will be validly issued, fully paid and non-assessable when issued and
paid for as contemplated by this Agreement; and no preemptive or similar rights of
stockholders exist with respect to any of the Shares or the issue and sale thereof.
The Conversion Shares have been duly authorized and reserved for issuance by the
Company and, when issued and delivered upon conversion and in accordance with the
Certificate, will be validly issued, fully paid and non-assessable and no preemptive
or similar rights of stockholders will exist with respect to any of the Conversion
Shares or the issuance thereof. The Certificate is in full force and effect. The
Shares conform to the provisions of the Certificate and the relative rights,
preferences, interest and powers of the Shares are as set forth in the Certificate.
(d) The Registration Statement has become effective under the Securities Act
and, to such counsels 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, and 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 Registration Statement, the General Disclosure Package and the
Prospectus (other than the financial statements, schedules and other financial or
statistical data included or incorporated by reference therein or omitted therefrom,
as to 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 Series I Preferred
Stock, Description of Our Preferred Stock 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
16
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
Companys Annual Report on Form 10-K for the fiscal year ended December 31, 2010,
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 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 the provisions of 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 Certificate and the
consummation of the transactions herein contemplated, including the issuance and
sale of the Shares, the issuance of any Conversion Shares upon conversion of the
Shares and the performance by the Company of its obligations under this Agreement
and the Certificate, 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 Companys
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 which
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. The Certificate has been duly authorized, executed and delivered by the
Company and filed on behalf of the Company with the Secretary.
(l) The Shares and the Conversion Shares conform in all material respects to
the descriptions thereof contained in the Registration Statement, the General
Disclosure Package and the Prospectus.
(m) 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 by the Company of this
Agreement and the
17
performance by the Company of its obligations thereunder (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.
(n) The Company is not, and immediately after the sale of the Shares pursuant
to the terms and conditions of this Agreement will not be, an investment company
within the meaning of the Investment Company Act of 1940.
(o) Any required filing pursuant to Rule 433 under the Securities Act of each
Issuer Free Writing Prospectus that is identified on Schedule II hereto has been
made within the time period required by Rule 433(d) under the Securities Act and any
required filing of the Preliminary Prospectus, the Prospectus and any supplement
thereto pursuant to Rule 424 under the Securities Act has been made in the manner
and within the time period required by Rule 424 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 counsels own review of the Companys
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 counsels review of the Companys 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, 2010, 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,
2011. Furthermore, such counsel shall opine that the statements contained under the caption
Additional U.S. Federal Income Tax Considerations in the General Disclosure Package and
the Prospectus and under the heading Taxation in the Companys Annual Report on Form 10-K
for the fiscal year ended December 31, 2010, and any amendments thereto, are correct and
accurate in all material respects and present fairly and accurately the material aspects of
the federal income tax (i) treatment of the Company and (ii) considerations that are likely
to be material to a holder of the Preferred 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
18
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 or the
Option Closing Date, as the case may be, 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 that such counsel need express no view as to financial statements,
schedules and other financial data included therein). 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 from Calfee, Halter & Griswold LLP and
Gibson, Dunn & Crutcher LLP, counsel for the Underwriters, on the Closing Date and the
Option Closing Date, if any, opinions dated the Closing Date or the Option Closing Date, as
the case may be, with respect to the organization of the Company, the validity of the
Shares, the Registration Statement, the 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 they reasonably request to enable them 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 (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 and the Option Closing Date, if any, (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) At the time of execution of this Agreement, the Representatives shall have
received from KPMG 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 FC-GEN Acquisition Holding as required by
Rule 101 of the Code of Professional Conduct of the AICPA and (b) stating the conclusions
and findings of such firm with respect to the financial information of FC-GEN Acquisition
Holding examined by
19
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.
(viii) With respect to the letter of KPMG LLP referred to in the preceding paragraph
and delivered to the Representatives concurrently with the execution of this Agreement (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 and the Option Closing Date, if any, (a) confirming that
they are an independent registered public accounting firm with respect to FC-GEN Acquisition
Holding as required by Rule 101 of the Code of Professional Conduct of the AICPA, (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.
(ix) The Representatives shall have received on the Closing Date and the Option Closing
Date, if any, 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 or the Option Closing Date, as the case may be,
each of them severally represents as follows:
(a) The Registration Statement has become effective under the 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
or the Option Closing Date, as the case may be, 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
20
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 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 or the Option Closing Date, as
the case may be, 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 or the Option Closing Date, as the case may be. The representations and
warranties made in this clause (f) shall be deemed made by the Company.
(x) 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 listed on Schedule V 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, swap or otherwise dispose of any shares of Preferred Stock, Common
Stock, securities of the Company convertible into, exchangeable or exercisable for, or
substantially similar to the Preferred Stock or Common Stock or on parity with or senior to
the Preferred Stock or Common Stock (with respect to distribution rights or payments upon
the Companys liquidation, dissolution or winding up), 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,
Merrill Lynch, Pierce, Fenner & Smith Incorporated, Barclays Capital Inc., Deutsche Bank
Securities Inc., J.P. Morgan Securities LLC and Wells Fargo 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 prior to or after the date hereof, but in no event shall the
dispositions under this subsection (b) of the Executive Officers exceed 300,000 shares of
Common Stock in the aggregate, and (c) shares obtained pursuant to the Companys equity
compensation plans for officers, employees, and non-employee directors, provided that the
Company shall have delivered to UBS Securities LLC, Merrill Lynch, Pierce, Fenner & Smith
Incorporated, Barclays Capital Inc., Deutsche Bank Securities Inc., J.P. Morgan Securities
LLC and Wells Fargo 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.
(xi) The Shares to be sold by the Company and the Conversion Shares as of the Closing
Date or the Option Closing Date, as the case may be, shall have been duly approved for
listing, subject to notice of issuance, on the NYSE.
21
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 Calfee, Halter & Griswold 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 Shares required to be delivered as and when specified in this Agreement
are subject to the conditions that at the Closing Date or the Option Closing Date, as the case may
be, no stop order suspending the effectiveness of the Registration Statement shall have been issued
and in effect or proceedings therefor initiated or threatened.
8. Indemnification.
(i) The Company agrees to indemnify and hold harmless each Underwriter, its affiliates,
as such term is defined in Rule 501(b) under the Securities Act (each, an Affiliate), 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 Affiliate,
officer, director 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 (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 Affiliate,
officer, director or controlling person for any legal or other expenses reasonably incurred
by such Underwriter or such Affiliate, officer, director or 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
22
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 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
23
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 all 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
so reimbursable).
(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 Shares. If, however, the allocation provided
by the immediately preceding sentence is not permitted by applicable law or if the
indemnified party failed to give the notice required under Section 8(iii) above, then each
indemnifying party shall contribute to such amount paid or payable by such indemnified party
in such proportion as is appropriate to reflect not only such relative benefits but also the
relative fault of the Company and the 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
24
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 Shares 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, to UBS Securities LLC, 299 Park Avenue, New York, NY 10171-0026, Attention: Syndicate
Department (Fax: (212) 713-3460), to Merrill Lynch, Pierce, Fenner & Smith Incorporated, One Bryant
Park, New York, New York 10036, Attention: Syndicate Department, with a copy to ECM Legal, to
Barclays Capital Inc., 745 Seventh Avenue, New York, New York 10019, Attention: Syndicate
Registration, Fax: (646) 834-8133, to Deutsche Bank Securities Inc., 60 Wall Street, 4th Floor, New
York, New York 10005, Attention: Equity Capital Markets with a copy to the General Counsel, to J.P.
Morgan Securities LLC, 383 Madison Avenue, NYC 10179, Attention: Equity Syndicate Desk and to Wells
Fargo Securities, LLC, 375 Park Avenue, New York, New York 10152 Attention: Equity Syndicate; if
to the Company, to Health Care REIT, Inc., 4500 Dorr Street, Toledo, Ohio 43615, 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 or any Option Closing Date (if different from
the Closing Date and then only as to the Option Shares) 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 Shares 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 Shares impracticable or inadvisable,
(c) trading in securities generally on the NYSE, the NYSE Amex Equities or the NASDAQ, or in
the Companys 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,
25
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 or the Option Closing Date, as the case
may be, any one or more of the Underwriters shall fail or refuse to purchase Shares 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 number of Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase is ten percent or less of the aggregate
number of Shares to be purchased on such date, the other Underwriters may make arrangements
satisfactory to the Representatives for the purchase of such Shares 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 or the Option Closing Date, as the case may be, the
other Underwriters shall be obligated severally in the proportions that the number of Shares set
forth opposite their respective names in Schedule I hereto bears to the aggregate number of Shares
set forth opposite the names of all such non-defaulting Underwriters, or in such other proportions
as the Representatives may specify, to purchase the Shares which such defaulting Underwriter or
Underwriters agreed but failed or refused to purchase on such date. If, on the Closing Date or the
Option Closing Date, as the case may be, any Underwriter or Underwriters shall fail or refuse to
purchase Shares and the aggregate number of Shares 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
number of Shares to be purchased, and arrangements satisfactory to the Representatives and the
Company for the purchase of such Shares 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 or the Option Closing, as the case may be, 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 Shares 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
26
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 and
tenth through sixteenth paragraphs (provided that, with respect to such sixteenth paragraph, only
the Underwriter that maintains a website through which information relating to the sale of the
Shares 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 Shares
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 Companys securities. The Company
further acknowledges that the Underwriters are acting pursuant to a contractual relationship
created solely by this Agreement entered into on an arms 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
Companys 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 Companys 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
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.]
27
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:
Name:
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/s/ George L. Chapman
George L. Chapman
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Title:
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Chairman, Chief Executive Officer
and President
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The foregoing Underwriting Agreement
is hereby confirmed and accepted as
of the date first above written.
UBS SECURITIES LLC
MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
BARCLAYS CAPITAL INC.
DEUTSCHE BANK SECURITIES INC.
J.P. MORGAN SECURITIES LLC
WELLS FARGO SECURITIES, LLC
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:
Name:
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/s/ Robert DiGia
Robert DiGia
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Title:
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Managing Director
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By:
Name:
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/s/ Robert Crowell
Robert Crowell
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Title:
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Managing Director
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By:
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MERRILL LYNCH, PIERCE, FENNER & SMITH
INCORPORATED
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By:
Name:
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/s/ Gray Hampton
Gray Hampton
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Title:
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Managing Director
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By:
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BARCLAYS CAPITAL INC.
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By:
Name:
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/s/ Victoria Hale
Victoria Hale
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Title:
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Vice President
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By:
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DEUTSCHE BANK SECURITIES INC.
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By:
Name:
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/s/ Jeremy Fox
Jeremy Fox
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Title:
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Managing Director
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By:
Name:
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/s/ Frank Windels
Frank Windels
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Title:
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Director
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By:
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J.P. MORGAN SECURITIES LLC
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By:
Name:
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/s/ Thomas Grier
Thomas Grier
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Title:
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Managing Director
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By:
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WELLS FARGO SECURITIES, LLC
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By:
Name:
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/s/ David Herman
David Herman
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Title:
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Director
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SCHEDULE I
Schedule of Underwriters
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Number of
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Shares to be
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Underwriter
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Purchased
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UBS Securities LLC
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3,250,000
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Merrill Lynch, Pierce, Fenner & Smith
Incorporated
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1,812,500
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Barclays Capital Inc.
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1,812,500
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Deutsche Bank Securities Inc
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1,812,500
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J.P. Morgan Securities .LLC
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1,812,500
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Wells Fargo Securities, LLC
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1,000,000
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KeyBanc Capital Markets Inc
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1,000,000
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Total
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12,500,000
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SCHEDULE II
Pricing Term Sheet, dated March 1, 2011, as attached on Schedule III.
SCHEDULE III
Issuer Free Writing Prospectus
filed pursuant to Rule 433
supplementing the Preliminary
Prospectus Supplement dated
February 28, 2011
Registration Nos. 333-159040
HEALTH CARE REIT, INC.
FINAL PRICING TERM SHEET
This Pricing Term Sheet is qualified in its entirety by reference to the Preliminary Prospectus
Supplement, dated February 28, 2011. The information in this Pricing Term Sheet supplements the
Preliminary Prospectus Supplement and supersedes the information in the Preliminary Prospectus
Supplement to the extent it is inconsistent with the information in the Preliminary Prospectus
Supplement. Capitalized terms used in this Pricing Term Sheet but not defined have the meanings
given to them in the Preliminary Prospectus Supplement.
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General
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Issuer:
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Health Care REIT, Inc.
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Common Stock
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HCN / NYSE
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Ticker/Exchange:
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Series I Preferred
Stock Offering
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Title of Securities:
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6.50% Series I Cumulative Convertible Perpetual Preferred Stock (Series I Preferred Stock)
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Offering Size:
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$625,000,000 (12,500,000 shares)
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Over-allotment
Option:
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$93,750,000 (1,875,000 shares)
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Joint Book-Running
Managers:
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UBS Securities LLC
Merrill Lynch, Pierce, Fenner & Smith Incorporated
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Barclays Capital Inc.
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Deutsche Bank Securities Inc.
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J.P. Morgan Securities LLC
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Wells Fargo Securities, LLC
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|
|
Co-Lead Manager:
|
|
KeyBanc Capital Markets Inc.
|
|
|
|
Maturity:
|
|
Perpetual
|
|
|
|
Denomination:
|
|
$50 and integral multiples thereof
|
|
|
|
Issue Price / Liquidation
Preference:
|
|
$50 per share, plus unpaid accumulated and accrued dividends
|
|
|
|
Underwriting
Discount:
|
|
$1.50 per share (3.0%)
|
|
|
|
Net Proceeds:
|
|
HCN estimates that the net proceeds from the Series I Preferred Stock Offering, after
deducting underwriting discounts and commissions and estimated offering expenses, will be
approximately $605.5 million (or approximately $696.4 million if the underwriters exercise
their option to purchase additional shares in full).
|
|
|
|
Use of Proceeds:
|
|
HCN intends to use the net proceeds from the Series I Preferred Stock Offering, the Common
Stock Offering (as defined below), cash on hand and any amounts raised in future capital
raising activities or refinancings to finance the aggregate purchase price of all of the
equity interests of FC-GEN Acquisition Holding, LLC, which indirectly owns, leases and has
options to purchase certain senior housing and care facilities, including the repayment of
any amounts drawn on HCNs $2.4 billion bridge loan facility for which HCN has obtained a
commitment from UBS Loan Finance LLC, UBS Securities LLC, as joint lead arranger, Bank of
America, N.A., as co-syndication agent, Merrill Lynch, Pierce, Fenner & Smith Incorporated,
as joint lead arranger, Barclays Bank PLC, as co-syndication agent, Barclays Capital Inc.,
as joint lead arranger, Deutsche Bank AG Cayman Islands Branch, Deutsche Bank Securities
Inc., as joint lead arranger and co-documentation agent, JPMorgan Chase Bank, N.A., as
co-syndication agent, J.P. Morgan Securities LLC, as joint lead arranger, Wells Fargo Bank,
N.A., as co-documentation agent, Wells Fargo Securities, LLC, as joint lead arranger,
KeyBank National Association, as senior managing agent, and KeyBanc Capital Markets Inc.
If such acquisition is not consummated, HCN intends to use the net proceeds from the Series
I Preferred Stock Offering for general corporate purposes, including investing in health
care and senior housing properties and repaying borrowings under its unsecured line of
credit and other outstanding indebtedness. Pending such use, the net proceeds may be
invested in short-term, investment grade, interest-bearing securities, certificates of
deposit or indirect or guaranteed obligations of the United States.
|
|
Cumulative
Dividends:
|
|
6.50% per annum ($3.25 per annum per share), payable quarterly in arrears on each January
15, April 15, July 15 and October 15 of each year, commencing July 15, 2011.
|
|
|
|
Method of Payment
of Dividends:
|
|
Cash
|
|
|
|
Conversion Premium:
|
|
Approximately 20% above the price to public in the Common Stock Offering.
|
|
|
|
Initial Conversion
Rate:
|
|
0.8460 shares of HCN common stock per share of Series I Preferred Stock (subject to
adjustment).
|
|
|
|
Initial Conversion
Price:
|
|
Approximately $59.10 per share of HCN common stock (subject to adjustment).
|
|
|
|
Conversion Rate
Adjustment:
|
|
Standard adjustments to Conversion Rate and Conversion Price for dilutive events, as
described in the Preliminary Prospectus Supplement.
|
|
|
|
Redemption Rights:
|
|
Series I Preferred Stock will not be redeemable by HCN.
|
|
|
|
Mandatory
Conversion:
|
|
On or after April 20, 2018, HCN may at its option cause all (but not less than all)
outstanding shares of the Series I Preferred Stock to be automatically converted into a
number of shares of Common Stock for each share of Series I Preferred Stock equal to the
then-prevailing Conversion Rate, if the Daily VWAP of the Common Stock equals or exceeds
130% of the then-prevailing conversion price for at least 20 Trading Days in a period of 30
consecutive Trading Days, including the last Trading Day of such 30-day period, ending on
the Trading Day prior to HCNs issuance of a press release announcing the mandatory
conversion.
|
|
|
|
|
|
In addition, if there are fewer than 1,250,000 shares of Series I Preferred Stock
outstanding, HCN may, at any time on or after April 20, 2018, at its option, cause all such
outstanding shares of the Series I Preferred Stock to be automatically converted into
shares of HCN common stock at the greater of (i) the then-prevailing Conversion Rate and
(ii) the liquidation preference divided by the Market Value (as defined in the Preliminary
Prospectus Supplement) of the common stock as determined on the second Trading Day
immediately prior to the Mandatory Conversion Date.
|
|
|
|
Ranking:
|
|
Preferred
|
|
|
|
Listing:
|
|
We have filed an application to list the Series I Preferred Stock on the NYSE under the
symbol HCN PrI. If the application is approved, trading of the Series I Preferred Stock
is expected to begin within 30 days after the date of initial delivery of the Series I
Preferred Stock.
|
|
|
|
Form:
|
|
Registered
|
|
|
|
Settlement:
|
|
DTC
|
|
|
|
Governing Law:
|
|
Delaware
|
|
|
|
Special Rights Upon
a Fundamental
Change:
|
|
If a holder converts its Convertible Preferred Stock at any time beginning at the opening
of business on the trading day immediately following the fundamental change effective date
of a fundamental change (as described in the Preliminary Prospectus Supplement) and ending
at the close of business on the 30th trading day immediately following such fundamental
change effective date, such conversion will be deemed to be in connection with the
fundamental change and the holder will automatically receive for each share of Series I
Preferred Stock converted the greater of:
|
|
|
|
|
|
a number of shares of HCN common stock, as described in the Preliminary Prospectus
Supplement under Description of Series I preferred stock Conversion Rights and subject
to adjustment as described under Description of Series I preferred stock Conversion
Rate Adjustment (with such adjustment or cash payment for fractional shares as HCN may
elect, as described under Description of Series I preferred stock No Fractional
Shares) plus (ii) the make-whole premium, if any, described in the Preliminary Prospectus
Supplement under Determination of the make-whole premium; and
|
|
|
|
|
|
a number of shares of HCN common stock equal to the lesser of (i) the liquidation
preference divided by the Market Value (as defined in the Preliminary Prospectus
Supplement) of HCN common stock on the fundamental change effective date of such
fundamental change and (ii) 2.0305 (subject to adjustment)
|
|
|
|
Determination of
the Make-Whole
Premium:
|
|
If a holder elects to convert its shares of Series I Preferred Stock upon the occurrence of
a fundamental change, in certain circumstances, HCN will increase the conversion rate (the
make-whole premium) by reference to the table below:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fundamental
|
|
|
Change Effective
|
|
Stock price ($)(1)
|
Date
|
|
49.25
|
|
55.00
|
|
60.00
|
|
65.00
|
|
70.00
|
|
75.00
|
|
80.00
|
|
85.00
|
March 7, 2011
|
|
|
0.1692
|
|
|
|
0.1540
|
|
|
|
0.1241
|
|
|
|
0.1012
|
|
|
|
0.0834
|
|
|
|
0.0695
|
|
|
|
0.0584
|
|
|
|
0.0495
|
|
April 15, 2012
|
|
|
0.1692
|
|
|
|
0.1316
|
|
|
|
0.1045
|
|
|
|
0.0840
|
|
|
|
0.0682
|
|
|
|
0.0559
|
|
|
|
0.0463
|
|
|
|
0.0386
|
|
April 15, 2013
|
|
|
0.1692
|
|
|
|
0.1177
|
|
|
|
0.0925
|
|
|
|
0.0734
|
|
|
|
0.0589
|
|
|
|
0.0478
|
|
|
|
0.0391
|
|
|
|
0.0323
|
|
April 15, 2014
|
|
|
0.1692
|
|
|
|
0.1071
|
|
|
|
0.0829
|
|
|
|
0.0647
|
|
|
|
0.0511
|
|
|
|
0.0407
|
|
|
|
0.0328
|
|
|
|
0.0267
|
|
April 15, 2015
|
|
|
0.1692
|
|
|
|
0.0988
|
|
|
|
0.0749
|
|
|
|
0.0571
|
|
|
|
0.0439
|
|
|
|
0.0341
|
|
|
|
0.0268
|
|
|
|
0.0213
|
|
April 15, 2016
|
|
|
0.1692
|
|
|
|
0.0925
|
|
|
|
0.0680
|
|
|
|
0.0499
|
|
|
|
0.0367
|
|
|
|
0.0271
|
|
|
|
0.0204
|
|
|
|
0.0156
|
|
April 15, 2017
|
|
|
0.1692
|
|
|
|
0.0877
|
|
|
|
0.0618
|
|
|
|
0.0423
|
|
|
|
0.0282
|
|
|
|
0.0187
|
|
|
|
0.0125
|
|
|
|
0.0086
|
|
April 20, 2018 and thereafter
|
|
|
0.1692
|
|
|
|
0.0857
|
|
|
|
0.0580
|
|
|
|
0.0351
|
|
|
|
0.0159
|
|
|
|
0.0022
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fundamental
|
|
|
Change Effective
|
|
Stock price ($)(1)
|
Date
|
|
90.00
|
|
100.00
|
|
110.00
|
|
125.00
|
|
150.00
|
|
175.00
|
|
200.00
|
March 7, 2011
|
|
|
0.0422
|
|
|
|
0.0313
|
|
|
|
0.0237
|
|
|
|
0.0159
|
|
|
|
0.0084
|
|
|
|
0.0044
|
|
|
|
0.0022
|
|
April 15, 2012
|
|
|
0.0325
|
|
|
|
0.0234
|
|
|
|
0.0172
|
|
|
|
0.0110
|
|
|
|
0.0052
|
|
|
|
0.0021
|
|
|
|
0.0006
|
|
April 15, 2013
|
|
|
0.0269
|
|
|
|
0.0191
|
|
|
|
0.0139
|
|
|
|
0.0088
|
|
|
|
0.0040
|
|
|
|
0.0015
|
|
|
|
0.0003
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fundamental
|
|
|
Change Effective
|
|
Stock price ($)(1)
|
Date
|
|
90.00
|
|
100.00
|
|
110.00
|
|
125.00
|
|
150.00
|
|
175.00
|
|
200.00
|
April 15, 2014
|
|
|
0.0220
|
|
|
|
0.0153
|
|
|
|
0.0110
|
|
|
|
0.0069
|
|
|
|
0.0031
|
|
|
|
0.0011
|
|
|
|
0.0002
|
|
April 15, 2015
|
|
|
0.0172
|
|
|
|
0.0117
|
|
|
|
0.0083
|
|
|
|
0.0052
|
|
|
|
0.0023
|
|
|
|
0.0008
|
|
|
|
0.0001
|
|
April 15, 2016
|
|
|
0.0122
|
|
|
|
0.0080
|
|
|
|
0.0056
|
|
|
|
0.0035
|
|
|
|
0.0016
|
|
|
|
0.0005
|
|
|
|
0.0000
|
|
April 15, 2017
|
|
|
0.0062
|
|
|
|
0.0039
|
|
|
|
0.0028
|
|
|
|
0.0019
|
|
|
|
0.0009
|
|
|
|
0.0002
|
|
|
|
0.0000
|
|
April 20, 2018 and thereafter
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
0.0000
|
|
|
|
|
(1)
|
|
The stock prices set forth in the table
will be adjusted as of any date on which the Conversion Rate of the Series I Preferred
Stock is adjusted by multiplying the applicable price in effect immediately before the
adjustment by a fraction:
|
|
|
|
|
|
whose numerator is the Conversion Rate immediately before the adjustment; and
|
|
|
whose denominator is the adjusted Conversion Rate
|
|
|
In addition, HCN will adjust the number of additional shares in the table at the same time,
in the same manner in which, and for the same events for which, HCN must adjust the
Conversion Rate as described in the Preliminary Prospectus Supplement under Description of
preferred stock Conversion Rate Adjustment.
|
|
|
The exact stock price and fundamental change effective date may not be set forth on the
table, in which case:
|
|
|
if the stock price is between two stock prices on the table or the fundamental change
effective date is between two fundamental change effective dates on the table, the
make-whole premium will be determined by straight-line interpolation between make-whole
premium amounts set forth for the higher and lower stock prices and the two fundamental
change effective dates, as applicable, based on a 365-day year;
|
|
|
if the stock price is in excess of $200.00 per share (subject to adjustment in the same
manner as the stock price) no make-whole premium will be paid; and
|
|
|
if the stock price is less than $49.25 per share (subject to adjustment in the same
manner as the stock price), no make-whole premium will be paid.
|
|
|
However, the Conversion Rate will not be adjusted as described above to the extent the
increase will cause the Conversion Rate to exceed 1.0152. HCN also will adjust this
maximum Conversion Rate in the same manner in which, and for the same events for which, it
must adjust the Conversion Rate as described in the Preliminary Prospectus Supplement.
|
|
|
|
CUSIP:
|
|
42217K601
|
|
|
|
ISIN:
|
|
US42217K6010
|
|
|
|
Concurrent Common
Stock Offering
|
|
|
Concurrent Offering:
|
|
Concurrently with the Series I Preferred Stock Offering, HCN is offering 25,000,000 shares
of its common stock (or 28,750,000 shares if the underwriters exercise their overallotment
option in full) pursuant to a separate public offering (the Common Stock Offering). HCN
estimates that the net proceeds from the Common Stock Offering, after deducting
underwriting discounts and commissions and estimated offering expenses, will be
approximately $1.2 billion ($1.4 billion if the underwriters exercise their over-allotment
option in full). HCN intends to use the net proceeds from the Common Stock Offering in the
same manner as the net proceeds of the Series I Preferred Stock Offering. The completion
of the Series I Preferred Stock Offering is not subject to the completion of the Common
Stock Offering and the completion of the Common Stock Offering is not subject to the
completion of the Series I Preferred Stock Offering.
|
|
|
|
Other Offering
Information
|
|
|
Pricing Date:
|
|
March 1, 2011
|
|
|
|
Trade Date:
|
|
March 2, 2011
|
|
|
|
Settlement Date:
|
|
March 7, 2011 (T + 3)
|
The issuer has filed a registration statement (including a base prospectus) and a related
Preliminary Prospectus Supplement dated February 28, 2011 with the SEC for the offering to which
this communication relates. Before you invest, you should read the base prospectus in that
registration statement, the related Preliminary Prospectus Supplement and the other documents the
issuer has filed with the SEC for more complete information about the issuer and this offering.
You may get these documents for free by visiting EDGAR on the SEC Web site at www.sec.gov.
Alternatively, UBS Securities LLC can arrange to send you the prospectus if you request it by
calling UBS Investment Bank, Attn: Prospectus Dept., 299 Park Avenue, New York, NY 10171,
Telephone: 888-827-7275.
SCHEDULE IV
Schedule of Subsidiaries
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
100 Knoedler Road, LLC
|
|
Delaware
|
1011 E. Pecan Grove Road, LLC
|
|
Delaware
|
10225 Cypresswood Drive, LLC
|
|
Delaware
|
111 Lazelle Road East, LLC
|
|
Delaware
|
1118 N. Stoneman Avenue, LLC
|
|
Delaware
|
1205 North Church Street, LLC
|
|
Delaware
|
1221 Seventh Street, LLC
|
|
Delaware
|
12429 Scofield Farms Drive, LLC
|
|
Delaware
|
130 Buena Vista Street, LLC
|
|
Delaware
|
1329 Brown Street, LLC
|
|
Delaware
|
1340 N. Washington Boulevard, LLC
|
|
Delaware
|
1405 Limekiln Pike, LLC
|
|
Delaware
|
1425 Yorkland Road, LLC
|
|
Delaware
|
1460 Johnson Ferry Road, LLC
|
|
Delaware
|
14707 Northville Road, LLC
|
|
Delaware
|
1500 Borden Road, LLC
|
|
Delaware
|
1565 Virginia Ranch Road, LLC
|
|
Delaware
|
1625 W. Spring Street, LLC
|
|
Delaware
|
1710 S.W. Health Parkway, LLC
|
|
Delaware
|
17231 Mill Forest Road, LLC
|
|
Delaware
|
1785 Freshley Avenue, LLC
|
|
Delaware
|
1818 Martin Drive, LLC
|
|
Delaware
|
1850 Crown Park Court, LLC
|
|
Delaware
|
1920 Cleveland Road West, LLC
|
|
Delaware
|
200 E. Village Road, LLC
|
|
Delaware
|
2005 Route 22 West, LLC
|
|
Delaware
|
209 Merriman Road, L.L.C.
|
|
Delaware
|
2101 New Hope Street, LLC
|
|
Delaware
|
222 East Beech Street Jefferson, L.L.C.
|
|
Delaware
|
2281 Country Club Drive, LLC
|
|
Delaware
|
22955 Eastex Freeway, LLC
|
|
Delaware
|
23 Southpointe Drive, LLC
|
|
Delaware
|
2325 Rockwell Drive, LLC
|
|
Delaware
|
2341 W. Norvell Bryant Highway, LLC
|
|
Delaware
|
240 E. Third Street, LLC
|
|
Delaware
|
2416 Brentwood Street, LLC
|
|
Delaware
|
2695 Valleyview Boulevard, LLC
|
|
Delaware
|
2860 Country Drive, LLC
|
|
Delaware
|
311 E. Hawkins Parkway, LLC
|
|
Delaware
|
3200 West Slaughter Lane, LLC
|
|
Delaware
|
3434 Watters Road, LLC
|
|
Delaware
|
350 Locust Drive, LLC
|
|
Delaware
|
36101 Seaside Boulevard, LLC
|
|
Delaware
|
3625 Green Crest Street, LLC
|
|
Delaware
|
3921 North Main Street, LLC
|
|
Delaware
|
402 South Colonial Drive, LLC
|
|
Delaware
|
430 North Union Road, LLC
|
|
Delaware
|
4500 Dorr Street Holdings, LLC
|
|
Delaware
|
4855 Snyder Lane, LLC
|
|
Delaware
|
500 Seven Fields Boulevard, LLC
|
|
Delaware
|
515 Jack Martin Boulevard, LLC
|
|
Delaware
|
5165 Summit Ridge Court, LLC
|
|
Delaware
|
5166 Spanson Drive SE, LLC
|
|
Delaware
|
5437 Eisenhauer Road, LLC
|
|
Delaware
|
5521 Village Creek Drive, LLC
|
|
Delaware
|
5550 Old Jacksonville Highway, LLC
|
|
Delaware
|
5700 Karl Road, LLC
|
|
Delaware
|
5902 North Street, LLC
|
|
Delaware
|
655 Mansell Road, LLC
|
|
Delaware
|
721 Hickory Street, LLC
|
|
Delaware
|
7231 East Broadway, LLC
|
|
Delaware
|
731 Old Buck Lane, LLC
|
|
Delaware
|
750 North Collegiate Drive, LLC
|
|
Delaware
|
7950 Baybranch Drive, LLC
|
|
Delaware
|
799 Yellowstone Drive, LLC
|
|
Delaware
|
800 Oregon Street, LLC
|
|
Delaware
|
8503 Mystic Park, LLC
|
|
Delaware
|
8702 South Course Drive, LLC
|
|
Delaware
|
935 Union Lake Road, LLC
|
|
Delaware
|
965 Hager Drive, LLC
|
|
Delaware
|
9802 48th Drive NE, LLC
|
|
Delaware
|
AMCO I, LLC
|
|
Wisconsin
|
Anchor HCN Doylestown, LLC
|
|
Delaware
|
Anchor HCN Properties II, LLC
|
|
Delaware
|
Anchor HCN Properties, LLC
|
|
Delaware
|
Badger RE Portfolio I, LLC
|
|
Wisconsin
|
Badger RE Portfolio II, LLC
|
|
Wisconsin
|
Badger RE Portfolio III, LLC
|
|
Wisconsin
|
Badger RE Portfolio IV, LLC
|
|
Wisconsin
|
Badger RE Portfolio V, LLC
|
|
Wisconsin
|
BAL Colts Neck LLC
|
|
Delaware
|
BAL Fenwick Island LLC
|
|
Delaware
|
BAL Governors Crossing LLC
|
|
Delaware
|
BAL Holdings I, LLC
|
|
Delaware
|
BAL Holdings II, LLC
|
|
Delaware
|
BAL Holdings III, LLC
|
|
Delaware
|
BAL Holdings VII, LLC
|
|
Delaware
|
BAL Howell LLC
|
|
Delaware
|
BAL Longwood LLC
|
|
Pennsylvania
|
BAL Reflections LLC
|
|
Delaware
|
BAL Savoy Little Neck LLC
|
|
Delaware
|
BAL Sycamore LLC
|
|
Delaware
|
BAL Toms River LLC
|
|
Delaware
|
Ballard Healthcare Investors, LLC
|
|
Delaware
|
Bardstown Physicians LLC
|
|
Delaware
|
Bellevue Healthcare Properties, LLC
|
|
Delaware
|
Bellevue Physicians, LLC
|
|
Delaware
|
Boardman Physicians LLC
|
|
Delaware
|
Brandall Central Avenue, LLC
|
|
Delaware
|
Bridgeton Healthcare Investors, LLC
|
|
Delaware
|
Brierbrook Partners, L.L.C.
|
|
Tennessee
|
BSL Huntington Terrace LLC
|
|
Delaware
|
CAL-GAT Limited Partnership
|
|
Florida
|
CAL-LAK Limited Partnership
|
|
Florida
|
Cooper Holding, L.L.C.
|
|
Florida
|
Cooper, L.L.C.
|
|
Delaware
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
CRP/BWN Litchfield L.L.C.
|
|
Delaware
|
DePaul Physicians, LLC
|
|
Delaware
|
DRF Boardman LLC
|
|
Minnesota
|
DRF Bridgeton LLC
|
|
Minnesota
|
DRF Durango LLC
|
|
Minnesota
|
DRF Great Falls LLC
|
|
Minnesota
|
DRF Lenexa LLC
|
|
Minnesota
|
DRF Lincoln LLC
|
|
Minnesota
|
DRF LSL LLC
|
|
Minnesota
|
DRF Shawnee Mission LLC
|
|
Minnesota
|
DRF South Valley LLC
|
|
Minnesota
|
DRF Southwest Medical Building LLC
|
|
Minnesota
|
DRF Westminster LLC
|
|
Minnesota
|
DSG-2010 Loans I, Inc.
|
|
Delaware
|
Dublin Senior Community DRV, LLC
|
|
Oklahoma
|
Dublin Senior Community WPP, LLC
|
|
Oklahoma
|
FC HCN University Park, LLC
|
|
Delaware
|
FLA-PALM COURT, limited partnership
|
|
Florida
|
Forest City 40 Landsdowne, LLC
|
|
Delaware
|
Forest City 88 Sidney Street, LLC
|
|
Delaware
|
Frauenshuh Ballard LLC
|
|
Minnesota
|
Frauenshuh Bridgeton LLC
|
|
Minnesota
|
Frauenshuh Greeneville LLC
|
|
Minnesota
|
Frauenshuh HealthCare Properties, LLC
|
|
Delaware
|
Frauenshuh HealthCare Real Estate Solutions, LLC
|
|
Minnesota
|
Frauenshuh HealthCare Venture Properties, LLC
|
|
Delaware
|
Frauenshuh Killeen LLC
|
|
Minnesota
|
Gemini Davenport, LLC
|
|
Oklahoma
|
Gemini Las Colinas, L.L.C.
|
|
Oklahoma
|
Gemini Romeoville, LLC
|
|
Oklahoma
|
Gemini SS Lessee, LLC
|
|
Oklahoma
|
Gemini Villa Ventura, L.L.C.
|
|
Oklahoma
|
Gemini Wexford, L.L.C.
|
|
Oklahoma
|
Gig Harbor Physicians, LLC
|
|
Delaware
|
Grand Ledge I, LLC
|
|
Delaware
|
Great Falls Clinic Frauenshuh, LLC
|
|
Minnesota
|
Greeneville Healthcare Investors, LLC
|
|
Delaware
|
Hammes Company Green Bay I, LLC
|
|
Wisconsin
|
Hammes Company Green Bay II, LLC
|
|
Wisconsin
|
HC Mill Creek I, LLC
|
|
Washington
|
HC Redmond I, LLC
|
|
Wisconsin
|
HC Summit I, LLC
|
|
Wisconsin
|
HCN Access Holdings, LLC
|
|
Delaware
|
HCN Access Las Vegas I, LLC
|
|
Delaware
|
HCN Anchor Covington, LLC
|
|
Delaware
|
HCN BCC Holdings, Inc.
|
|
Delaware
|
HCN Capital Holdings, LLC
|
|
Delaware
|
HCN Development Services Group, Inc.
|
|
Indiana
|
HCN Emerald Holdings, LLC
|
|
Delaware
|
HCN FCE Life Sciences, LLC
|
|
Delaware
|
HCN Interra Lake Travis LTACH, LLC
|
|
Delaware
|
HCN Lake Travis Holdings, LLC
|
|
Delaware
|
HCN Lake Travis Property One, LLC
|
|
Delaware
|
HCN Lake Travis Property Two, LLC
|
|
Delaware
|
HCN Medicus Holdings, LLC
|
|
Delaware
|
HCN Navvis Clarkson Valley, LLC
|
|
Delaware
|
HCN Rendina Holdings, LLC
|
|
Delaware
|
HCN Rendina Merced, LLC
|
|
Delaware
|
HCN-TH Wisconsin I, LLC
|
|
Delaware
|
HCN-TH Wisconsin II, LLC
|
|
Delaware
|
HCN-TH Wisconsin III, LLC
|
|
Delaware
|
HCN-TH Wisconsin IV, LLC
|
|
Delaware
|
HCN-TH Wisconsin V, LLC
|
|
Delaware
|
HCN-TH Wisconsin VI, LLC
|
|
Delaware
|
HCN-TH Wisconsin VII, LLC
|
|
Delaware
|
HCN-TH Wisconsin VIII, LLC
|
|
Delaware
|
HCRE Solutions, LLC
|
|
Delaware
|
HCRI Abingdon Holdings, Inc.
|
|
North Carolina
|
HCRI Abingdon Properties, LP
|
|
North Carolina
|
HCRI Akron Properties, LLC
|
|
Delaware
|
HCRI Ancillary TRS, Inc.
|
|
Delaware
|
HCRI Asheboro Holdings, Inc.
|
|
North Carolina
|
HCRI Asheboro Properties, LP
|
|
North Carolina
|
HCRI Beachwood, Inc.
|
|
Ohio
|
HCRI Boardman Properties, LLC
|
|
Delaware
|
HCRI Broadview, Inc.
|
|
Ohio
|
HCRI Burlington Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Burlington Manor Properties, LP
|
|
North Carolina
|
HCRI Cold Spring Properties, LLC
|
|
Delaware
|
HCRI Concord Place Holdings, Inc.
|
|
North Carolina
|
HCRI Concord Place Properties, LP
|
|
North Carolina
|
HCRI Cumberland Properties, LLC
|
|
Delaware
|
HCRI Dayton Place Denver Properties, LLC
|
|
Delaware
|
HCRI Draper Place Properties Trust
|
|
Massachusetts
|
HCRI Drum Hill Properties, LLC
|
|
Delaware
|
HCRI Eddy Pond Properties Trust
|
|
Massachusetts
|
HCRI Eden Holdings, Inc.
|
|
North Carolina
|
HCRI Eden Properties, LP
|
|
North Carolina
|
HCRI Emerald Holdings, LLC
|
|
Delaware
|
HCRI Exchange Management I, LLC
|
|
Delaware
|
HCRI Exchange Properties I, LLC
|
|
Delaware
|
HCRI Fairmont Properties, LLC
|
|
Delaware
|
HCRI Financial Services, LLC
|
|
Delaware
|
HCRI Financing, Inc.
|
|
Delaware
|
HCRI Forest City Holdings, Inc.
|
|
North Carolina
|
HCRI Forest City Properties, LP
|
|
North Carolina
|
HCRI Gaston Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Gaston Manor Properties, LP
|
|
North Carolina
|
HCRI Greenville Holdings, Inc.
|
|
North Carolina
|
HCRI Greenville Properties, LP
|
|
North Carolina
|
HCRI High Point Manor Holdings, Inc.
|
|
North Carolina
|
HCRI High Point Manor Properties, LP
|
|
North Carolina
|
HCRI Holdings Trust
|
|
Massachusetts
|
HCRI Hunters Glen Properties, LLC
|
|
Delaware
|
HCRI Illinois Properties II, LLC
|
|
Delaware
|
HCRI Illinois Properties, LLC
|
|
Delaware
|
HCRI Indiana Properties, Inc.
|
|
Delaware
|
HCRI Indiana Properties, LLC
|
|
Indiana
|
HCRI Investments, Inc.
|
|
Delaware
|
HCRI Kansas Properties, LLC
|
|
Delaware
|
HCRI Kentucky Properties, LLC
|
|
Kentucky
|
HCRI Kirkland Properties, LLC
|
|
Delaware
|
HCRI Limited Holdings, Inc.
|
|
Delaware
|
HCRI Logistics, Inc.
|
|
Delaware
|
HCRI Louisiana Properties, L.P.
|
|
Delaware
|
HCRI Marina Place Properties Trust
|
|
Massachusetts
|
HCRI Maryland Properties, LLC
|
|
Maryland
|
HCRI Massachusetts Properties Trust
|
|
Massachusetts
|
HCRI Massachusetts Properties Trust II
|
|
Massachusetts
|
HCRI Massachusetts Properties, Inc.
|
|
Delaware
|
HCRI Merrillville Medical Facility, LLC
|
|
Delaware
|
HCRI Mississippi Properties, Inc.
|
|
Mississippi
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
HCRI Missouri Properties, LLC
|
|
Delaware
|
HCRI Nevada Properties, Inc.
|
|
Nevada
|
HCRI New Hampshire Properties, LLC
|
|
Delaware
|
HCRI North Carolina Properties I, Inc.
|
|
North Carolina
|
HCRI North Carolina Properties II, Inc.
|
|
North Carolina
|
HCRI North Carolina Properties III, Limited Partnership
|
|
North Carolina
|
HCRI North Carolina Properties, LLC
|
|
Delaware
|
HCRI Pennsylvania Properties, Inc.
|
|
Pennsylvania
|
HCRI Prestonwood Medical Facility, LLC
|
|
Delaware
|
HCRI Provider Properties, LLC
|
|
Delaware
|
HCRI Ridgeland Pointe Properties, LLC
|
|
Delaware
|
HCRI Senior Housing Properties, Inc.
|
|
Delaware
|
HCRI Skeet Club Manor Holdings, Inc.
|
|
North Carolina
|
HCRI Skeet Club Manor Properties, LP
|
|
North Carolina
|
HCRI Smithfield Holdings, Inc.
|
|
North Carolina
|
HCRI Smithfield Properties, LP
|
|
North Carolina
|
HCRI Southern Investments I, Inc.
|
|
Delaware
|
HCRI Statesville Place Holdings I, Inc.
|
|
North Carolina
|
HCRI Statesville Place Holdings II, Inc.
|
|
North Carolina
|
HCRI Statesville Place Properties I, LP
|
|
North Carolina
|
HCRI Statesville Place Properties II, LP
|
|
North Carolina
|
HCRI Summit Properties, LLC
|
|
Delaware
|
HCRI Tallahassee Medical Facility, LLC
|
|
Delaware
|
HCRI Tennessee Properties, Inc.
|
|
Delaware
|
HCRI Tennessee Properties, LLC
|
|
Delaware
|
HCRI Texas Properties, Inc.
|
|
Delaware
|
HCRI Texas Properties, Ltd.
|
|
Texas
|
HCRI TRS Acquirer II, LLC
|
|
Delaware
|
HCRI TRS Acquirer, LLC
|
|
Delaware
|
HCRI Tucson Properties, Inc.
|
|
Delaware
|
HCRI Van Nuys Medical Facility, LLC
|
|
Delaware
|
HCRI Weddington Park Holdings, Inc.
|
|
North Carolina
|
HCRI Weddington Park Properties, LP
|
|
North Carolina
|
HCRI Westlake, Inc.
|
|
Ohio
|
HCRI Wilburn Gardens Properties, LLC
|
|
Delaware
|
HCRI Wisconsin Properties, LLC
|
|
Wisconsin
|
Healthcare Property Managers of America, LLC
|
|
Florida
|
Heat Merger Sub, LLC
|
|
Delaware
|
Heat OP TRS, Inc.
|
|
Delaware
|
HH Florida, LLC
|
|
Delaware
|
Kaiser Gemini Burgundy, LLC
|
|
Oklahoma
|
Kaiser Gemini Woodland, LLC
|
|
Oklahoma
|
Killeen Healthcare Investors, LLC
|
|
Delaware
|
Lake Mead Medical Investors Limited Partnership
|
|
Florida
|
Lenexa Investors, LLC
|
|
Delaware
|
Med Properties Asset Group, L.L.C.
|
|
Indiana
|
Medical Real Estate Property Managers
of America, LLC
|
|
Florida
|
Merrill Gardens Harbor Court, LLC
|
|
Washington
|
Merrill Gardens Windsor Manor, LLC
|
|
Washington
|
MG Landlord, LLC
|
|
Delaware
|
MG Tenant, LLC
|
|
Delaware
|
MGP 41, LLC
|
|
Delaware
|
MGP 42, LLC
|
|
Delaware
|
MGP 43, LLC
|
|
Delaware
|
MGP I, LLC
|
|
Washington
|
MGP V, LLC
|
|
Washington
|
MGP VI, LLC
|
|
Washington
|
MGP X, LLC
|
|
Wisconsin
|
MGP XI, LLC
|
|
Wisconsin
|
MGP XII, LLC
|
|
Wisconsin
|
MGP XIII, LLC
|
|
Wisconsin
|
MGP XIV, LLC
|
|
Wisconsin
|
MGP XIX, LLC
|
|
Washington
|
MGP XL, LLC
|
|
Washington
|
MGP XV, LLC
|
|
Wisconsin
|
MGP XVI, LLC
|
|
Wisconsin
|
MGP XVII, LLC
|
|
Washington
|
MGP XXIX, LLC
|
|
Washington
|
MGP XXV, LLC
|
|
Washington
|
MGP XXXII, LLC
|
|
Washington
|
MGP XXXIII, LLC
|
|
Washington
|
MGP XXXIX, LLC
|
|
Washington
|
MGP XXXVII, LLC
|
|
Washington
|
MGP XXXVIII, LLC
|
|
Washington
|
Midland I, LLC
|
|
Delaware
|
Midwest 108th & Q, LLC
|
|
Delaware
|
Midwest Ames, LLC
|
|
Delaware
|
Midwest Miracle Hills, LLC
|
|
Delaware
|
Midwest Prestwick, LLC
|
|
Delaware
|
Midwest Van Dorn, LLC
|
|
Delaware
|
Midwest Village of Columbus, LLC
|
|
Delaware
|
Midwest Windermere, LLC
|
|
Delaware
|
Midwest Woodbridge, LLC
|
|
Delaware
|
Mill Creek Real Estate Partners, LLC
|
|
Delaware
|
MIMA Real Estate, L.L.C.
|
|
Florida
|
Murrieta Healthcare Investors, LLC
|
|
Delaware
|
Murrieta Healthcare Properties, LLC
|
|
Delaware
|
Paramount Real Estate Services, Inc.
|
|
Delaware
|
Pennsylvania BCC Properties, Inc.
|
|
Pennsylvania
|
Petoskey I, LLC
|
|
Delaware
|
Petoskey II, LLC
|
|
Delaware
|
Plymouth I, LLC
|
|
Delaware
|
PVL Landlord Hattiesburg, LLC
|
|
Delaware
|
PVL Landlord STL Hills, LLC
|
|
Delaware
|
PVL Tenant STL Hills, LLC
|
|
Delaware
|
PVL Tenant- Hattiesburg, LLC
|
|
Delaware
|
Redmond Partners, LLC
|
|
Delaware
|
Senior Star Investments I, LLC
|
|
Delaware
|
Senior Star Tenant, LLC
|
|
Delaware
|
Shawnee Mission Investors, LLC
|
|
Delaware
|
Silverado Senior Living Alhambra, Inc.
|
|
California
|
Silverado Senior Living Azusa, Inc.
|
|
California
|
Silverado Senior Living Costa Mesa, Inc.
|
|
California
|
Silverado Senior Living Dallas, Inc.
|
|
Delaware
|
Silverado Senior Living Encinitas, Inc.
|
|
California
|
Silverado Senior Living Escondido, Inc.
|
|
California
|
Silverado Senior Living Houston, Inc.
|
|
Delaware
|
Silverado Senior Living Las Colinas, Inc.
|
|
Delaware
|
Silverado Senior Living Los Angeles, Inc.
|
|
California
|
Silverado Senior Living of Cypresswood, Inc.
|
|
Delaware
|
Silverado Senior Living of Kingwood, Inc.
|
|
Delaware
|
Silverado Senior Living of Sugarland, Inc.
|
|
Delaware
|
Silverado Senior Living of Woodlands, Inc.
|
|
Delaware
|
Silverado Senior Living Properties, Inc.
|
|
Delaware
|
Silverado Senior Living Redondo Beach, Inc.
|
|
California
|
Silverado Senior Living Salt Lake City, Inc.
|
|
Delaware
|
Silverado Senior Living San Juan Capistrano, Inc.
|
|
California
|
Silverado Senior Living Scottsdale, Inc.
|
|
Delaware
|
Silverado Senior Living Turtle Creek, Inc.
|
|
Delaware
|
Silverado Senior Living Tustin, Inc.
|
|
California
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
Silverado Senior Living, Inc.
|
|
California
|
South Valley Medical Building L.L.C.
|
|
Minnesota
|
South Valley Venture, LLC
|
|
Minnesota
|
SSL Aspen Park SPE, LLC
|
|
Delaware
|
SSL Landlord, LLC
|
|
Delaware
|
SSL Sponsor, LLC
|
|
Delaware
|
SSL Tenant, LLC
|
|
Delaware
|
St. Joseph Physicians, LLC
|
|
Delaware
|
Stafford Medical Office Pavilion, LLC
|
|
Delaware
|
Subtenant 10225 Cypresswood Drive, LLC
|
|
Delaware
|
Subtenant 1118 N. Stoneman Avenue, LLC
|
|
Delaware
|
Subtenant 1221 Seventh Street, LLC
|
|
Delaware
|
Subtenant 125 W. Sierra Madre Avenue, LLC
|
|
Delaware
|
Subtenant 1430 East 4500 South, LLC
|
|
Delaware
|
Subtenant 1500 Borden Road, LLC
|
|
Delaware
|
Subtenant 22955 Eastex Freeway, LLC
|
|
Delaware
|
Subtenant 240 E. Third Street, LLC
|
|
Delaware
|
Subtenant 30311 Camino Capistrano, LLC
|
|
Delaware
|
Subtenant 330 North Hayworth Avenue, LLC
|
|
Delaware
|
Subtenant 335 Saxony Road, LLC
|
|
Delaware
|
Subtenant 350 W. Bay Street, LLC
|
|
Delaware
|
Subtenant 3611 Dickason Avenue, LLC
|
|
Delaware
|
Subtenant 514 N. Prospect Avenue, LLC
|
|
Delaware
|
Subtenant 5521 Village Creek Drive, LLC
|
|
Delaware
|
Subtenant 7950 Baybranch Drive, LLC
|
|
Delaware
|
Subtenant 8855 West Valley Ranch Parkway, LLC
|
|
Delaware
|
Subtenant 9410 E. Thunderbird, LLC
|
|
Delaware
|
Voorhees Healthcare Properties, LLC
|
|
Delaware
|
Voorhees Physicians, LLC
|
|
Delaware
|
Warrior LP Holdco, LLC
|
|
Delaware
|
Waterstone I, LLC
|
|
Delaware
|
West Boynton Investors, LLLP
|
|
Florida
|
Westminster Junction Venture, LLC
|
|
Minnesota
|
White Lake I, LLC
|
|
Delaware
|
Windrose 310 Properties, L.L.C.
|
|
Tennessee
|
Windrose 4475 Sierra Properties, L.L.C.
|
|
Delaware
|
Windrose Aberdeen I Properties, L.L.C.
|
|
Florida
|
Windrose Aberdeen II Properties, L.L.C.
|
|
Delaware
|
Windrose Atrium Properties, L.L.C.
|
|
Delaware
|
Windrose AWPC II Properties, LLC
|
|
Delaware
|
Windrose AZ-Tempe Properties, LLC
|
|
Delaware
|
Windrose Bartlett Properties, LLC
|
|
Delaware
|
Windrose Bethesda Properties, LLC
|
|
Delaware
|
Windrose Biltmore Properties, L.L.C.
|
|
Virginia
|
Windrose Central Medical II Properties, L.L.C.
|
|
Virginia
|
Windrose Central Medical III Properties, L.L.C.
|
|
Virginia
|
Windrose Central Medical Properties, L.L.C.
|
|
Delaware
|
Windrose Claremore Properties, LLC
|
|
Delaware
|
Windrose Columbia Properties, Ltd.
|
|
Florida
|
Windrose Congress I Properties, L.P.
|
|
Delaware
|
Windrose Congress II Properties, L.P.
|
|
Delaware
|
Windrose Copley Properties, L.L.C.
|
|
Virginia
|
Windrose Coral Springs Properties, L.L.C.
|
|
Virginia
|
Windrose Cottonwood Properties, LLC
|
|
Delaware
|
Windrose Denton Properties, LLC
|
|
Delaware
|
Windrose Desert Springs Properties, L.P.
|
|
Delaware
|
Windrose East Valley Properties, LLC
|
|
Delaware
|
Windrose East West Properties, L.L.C.
|
|
Virginia
|
Windrose Fayetteville Properties, L.L.C.
|
|
Delaware
|
Windrose Fox Valley Properties, L.L.C.
|
|
Virginia
|
Windrose Frisco I Properties, LLC
|
|
Delaware
|
Windrose Frisco II Properties, LLC
|
|
Delaware
|
Windrose Glendale Properties, LLC
|
|
Delaware
|
Windrose Gwinnett I Properties, L.L.C.
|
|
Virginia
|
Windrose Lafayette Properties, L.L.C.
|
|
Delaware
|
Windrose Lake Mead Properties, L.L.C.
|
|
Virginia
|
Windrose Lakewood Properties, L.L.C.
|
|
Virginia
|
Windrose Las Vegas Properties, LLC
|
|
Delaware
|
Windrose Los Alamitos Properties, LLC
|
|
Delaware
|
Windrose Los Gatos Properties, L.L.C.
|
|
Virginia
|
Windrose Medical Properties Management, L.L.C.
|
|
Virginia
|
Windrose Medical Properties, L.P.
|
|
Virginia
|
Windrose Mount Vernon Properties, L.L.C.
|
|
Virginia
|
Windrose Niagara Falls Properties, LLC
|
|
Delaware
|
Windrose Northside Properties, Ltd.
|
|
Florida
|
Windrose Northwest Professional Plaza
Properties, LLC
|
|
Delaware
|
Windrose Ocala Urology Properties, L.L.C.
|
|
Virginia
|
Windrose Okatie I Properties, LLC
|
|
Delaware
|
Windrose Orange Centre Properties, LLC
|
|
Delaware
|
Windrose Orange Properties, L.L.C.
|
|
Delaware
|
Windrose Palm Court Properties, L.L.C.
|
|
Virginia
|
Windrose Palmer Properties, LLC
|
|
Delaware
|
Windrose Palms West III Properties, Ltd.
|
|
Florida
|
Windrose Palms West IV Properties, Ltd.
|
|
Florida
|
Windrose Palms West V Properties, Ltd.
|
|
Florida
|
Windrose Park Medical Properties, L.L.C.
|
|
Virginia
|
Windrose Partell Medical Center, L.L.C.
|
|
Virginia
|
Windrose Physicians Plaza Properties, LLC
|
|
Delaware
|
Windrose Princeton Properties, L.L.C.
|
|
Delaware
|
Windrose Santa Anita Properties, L.L.C.
|
|
Delaware
|
Windrose Sierra Properties, Ltd.
|
|
Florida
|
Windrose Southlake Properties, LLC
|
|
Delaware
|
Windrose Southpointe Properties, L.L.C.
|
|
Delaware
|
Windrose Southside Properties, Ltd.
|
|
Florida
|
Windrose SPE Mount Vernon Properties, Inc.
|
|
Georgia
|
Windrose St. Louis I Properties, LLC
|
|
Delaware
|
Windrose St. Marys Medical Professional
Building, L.L.C.
|
|
Virginia
|
Windrose Trussville Properties, L.L.C.
|
|
Delaware
|
Windrose TSM I Properties, LLC
|
|
Delaware
|
Windrose Tucson Properties, LLC
|
|
Delaware
|
Windrose Tulsa Properties, L.L.C.
|
|
Delaware
|
Windrose Union City Properties, L.L.C.
|
|
Virginia
|
Windrose Webster Properties, L.P.
|
|
Delaware
|
Windrose Wellington Properties, LLC
|
|
Delaware
|
Windrose Wellington Properties, Ltd.
|
|
Florida
|
Windrose West Boca Properties, Ltd.
|
|
Florida
|
Windrose West Seneca Properties, LLC
|
|
Delaware
|
Windrose West Tower Properties, Ltd.
|
|
Florida
|
Windrose Winn Way Properties, L.L.C.
|
|
Virginia
|
Windrose WPC Jupiter Properties, LLC
|
|
Delaware
|
Windrose WPC Properties, L.P.
|
|
Delaware
|
Windrose Yorkville Properties, L.L.C.
|
|
Virginia
|
WMP AWPC II Management, LLC
|
|
Delaware
|
WMP Bethesda Management, LLC
|
|
Delaware
|
WMP Boynton Beach Management, LLC
|
|
Delaware
|
WMP Cottonwood Management, LLC
|
|
Delaware
|
WMP East Valley Management, LLC
|
|
Delaware
|
WMP Niagara Falls Management, LLC
|
|
Delaware
|
WMP Northwest Professional Plaza
Management, LLC
|
|
Delaware
|
|
|
|
|
|
State of
|
Name of Subsidiary
|
|
Organization
|
WMP Physicians Plaza Management, LLC
|
|
Delaware
|
WMP Southlake Management, LLC
|
|
Delaware
|
WMP TSM I Management, LLC
|
|
Delaware
|
WMP Wellington Management, LLC
|
|
Delaware
|
WMP West Seneca Management, LLC
|
|
Delaware
|
WMPT Aberdeen I Management, L.L.C.
|
|
Delaware
|
WMPT Aberdeen II Management, L.L.C.
|
|
Delaware
|
WMPT Atrium Management, L.L.C.
|
|
Delaware
|
WMPT AZ-Tempe Management, LLC
|
|
Delaware
|
WMPT Bartlett Management, LLC
|
|
Delaware
|
WMPT Bellaire HP Properties, L.L.C.
|
|
Virginia
|
WMPT Bellaire HP, L.P.
|
|
Virginia
|
WMPT Bellaire L.P.
|
|
Virginia
|
WMPT Bellaire POB Properties, L.L.C.
|
|
Virginia
|
WMPT Bellaire POB, L.P.
|
|
Virginia
|
WMPT Bellaire Properties, L.L.C.
|
|
Virginia
|
WMPT Boynton West Management, LLC
|
|
Delaware
|
WMPT Claremore Management, LLC
|
|
Delaware
|
WMPT Columbia Management, L.L.C.
|
|
Delaware
|
WMPT Congress I Management, L.L.C.
|
|
Delaware
|
WMPT Congress II Management, L.L.C.
|
|
Delaware
|
WMPT Denton Management, LLC
|
|
Delaware
|
WMPT Desert Springs Management, L.L.C.
|
|
Delaware
|
WMPT Frisco I Management, LLC
|
|
Delaware
|
WMPT Frisco II Management, LLC
|
|
Delaware
|
WMPT Glendale Management, LLC
|
|
Delaware
|
WMPT Gwinnett II Properties, L.L.C.
|
|
Delaware
|
WMPT Lafayette Management, L.L.C.
|
|
Delaware
|
WMPT Las Vegas Management, LLC
|
|
Delaware
|
WMPT Los Alamitos Management, LLC
|
|
Delaware
|
WMPT Northside Management, L.L.C.
|
|
Delaware
|
WMPT Okatie I Management, LLC
|
|
Delaware
|
WMPT Orange Centre Management, LLC
|
|
Delaware
|
WMPT Palmer Management, LLC
|
|
Delaware
|
WMPT Palms West III Management, L.L.C.
|
|
Delaware
|
WMPT Palms West IV Management, L.L.C.
|
|
Delaware
|
WMPT Palms West V Management, L.L.C.
|
|
Delaware
|
WMPT Pearland II Properties, L.L.C.
|
|
Virginia
|
WMPT Pearland II, L.P.
|
|
Virginia
|
WMPT Pearland Properties, L.L.C.
|
|
Virginia
|
WMPT Pearland, L.P.
|
|
Virginia
|
WMPT Princeton Management, L.L.C.
|
|
Delaware
|
WMPT Sacramento Properties, L.L.C.
|
|
Virginia
|
WMPT Sacramento, L.P.
|
|
Virginia
|
WMPT Santa Anita Management, L.L.C.
|
|
Delaware
|
WMPT Sierra Management, L.L.C.
|
|
Delaware
|
WMPT Southpointe Management, L.L.C.
|
|
Delaware
|
WMPT Southside Management, L.L.C.
|
|
Delaware
|
WMPT St. Louis I Management, LLC
|
|
Delaware
|
WMPT Stone Oak Properties, L.L.C.
|
|
Virginia
|
WMPT Stone Oak, L.P.
|
|
Virginia
|
WMPT Tomball Properties, L.L.C.
|
|
Virginia
|
WMPT Tomball, L.P.
|
|
Virginia
|
WMPT Trinity Properties, L.L.C.
|
|
Virginia
|
WMPT Trinity, L.P.
|
|
Virginia
|
WMPT Trussville Management, L.L.C.
|
|
Delaware
|
WMPT Tucson Management, LLC
|
|
Delaware
|
WMPT Tulsa Management, L.L.C.
|
|
Delaware
|
WMPT Webster Management, L.L.C.
|
|
Delaware
|
WMPT Wellington Management, L.L.C.
|
|
Delaware
|
WMPT West Boca Management, L.L.C.
|
|
Delaware
|
WMPT West Tower Management, L.L.C.
|
|
Delaware
|
WMPT WPC Jupiter Management, LLC
|
|
Delaware
|
WMPT WPC Management, L.L.C
|
|
Delaware
|
WTP Healthcare Properties, LLC
|
|
Delaware
|
SCHEDULE V
Executive Officers
George L. Chapman
Charles J. Herman, Jr.
Jeffrey H. Miller
Scott A. Estes
Erin C. Ibele
Daniel R. Loftus
Michael A. Crabtree
John T. Thomas
Exhibit 3.1
CERTIFICATE OF DESIGNATION
OF
6.50% SERIES I CUMULATIVE CONVERTIBLE PERPETUAL PREFERRED STOCK
OF
HEALTH CARE REIT, INC.
PURSUANT TO SECTION 151 OF THE
GENERAL CORPORATION LAW OF THE STATE OF DELAWARE
The undersigned duly authorized officer of Health Care REIT, Inc., a corporation organized and
existing under the General Corporation Law of the State of Delaware (the Corporation), does
hereby certify that, pursuant to authority conferred upon the Board of Directors of the Corporation
(the Board) by the Second Restated Certificate of Incorporation of the Corporation (as such may
be amended from time to time, the Certificate of Incorporation) and pursuant to Section 151 of
the General Corporation Law of the State of Delaware, the Pricing Committee of the Board, acting by
unanimous written consent effective as of March 1, 2011 pursuant to authority delegated to it by
the Board by resolutions adopted and effective as of February 25, 2011, adopted a resolution (i)
authorizing a new series of the Corporations previously authorized preferred stock, $1.00 par
value per share (the Preferred Stock), and (ii) providing for the designations, preferences and
relative, participating, optional or other rights, and the qualifications, limitations or
restrictions thereof, of 14,375,000 shares of 6.50% Series I Cumulative Convertible Perpetual
Preferred Stock of the Corporation, and this Certificate of Designation shall be effective as of
March 7, 2011 at 9:00 a.m., as follows:
RESOLVED, that the Corporation is authorized to issue 14,375,000 shares of 6.50% Series I
Cumulative Convertible Perpetual Preferred Stock, $1.00 par value per share, which shall have the
following powers, designations, preferences and other special rights:
Section 1.
Designation and Amount
. The shares of such series shall be designated as
6.50% Series I Cumulative Convertible Perpetual Preferred Stock (the Series I Preferred Stock)
and the number of shares constituting such series shall be Fourteen Million Three Hundred
Seventy-Five Thousand (14,375,000).
Section 2.
Maturity
. The Series I Preferred Stock shall have no stated maturity and
will not be subject to any sinking fund or mandatory redemption.
Section 3.
Rank
. The Series I Preferred Stock shall, with respect to dividend rights
and rights upon liquidation, dissolution or winding-up of the affairs of the Corporation, rank (i)
senior to all classes of the Corporations common stock and each other class of the Corporations
capital stock and series of Preferred Stock established after the original issue date of the Series
I Preferred Stock (the Issue Date), the terms of which do not expressly provide that such class
or series ranks senior to or on a parity with the Series I Preferred Stock as to dividend rights or
1
rights upon the liquidation, winding-up or dissolution of the Corporation (collectively, the
Junior Stock); (ii) on a parity, in all respects, with the Corporations outstanding 7 7/8%
Series D Cumulative Redeemable Preferred Stock (the Series D Preferred Stock), 7 5/8% Series F
Cumulative Redeemable Preferred Stock (the Series F Preferred Stock) and 6% Series H Cumulative
Convertible and Redeemable Preferred Stock (the Series H Preferred Stock) and any class of
capital stock or series of preferred stock established after the Issue Date in compliance with
Section 10 of this Certificate of Designation, the terms of which expressly provide that such class
or series will rank on a parity with the Series I Preferred Stock as to dividend rights or rights
upon the liquidation, winding-up or dissolution of the Corporation (collectively, the Parity
Stock), and (iii) junior to each class of capital stock or series of preferred stock established
after the Issue Date in compliance with Section 10 of this Certificate of Designation, the terms of
which expressly provide that such class or series will rank senior to the Series I Preferred Stock
as to dividend rights or rights upon the liquidation, winding-up or dissolution of the Corporation
(collectively, the Senior Stock).
Section 4.
Definitions
. As used herein, the following terms shall have the following
meanings:
(A) Accrued Dividends shall mean, with respect to any share of Series I Preferred Stock, as
of any date, the accrued and unpaid dividends on such share (whether or not declared) from, and
including, the most recent Dividend Payment Date (or the Issue Date, if such date is prior to the
first Dividend Payment Date) to, but not including, such date.
(B) Accumulated Dividends means, with respect to any share of the Series I Preferred Stock,
as of any date, the aggregate accumulated and unpaid dividends, if any, on such share (whether or
not declared) from the Issue Date until the most recent Dividend Payment Date on or prior to such
date.
(C) Additional Shares has the meaning given to such term in Section 12(A).
(D) Beneficial Owner means a Person who has beneficial ownership as determined in accordance
with Rule 13d-3 promulgated by the Securities Exchange Commission under the Exchange Act, except
that a Person will be deemed to own any securities that such Person has a right to acquire, whether
such right is exercisable immediately or only after the passage of time.
(E) Board has the meaning given to such term in the Preamble.
(F) Business Day means any day other than a Saturday, Sunday or other day on which
commercial banks in The City of New York are authorized or required by law or executive order to
close.
(G) By-laws shall mean the By-laws of the Corporation, as amended from time to time.
(H) Cap Conversion Rate has the meaning given to such term in Section 12(C)(ii).
(I) Cap Price has the meaning given to such term in Section 12(D)(ii).
2
(J) Capital Gains Amount has the meaning given to such term in Section 5(E).
(K) Certificated Series I Preferred Stock has the meaning given to such term in Section
15(A)(v).
(L) Certificate of Designation means this certificate of designation for the Series I
Preferred Stock, as such may be amended from time to time.
(M) Certificate of Incorporation has the meaning given to such term in the Preamble.
(N) Closing Sale Price of the Common Stock on any date means the closing sale price per
share (or if no closing sale price is reported, the average of the closing bid and ask prices or,
if more than one in either case, the average of the average closing bid and the average closing ask
prices) on such date as reported on the NYSE or, if the Common Stock is not listed on the NYSE, on
the principal other national securities exchange on which the Common Stock is then listed or, if
the Common Stock is not listed on a national securities exchange, on the principal other market on
which the Common Stock is then traded. If the Common Stock is not so listed, the Closing Sale
Price will be an amount determined in good faith by the Board to be the fair value of the Common
Stock.
(O) Code has the meaning given to such term in Section 5(E).
(P) Common Stock means the shares of common stock, par value $1.00 per share, of the
Corporation or any other capital stock of the Corporation into which such Common Stock shall be
reclassified or changed.
(Q) Continuing Directors means: (i) individuals who on the Issue Date constituted the Board
or (ii) any new directors whose election to the Board of Directors or whose nomination for election
by the stockholders of the Corporation was approved by at least a majority of the Corporations
directors then in office (or a duly constituted committee thereof) who were either directors on the
Issue Date or whose election or nomination for election was previously so approved.
(R) Conversion Date means, with respect to a conversion, the date on which a Holder has
complied with all of the procedures set forth in Section 7(B) to effect such conversion.
(S) Conversion Price means, at any particular time, the Liquidation Preference for a share
of the Series I Preferred Stock divided by the Conversion Rate in effect at such time.
(T) Conversion Rate means 0.8460 shares of Common Stock per share of Series I Preferred
Stock, subject to adjustment as set forth in Section 7.
(U) Corporation has the meaning given to such term in the Preamble.
(V) Daily VWAP means the average of the per share volume-weighted average prices of the
Common Stock for each day, as displayed under the heading Bloomberg VWAP
3
on Bloomberg page HCN.UN <Equity> AQR (NYSE VWAP) (or its equivalent successor if such
page is not available) in respect of the period from the scheduled open of trading until the
scheduled close of trading of the primary trading session on each such Trading Day (or if such
volume-weighted average price is unavailable on any such day, the Closing Sale Price shall be used
for such day). The per share volume-weighted average price on each such day will be determined
without regard to after hours trading or any other trading outside of the regular trading session
trading hours.
(W) Dividend Parity Stock means all classes or series of capital stock of the Corporation
ranking on a parity with the Series I Preferred Stock as to dividends.
(X) Dividend Payment Date has the meaning given to such term in Section 5(B).
(Y) Dividend Record Date has the meaning given to such term in Section 5(B).
(Z) DTC or Depository shall mean The Depository Trust Company, or any successor
depository.
(AA) Exchange Act means the Securities Exchange Act of 1934, as amended.
(BB) Ex-Date means the first date on which the Common Stock trades on the applicable
exchange or in the applicable market, regular way, without the right to receive the issuance,
dividend or distribution in question from the Corporation or, if applicable, from the seller of the
Common Stock on such exchange or market (in the form of due bills or otherwise) as determined by
such exchange or market.
(CC) Extraordinary Transaction has the meaning given to such term in Section 10(F).
(DD) Floor Price has the meaning given to such term in Section 12(D)(iii).
(EE) Fundamental Change means the occurrence of any of the following:
(i) any Person is or becomes the Beneficial Owner, directly or indirectly, through a
purchase, merger or other transaction, of 50% or more of the total voting power of all classes of
the Corporations Voting Stock;
(ii) the Corporation consolidates with, or merges with or into, another Person or any Person
consolidates with or merges with or into the Corporation, or the Corporation conveys, transfers,
leases or otherwise disposes of all or substantially all of its assets or all or substantially all
of the assets of the Corporation and its subsidiaries on a consolidated basis to any Person
(whether in one transaction or a series of related transactions), other than:
(a) any transaction pursuant to which the holders of the Corporations Voting Stock
immediately prior to the transaction collectively have the entitlement to exercise,
directly or indirectly, 50% or more of the total voting power of all classes of the
Corporations Voting Stock of the continuing or surviving Person immediately after
the transaction; or
4
(b) any merger solely for the purpose of changing the Corporations jurisdiction of
incorporation and resulting in a reclassification, conversion or exchange of
outstanding shares of the Common Stock solely into shares of common stock of the
surviving entity;
(iii) the first day on which a majority of the members of the Board does not consist of
Continuing Directors;
(iv) the approval of a plan of liquidation or dissolution for the Corporation; or
(v) the Common Stocks ceasing to be listed on a national securities exchange;
provided, however, that notwithstanding the foregoing, a Fundamental Change will be deemed not to
have occurred in the case of a merger or consolidation if (i) at least 90% of the consideration for
the Common Stock (excluding cash payments for fractional shares and cash payments pursuant to
dissenters appraisal rights) in the merger or consolidation consists of common stock of a
corporation or other entity organized and existing under the laws of the United States or any state
thereof and traded on a national securities exchange (or which will be so traded when issued or
exchanged in connection with such transaction) (Publicly Traded Common Stock) and (ii) as a
result of such transaction or transactions, the shares of Series I Preferred Stock become
convertible into such Publicly Traded Common Stock.
(FF) Fundamental Change Notice has the meaning given to such term in Section 11(A).
(GG) Fundamental Change Effective Date shall mean the date on which a Fundamental Change
event occurs.
(HH) Fundamental Change Expiration Date has the meaning given to such term in Section 11(B).
(II) Global Series I Preferred Stock has the meaning given to such term in Section
15(A)(ii).
(JJ) Holder means a holder of record of the Series I Preferred Stock.
(KK) Issue Date has the meaning given to such term in Section 3.
(LL) Junior Stock has the meaning given to such term in Section 3.
(MM) Liquidation Preference shall mean, with respect to each share of Series I Preferred
Stock, $50.00.
(NN) Make-Whole Premium has the meaning given to such term in Section 12(A).
(OO) Mandatory Conversion Date has the meaning given to such term in Section 8(B).
5
(PP) Market Disruption Event means (1) a failure by the NYSE or, if the Common Stock is not
listed on the NYSE, the principal U.S. national securities exchange on which the Common Stock is
listed or, if the Common Stock is not listed on a national securities exchange, on the principal
other market on which the Common Stock is then traded, to open for trading during its regular
trading session or (2) the occurrence or existence prior to 1:00 p.m. (New York City time) on any
Trading Day for the Common Stock of an aggregate one-half hour period 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.
(QQ) Market Value means the average of the Daily VWAP of the Common Stock for each day
during a 10 consecutive Trading Day period ending immediately prior to the date of determination.
(RR) NYSE means the New York Stock Exchange.
(SS) Officer shall mean the Chief Executive Officer, the President, the Chief Financial
Officer, any Vice President, the Treasurer, the Secretary or any Assistant Secretary of the
Corporation.
(TT) Officers Certificate shall mean a certificate signed by two Officers.
(UU) Parity Stock has the meaning given to such term in Section 3.
(VV) Parity Voting Preferred means all series of preferred stock of the Corporation ranking
on a parity with the Series I Preferred Stock as to dividends or upon liquidation upon which voting
rights equivalent to those in Section 10 have been conferred and are exercisable.
(WW) Person means any person, including without limitation any syndicate or group, that
would be deemed to be a person under Section 13(d)(3) of the Exchange Act and the rules of the
Securities and Exchange Commission thereunder.
(XX) Preferred Stock has the meaning given to such term in the Preamble.
(YY) Preferred Stock Directors has the meaning given to such term in Section 10(B).
(ZZ) Reference Dividend has the meaning given to such term in Section 7(D)(iv).
(AAA) Reference Property has the meaning given to such term in Section 7(H).
(BBB) REIT has the meaning given to such term in Section 5(F).
(CCC) Senior Stock has the meaning given to such term in Section 3.
(DDD) Series D Preferred Stock has the meaning given to such term in Section 3.
(EEE) Series F Preferred Stock has the meaning given to such term in Section 3.
(FFF) Series H Preferred Stock has the meaning given to such term in Section 3.
6
(GGG) Series I Preferred Stock has the meaning given to such term in Section 1.
(HHH) Spin-Off has the meaning given to such term in Section 7(D)(iii).
(III) Stock Price means, in connection with a transaction that constitutes a Fundamental
Change: (i) the cash amount paid per share of Common Stock if the holders of Common Stock receive
only cash in such transaction; or (ii) in any other situation, the average Closing Sale Prices of
the Common Stock on the five Trading Days prior to, but not including, the Fundamental Change
Effective Date in respect of such Fundamental Change.
(JJJ) Total Dividends has the meaning given to such term in Section 5(E).
(KKK) Trading Day means a day during which (i) trading in securities generally occurs on the
NYSE or, if the Common Stock is not listed on the NYSE, on the other principal national securities
exchange on which the Common Stock is then listed or, if the Common Stock is not listed on a
national securities exchange, on the principal other market on which the Common Stock is then
traded and (ii) there is no Market Disruption Event. A Trading Day only includes those days that
have a scheduled closing time of 4:00 p.m. (New York City time) or the then standard closing time
for regular trading on the relevant exchange or trading system. If the Common Stock is not so
listed or traded, Trading Day means a Business Day.
(LLL) Transaction has the meaning given to such term in Section 7(H).
(MMM) Transfer Agent means Mellon Investor Services LLC, acting as the Corporations duly
appointed transfer agent, registrar, conversion agent and dividend disbursing agent for the Series
I Preferred Stock. The Corporation may, in its sole discretion, remove the Transfer Agent with 10
days prior notice to the Transfer Agent; provided that the Corporation shall appoint a successor
Transfer Agent which shall accept such appointment prior to the effectiveness of such removal.
(NNN) Trigger Event has the meaning given to such term in Section 7(D)(vi).
(OOO) Voting Stock with respect to any person means the capital stock of such person that is
at the time entitled, without regard to the occurrence of any contingency, to vote in the election
of the board of directors (or comparable governing body of such person).
Section 5.
Dividends
.
(A) The Holders of shares of the Series I Preferred Stock are entitled to receive, when, as
and if declared by the Board (or a duly authorized committee thereof), out of funds of the
Corporation legally available for the payment of dividends, cumulative preferential cash dividends
at the rate of 6.50% of the Liquidation Preference per annum per share (equivalent to $3.25 per
share per annum).
(B) Dividends on the Series I Preferred Stock shall be cumulative from the most recent date to
which dividends have been paid, or if no dividends have been paid, from the Issue Date and shall be
payable quarterly in arrears on January 15, April 15, July 15 and October 15 of each year or, if
not a Business Day, the next succeeding Business Day commencing July 15,
7
2011 (each, a Dividend Payment Date). Any dividend payable on the Series I Preferred Stock
for any partial dividend period will be computed on the basis of a 360-day year consisting of
twelve 30-day months. Dividends will be payable to Holders as they appear in the stock records of
the Corporation at the close of business on the applicable record date, which shall be the last day
of the calendar month first preceding the applicable Dividend Payment Date (each, a Dividend
Record Date).
(C) No dividends on shares of the Series I Preferred Stock shall be declared by the Board or
paid or set apart for payment by the Corporation if such declaration or payment is restricted or
prohibited by law.
(D) Notwithstanding the foregoing Section 5(C), dividends on the Series I Preferred Stock will
accrue whether or not the Corporation has earnings, whether or not there are funds legally
available for the payment of such dividends and whether or not such dividends are declared.
Accrued but unpaid dividends on the Series I Preferred Stock will not bear interest and Holders
will not be entitled to any dividends in excess of the full cumulative dividends described above.
Any dividend payment made on the Series I Preferred Stock shall first be credited against the
earliest accumulated but unpaid dividend due with respect to such shares that remains payable.
(E) If, for any taxable year, the Corporation elects to designate as capital gain dividends
(as defined in Section 857 of the Internal Revenue Code of 1986, as amended (the Code)) any
portion (the Capital Gains Amount) of the dividends (as determined for federal income tax
purposes) paid or made available for the year to holders of all classes of stock (the Total
Dividends), then the portion of the Capital Gains Amount that shall be allocable to the Holders
shall be the amount that the total dividends (as determined for federal income tax purposes) paid
or made available to the Holders for the year bears to the Total Dividends. The Corporation will
make a similar allocation for each taxable year with respect to any undistributed long-term capital
gains of the Corporation that are to be included in its stockholders long-term capital gains,
based on the allocation of the Capital Gains Amount that would have resulted if such undistributed
long-term capital gains had been distributed as capital gains dividends by the Corporation to its
stockholders.
(F) No dividends or other distributions (other than a dividend or distribution payable solely
in shares of Parity Stock or Junior Stock (in the case of Parity Stock) or Junior Stock (in the
case of Junior Stock) and cash in lieu of fractional shares) will be declared, made or paid or set
apart for payment on any Parity Stock or Junior Stock, nor may any Parity Stock or Common Stock be
redeemed, purchased or otherwise acquired for any consideration (or any money paid to or made
available for a sinking fund for the redemption of any Parity Stock or Junior Stock) by the
Corporation or on its behalf (except by conversion into or exchange for shares of Parity Stock or
Junior Stock (in the case of Parity Stock) or Junior Stock (in the case of Junior Stock)) unless
full Accumulated Dividends have been or contemporaneously are declared and paid or declared and a
sum sufficient for the payment thereof is set apart for such payment on the Series I Preferred
Stock and any Dividend Parity Stock for all dividend periods ending on or prior to the date of such
declaration, payment, redemption, purchase or acquisition; provided, that the foregoing restriction
will not limit the acquisition of shares of Common Stock solely to the
8
extent necessary to preserve the Corporations qualification as a Real Estate Investment Trust
(a REIT).
(G) Notwithstanding the limitations of Section 5(F), when dividends are not paid in full (or a
sum sufficient for such full payment is not so set apart) upon the Series I Preferred Stock and
Dividend Parity Stock, all dividends declared upon the Series I Preferred Stock and Dividend Parity
Stock may be declared pro rata so that the amount of dividends declared per share of Series I
Preferred Stock and such Dividend Parity Stock shall in all cases bear to each other the same ratio
that Accumulated Dividends per share on the Series I Preferred Stock and accumulated dividends on
such other series of Dividend Parity Stock (which shall not include any accrual in respect of
unpaid dividends for prior dividend periods if such Dividend Parity Stock does not have a
cumulative dividend) bear to each other.
(H) The Holders at the close of business on a Dividend Record Date shall be entitled to
receive the dividend payment on those shares on the corresponding Dividend Payment Date
notwithstanding the conversion of such shares following that Dividend Record Date or the
Corporations default in payment of the dividend due on that Dividend Payment Date. However,
shares of Series I Preferred Stock surrendered for conversion at the option of a Holder pursuant to
Section 7 during the period between the close of business on any Dividend Record Date and the close
of business on the Business Day immediately preceding the applicable Dividend Payment Date must be
accompanied by payment of an amount of cash equal to the dividend payable on such shares on that
Dividend Payment Date. A Holder on a Dividend Record Date that surrenders (or whose transferee
surrenders) any shares for conversion on the corresponding Dividend Payment Date shall receive the
dividend payable by the Corporation on the Series I Preferred Stock on that date, and the
converting Holder need not include payment in the amount of such dividend upon surrender of shares
of the Series I Preferred Stock for conversion. Except as provided in Section 8 and Section 11,
the Corporation shall make no payment or allowance for unpaid dividends, whether or not in arrears,
on converted shares or for dividends on the shares of Common Stock issued upon conversion.
Section 6.
Liquidation Preference
.
(A) Upon any voluntary or involuntary liquidation, dissolution or winding-up of the affairs of
the Corporation, the Holders shall be entitled to receive and to be paid out of the assets of the
Corporation legally available for distribution to its stockholders the Liquidation Preference, plus
an amount equal to any Accumulated Dividends and Accrued Dividends to the date of payment, before
any payment or distribution of assets is made to holders of the Junior Stock. Upon the payment in
full of such liquidation preference and all such Accumulated Dividends and Accrued Dividends, the
Holders will have no right or claim to any remaining assets of the Corporation.
(B) If, upon any liquidation, dissolution or winding-up of the affairs of the Corporation, the
assets of the Corporation available for distribution to the Holders shall be insufficient to permit
payment in full to such Holders the sums that such Holders are entitled to receive in such case,
then all of the assets available for distribution to the Holders shall be distributed among and
paid to the Holders ratably in proportion to the respective amounts that would be payable to such
Holders if such assets were sufficient to permit payment in full;
9
provided that all such distributions and payments to the Holders shall be made on a
pari passu
basis with the holders of shares of the Parity Stock.
(C) For the purposes of this Section 6, the consolidation or merger of the Corporation with or
into any other corporation, or the voluntary sale, lease or conveyance of all or substantially all
of the property or business of the Corporation, shall not be deemed to constitute a liquidation,
dissolution or winding-up of the affairs of the Corporation.
(D) The Corporation shall provide the Holders with notice of any event triggering the right to
receive a distribution upon a liquidation, dissolution or winding up of the affairs of the
Corporation not less than 30 calendar days nor more than 60 calendar days prior to the applicable
distribution payment date.
Section 7.
Conversion
.
(A) Each Holder shall have the right, at any time, at its option, to convert, subject to the
terms and provisions of this Section 7(A), any or all of such Holders shares of Series I Preferred
Stock into such whole number of fully paid and nonassessable shares of Common Stock per share of
converted Series I Preferred Stock as is equal, subject to Section 7(H), to the Conversion Rate in
effect on the Conversion Date.
(B) The conversion right of a Holder shall be exercised by the Holder by the surrender to the
Corporation of the certificates representing shares to be converted at any time during usual
business hours at its principal place of business or the offices of its duly appointed Transfer
Agent to be maintained by it, accompanied by (i) written notice to the Corporation in the form of
Exhibit B hereto that the Holder elects to convert all or a portion of the shares of Series I
Preferred Stock represented by such certificate and specifying the name or names (with address) in
which a certificate or certificates for shares of Common Stock are to be issued, (ii) (if so
required by the Corporation or its duly appointed Transfer Agent) a written instrument or
instruments of transfer and endorsements in form reasonably satisfactory to the Corporation or its
duly appointed Transfer Agent duly executed by the Holder or its duly authorized legal
representative and transfer tax stamps or funds therefor, if required pursuant to Section 7(J),
(iii) funds for the payment of any stock transfer, documentary, stamp or similar taxes not payable
by the Corporation and (iv) any payment required pursuant to Section 5(H). The Corporation will
deliver a stock certificate or certificates representing the shares of Common Stock delivered in
connection with a conversion, together with, if applicable, any payment of cash dividends and cash
in lieu of fractional shares, to the Holder, or in the case of Series I Preferred Stock held in
global certificates, the Transfer Agent will deliver the shares of Common Stock by a book-entry
transfer through DTC. Such delivery will be made as promptly as practicable, but in no event later
than three Business Days following the Conversion Date.
(C) As of the close of business on the Conversion Date with respect to a conversion, a
converting Holder shall be deemed to be the holder of record of Common Stock issuable upon
conversion of such Holders Series I Preferred Stock notwithstanding that the share register of the
Corporation shall then be closed or that certificates representing such Common Stock shall not then
be actually delivered to such Holder. On the Conversion Date, all rights with respect to the
shares of Series I Preferred Stock so converted, including the rights, if any, to receive notices,
10
will terminate, except only the rights of the Holders thereof to (i) receive the number of
whole shares of Common Stock into which such shares of Series I Preferred Stock have been converted
(with such adjustment or cash payment for fractional shares as the Corporation may elect pursuant
to Section 14); (ii) receive a Make-Whole Premium or any other shares of Common Stock or other
consideration, if any, payable upon a Fundamental Change, in accordance with Section 11 and Section
12; (iii) receive Reference Property, if any, issuable pursuant to Section 7(H) in lieu of Common
Stock upon conversion; and (iv) exercise the rights to which they are thereafter entitled as
holders of Common Stock and/or any other property receivable by the Holder upon such conversion.
Prior to the close of business on the Conversion Date, the shares of Common Stock issuable upon
conversion of the Series I Preferred Stock will not be deemed to be outstanding for any purpose and
the Holders will have no rights with respect to such Common Stock, including voting rights, rights
to respond to tender offers and rights to receive any dividends or other distributions on the
Common Stock, by virtue of holding shares of the Series I Preferred Stock.
(D) The Conversion Rate shall be subject to the following adjustments (except as provided in
Section 7(E)), without duplication:
(i) If the Corporation issues shares of Common Stock as a dividend or distribution on shares
of Common Stock, or if the Corporation effects a share split or share combination, the Conversion
Rate will be adjusted based on the following formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the open of business on
the Ex-Date for such dividend or distribution, or the open of business on the effective date of
such share split or share combination, as the case may be;
CR
1
= the Conversion Rate in effect immediately after the open of business on the
Ex-Date for such dividend or distribution, or the open of business on the effective date of such
share split or share combination, as the case may be;
OS
0
= the number of shares of Common Stock outstanding immediately prior to the
open of business on the Ex-Date for such dividend or distribution, or the open of business on the
effective date of such share split or share combination, as the case may be; and
OS
1
= the number of shares of Common Stock outstanding immediately after such
dividend or distribution, or such share split or share combination, as the case may be.
Any adjustment made under this Section 7(D)(i) shall become effective immediately after the
open of business on the Ex-Date for such dividend or distribution, or immediately after the open of
business on the effective date for such share split or share combination. If any dividend or
distribution of the type described in this Section 7(D)(i) is declared but not so paid or made, or
any share split or combination of the type described in this Section 7(D)(i) is announced but the
11
outstanding shares of Common Stock are not split or combined, as the case may be, the
Conversion Rate shall be immediately readjusted, effective as of the date the Board determines not
to pay such dividend or distribution, or not to split or combine the outstanding shares of Common
Stock, as the case may be, to the Conversion Rate that would then be in effect if such dividend,
distribution, share split or share combination had not been declared or announced.
(ii) If the Corporation distributes to all or substantially all holders of its Common Stock
any rights, options or warrants entitling them, for a period expiring not more than 60 days
immediately following the record date of such distribution, to purchase or subscribe for shares of
Common Stock at a price per share less than the average of the Daily VWAP of the Common Stock over
the 10 consecutive Trading-Day period ending on the Trading Day immediately preceding the Ex-Date
for such distribution, the Conversion Rate will be increased based on the following formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the open of business on
the Ex-Date for such distribution;
CR
1
= the Conversion Rate in effect immediately after the open of business on the
Ex-Date for such distribution;
OS
0
= the number of shares of Common Stock outstanding immediately prior to the
open of business on the Ex-Date for such distribution;
X = the total number of shares of Common Stock issuable pursuant to such rights, options or
warrants; and
Y = the number of shares of Common Stock equal to the aggregate price payable to exercise such
rights, options or warrants divided by the average of the Daily VWAP of the Common Stock over the
10 consecutive Trading Day period ending on the Trading Day immediately preceding the Ex-Date for
such distribution.
Any increase made under this Section 7(D)(ii) will be made successively whenever any such
rights, options or warrants are distributed and shall become effective immediately after the open
of business on the Ex-Date for such distribution. To the extent that shares of Common Stock are
not delivered after the expiration of such rights, options or warrants, the Conversion Rate shall
be readjusted to the Conversion Rate that would then be in effect had the increase with respect to
the distribution of such rights, options or warrants been made on the basis of delivery of only the
number of shares of Common Stock actually delivered. If such rights, options or warrants are not
so distributed, the Conversion Rate shall be decreased to be the Conversion Rate that would then be
in effect if such Ex-Date for such distribution had not occurred.
12
In determining whether any rights, options or warrants entitle the holders to subscribe for or
purchase shares of Common Stock at less than such average of the Daily VWAP for the 10 consecutive
Trading-Day period ending on the Trading Day immediately preceding the Ex-Date for such
distribution, and in determining the aggregate offering price of such shares of the Common Stock,
there shall be taken into account any consideration received by the Corporation for such rights,
options or warrants and any amount payable on exercise or conversion thereof, the value of such
consideration, if other than cash, to be determined by the Board in its good faith judgment.
(iii) If the Corporation distributes shares of its capital stock, evidences of its
indebtedness or other assets, securities or property, to all or substantially all holders of Common
Stock, excluding: (A) dividends or distributions referred to in Sections 7(D)(i) and 7(D)(ii); (B)
Spin-Offs to which the provisions set forth in the latter portion of this Section 7(D)(iii) shall
apply; and (C) dividends or distributions paid exclusively in cash referred to in Section 7(D)(iv),
then the Conversion Rate will be increased based on the following formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the open of business on
the Ex-Date for such distribution;
CR
1
= the Conversion Rate in effect immediately after the open of business on the
Ex-Date for such distribution;
SP
0
= the average of the Daily VWAP of the Common Stock over the 10 consecutive
Trading-Day period ending on the Trading Day immediately preceding the Ex-Date for such
distribution; and
FMV = the fair market value (as determined by the Board in its good faith judgment) of the
shares of capital stock, evidences of indebtedness, assets, securities or property distributable
with respect to each outstanding share of Common Stock on the Ex-Date for such distribution.
If FMV (as defined above) is equal to or greater than the SP
0
(as defined
above), in lieu of the foregoing increase, each Holder shall receive in respect of each share of
the Series I Preferred Stock owned by it, at the same time and upon the same terms as holders of
the Common Stock, the amount and kind of the Corporations capital stock, evidences of
indebtedness, other assets, securities or property that such Holder would have received as if such
Holder owned a number of shares of Common Stock equal to the Conversion Rate in effect on the
Ex-Date for the distribution.
Any increase made under the foregoing portion of this Section 7(D)(iii) will become effective
immediately after the open of business on the Ex-Date for such distribution.
13
With respect to an adjustment made pursuant to this Section 7(D)(iii) where there has been a
payment of a dividend or other distribution on the Common Stock or capital stock of any class or
series, or similar equity interests, of or relating to a subsidiary or other business unit where
such capital stock or similar equity interest is listed or quoted (or will be listed or quoted upon
consummation of the spin-off) on a national securities exchange (a Spin-Off), the Conversion Rate
in effect immediately before 5:00 p.m. (New York City time) on the tenth Trading Day immediately
following, and including, the Ex-Date for the Spin-Off will be increased based on the following
formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the close of business on
the tenth Trading Day immediately following, and including, the Ex-Date for the Spin-Off;
CR
1
= the Conversion Rate in effect immediately after the close of business on the
tenth Trading Day immediately following, and including, the Ex-Date for the Spin-Off;
FMV = the average of the volume-weighted average sale prices of the capital stock or similar
equity interest distributed to holders of the Common Stock applicable to one share of the Common
Stock over the 10 consecutive Trading Day period immediately following, and including, the Ex-Date
for the Spin-Off; and
MP
0
= the average of the Daily VWAP of the Common Stock over the 10 consecutive
Trading Day period immediately following, and including, the Ex-Date for the Spin-Off.
The adjustment to the Conversion Rate under the preceding paragraph will occur at the close of
business on the tenth Trading Day immediately following, and including, the Ex-Date for the
Spin-Off; provided that, for purposes of determining the Conversion Rate, in respect of any
conversion during the 10 Trading Days following, and including, the effective date of any Spin-Off,
references within the portion of this Section 7(D)(iii) related to Spin-Offs to 10 consecutive
Trading Days shall be deemed replaced with such lesser number of consecutive Trading Days as have
elapsed between the effective date of such Spin-Off and the relevant Conversion Date.
If the dividend or distribution described in this Section 7(D)(iii) is declared but not so
paid or made, the new Conversion Rate shall be readjusted to be the Conversion Rate that would then
be in effect if such dividend or distribution had not been declared.
(iv) If any cash dividend or distribution is made to all or substantially all holders of the
Common Stock (excluding any dividend or distribution in connection with the liquidation,
dissolution or winding-up of the affairs of the Corporation) during any quarterly fiscal period of
the Corporation in an aggregate amount that, together with other cash dividends or distributions
made during such quarterly fiscal period, exceeds the product of $0.715 (the Reference
14
Dividend), multiplied by the number of shares of Common Stock outstanding on the record date
for such distributions, the Conversion Rate will be increased based on the following formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the open of business on
the Ex-Date for such dividend or distribution;
CR
1
= the Conversion Rate in effect immediately after the open of business on the
Ex-Date for such dividend or distribution;
SP
0
= the average of the Daily VWAP of the Common Stock over the 10 consecutive
Trading Day period immediately preceding the Ex-Date for such dividend or distribution; and
C = the amount in cash per share of Common Stock distributed to holders of the Common Stock
that exceeds the Reference Dividend.
Such increase shall become effective immediately after the open of business on the Ex-Date for
such dividend or distribution. If such dividend or distribution is not so paid, the Conversion
Rate shall be decreased to be the Conversion Rate that would then be in effect if such dividend or
distribution had not been declared.
Notwithstanding the foregoing, if C (as defined above) is equal to or greater than
SP
0
(as defined above), in lieu of the foregoing increase, each Holder shall receive
in respect of each share of Series I Preferred Stock owned by it, at the same time as the holders
of Common Stock receive the applicable dividend or other distribution, an amount of cash equal to C
multiplied by the number of shares of Common Stock equal to the Conversion Rate in effect on the
Ex-Date for such cash dividend or distribution.
The Reference Dividend shall be adjusted in a manner inversely proportional to adjustments
made to the Conversion Rate; provided that no adjustment will be made to the Reference Dividend
amount for any adjustment made to the Conversion Rate under this Section 7(D)(iv).
Notwithstanding the foregoing, if an adjustment is required to be made under this Section
7(D)(iv) as a result of a distribution that is not a regular quarterly dividend, the Reference
Dividend amount will be deemed to be zero.
(v) If the Corporation or any of its subsidiaries makes a payment in respect of a tender offer
or exchange offer for Common Stock, if the cash and value of any other consideration included in
the payment per share of Common Stock exceeds the average of the Daily VWAP of the Common Stock
over the 10 consecutive Trading Day period commencing on, and including, the Trading Day next
succeeding the last date on which tenders or exchanges
15
may be made pursuant to such tender or exchange offer, the Conversion Rate will be increased
based on the following formula:
where,
CR
0
= the Conversion Rate in effect immediately prior to the close of business on
the last Trading Day of the 10 consecutive Trading Day period commencing on, and including, the
Trading Day next succeeding the date such tender or exchange offer expires;
CR
1
= the Conversion Rate in effect immediately after the close of business on the
last Trading Day of the 10 consecutive Trading Day period commencing on, and including, the Trading
Day next succeeding the date such tender or exchange offer expires;
AC = the aggregate value of all cash and any other consideration (as determined in good faith
by the Board) paid or payable for shares purchased in such tender or exchange offer;
OS
0
= the number of shares of Common Stock outstanding immediately prior to the
date such tender or exchange offer expires;
OS
1
= the number of shares of Common Stock outstanding immediately after the date
such tender or exchange offer expires (after giving effect to such tender offer or exchange offer
and excluding fractional shares); and
SP
1
= the average of the Daily VWAP of the Common Stock over the 10 consecutive
Trading Day period commencing on, and including, the Trading Day next succeeding the date such
tender or exchange offer expires.
The increase to the Conversion Rate under this Section 7(D)(v) will occur at the close of
business on the tenth Trading Day immediately following, but excluding, the date such tender or
exchange offer expires; provided that, for purposes of determining the Conversion Rate, in respect
of any conversion during the 10 Trading Days immediately following, but excluding, the date that
any such tender or exchange offer expires, references within this Section 7(D)(v) to 10 consecutive
Trading Days shall be deemed replaced with such lesser number of consecutive Trading Days as have
elapsed between the date such tender or exchange offer expires and the relevant conversion date.
(vi) If the Corporation issues rights, options or warrants that are only exercisable upon the
occurrence of certain triggering events (each a Trigger Event), then the Conversion Rate will not
be adjusted pursuant to Section 7(D)(ii) or Section 7(D)(iii), as applicable, until the earliest
Trigger Event occurs, and the Conversion Rate shall be readjusted to the extent any of these
rights, options or warrants are not exercised before they expire.
16
(vii) Notwithstanding anything in this Section 7(D) to the contrary, if a Conversion Rate
adjustment becomes effective pursuant to the any of the foregoing clauses (i), (ii), (iii), (iv) or
(v) of this Section 7(D) on any Ex-Date as described above, and a Holder that converts its Series I
Preferred Stock on or after such Ex-Date and on or prior to the related record date would be
treated as the record holder of shares of Common Stock as of the related Conversion Date set forth
in Section 7(B) based on an adjusted Conversion Rate for such Ex-Date, then, notwithstanding the
foregoing Conversion Rate adjustment provisions, the Conversion Rate adjustment relating to such
Ex-Date will not be made for such converting Holder. Instead, such Holder will be treated as if
such Holder were the record owner of the shares of Common Stock on an un-adjusted basis and
participate in the related dividend, distribution or other event giving rise to such adjustment.
(viii) Notwithstanding anything in this Section 7(D) to the contrary, no adjustment under this
Section 7(D) need be made to the Conversion Rate unless such adjustment would require an increase
or decrease of at least 1% of the Conversion Rate then in effect. Any lesser adjustment shall be
carried forward and shall be made at the time of and together with the next subsequent adjustment,
if any, which, together with any adjustment or adjustments so carried forward, shall amount to an
increase or decrease of at least 1% of such Conversion Rate; provided that on the date of an
optional conversion (including any conversion in connection with a Fundamental Change) or the date
of a mandatory conversion pursuant to Section 8, adjustments to the Conversion Rate will be made
with respect to any such adjustment carried forward that has not been taken into account before
such date. In addition, at the end of each fiscal year, beginning with the fiscal year ending
December 31, 2011, the Conversion Rate shall be adjusted to give effect to any adjustment or
adjustments so carried forward, and such adjustments will no longer be carried forward and taken
into account in any subsequent adjustment. Adjustments to the Conversion Rate will be calculated
to the nearest 1/10,000th of a share.
(ix) To the extent permitted by law and the continued listing requirements of the NYSE, the
Corporation may, from time to time, increase the Conversion Rate by any amount for a period of at
least 20 Business Days or any longer period permitted or required by law, so long as the increase
is irrevocable during that period and the Board determines that the increase is in the
Corporations best interests. The Corporation will mail a notice of the increase to registered
Holders at least 15 calendar days before the day the increase commences. In addition, the
Corporation may, but is not obligated to, increase the Conversion Rate as it determines to be
advisable in order to avoid or diminish taxes to recipients of certain distributions.
(x) To the extent that the Corporation has a stockholder rights plan or agreement (i.e., a
poison pill) in effect upon conversion of the Series I Preferred Stock, the Holders will receive,
upon a conversion of such shares of Series I Preferred Stock, in addition to Common Stock, rights
under the stockholder rights plan or agreement with respect to the Common Stock received upon
conversion unless, prior to conversion, the rights have expired, terminated or been redeemed or
unless the rights have separated from the shares of Common Stock. If the rights provided for in
any rights plan or agreement that the Board has adopted have separated from the shares of Common
Stock in accordance with the provisions of the applicable stockholder rights plan or agreement so
that the Holders would not be entitled to receive any rights in respect of the shares of Common
Stock that the Corporation delivers upon conversion of the Series I Preferred Stock, the Conversion
Rate will be adjusted at the time of separation as if the Corporation had
17
distributed to all holders of Common Stock evidences of indebtedness or other assets or
property pursuant to Section 7(D)(iii), subject to readjustment upon the subsequent expiration,
termination or redemption of the rights.
(E) Notwithstanding anything to the contrary in Section 7(D), no adjustment to the Conversion
Rate shall be made with respect to any transaction described in Section 7(D) (other than for share
splits or share combinations) if the Corporation makes provision for each Holder to participate in
the transaction, at the same time as holders of the Common Stock participate, without conversion,
as if such Holder held a number of shares of Common Stock in respect of each share of Series I
Preferred Stock held by such Holder equal to the Conversion Rate in effect on the Ex-Date or
effective date.
(F) The Conversion Rate will not be adjusted: (i) upon the issuance of any shares of Common
Stock pursuant to any present or future plan providing for the reinvestment of dividends or
interest payable on the Corporations securities; (ii) upon the issuance of any shares of Common
Stock, restricted stock or restricted stock units, nonqualified stock options, incentive stock
options or any other options or rights (including stock appreciation rights) to purchase shares of
Common Stock pursuant to any present or future employee, director or consultant benefit plan or
program of, or assumed by, the Corporation or any of its subsidiaries; (iii) upon the issuance of
any shares of Common Stock pursuant to any option, warrant, right or exercisable, exchangeable or
convertible security not described above in clause (ii) of this Section 7(F) and outstanding as of
the Issue Date; (iv) for Accrued Dividends, if any; (v) for Accumulated Dividends, if any; (vi)
upon the repurchase of any shares of Common Stock pursuant to an open-market share repurchase
program or other buy-back transaction that is not a tender offer or exchange offer; or (vii) for a
change in the par value of shares of the Common Stock.
(G) The Corporation shall not take any action that would require an adjustment to the
Conversion Rate such that the Conversion Price, as adjusted to give effect to such action, would be
less than the then applicable par value per share of the Common Stock, except that the Corporation
may undertake a share split or similar event if such share split results in a corresponding
reduction in the par value per share of the Common Stock such that the as-adjusted new Conversion
Price per share would not be below the new as-adjusted par value per share of the Common Stock
following such share split or similar transaction and the Conversion Rate is adjusted as provided
under Section 7(D)(i) and any other provision of Section 7(D). The Corporation also shall not take
any action that would result in an adjustment to the Conversion Rate in a manner that does not
comply with any applicable stockholder approval rules of the NYSE or any other stock exchange on
which the Common Stock is listed at the relevant time.
(H) In the case of any recapitalization, reclassification or change of the Common Stock (other
than changes resulting from a subdivision, combination or reclassification described in Section
7(D)(i)), a consolidation, merger or combination involving the Corporation, a sale, lease or other
transfer to a third party of all or substantially all of the assets of the Corporation (or the
Corporation and its subsidiaries on a consolidated basis), or any statutory share exchange, in each
case as a result of which the Common Stock would be converted into, or exchanged for, stock, other
securities, other property or assets (including cash or any combination thereof) (any of the
foregoing, a Transaction), then, at the effective time of the Transaction, the right to
18
convert each share of Series I Preferred Stock will be changed into a right to convert such
Series I Preferred Stock into the kind and amount of shares of stock, other securities or other
property or assets (including cash or any combination thereof) (the Reference Property) that a
Holder would have received in respect of the Common Stock issuable upon conversion of such shares
of the Series I Preferred Stock immediately prior to such Transaction. If a Transaction also
constitutes a Fundamental Change, a Holder who converts its shares of Series I Preferred Stock in
connection with such Fundamental Change will, if applicable, also be entitled to receive additional
shares of Common Stock in connection with such conversion as described in Section 11, in which case
the converting Holder would also receive Reference Property in lieu of such additional shares of
Common Stock. In the event that holders of Common Stock have the opportunity to elect the form of
consideration to be received in the Transaction, the Corporation shall make adequate provision
whereby the Holders shall have a reasonable opportunity to determine the form of consideration into
which all of the shares of the Series I Preferred Stock, treated as a single class, shall be
convertible from and after the effective date of the Transaction. Such determination shall be
based on the weighted average of elections made by the Holders who participate in such
determination, shall be subject to any limitations to which all holders of Common Stock are
subject, such as pro rata reductions applicable to any portion of the consideration payable in the
Transaction, and shall be conducted in such a manner as to be completed by the date which is the
earliest of (a) the deadline for elections to be made by holders of Common Stock and (b) two
Business Days prior to the anticipated effective date of the Transaction. The provisions of this
Section 7(H) and any equivalent thereof in any such securities similarly shall apply to successive
Transactions. The Corporation shall not become a party to any Transaction unless its terms are
consistent with the foregoing.
(I) The Corporation shall at all times reserve and keep available for issuance upon the
conversion of the Series I Preferred Stock such number of its authorized but unissued shares of
Common Stock as will from time to time be sufficient to permit the conversion of all outstanding
shares of Series I Preferred Stock, and shall take all action required to increase the authorized
number of shares of Common Stock if at any time there shall be insufficient unissued shares of
Common Stock to permit such reservation or to permit the conversion of all outstanding shares of
Series I Preferred Stock.
(J) The issuance or delivery of certificates for Common Stock upon the conversion of shares of
Series I Preferred Stock or the payment or partial payment of a dividend on Series I Preferred
Stock in Common Stock shall be made without charge to the converting Holder or recipient of shares
of Series I Preferred Stock for such certificates or for any tax in respect of the issuance or
delivery of such certificates or the securities represented thereby, and such certificates shall be
issued or delivered in the respective names of, or in such names as may be directed by, the Holders
of the shares of Series I Preferred Stock converted; provided, however, that the Corporation shall
not be required to pay any tax which may be payable in respect of any transfer involved in the
issuance and delivery of any such certificate in a name other than that of the Holder of the shares
of the relevant Series I Preferred Stock and the Corporation shall not be required to issue or
deliver such certificate unless or until the Person or Persons requesting the issuance or delivery
thereof shall have paid to the Corporation the amount of such tax or shall have established to the
reasonable satisfaction of the Corporation that such tax has been paid.
19
(K) Upon any increase or decrease in the Conversion Rate, then, and in each such case, the
Corporation promptly shall deliver, or cause to be delivered, to the Transfer Agent a certificate
signed by an Officer, setting forth in reasonable detail the event requiring the adjustment and the
method by which such adjustment was calculated and specifying the increased or decreased Conversion
Rate then in effect following such adjustment (which certificate shall, upon request, be made
available by the Transfer Agent to any Holder or beneficial owner of Series I Preferred Stock).
(L) Any Common Stock issued upon conversion of the Series I Preferred Stock shall be validly
issued, fully paid and nonassessable. The Corporation shall use its reasonable best efforts to
list the Common Stock required to be delivered upon conversion of the Series I Preferred Stock,
prior to such delivery, upon each national securities exchange, if any, upon which the outstanding
Common Stock is listed at the time of such delivery.
Section 8.
Mandatory Conversion
.
(A) At any time on or after April 20, 2018, the Corporation shall have the right, at its
option, to cause the Series I Preferred Stock, in whole but not in part, to be automatically
converted into a number of shares of Common Stock for each share of Series I Preferred Stock equal
to the Conversion Rate then in effect. The Corporation may exercise its right to cause a mandatory
conversion pursuant to this Section 8(A) only if the Daily VWAP of the Common Stock equals or
exceeds 130% of the then prevailing Conversion Price for at least 20 Trading Days in a period of 30
consecutive Trading Days, including the last Trading Day of such 30-day period, ending on the
Trading Day prior to the Corporations issuance of a press release announcing the mandatory
conversion as described in Section 8(B).
(B) To exercise the mandatory conversion right described in Section 8(A), the Corporation must
issue a press release for publication on the Dow Jones News Service or Bloomberg Business News (or
if either such service is not available, another broadly disseminated news or press release service
selected by the Corporation) prior to the opening of business on the first Trading Day following
any date on which the conditions described in Section 8(A) are met, announcing such a mandatory
conversion. The Corporation shall also give notice by mail or by publication (with subsequent
prompt notice by mail) to the Holders (not more than four Business Days after the date of the press
release) of the mandatory conversion announcing the Corporations intention to convert the Series I
Preferred Stock. In the event of a mandatory conversion, the applicable Conversion Date (the
Mandatory Conversion Date) will be the date that is five Trading Days after the date on which the
Corporation issues the press release described in this Section 8(B).
(C) In addition to any information required by applicable law or regulation, the press release
and notice of a mandatory conversion described in Section 8(B) shall state, as appropriate: (i) the
Mandatory Conversion Date; (ii) the number of shares of Common Stock to be issued upon conversion
of each share of Series I Preferred Stock; and (iii) that dividends on the Series I Preferred Stock
to be converted will cease to accrue on the Mandatory Conversion Date.
20
(D) On and after the Mandatory Conversion Date, dividends shall cease to accrue on the Series
I Preferred Stock called for a mandatory conversion pursuant to Section 8(A) and all rights of the
Holders of such Series I Preferred Stock shall terminate except for the right to receive the whole
shares of Common Stock issuable upon conversion thereof. The dividend payment with respect to the
Series I Preferred Stock called for a mandatory conversion pursuant to Section 8(A) on a date
during the period between the close of business on any Dividend Record Date to the close of
business on the corresponding Dividend Payment Date shall be payable on such Dividend Payment Date
to the Holder of such share on such Dividend Record Date if such share has been converted after
such Dividend Record Date and prior to such Dividend Payment Date. Except as provided in the
immediately preceding sentence, no payment or adjustment will be made upon mandatory conversion of
any shares of Series I Preferred Stock for Accumulated Dividends or Accrued Dividends or for
dividends with respect to the Common Stock issued upon such conversion.
(E) The Corporation may not authorize or give notice of any mandatory conversion pursuant to
Section 8(A) unless, prior to giving the conversion notice, all Accumulated Dividends on the Series
I Preferred Stock for all quarterly dividend periods ending on or prior to the date on which it
gives such notice shall have been paid.
(F) In addition to the mandatory conversion right described in Section 8(A), if there are
fewer than 1,250,000 shares of Series I Preferred Stock outstanding, the Corporation shall have the
right, at any time on or after April 20, 2018 at its option, to cause all outstanding shares of
Series I Preferred Stock to be automatically converted into that number of whole shares of Common
Stock equal to the greater of (i) the then prevailing Conversion Rate and (ii) the Liquidation
Preference divided by the Market Value of the Common Stock as determined on the second Trading Day
immediately prior to the Mandatory Conversion Date. The provisions of clauses (B) (other than the
requirements relating to the conditions in Section 8(A)), (C), (D) and (E) of this Section 8 shall
apply to any mandatory conversion pursuant to this clause (F); provided, however, that (a) the
Mandatory Conversion Date described in Section 8(B) shall not be less than 15 calendar days nor
more than 30 calendar days after the date on which the Corporation issues a press release pursuant
to Section 8(B) announcing such mandatory conversion and (b) the press release and notice of
mandatory conversion described in Section 8(C) need not state the number of shares of Common Stock
to be issued upon conversion of each share of Series I Preferred Stock.
Section 9.
Redemption and Retirement
. The Series I Preferred Stock shall not be
redeemable by the Corporation. Subject to applicable law, the Corporation may purchase shares of
Series I Preferred Stock in the open market, by tender or by private agreement. Any shares of
Series I Preferred Stock acquired by the Corporation will be retired and reclassified as authorized
but unissued shares of the Preferred Stock, without designation as to class or series, and may
thereafter be reissued as any class or series of the Preferred Stock.
Section 10.
Voting Rights
.
(A) The Holders of the Series I Preferred Stock shall not have any relative, participating,
optional or other voting rights except as set forth in this Section 10 or as otherwise required by
law.
21
(B) Whenever dividends on the Series I Preferred Stock shall be in arrears for six or more
quarterly periods, whether or not consecutive, the number of directors then constituting the Board
will increase by two (if not already increased by reason of a similar arrearage with respect to any
Parity Voting Preferred) and the Holders (voting separately as a class with holders of all Parity
Voting Preferred) will be entitled to vote for the election of a total of two additional directors
of the Corporation (the Preferred Stock Directors) at a special meeting called by the Holders of
at least 25% of the Series I Preferred Stock or by holders of any such other series of Parity
Voting Preferred (unless such request is received less than 90 days before the date fixed for the
next annual meeting of stockholders) or at the next annual meeting of stockholders, and at each
subsequent annual meeting until all dividends accumulated on the Series I Preferred Stock for the
past dividend periods and the dividend for the then current dividend period either have been fully
paid or have been declared and a sum sufficient for the payment thereof set aside for payment. The
voting rights set forth in this Section 10(B) and the terms of the Preferred Stock Directors will
continue until such time as the dividend arrearage on the Series I Preferred Stock has been paid in
full and the dividend for the then current dividend period shall have been fully paid or declared
and a sum sufficient for the payment thereof set aside for payment. Upon the termination of such
voting rights, the term of office for any Preferred Stock Directors will terminate and the size of
the Board will decrease accordingly. The voting rights provided by this Section 10(B) will re-vest
in the event that dividends on any Series I Preferred Stock are once again in arrears for six or
more quarterly dividends (whether or not consecutive).
(C) The Preferred Stock Directors will be elected by a plurality of the votes cast in the
election for a one-year term, and each Preferred Stock Director will serve until his or her
successor is duly elected and qualifies or until the directors right to hold the office
terminates, whichever occurs earlier. If there is a vacancy in the office of a Preferred Stock
Director, then the vacancy may only be filled by a vote of the Holders of the outstanding shares of
Series I Preferred Stock when they have the voting rights described above (voting separately as a
class with all series of Parity Voting Preferred). Each Preferred Stock Director will be entitled
to one vote (two votes in the aggregate for the Preferred Stock Directors) on any matter with
respect to which the Board votes.
(D) Any Preferred Stock Director may be removed at any time with or without cause by, and
shall not be removed otherwise than by the vote of, the Holders of a majority of the outstanding
shares of Series I Preferred Stock when they have the voting rights described above (voting
separately as a class with all series of Parity Voting Preferred).
(E) So long as any shares of Series I Preferred Stock remain outstanding, the Corporation
shall not, without the affirmative vote of the Holders of at least two-thirds of the shares of
Series I Preferred Stock outstanding at the time given in person or by proxy at a meeting (such
Series I Preferred Stock voting separately as a class) (i) authorize, create or issue, or increase
the authorized or issued amount of, any Senior Stock, or reclassify any authorized stock of the
Corporation into Senior Stock, or create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any Senior Stock or (ii) repeal, amend, or otherwise
change any provisions of the Certificate of Designation or the Certificate of Incorporation in any
manner (whether by merger, consolidation or otherwise) that adversely affects the powers,
preferences, or other special rights or privileges of the Series I Preferred Stock or its Holders;
provided, however, that increases in the amount of the authorized Preferred
22
Stock, the creation or issuance of other series of Parity Stock or Junior Stock, or any
increase in the amount of authorized shares of Parity Stock or Junior Stock will not require the
consent of the Holders of Series I Preferred Stock and shall not be deemed to adversely affect such
powers, preferences, or other special rights or privileges.
(F) Notwithstanding the provisions of Section 10(E), in the event of a merger or consolidation
involving the Corporation, a sale of all or substantially all of the assets of the Corporation or
of the Corporation and its subsidiaries on a consolidated basis or a statutory share exchange (any
such transaction, an Extraordinary Transaction), so long as: (i) the Series I Preferred Stock
remains outstanding following consummation of such Extraordinary Transaction with its terms
materially unchanged, taking into account that, upon the occurrence of such an Extraordinary
Transaction, the Corporation may not be the surviving entity (in which case, the Series I Preferred
Stock may be converted into or exchanged for preferred stock of the surviving entity having terms
materially the same as the Series I Preferred Stock) and, if applicable, with any changes to the
terms of the Series I Preferred Stock required pursuant to and made in compliance with the
provisions of Section 7(H) in connection with such Extraordinary Transaction and (ii) if such
transaction also constitutes a Fundamental Change, the provisions of Section 11 are complied with
in connection with such Extraordinary Transaction, then the occurrence of such Extraordinary
Transaction shall not be deemed to adversely affect the powers, preferences, or other special
rights or privileges of the Series I Preferred Stock or its Holders and in such case such Holders
shall not have any voting rights with respect to the occurrence of such Extraordinary Transaction
pursuant to Section 10(E)(ii).
(G) In all cases in which the Holders shall be entitled to vote, each share of Series I
Preferred Stock shall be entitled to one vote, unless the outstanding Parity Voting Preferred has
similar vested and continuing voting rights, in which case the number of votes that each share of
Series I Preferred Stock and any Parity Voting Preferred participating in the votes described above
shall have shall be one vote for each $25.00 of liquidation preference.
Section 11.
Special Rights Upon a Fundamental Change
.
(A) The Corporation must give notice (a Fundamental Change Notice) of each Fundamental
Change to all Holders, by the later of 20 Business Days prior to the anticipated Fundamental Change
Effective Date (determined in good faith by the Board) of the Fundamental Change and the first
public disclosure by the Corporation of the anticipated Fundamental Change. In addition, the
Corporation must give notice announcing the Fundamental Change Effective Date and other matters
specified pursuant to Section 12(E).
(B) If a Holder converts its shares of Series I Preferred Stock at any time beginning at the
opening of business on the Trading Day immediately following the Fundamental Change Effective Date
in respect of such Fundamental Change and ending at the close of business on the 30th Trading Day
immediately following such Fundamental Change Effective Date (the Fundamental Change Expiration
Date), the Holder shall automatically receive, with respect to each converted share of Series I
Preferred Stock, the greater of:
(i) the sum of (a) a number of shares of Common Stock, as calculated pursuant to Section 7(A)
and (b) the Make-Whole Premium, if any, pursuant to Section 12; and
23
(ii) a number of shares of Common Stock equal to the lesser of (a) the Liquidation Preference
divided by the Market Value of the Common Stock as of the Fundamental Change Effective Date and (B)
2.0305 (subject to adjustment in the same manner as the Conversion Rate pursuant to Section 7(D)).
In addition to the number of shares of Common Stock issuable upon conversion of each share of
Series I Preferred Stock at the option of the Holder on any Conversion Date during the period
referred to in the previous sentence, each converting Holder will have the right to receive an
amount equal to all Accumulated Dividends and Accrued Dividends on such converted shares of Series
I Preferred Stock, whether or not declared prior to that date, for all prior dividend periods
ending on or prior to the Dividend Payment Date immediately preceding (or, if applicable, ending
on) the Conversion Date (other than previously declared dividends on the Series I Preferred Stock
payable to Holders of record as of a prior date), provided that the Corporation is then legally
permitted to pay such dividends. The amount payable in respect of such dividends will be paid in
cash.
(C) In lieu of issuing the number of shares of Common Stock issuable upon conversion pursuant
to Section 11(B), the Corporation may, at its option, make a cash payment equal to the Market Value
determined for the period ending on the Fundamental Change Effective Date for each such share of
Common Stock otherwise issuable upon conversion.
(D) On or before the Fundamental Change Expiration Date, each Holder wishing to exercise its
conversion right pursuant to this Section 11 shall comply with the procedures specified in Section
7(B).
Section 12.
Determination of the Make-Whole Premium
.
(A) Subject to the limitations and requirements of Section 11 and this Section 12, if a Holder
elects to convert its shares of Series I Preferred Stock upon the occurrence of a Fundamental
Change, the Conversion Rate will be increased by the number of shares set forth in the table below
(the Additional Shares or Make-Whole Premium).
(B) The Corporation shall only be required to deliver the Make-Whole Premium with respect to
shares of Series I Preferred Stock surrendered for conversion from and after the opening of
business on the Trading Day immediately following the Fundamental Change Effective Date of the
Fundamental Change until the close of business on the 30th Trading Day following such Fundamental
Change Effective Date.
24
(C) The number of Additional Shares shall be determined by reference to the table below, based
on the Fundamental Change Effective Date and the Stock Price.
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Stock price ($)
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Fundamental
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Change
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Effective Date
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49.25
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55.00
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60.00
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65.00
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70.00
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75.00
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80.00
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85.00
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90.00
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100.00
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110.00
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125.00
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150.00
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175.00
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200.00
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March 7, 2011
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0.1692
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0.1540
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0.1241
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0.1012
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0.0834
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0.0695
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0.0584
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0.0495
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0.0422
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0.0313
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0.0237
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0.0159
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0.0084
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0.0044
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0.0022
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April 15, 2012
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0.1692
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0.1316
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0.1045
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0.0840
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0.0682
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0.0559
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0.0463
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0.0386
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0.0325
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0.0234
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0.0172
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0.0110
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0.0052
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0.0021
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0.0006
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April 15, 2013
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0.1692
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0.1177
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0.0925
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0.0734
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0.0589
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0.0478
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0.0391
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0.0323
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0.0269
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0.0191
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0.0139
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0.0088
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0.0040
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0.0015
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0.0003
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April 15, 2014
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0.1692
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0.1071
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0.0829
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0.0647
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0.0511
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0.0407
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0.0328
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0.0267
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0.0220
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0.0153
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0.0110
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0.0069
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0.0031
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0.0011
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0.0002
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April 15, 2015
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0.1692
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0.0988
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0.0749
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0.0571
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0.0439
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0.0341
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0.0268
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0.0213
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0.0172
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0.0117
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0.0083
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0.0052
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0.0023
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0.0008
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0.0001
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April 15, 2016
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0.1692
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0.0925
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0.0680
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0.0499
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0.0367
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0.0271
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0.0204
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0.0156
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0.0122
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0.0080
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0.0056
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0.0035
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0.0016
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0.0005
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0.0000
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April 15, 2017
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0.1692
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0.0877
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0.0618
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0.0423
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0.0282
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0.0187
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0.0125
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0.0086
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0.0062
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0.0039
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0.0028
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0.0019
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0.0009
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0.0002
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0.0000
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April 20, 2018
and thereafter
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0.1692
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0.0857
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0.0580
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0.0351
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0.0159
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0.0022
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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0.0000
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(i) The Stock Prices set forth in the table, the Cap Price and the Floor Price shall be
adjusted as of any date on which the Conversion Rate of the Series I Preferred Stock is adjusted
pursuant to Section 7 by multiplying the applicable price in effect immediately before the
adjustment by a fraction: (a) whose numerator is the Conversion Rate immediately before the
adjustment; and (b) whose denominator is the adjusted Conversion Rate.
(ii) In addition, the number of Additional Shares shall be adjusted at the same time, in the
same manner in which, and for the same events for which, the Conversion Rate is adjusted pursuant
to Section 7; provided, that in no event shall Additional Shares be issued pursuant to this Section
12 if, after giving effect thereto, the Conversion Rate would exceed 1.0152 (subject to adjustment
as provided below, the Cap Conversion Rate). If an event occurs that requires an adjustment to
the Conversion Rate as described in Section 7, the Cap Conversion Rate shall be adjusted
concurrently and in the same manner in which the Conversion Rate is adjusted as described in
Section 7.
(D) The exact Stock Price and Fundamental Change Effective Date may not be set forth in the
table in Section 12(C), in which case:
(i) if the Stock Price is between two Stock Prices on the table or the Fundamental Change
Effective Date is between two Fundamental Change Effective Dates on the table, the Make-Whole
Premium shall be determined by straight-line interpolation between the Make-Whole Premium amounts
set forth for the higher and lower Stock Prices and the two Fundamental Change Effective Dates, as
applicable, based on a 365-day year;
(ii) if the Stock Price is in excess of $200.00 per share (subject to adjustment as provided
in Section 12(C), the Cap Price), no Make-Whole Premium will be paid; and
(iii) if the Stock Price is less than $49.25 per share (subject to adjustment as provided in
Section 12(C), the Floor Price), no Make-Whole Premium will be paid.
25
(E) No later than the third Business Day after the occurrence of a Fundamental Change, the
Corporation shall provide the Holders and the Transfer Agent with notice of the occurrence of the
fundamental change, which such notice shall state:
(i) the events constituting the Fundamental Change;
(ii) the date of the Fundamental Change;
(iii) the last date on which a Holder may convert shares of Series I Preferred Stock in
connection with such Fundamental Change;
(iv) the Conversion Rate and, if applicable, Make-Whole Premium and/or other consideration
issuable upon conversions of shares of Series I Preferred Stock in connection with such Fundamental
Change as contemplated by Section 11 and this Section 12;
(v) whether the Corporation will issue Common Stock or cash upon conversion of shares of
Series I Preferred Stock in connection with the Fundamental Change and whether any of the
consideration issuable upon a conversion of shares of Series I Preferred Stock in connection with
such Fundamental Change will consist of Reference Property (and, in such case, specifying such
Reference Property);
(vi) the name and address of the paying agent and the conversion agent; and
(vii) the procedures that the Holder must follow to exercise the Fundamental Change conversion
right.
(F) Prior to the opening of business on the first Trading Day following any date on which the
Corporation provides the notice specified in Section 12(E) to the Holders, the Corporation shall
issue a press release for publication on the Dow Jones News Service or Bloomberg Business News (or
if either such service is not available, another broadly disseminated news or press release service
selected by the Corporation) or post notice on its website containing the information specified in
Section 12(E).
Section 13.
Restrictions on Ownership and Transfer
. The Series I Preferred Stock
shall be subject to the restrictions on ownership and transfer set forth in Article VI of the
By-laws. Any person that violates such restrictions in acquiring actual or constructive ownership
of shares of Series I Preferred Stock is required to give notice thereof immediately to the
Corporation and provide the Corporation with such other information as the Corporation may request
in order to determine the effect of such acquisition on the Corporations status as a REIT. All
certificates representing shares of the Series I Preferred Stock shall be marked with a legend
sufficient under the laws of the State of Delaware to provide a purchaser of such shares with
notice of the restrictions on transfer under Article VI of the By-laws. Nothing in Article VI of
the By-laws shall preclude the settlement of any transactions entered into through the facilities
of the NYSE or any other national securities exchange or automated inter-dealer quotation system.
The fact that settlement of any transaction takes place shall not, however, negate the effect of
any provision of Article VI of the By-laws, and any transferee, and the shares of capital stock
transferred to such transferee in such a transaction, shall be subject to all of the provisions and
limitations in Article VI of the By-laws.
26
Section 14.
No Fractional Shares
. No fractional shares of Common Stock or securities
representing fractional shares of Common Stock shall be issued upon conversion of the Series I
Preferred Stock, whether voluntary or mandatory. Instead, the Corporation may elect to either make
a cash payment to each Holder that would otherwise be entitled to a fractional share (based on the
Daily VWAP of such fractional share determined as of the second Trading Day
immediately prior to the payment thereof) or, in lieu of such cash payment, the number of
shares of Common Stock to be issued to any particular Holder upon conversion or in respect of
dividend payments shall be rounded up to the nearest whole share.
Section 15.
Certificates
.
(A) (i) Each Series I Preferred Stock certificate shall be substantially in the form set forth
in Exhibit A, which is hereby incorporated in and expressly made a part of this Certificate of
Designation. The Series I Preferred Stock certificate may have notations, legends or endorsements
required by law, stock exchange rules, agreements to which the Corporation is subject, if any, or
usage; provided that any such notation, legend or endorsement is in a form acceptable to the
Corporation. Each Series I Preferred Stock certificate shall be dated the date of its
countersignature and registration.
(ii) The Series I Preferred Stock shall be issued initially in the form of one or more fully
registered global certificates with the global securities legend set forth in Exhibit A hereto (the
Global Series I Preferred Stock), which shall be deposited on behalf of the purchasers
represented thereby with the Transfer Agent, as custodian for DTC (or with such other custodian as
DTC may direct), and registered in the name of DTC or a nominee of DTC, duly executed by the
Corporation and countersigned and registered by the Transfer Agent as hereinafter provided. The
number of shares of Series I Preferred Stock represented by the Global Series I Preferred Stock may
from time to time be increased or decreased by adjustments made on the records of the Transfer
Agent and DTC or its nominee as hereinafter provided.
(iii) In the event the Global Series I Preferred Stock is deposited with or on behalf of DTC,
the Corporation shall execute and the Transfer Agent shall countersign, register and deliver
initially one or more Global Series I Preferred Stock certificates that (a) shall be registered in
the name of DTC as depository for such Global Series I Preferred Stock or the nominee of DTC and
(b) shall be delivered by the Transfer Agent to DTC or pursuant to DTCs instructions or held by
the Transfer Agent as custodian for DTC.
(iv) Members of, or participants in, DTC shall have no rights under this Certificate of
Designation with respect to any Global Series I Preferred Stock held on their behalf by DTC or by
the Transfer Agent as the custodian of DTC or under such Global Series I Preferred Stock, and DTC
may be treated by the Corporation, the Transfer Agent and any agent of the Corporation or the
Transfer Agent as the absolute owner of such Global Series I Preferred Stock for all purposes
whatsoever. Notwithstanding the foregoing, nothing herein shall prevent the Corporation, the
Transfer Agent or any agent of the Corporation or the Transfer Agent from giving effect to any
written certification, proxy or other authorization furnished by DTC or impair, as between DTC and
its members or participants, the operation of customary practices of DTC governing the exercise of
the rights of a holder of a beneficial interest in any Global Series I Preferred Stock.
27
(v) Except as provided in Section 15(C), owners of beneficial interests in Global Series I
Preferred Stock will not be entitled to receive physical delivery of Series I Preferred Stock in
fully registered certificated form (Certificated Series I Preferred Stock).
(B) Two Officers shall sign any certificate representing the Series I Preferred Stock, on
behalf of the Corporation, by manual or facsimile signature. If an Officer whose signature is on a
Series I Preferred Stock certificate no longer holds that office at the time the Transfer Agent
countersigns and registers the Series I Preferred Stock certificate, the Series I Preferred Stock
certificate shall be valid nevertheless. A Series I Preferred Stock certificate shall not be valid
until an authorized signatory of the Transfer Agent signs the Series I Preferred Stock certificate
by manual signature. The signature shall be conclusive evidence that the Series I Preferred Stock
certificate has been countersigned and registered under this Certificate of Designation. The
Transfer Agent shall countersign, register and deliver certificates of Series I Preferred Stock for
original issue upon a written order of the Corporation signed by two Officers or by an Officer and
an Assistant Treasurer of the Corporation. Such order shall specify the number of shares of Series
I Preferred Stock to be countersigned and registered and the date on which the original issue of
the Series I Preferred Stock is to be countersigned and registered.
The Transfer Agent may appoint a countersignature and registration agent reasonably acceptable
to the Corporation to countersign and register the certificates for the Series I Preferred Stock.
Unless limited by the terms of such appointment, a countersignature and registration agent may
countersign and register certificates for the Series I Preferred Stock whenever the Transfer Agent
may do so. Each reference in this Certificate of Designation to countersignature and registration
by the Transfer Agent includes countersignature and registration by such agent. A countersignature
and registration agent has the same rights as the Transfer Agent for service of notices and
demands.
(C) (i) When Certificated Series I Preferred Stock is presented to the Transfer Agent with a
request to register the transfer of such Certificated Series I Preferred Stock or to exchange such
Certificated Series I Preferred Stock for an equal number of shares of Certificated Series I
Preferred Stock, the Transfer Agent shall register the transfer or make the exchange as requested
if its reasonable requirements for such transaction are met; provided, however, that the
Certificated Series I Preferred Stock surrendered for transfer or exchange shall be duly endorsed
or accompanied by a written instrument of transfer in form reasonably satisfactory to the
Corporation and the Transfer Agent, duly executed by the Holder thereof or its attorney duly
authorized in writing.
(ii) Certificated Series I Preferred Stock may not be exchanged for a beneficial interest in
Global Series I Preferred Stock except upon satisfaction of the requirements set forth below. Upon
receipt by the Transfer Agent of Certificated Series I Preferred Stock, duly endorsed or
accompanied by appropriate instruments of transfer, in form reasonably satisfactory to the
Corporation and the Transfer Agent, together with written instructions directing the Transfer Agent
to make, or to direct DTC to make, an adjustment on its books and records with respect to such
Global Series I Preferred Stock to reflect an increase in the number of shares of Series I
Preferred Stock represented by the Global Series I Preferred Stock, then the Transfer Agent shall
cancel such Certificated Series I Preferred Stock and cause, or direct DTC to cause, in accordance
with the standing instructions and procedures existing between DTC
and the
28
Transfer Agent, the
number of shares of Series I Preferred Stock represented by the Global Series I Preferred Stock to
be increased accordingly. If no Global Series I Preferred Stock is then outstanding, the
Corporation shall issue and the Transfer Agent shall countersign and
register, upon written order of the Corporation in the form of an Officers Certificate, a new
Global Series I Preferred Stock certificate representing the appropriate number of shares.
(iii) The transfer and exchange of Global Series I Preferred Stock or beneficial interests
therein shall be effected through DTC, in accordance with this Certificate of Designation
(including applicable restrictions on transfer set forth herein, if any) and the procedures of DTC
therefor.
(iv) Notwithstanding any other provisions of this Certificate of Designation (other than the
provisions set forth in Section 15(C)(v)), shares of Global Series I Preferred Stock may not be
transferred as a whole except 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 depository or a nominee of such
successor depository.
(v) If at any time:
(a) DTC notifies the Corporation that DTC is unwilling or unable to continue as
depository for the Global Series I Preferred Stock and a successor depository for
the Global Series I Preferred Stock is not appointed by the Corporation within 90
days after delivery of such notice;
(b) DTC ceases to be a clearing agency registered under the Exchange Act and a
successor depository for the Global Series I Preferred Stock is not appointed by the
Corporation within 90 days; or
(c) the Corporation, in its sole discretion, notifies the Transfer Agent in writing
that it elects to cause the issuance of Certificated Series I Preferred Stock under
this Certificate of Designation,
then (and only then) persons having a beneficial interest in the Series I Preferred Stock may
exchange such beneficial interest for Certificated Series I Preferred Stock representing the same
number of shares of Series I Preferred Stock. In such event, upon receipt by the Transfer Agent of
written instructions from the Corporation and written instructions (or such other form of
instructions) as is customary for DTC from DTC or its nominee on behalf of any Person having a
beneficial interest in Global Series I Preferred Stock, then, the Transfer Agent or DTC, at the
direction of the Transfer Agent, shall cause, in accordance with the standing instructions and
procedures existing between DTC and the Transfer Agent, the number of shares of Series I Preferred
Stock represented by Global Series I Preferred Stock to be reduced on its books and records and,
following such reduction, the Corporation shall execute and the Transfer Agent shall countersign,
register and deliver to the transferee Certificated Series I Preferred Stock.
Certificated Series I Preferred Stock issued in exchange for a beneficial interest in Global
Series I Preferred Stock pursuant to this Section 15(C)(v) shall be registered in such names and in
such authorized denominations as DTC, pursuant to instructions from its direct or indirect
participants or otherwise, shall instruct the Transfer Agent. The Transfer Agent shall deliver
29
such Certificated Series I Preferred Stock to the Persons in whose names such Series I Preferred
Stock are so registered in accordance with the instructions of DTC.
(vi) At such time as all beneficial interests in Global Series I Preferred Stock have either
been exchanged for Certificated Series I Preferred Stock, converted or canceled, such Global Series
I Preferred Stock shall be returned to DTC for cancelation or retained and canceled by the Transfer
Agent. At any time prior to such cancelation, if any beneficial interest in Global Series I
Preferred Stock is exchanged for Certificated Series I Preferred Stock, converted or canceled, the
number of shares of Series I Preferred Stock represented by such Global Series I Preferred Stock
shall be reduced and an adjustment shall be made on the books and records of the Transfer Agent
with respect to such Global Series I Preferred Stock, by the Transfer Agent or DTC, to reflect such
reduction.
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(vii)
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(a) To permit registrations of transfers and exchanges, the Corporation shall
execute and the Transfer Agent shall countersign and register Certificated Series I
Preferred Stock and Global Series I Preferred Stock as required pursuant to the
provisions of this Section 15(C).
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(b) All Certificated Series I Preferred Stock and Global Series I Preferred Stock
issued upon any registration of transfer or exchange of Certificated Series I
Preferred Stock or Global Series I Preferred Stock shall be the valid obligations of
the Corporation, entitled to the same benefits under this Certificate of Designation
as the Certificated Series I Preferred Stock or Global Series I Preferred Stock
surrendered upon such registration of transfer or exchange.
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(c) Prior to due presentment for registration of transfer of any shares of Series I
Preferred Stock, the Transfer Agent and the Corporation may deem and treat the
Person in whose name such shares of Series I Preferred Stock are registered as the
absolute owner of such Series I Preferred Stock and neither the Transfer Agent nor
the Corporation shall be affected by notice to the contrary.
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(d) No service charge shall be made for any registration of transfer or exchange
upon surrender of any Series I Preferred Stock certificate or Common Stock
certificate at the office of the Transfer Agent maintained for that purpose.
However, the Corporation may require payment of a sum sufficient to cover any tax or
other governmental charge that may be imposed in connection with any registration of
transfer or exchange of Series I Preferred Stock certificates or Common Stock
certificates.
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(viii)
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(a) The Transfer Agent shall have no responsibility or obligation to any beneficial
owner of Global Series I Preferred Stock, a member of or a participant in, DTC or any
other Person with respect to the accuracy of the records of DTC or its nominee or of
any participant or member thereof, with respect to any ownership interest in the Series
I Preferred Stock or with respect to the delivery to any participant, member,
beneficial owner or other Person (other than DTC) of any notice or the payment of any
amount, under or with respect to such Global Series I Preferred Stock. All notices and
communications to be given to the
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Holders of Series I Preferred Stock and all payments
to be made to such Holders under the Series I Preferred Stock shall be given or made
only to the Holders (which shall be DTC or its nominee in the case of the Global Series
I Preferred
Stock). The rights of beneficial owners in any Global Series I Preferred Stock
shall be exercised only through DTC subject to the applicable rules and procedures
of DTC. The Transfer Agent may rely and shall be fully protected in relying upon
information furnished by DTC with respect to its members, participants and any
beneficial owners.
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(b) The Transfer Agent shall have no obligation or duty to monitor, determine or
inquire as to compliance with any restrictions on transfer imposed under this
Certificate of Designation or under applicable law with respect to any transfer of
any interest in any Series I Preferred Stock (including any transfers between or
among DTC participants, members or beneficial owners in any Global Series I
Preferred Stock) other than to require delivery of such certificates and other
documentation or evidence as are expressly required by, and to do so if and when
expressly required by, the terms of this Certificate of Designation, and to examine
the same to determine substantial compliance as to form with the express
requirements hereof.
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(D) If any of the Series I Preferred Stock certificates shall be mutilated, lost, stolen or
destroyed, the Corporation shall issue, in exchange and in substitution for and upon cancellation
of the mutilated Series I Preferred Stock certificate, or in lieu of and substitution for the
Series I Preferred Stock certificate lost, stolen or destroyed, a new Series I Preferred Stock
certificate of like tenor and representing an equivalent amount of shares of Series I Preferred
Stock, but only upon receipt of evidence of such loss, theft or destruction of such Series I
Preferred Stock certificate and indemnity, if requested, reasonably satisfactory to the Corporation
and the Transfer Agent.
(E) Until definitive Series I Preferred Stock certificates are ready for delivery, the
Corporation may prepare and the Transfer Agent shall countersign temporary Series I Preferred Stock
certificates. Temporary Series I Preferred Stock certificates shall be substantially in the form
of definitive Series I Preferred Stock certificates but may have variations that the Corporation
considers appropriate for temporary Series I Preferred Stock certificates. Without unreasonable
delay, the Corporation shall prepare and the Transfer Agent shall countersign definitive Series I
Preferred Stock certificates and deliver them in exchange for temporary Series I Preferred Stock
certificates.
(F) The Transfer Agent and no one else shall cancel and destroy all Series I Preferred Stock
certificates surrendered for transfer, exchange, replacement or cancelation and deliver a
certificate of such destruction to the Corporation unless the Corporation directs the Transfer
Agent to deliver canceled Series I Preferred Stock certificates to the Corporation.
Section 16.
Other Provisions
.
(A) Unless otherwise specified in this Certificate of Designation, all notices provided
hereunder shall be given by first-class mail to each record Holder of shares of Series I Preferred
31
Stock at such Holders address as the same appears on the books of the Corporation. With respect
to any notice to a Holder required to be provided hereunder, neither failure to mail such notice,
nor any defect therein or in the mailing thereof, to any particular Holder shall affect the
sufficiency of the notice or the validity of the proceedings referred to in such notice with
respect to the other Holders or affect the legality or validity of any distribution, rights,
warrant, reclassification, consolidation, merger, conveyance, transfer, dissolution, liquidation or
winding up, or the vote upon any such action. Any notice which was mailed in the manner herein
provided shall be conclusively presumed to have been duly given whether or not the Holder receives
the notice.
(B) The shares of Series I Preferred Stock shall be issuable only in whole shares.
(C) All notice periods referred to herein shall commence on the date of the mailing of the
applicable notice. Notice to any Holder shall be given to the registered address set forth in the
Corporations records for such Holder, or for the Global Series I Preferred Stock, to the
Depository in accordance with its procedures.
(D) Any payments required to be made hereunder on any day that is not a Business Day shall be
made on the next succeeding Business Day without interest or additional payment for such delay.
(E) Holders of Series I Preferred Stock shall not be entitled to any preemptive rights to
acquire additional capital stock of the Corporation.
(F) Notwithstanding any provision herein to the contrary, the procedures for conversion and
voting of shares of Series I Preferred Stock represented by Global Series I Preferred Stock will be
governed by arrangements among DTC, its participants and persons that may hold beneficial interests
through such participants designed to permit settlement without the physical movement of
certificates. Payments, transfers, deliveries, exchanges and other matters relating to beneficial
interests in Global Series I Preferred Stock certificates may be subject to various policies and
procedures adopted by DTC from time to time.
32
IN WITNESS WHEREOF, the Corporation has caused this Certificate of Designation to be signed
this 4th of March, 2011.
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HEALTH CARE REIT, INC.
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By:
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/s/ Scott A. Estes
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Name:
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Scott A. Estes
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Title:
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Executive Vice President and Chief
Financial Officer
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EXHIBIT A
FORM OF 6.50% SERIES I CUMULATIVE CONVERTIBLE PERPETUAL PREFERRED
STOCK
[FACE OF CERTIFICATE]
6.50% SERIES I CUMULATIVE CONVERTIBLE PERPETUAL PREFERRED STOCK
PAR VALUE $1.00
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CERTIFICATE
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NUMBER
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[
] SHARES
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HEALTH CARE REIT, INC.
INCORPORATED UNDER THE LAWS OF THE STATE OF DELAWARE
CUSIP NO. [
]
THIS CERTIFIES THAT
is the owner of
FULLY PAID AND NON-ASSESSABLE SHARES OF THE
6.50% SERIES I CUMULATIVE CONVERTIBLE PERPETUAL PREFERRED STOCK,
$1.00 PAR VALUE PER SHARE AND WITH A LIQUIDATION
PREFERENCE OF $50.00 PER SHARE, OF HEALTH CARE REIT, INC.
transferable on the books of the Corporation by the holder hereof in person, or by duly authorized
attorney, upon surrender of this certificate properly endorsed. This Certificate is not valid
unless countersigned and registered by the Transfer Agent.
[THIS CERTIFICATE IS IN GLOBAL FORM AND IS REGISTERED IN THE NAME OF THE DEPOSITORY TRUST
CORPORATION (DTC) OR A NOMINEE THEREOF. THIS CERTIFICATE 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 ANY
SUCH NOMINEE TO A SUCCESSOR OF DTC OR A NOMINEE OF SUCH SUCCESSOR DEPOSITORY.
UNLESS THIS CERTIFICATE IS PRESENTED BY AN AUTHORIZED REPRESENTATIVE OF DTC TO THE CORPORATION OR
THE TRANSFER AGENT, 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,
A-1
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.]1
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1
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Remove if not a global security.
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A-2
WITNESS the facsimile signatures of the duly authorized officers of the Corporation.
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[Officer Signature]
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DATED
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[Officer Title]
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[Officer Name]
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[Officer Signature]
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[Officer Title]
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[Officer Name]
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COUNTERSIGNED AND REGISTERED
MELLON INVESTOR SERVICES LLC
TRANSFER AGENT AND REGISTRAR
A-3
[REVERSE OF CERTIFICATE]
HEALTH CARE REIT, INC.
THIS CERTIFICATE AND THE SHARES REPRESENTED HEREBY ARE ISSUED AND SHALL BE HELD SUBJECT TO ALL
PROVISIONS OF THE CERTIFICATE OF INCORPORATION AND BY-LAWS OF THE CORPORATION, AND THE AMENDMENTS
FROM TIME TO TIME MADE TO EACH, TO ALL OF WHICH THE HOLDER BY ACCEPTANCE HEREOF ASSENTS. THE
CERTIFICATE OF INCORPORATION OF THE CORPORATION AND THE AMENDMENTS THERETO, INCLUDING THE
CERTIFICATES OF DESIGNATION FOR PREFERRED STOCK OF THE CORPORATION, SET FORTH THE POWERS,
DESIGNATIONS, PREFERENCES AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER RIGHTS OF THE SHARES OF
EACH CLASS OF SHARES (AND ANY SERIES THEREOF) AUTHORIZED TO BE ISSUED BY THE CORPORATION, AND ALSO
SET FORTH THE QUALIFICATIONS, LIMITATIONS OR RESTRICTIONS OF SUCH PREFERENCES AND/OR RIGHTS. THE
CORPORATION WILL FURNISH TO EACH STOCKHOLDER, WITHOUT CHARGE UPON WRITTEN REQUEST, A COPY OF THE
FULL TEXT OF THE CERTIFICATE OF INCORPORATION, BY-LAWS AND CERTIFICATES OF DESIGNATION.
THE BY-LAWS OF THE CORPORATION AND THE CERTIFICATE OF DESIGNATION FOR THE SERIES I PREFERRED STOCK
EACH SET FORTH CERTAIN RESTRICTIONS ON THE TRANSFER AND OWNERSHIP OF THE SHARES REPRESENTED HEREBY
FOR THE PURPOSE OF ASSISTING THE CORPORATION IN MAINTAINING ITS STATUS AS A REAL ESTATE INVESTMENT
TRUST (REIT). THE CORPORATION MAY REFUSE TO TRANSFER ANY SHARES IF SUCH TRANSFER WOULD OR MIGHT
DISQUALIFY THE CORPORATION AS A REIT. FURTHER, THE BY-LAWS PROVIDE THAT NO PERSON MAY ACQUIRE MORE
THAN 9.8% OF THE OUTSTANDING SHARES OF THE CORPORATIONS COMMON STOCK OR SHARES OF ANY CLASS OF THE
CORPORATIONS CAPITAL STOCK WITH AN AGGREGATE MARKET VALUE EXCEEDING 9.8% OF THE AGGREGATE MARKET
VALUE OF ALL OUTSTANDING SHARES OF ALL CLASSES OF THE CORPORATIONS CAPITAL STOCK.
The following abbreviations, when used in the inscription on the face of this certificate, shall be
construed as though they were written out in full according to the applicable laws or regulations:
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TEN COM
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as tenants in common
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TEN ENT
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as tenants by the entireties
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JT TEN
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as joint tenants with right of survivorship and not as tenants in common
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UNIF GIFT MIN ACT
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Custodian
under the
(Cust) (Minor)
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Uniform Gifts to Minors Act
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(State)
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UNIF TRF MIN ACT
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Custodian (until age___)
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(Cust)
(Minor)
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A-4
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under the Uniform Transfers to Minors Act
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(State)
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Additional abbreviations may also be used though not in the above list.
THE SHARES OF 6.50% SERIES I CUMULATIVE CONVERTIBLE PERPETUAL PREFERRED STOCK, $1.00 PAR VALUE PER
SHARE AND WITH A LIQUIDATION PREFERENCE OF $50.00 PER SHARE (THE SERIES I PREFERRED STOCK), HAVE
THE POWERS, DESIGNATIONS, PREFERENCES, AND RELATIVE, PARTICIPATING, OPTIONAL OR OTHER SPECIAL
RIGHTS AS PROVIDED IN THE CERTIFICATE OF DESIGNATION RELATING TO THE SERIES I PREFERRED STOCK (THE
CERTIFICATE OF DESIGNATION), IN ADDITION TO THOSE SET FORTH IN THE CERTIFICATE OF INCORPORATION
AND BY-LAWS OF THE CORPORATION.
EACH HOLDER SHALL HAVE THE RIGHT, AT SUCH HOLDERS OPTION, AT ANY TIME, TO CONVERT ALL OR ANY
PORTION OF SUCH HOLDERS SERIES I PREFERRED STOCK INTO SHARES OF COMMON STOCK, $1.00 PAR VALUE PER
SHARE, OF THE CORPORATION (COMMON STOCK), AS PROVIDED IN THE CERTIFICATE OF DESIGNATION. ON OR
AFTER APRIL 20, 2018, THE CORPORATION MAY, AT ITS OPTION, AT ANY TIME OR FROM TIME TO TIME, CAUSE
ALL OF THE SERIES I PREFERRED STOCK TO BE CONVERTED INTO SHARES OF COMMON STOCK, SUBJECT TO CERTAIN
CONDITIONS AS PROVIDED IN THE CERTIFICATE OF DESIGNATION. THE PRECEDING DESCRIPTION IS QUALIFIED
IN ITS ENTIRETY BY REFERENCE TO THE CERTIFICATE OF DESIGNATION, AND THE CERTIFICATE OF
INCORPORATION AND BY-LAWS OF THE CORPORATION.
For value received,
hereby sell(s), assign(s) and transfer(s) unto
PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFYING NUMBER OF ASSIGNEE.
(PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING POSTAL ZIP CODE, OF ASSIGNEE)
shares represented by the within Certificate, and does hereby irrevocably constitute and
appoint
Attorney to transfer the said shares on the books of the within-named Corporation with
full power of substitution in the premises.
Dated:
20___
Signature
Signature
A-5
Notice: Signature to this assignment must correspond with the name as written upon the face of the
certificate, in every particular, without alteration or enlargement or any change whatever.
Signature(s) Guaranteed: Medallion Guarantee Stamp
THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (Banks, Stockbrokers,
Savings and Loan Associations and Credit Unions) WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE
MEDALLION PROGRAM, PURSUANT TO SEC RULE 17Ad-15.
A-6
EXHIBIT B
NOTICE OF CONVERSION
(To be Executed by the Holder
in order to Convert the Series I Preferred Stock)
The undersigned hereby irrevocably elects to convert (the Conversion) shares of 6.50% Series I
Cumulative Convertible Perpetual Preferred Stock (the Series I Preferred Stock) of Health Care
REIT, Inc. (the Corporation), represented by share certificate no.(s)
(the
Series I Preferred Stock Certificates), into shares of common stock, par value $1.00 per share of
the Corporation (Common Stock) according to the conditions of the Certificate of Designation of
the Series I Preferred Stock (the Certificate of Designation), as of the date written below. If
shares are to be issued in the name of a person other than the undersigned, the undersigned will
pay all transfer taxes payable with respect thereto and is delivering herewith the Series I
Preferred Stock Certificates. No fee will be charged to the holder for any conversion, except for
transfer taxes, if any. A copy of each Series I Preferred Stock Certificate is attached hereto (or
evidence of loss, theft or destruction thereof).
Capitalized terms used but not defined herein shall have the meanings ascribed thereto in or
pursuant to the Certificate of Designation.
Date of Conversion:
Applicable Conversion Rate:
Number of shares of Series I Preferred Stock to be converted:
Number of shares of Common Stock to be issued:
2
Signature:
Name:
Address:
3
Fax No.:
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2
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Certificate(s) (or evidence of loss, theft or
destruction thereof) to be converted are received by the Corporation or its
Transfer Agent.
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3
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Address to which shares of Common Stock and any
other payments or certificates shall be sent by the Corporation.
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B-1