6,767,000 Shares
HEALTH CARE PROPERTY
INVESTORS, INC.
(a Maryland
corporation)
Common Stock
(Par Value $1.00 Per Share)
UNDERWRITING
AGREEMENT
January 16, 2007
Goldman, Sachs & Co.
85 Broad Street
New York, New York 10004
Dear Sirs:
Health Care Property Investors, Inc., a Maryland
corporation (the “Company”), confirms its agreement with you (the “Underwriter”
or “you”), with respect to the issue and sale by the Company and the purchase
by you of 6,767,000 shares of Common Stock, par value $1.00 per share, of the
Company (the “Common Stock”) and with respect to the grant by the Company to
you of the option described in Section 2(b) hereof to purchase all or any
part of 1,015,050 additional shares of Common Stock. The aforesaid 6,767,000 shares of Common Stock
(the “Initial Securities”) to be purchased by you and all or any part of the
1,015,050 shares of Common Stock subject to the option described in
Section 2(b) hereof (the “Option Securities”) are collectively hereinafter
called the “Securities.”
The Company has filed with the Securities and Exchange
Commission (the “Commission”) an automatic shelf registration statement on
Form S-3 (No. 333-137225), which registration statement became
effective upon filing under Rule 462(e) of the rules and regulations of
the Commission (the “1933 Act Regulations”) under the Securities Act of 1933,
as amended (the “1933 Act”). Such
registration statement covers the registration of the Securities (among others)
under the 1933 Act. Such registration
statement, in the form in which it became effective, as amended through the
date hereof, including the information deemed pursuant to Rule 430B under
the 1933 Act Regulations to be part of the registration statement at the time
of its effectiveness (“Rule 430B Information”) and all documents
incorporated or deemed to be
incorporated by reference therein through the date
hereof, is hereinafter referred to as the “Registration Statement.” The Company proposes to file with the
Commission pursuant to Rule 424(b) of the 1933 Act Regulations the
Prospectus Supplement (as defined in Section 3(k) hereof) relating to the
Securities and the prospectus dated September 8, 2006 (the “Base
Prospectus”), and has previously advised you of all further information
(financial and other) with respect to the Company set forth therein. The Base Prospectus together with the
Prospectus Supplement, in their respective forms on the date hereof (being the
forms in which they are to be filed with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations), including all documents
incorporated or deemed to be incorporated by reference therein through the date
hereof, are hereinafter referred to as, collectively, the “Prospectus,” except
that if any revised prospectus or prospectus supplement shall be provided to
you by the Company for use in connection with the offering and sale of the
Securities which differs from the Prospectus (whether or not such revised
prospectus or prospectus supplement is required to be filed by the Company
pursuant to Rule 424(b) of the 1933 Act Regulations), the term “Prospectus”
shall refer to such revised prospectus or prospectus supplement, as the case
may be, from and after the time it is first provided to you for such use. Unless the context otherwise requires, all
references in this Agreement to documents, financial statements and schedules
and other information which is “contained,” “included,” “stated,” “described in”
or “referred to” in the Registration Statement, the Base Prospectus or the
Prospectus (and all other references of like import) shall be deemed to mean
and include all such documents, financial statements and schedules and other
information which is or is deemed to be incorporated by reference in the
Registration Statement, the Base Prospectus or the Prospectus, as the case may
be; and all references in this Agreement to amendments or supplements to the
Registration Statement, the Base Prospectus or the Prospectus shall be deemed
to mean and include the filing of any document under the Securities Exchange Act
of 1934, as amended (the “1934 Act”), after the date of this Agreement
which is or is deemed to be incorporated by reference in the Registration
Statement, the Base Prospectus or the Prospectus, as the case may be.
The Company understands that you propose to make a
public offering of the Securities as soon as you deem advisable after this
Agreement has been executed and delivered.
At or prior to the time when sales of the Securities
were first made (such time, the “Time of Sale”), the Company had prepared the
following information (collectively the “Time of Sale Information”): the Base
Prospectus, the information included in Exhibit B hereto and each “free-writing
prospectus” (as defined pursuant to Rule 405 of the 1933 Act Regulations)
listed on Exhibit C hereto.
Section 1. Representations and Warranties.
(a) The Company represents
and warrants to the Underwriter as of the date hereof (such date being
hereinafter referred to as the “Representation Date”), and as of Closing Time
referred to in Section 2 as follows:
(i) [Reserved.]
(ii) Time
of Sale Information. The Time of
Sale Information, at the Time of Sale did not, and at Closing Time will not,
contain any untrue statement of a material fact
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or 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; provided,
however, that the representations and warranties in this
subsection (ii) shall not apply to statements in or omissions from the
Time of Sale Information made in reliance upon and in conformity with
information furnished to the Company in writing by you expressly for use in
such Time of Sale Information. No
statement of material fact included (or to be included) in the Prospectus will
be omitted from the Time of Sale Information and no statement of material fact
included in the Time of Sale Information that is required to be included in the
Prospectus will be omitted therefrom.
(iii) Issuer
Free Writing Prospectus. The Company
(including its agents and representatives, other than you in your capacity as
an underwriter) has not prepared, made, used, authorized, approved or referred
to and will not prepare, make, use, authorize, approve or refer to any “written
communication” (as defined in Rule 405 of the 1933 Act Regulations) that
constitutes an offer to sell or solicitation of an offer to buy the Securities
(each such communication by the Company or its agents and representatives other
than you in your capacity as an underwriter (other than a communication
referred to in clauses (A), (B) and (C) below) an “Issuer Free Writing
Prospectus”) other than (A) any document not constituting a prospectus
pursuant to Section 2(a)(10)(a) of the 1933 Act or Rule 134 of the
1933 Act Regulations, (B) the Base Prospectus, (C) the Prospectus and
(D) any electronic road show or other written communications, in each case
approved in writing in advance by you.
Each such Issuer Free Writing Prospectus complied in all material
respects with the 1933 Act, has been or will be (within the time period
specified in Rule 433 of the 1933 Act Regulations) filed (to the extent
required thereby) in accordance with the 1933 Act and when taken together with
the Base Prospectus accompanying, or delivered prior to delivery of, such Issuer
Free Writing Prospectus, did not, and at Closing Time will not, contain any
untrue statement of a material fact or 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; provided, however,
that the representations and warranties in this subsection (iii) shall not
apply to statements in or omissions from any Issuer Free Writing Prospectus
made in reliance upon and in conformity with information furnished to the
Company in writing by you expressly for use in any Issuer Free Writing
Prospectus. 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 Securities or until any earlier
date that the Company notified or notifies you as described in
Section 3(f), did not, does not and will not include any information that
conflicted, conflicts or will conflict with the information contained in the
Registration Statement, the Prospectus or any Base Prospectus that has not been
superseded or modified.
(iv) Compliance
with Registration Requirements. The
Registration Statement is an “automatic shelf registration statement” as
defined under Rule 405 of the 1933 Act Regulations that has been filed
with the Commission not earlier than three years prior to the date hereof; and
no notice of objection of the Commission to the use of such registration
statement or any post-effective amendment thereto pursuant to
Rule 401(g)(2) of the 1933 Act Regulations has been received by the
Company. Each of the Registration
Statement and the Base Prospectus, at the respective times the
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Registration
Statement and any post-effective amendments thereto became effective and as of
the Representation Date, complied and comply in all material respects with the
requirements of the 1933 Act and the 1933 Act Regulations (including
Rule 415(a) of the 1933 Act Regulations), and the Trust Indenture Act of
1939, as amended (the “1939 Act”), and the rules and regulations of the
Commission under the 1939 Act (the “1939 Act Regulations”), and did not and as
of the Representation Date and at Closing Time do not contain an untrue
statement of a material fact or omit to state a material fact required to be
stated therein or necessary to make the statements therein not misleading. No order suspending the effectiveness of the
Registration Statement has been issued under the 1933 Act and no proceedings
for that purpose or pursuant to Section 8A of the 1933 Act against the
Company or related to the offering of the Securities have been instituted or
are pending or, to the knowledge of the Company, are contemplated by the
Commission, and any request on the part of the Commission for additional
information has been complied with. The
Prospectus, at the Representation Date (unless the term “Prospectus” refers to
a prospectus which has been provided to you by the Company for use in
connection with the offering of the Securities which differs from the
Prospectus filed with the Commission pursuant to Rule 424(b) of the 1933
Act Regulations, in which case at the time it is first provided to you for such
use) and at Closing Time, does not and will not include an untrue statement of
a material fact or 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; provided, however, that the representations
and warranties in this subsection (iv) shall not apply to statements in or
omissions from the Registration Statement or Prospectus made in reliance upon
and in conformity with information furnished to the Company in writing by you
expressly for use in the Registration Statement or the Prospectus or the
information contained in any Statement of Eligibility and Qualification of a
trustee under the 1939 Act filed as an exhibit to the Registration Statement (a
“Form T-1”). For purposes of
this Section 1(a), all references to the Registration Statement, any
post-effective amendments thereto and the Prospectus shall be deemed to
include, without limitation, any electronically transmitted copies thereof
filed with the Commission pursuant to its Electronic Data Gathering, Analysis,
and Retrieval system (“EDGAR”).
(v) Incorporated
Documents. The documents filed by
the Company and incorporated or deemed to be incorporated by reference into the
Registration Statement, the Prospectus and the Time of Sale Information
pursuant to Item 12 of Form S-3 under the 1933 Act, at the
time they were or hereafter are filed with the Commission, complied and will
comply in all material respects with the requirements of the 1934 Act and
the rules and regulations of the Commission thereunder (the “1934 Act
Regulations”), and, when read together and with the other information in the
Registration Statement, the Prospectus and the Time of Sale Information, at the
respective times the Registration Statement and any amendments thereto became
effective, at the Representation Date, the Time of Sale and at Closing Time,
did not, do not and will not contain an untrue statement of a material fact or
omit to state a material fact required to be stated therein or 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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(vi) Independent
Accountants. The accountants who
audited the financial statements and supporting schedules included or
incorporated by reference in the Registration Statement and the Prospectus are
registered public accounting firms independent of the Company, in the case of
Ernst & Young LLP, and CNL Retirement Properties, Inc. (“CNL”),
in the case of PriceWaterhouseCoopers LLP, as required by the
1933 Act and the 1933 Act Regulations and the rules and regulations
of the Public Company Accounting Oversight Board.
(vii) Financial
Statements. The financial statements
and any supporting schedules of the Company and its consolidated subsidiaries
included or incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates indicated and the results of their respective operations for the periods
specified; and, except as otherwise stated in the Registration Statement, the
Time of Sale Information and the Prospectus, said financial statements have
been prepared in conformity with generally accepted accounting principles
applied on a consistent basis; and the supporting schedules included or incorporated
by reference in the Registration Statement present fairly the information
required to be stated therein; and the selected financial data and the summary
financial information, if any, included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus present
fairly the information shown therein as of the dates indicated and have been
compiled on a basis consistent with that of the audited financial statements
included or incorporated by reference in the Registration Statement, the Time
of Sale Information and the Prospectus; and the pro forma financial statements
and the related notes thereto included or incorporated by reference in the
Registration Statement, the Time of Sale Information and the Prospectus present
fairly the information shown therein, have been prepared in accordance with the
Commission’s rules and guidelines with respect to pro forma financial
statements and have been properly compiled on the bases described therein, and
the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein; and the Company’s ratios of earnings to
fixed charges included in the Prospectus under the caption “Ratio of Earnings
to Fixed Charges” and in Exhibit 12 to the Registration Statement have
been calculated in compliance with Item 503(d) of Regulation S-K
of the Commission as at the dates indicated therein.
(viii) No
Material Adverse Change in Business.
Since the respective dates as of which information is given in the
Registration Statement, the Time of Sale Information and the Prospectus (in
each case as supplemented or amended), except as otherwise stated therein or
contemplated thereby, (A) there has been no material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
(B) there have been no transactions entered into by the Company or any of
its subsidiaries, other than those in the ordinary course of business, which
are material with respect to the Company and its subsidiaries considered as one
enterprise, and (C) except for regular quarterly dividends on the Company’s
common stock, par value $1.00
5
per share (“Common
Stock”) and preferred stock, par value $1.00 per share (“Preferred Stock”),
there has been no dividend or distribution of any kind declared, paid or made
by the Company on any class of its capital stock.
(ix) Good
Standing of the Company. The Company
has been duly incorporated and is validly existing as a corporation in good
standing under the laws of the State of Maryland with corporate power and
authority to own, lease and operate its properties and to conduct its business
as described in the Time of Sale Information and the Prospectus; the Company is
duly qualified as a foreign corporation to transact business and is in good
standing in each jurisdiction in which such qualification is required, whether
by reason of the ownership or leasing of property or the conduct of business,
except where the failure to so qualify and be in good standing would not have a
material adverse effect on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise; and the Company is in substantial
compliance with all laws, ordinances and regulations of each state in which it
owns properties that are material to the properties and business of the Company
and its subsidiaries considered as one enterprise in such state.
(x) Good
Standing of Subsidiaries. Each
subsidiary of the Company which is a significant subsidiary (each, a “Significant
Subsidiary”) as defined in Rule 405 of Regulation C of the 1933 Act
Regulations has been duly organized and is validly existing as a corporation,
limited liability company or partnership, as the case may be, in good standing
under the laws of the jurisdiction of its organization, has power and authority
as a corporation, limited liability company or partnership, as the case may be,
to own, lease and operate its properties and to conduct its business as
described in the Time of Sale Information and the Prospectus and is duly
qualified as a foreign corporation, limited liability company or partnership,
as the case may be, to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify and be in good standing would not have a material adverse
effect on the condition, financial or otherwise, or the earnings, business
affairs or business prospects of the Company and its subsidiaries considered as
one enterprise; all of the issued and outstanding capital stock of each such
corporate subsidiary has been duly authorized and validly issued, is fully paid
and non assessable and, except for directors’ qualifying shares, is owned by
the Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity; and all of the
issued and outstanding partnership or limited liability company interests of
each such subsidiary which is a partnership or limited liability company, as
applicable, have been duly authorized (if applicable) and validly issued and
are fully paid and non-assessable and (except for other partnership or limited
liability company interests described in the Time of Sale Information and the
Prospectus) are owned by the Company, directly or through corporate
subsidiaries, free and clear of any security interest, mortgage, pledge, lien,
encumbrance, claim or equity.
(xi) REIT
Status. Commencing with its taxable
year ending December 31, 1985, the Company has at all times operated in
such manner as to qualify as a “real estate
6
investment
trust” under the Internal Revenue Code of 1986, as amended (the “Code”), and any
predecessor statute thereto, and intends to continue to operate in such manner.
(xii) Capitalization. The authorized capital stock of the Company
is as set forth in the line items “Preferred Stock” and “Common Stock” set
forth in the consolidated balance sheet as of September 30, 2006 contained in
the Company’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 2006 and the shares of issued Common Stock and Preferred Stock
have been duly authorized and validly issued and are fully paid and non-assessable.
(xiii) Absence
of Defaults and Conflicts. Neither
the Company nor any of its subsidiaries is in violation of its charter or
bylaws or other organizational documents, as the case may be, or in material
default in the performance or observance of any obligation, agreement, covenant
or condition contained in any contract, indenture, mortgage, loan agreement,
note, lease or other instrument to which the Company or any of its subsidiaries
is a party or by which it or any of them or their properties may be bound or to
which any of the property or assets of the Company or any of its subsidiaries
is subject and in which the violation or default might result in a material
adverse change in the condition, financial or otherwise, or in the earnings,
business affairs or business prospects of the Company and its subsidiaries
considered as one enterprise; and the execution, delivery and performance of
this Agreement and the consummation of the transactions contemplated herein and
compliance by the Company with its obligations hereunder have been duly
authorized by all necessary corporate action and will not conflict with or
constitute a breach of, or default under, or result in the creation or
imposition of any lien, charge or encumbrance upon any property or assets of
the Company or any of its subsidiaries pursuant to, any contract, indenture,
mortgage, loan agreement, note, lease or other instrument to which the Company
or any of its subsidiaries is a party or by which it or any of them may be
bound or to which any of the property or assets of the Company or any of its
subsidiaries is subject, nor will such action result in any violation of the
provisions of the charter or bylaws of the Company or any law, administrative
regulation or administrative or court order or decree.
(xiv) Absence
of Proceedings. Except as disclosed
in the Registration Statement, the Time of Sale Information or the Prospectus,
there is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened against or affecting, the Company or any of its
subsidiaries, which is required to be disclosed in the Registration Statement,
the Time of Sale Information or the Prospectus, or which might result in any
material adverse change in the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise, or which might materially and
adversely affect the properties or assets thereof or which might materially and
adversely affect the consummation of this Agreement or any transaction
contemplated hereby; all pending legal or governmental proceedings to which the
Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in or
incorporated by reference in the Registration Statement, the Time of Sale Information
or the Prospectus, including ordinary routine litigation incidental to the
business, are, considered in the aggregate, not material to the Company; and
there are no contracts or documents of the Company or any of its subsidiaries
which are required to be filed or
7
incorporated
by reference as exhibits to, or incorporated by reference in, the Registration
Statement by the 1933 Act or by the 1933 Act Regulations which have
not been so filed.
(xv) Absence
of Further Requirements. No
authorization, approval, consent, order or decree of any court or governmental
authority or agency is required for the consummation by the Company of the
transactions contemplated by this Agreement or in connection with the offering,
issuance or sale of the Securities hereunder, except such as may be required
under state securities laws.
(xvi) Authorization
of Underwriting Agreement. This
Agreement has been duly authorized, executed and delivered by the Company and,
upon execution and delivery by you, will be a valid and legally binding
agreement of the Company.
(xvii) Authorization
of the Securities. The Securities
have been duly authorized for issuance and sale to you pursuant to this
Agreement and, when issued and delivered by the Company pursuant to this
Agreement against payment of the consideration set forth herein, will be
validly issued and fully paid and non-assessable; the Common Stock and the
Preferred Stock conform to all statements relating thereto contained in the
Prospectus and such descriptions conform to the rights set forth in the
instruments defining the same; and the issuance of the Securities is not
subject to preemptive rights or similar rights.
(xviii) Title
to Property. The Company and its
subsidiaries have good title to all real property or interests in real property
owned by it or any of them in each case free and clear of all liens,
encumbrances and defects except such as are stated in or included in documents
incorporated or deemed to be incorporated by reference in the Time of Sale
Information or the Prospectus or such as would not materially adversely affect
the condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise; and at the time the Company and its subsidiaries first acquired
title or such interest in such real property, the Company and its subsidiaries
obtained satisfactory confirmations (consisting of policies of title insurance
or commitments or binders therefor, opinions of counsel based upon the
examination of abstracts, or other evidence deemed appropriate by the Company
under the circumstances) confirming the foregoing. To the best knowledge of the Company, the
instruments securing its real estate mortgage loans in favor of the Company and
its subsidiaries create valid liens upon the real properties described in such
instruments enjoying the priorities intended, subject only to exceptions to
title which have no material adverse effect on the value of such interests in
relation to the Company and its subsidiaries considered as one enterprise; and
at the time the Company and its subsidiaries first acquired an interest in such
real estate mortgage loans, the Company and its subsidiaries obtained
satisfactory confirmations (consisting of policies of title insurance or
commitments or binders therefor, opinions of counsel based upon the examination
of abstracts, or other evidence deemed appropriate by the Company under the
circumstances).
(xix) Investment
Company Act. The Company is not
required to be registered, and after giving effect to the offering contemplated
hereby and the application of the
8
proceeds
thereof as described in the Prospectus, will not be required to be registered,
under the Investment Company Act of 1940, as amended (the “1940 Act”).
(xx) Pending
Proceedings and Examinations. The
Registration Statement is not the subject of a pending proceeding or
examination under Section 8(d) or 8(e) of the 1933 Act, and the Company is
not the subject of a pending proceeding under Section 8A of the 1933 Act
in connection with the offering of the Securities.
(xxi) Disclosure
Controls and Procedures. The Company
has established and maintains “disclosure controls and procedures” (as such
term is defined in Rule 13a-15(e) and 15d-15(e) under the 1934 Act) that
(i) are designed to ensure that material information relating to the Company,
including its consolidated subsidiaries, is made known to the Company’s Chief
Executive Officer and its Chief Financial Officer by others within those
entities, particularly during the periods in which the filings made by the
Company with the Commission which it may make under Section 13(a), 13(c)
or 15(d) of the 1934 Act are being prepared, (ii) have been evaluated for
effectiveness as of the end of the Company’s most recent fiscal year and (iii)
are effective at a reasonable assurance level to perform the functions for
which they were established.
(xxii) Internal
Control. The Company has established
and maintains “internal control over financial reporting” (as such term is
defined in Rule 13a-15(f) and 15d-15(f) under the 1934 Act) that (i) are
designed to provide reasonable assurance regarding the reliability of financial
reporting and the preparation of financial statements for external purposes in
accordance with generally accepted accounting principles and (ii) have been
evaluated by the management of the Company (including the Company’s Chief
Executive Officer and Chief Financial Officer) for effectiveness as of the end
of the Company’s most recent fiscal year.
In addition, not later than the date of the filing with the Commission
of the Company’s most recent Annual Report on Form 10-K, each of the
accountants and the audit committee of the board of directors of the Company
had been advised of (x) all significant deficiencies and material weaknesses in
the design or operation of internal control over financial reporting which are
reasonably likely to adversely affect the Company’s ability to record, process,
summarize and report financial information and (y) any fraud, whether or not
material, that involves management or other employees who have a significant
role in the Company’s internal control over financial reporting. Since the date
of the most recent evaluation of such controls and procedures, there have been
no changes in the Company’s internal control over financial reporting or in
other factors that have materially affected or are reasonably likely to
materially affect the Company’s internal control over financial reporting.
(xxiii) Status
Under the 1933 Act. The Company is
not an “ineligible issuer” and is a “well-known seasoned issuer,” in each case
as defined in the 1933 Act, in each case at the times specified in the 1933 Act
in connection with the offering the Securities.
(xxiv) Acquisition. To the knowledge of the Company, the
representations and warranties contained in paragraph (vii) of this
Section 1 are true and correct with respect to the financial statements
and any supporting schedules of CNL and its consolidated subsidiaries and CNL
Retirement Corp. (the “Advisor”) and its consolidated subsidiaries
9
included or
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus; except 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 on the condition, financial or otherwise, or the
earnings, business affairs or business prospects of the Company and its
subsidiaries, considered as one enterprise.
(b) Any certificate signed
by any officer of the Company and delivered to you or to your counsel shall be
deemed a representation and warranty by the Company to you as to the matters
covered thereby.
Section 2. Sale and Delivery to Underwriter; Closing.
(a) On the basis of the
representations and warranties herein contained and subject to the terms and
conditions herein set forth, the Company agrees to sell to you, and you agree
to purchase from the Company, at a purchase price of $38.58 per share,
6,767,000 shares of Common Stock.
(b) 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
you to purchase up to an additional 1,015,050 shares of Common Stock at the
price set forth in paragraph (a) above; provided that the purchase price
for any Option Securities shall be reduced by an amount per share equal to any
dividends or distributions declared by the Company and paid or payable on the
Initial Securities but not payable on such Option Securities. The option hereby granted may be exercised
through and including the 10th day after the date hereof and may be exercised
in whole or in part from time to time upon notice by you to the Company setting
forth the number of Option Securities as to which you are then exercising the
option and the time and date of payment and delivery for such Option
Securities. Any such time and date of
delivery (a “Date of Delivery”) shall be determined by you, but shall not be
later than seven full business days after the exercise of said option, nor in
any event prior to the Closing Time.
(c) Payment of the purchase
price for, and delivery of certificates for, the Initial Securities shall be
made at the office of Latham & Watkins LLP, 650 Town Center
Drive, Suite 2000, Costa Mesa, California 92626-1925 or at such other
place as shall be agreed upon by you and the Company, at 7:00 a.m.,
California time, on January 19, 2007, or such other time not later than ten
business days after such date as shall be agreed upon by you and the Company
(such time and date of payment and delivery being herein called “Closing Time”). In addition, in the event that any or all of
the Option Securities are purchased by you, payment of the purchase price for,
and delivery of certificates for, such Option Securities shall be made at the
above-mentioned offices, or at such other place as shall be agreed upon by you
and the Company, on each Date of Delivery as specified in the notice from you
to the Company. Payment shall be made to
the Company by wire transfer of immediately available funds to a bank account
designated by the Company against delivery to you of certificates for the
Securities to be purchased by you.
Certificates for the Securities shall be in such denominations and
registered in such names as you may request in writing at least one business
day before Closing Time or the relevant Date of Delivery, as the case may
be. The certificates for the Securities
will be made available for examination and packaging by you not later than
10:00 a.m. on the last business day
10
prior to Closing Time or the relevant Date of
Delivery, as the case may be, in New York, New York.
Section 3. Covenants of the Company.
The Company covenants with the Underwriter as follows:
(a) Compliance with
Securities Regulations and Commission Requests. The Company will notify you immediately, and
confirm the notice in writing (i) of the effectiveness of any post-effective
amendment to the Registration Statement, (ii) of the mailing or the
delivery to the Commission for filing of the Prospectus or any amendment to the
Registration Statement or amendment or supplement to the Prospectus or any
Issuer Free Writing Prospectus or any document to be filed pursuant to the 1934
Act during any period when the Prospectus is required to be delivered under the
1933 Act, the 1933 Act Regulations, the 1934 Act or the 1934 Act Regulations in
connection with sales of the Securities (or required to be delivered but for
Rule 172 of the 1933 Act Regulations) (the “Prospectus Delivery Period”),
(iii) of the receipt of any comments or inquiries from the Commission
relating to the Registration Statement or the Prospectus, (iv) of any request
by the Commission for any amendment to the Registration Statement or any
amendment or supplement to the Prospectus or for additional information, (v) of
the issuance by the Commission of any order suspending the effectiveness of the
Registration Statement or of any order preventing or suspending the use of the Base
Prospectus or the Prospectus, or the initiation of any proceedings for that
purpose or pursuant to Section 8A of the 1933 Act, (vi) of the
occurrence of any event at any time as a result of which the Prospectus, the
Time of Sale Information or any Issuer Free Writing Prospectus as then amended
or supplemented would include any untrue statement of a material fact or omit
to state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances existing when
the Prospectus, the Time of Sale Information or any such Issuer Free Writing
Prospectus is delivered to a purchaser, not misleading; (vii) of the
receipt by the Company of any notice of objection of the Commission to the use
of the Registration Statement or any post-effective amendment thereto pursuant
to Rule 401(g)(2) under the Securities Act; and (viii) of the
issuance by any state securities commission or other regulatory authority of
any order suspending the qualification or the exemption from qualification of
the Securities under state securities or Blue Sky laws or the initiation of any
proceedings for that purpose. The
Company will make every reasonable effort to prevent the issuance by the
Commission of any such order suspending the effectiveness of the Registration
Statement, preventing or suspending the use of the Base Prospectus or the
Prospectus or suspending any such qualification or exemption of the Securities
and, if any such order is issued, to obtain the lifting thereof at the earliest
possible moment. The Company will
provide you with copies of the form of Prospectus and each Issuer Free Writing
Prospectus, in such numbers as you may reasonably request, and file or transmit
for filing with the Commission such Prospectus and each Issuer Free Writing
Prospectus to the extent required by Rule 433 of the 1933 Act Regulations
in accordance with Rule 424(b) of the 1933 Act Regulations by the
close of business in New York on the second business day immediately succeeding
the date hereof. The Company will pay
the registration fees for this offering within the time period required by
Rule 456(b)(1)(i) of the 1933 Act Regulations (without giving effect to
the proviso therein) and in any event prior to Closing Time.
11
(b) Filing of Amendments. During the Prospectus Delivery Period, the
Company will give you notice of its intention to file or prepare any amendment
to the Registration Statement or any amendment or supplement to the Prospectus
(including any revised prospectus which the Company proposes for use by you in
connection with the offering of the Securities that differs from the prospectus
filed with the Commission pursuant to Rule 424(b) of the 1933 Act
Regulations, whether or not such revised prospectus is required to be filed
pursuant to Rule 424(b) of the 1933 Act Regulations), will furnish
you with copies of any such amendment or supplement a reasonable amount of time
prior to such proposed filing or use, as the case may be, and will not file any
such amendment or supplement or use any such prospectus to which you or your
counsel shall reasonably object.
(c) Issuer Free Writing
Prospectuses. Before making,
preparing, using, authorizing, approving, referring to or filing any Issuer
Free Writing Prospectus related to the Securities, whether before or after the
time that the Registration Statement becomes effective, the Company will
furnish to you or your counsel a copy of the proposed Issuer Free Writing
Prospectus for review and will not make, prepare, use, authorize, approve,
refer to or file any such Issuer Free Writing Prospectus to which you
reasonably object.
(d) Delivery of
Registration Statements. The Company
will deliver to you as many signed copies of the Registration Statement as
originally filed and of each amendment thereto (including exhibits filed
therewith and documents incorporated or deemed to be incorporated by reference
therein) as you may reasonably request and will also deliver to you as many
conformed copies of the Registration Statement as originally filed and of each
amendment thereto (including documents incorporated or deemed to be
incorporated by reference therein but without exhibits filed therewith) as you
may reasonably request.
(e) Delivery of
Prospectuses. The Company will
furnish to you, from time to time during the Prospectus Delivery Period, such
number of copies of the Prospectus (as amended or supplemented) as you may
reasonably request for the purposes contemplated by the 1933 Act or the 1934
Act or the respective applicable rules and regulations of the Commission
thereunder.
(f) Continued
Compliance with Securities Laws. If,
at any time during the Prospectus Delivery Period, any event shall occur as a
result of which it is necessary, in the opinion of your counsel or counsel for
the Company, to amend or supplement the Prospectus in order to make the
Prospectus not misleading in the light of the circumstances existing at the
time it is delivered to a purchaser, the Company will forthwith amend or
supplement the Prospectus (in form and substance satisfactory to your counsel)
so that, as so amended or supplemented, the Prospectus will not contain an
untrue statement of a material fact or omit to state a material fact necessary
in order to make the statements therein, in the light of the circumstances
existing at the time it is delivered to a purchaser, not misleading, and the
Company will furnish to you a reasonable number of copies of such amendment or
supplement. If, in accordance with the
preceding sentence, it shall be necessary to amend or supplement the Prospectus
at any time subsequent to the expiration of nine months after the first date of
the public offering of the Securities, you shall bear the expense of preparing,
filing and furnishing any such amendment or supplement. If at any time following issuance of an
Issuer Free Writing Prospectus through Closing Time there occurred or occurs an
event or development as a result of which such Issuer Free Writing Prospectus
conflicted or would conflict with the information contained in the
12
Registration Statement, the Prospectus or the
Time of Sale Information or included or would include an untrue statement of a
material fact or omitted or would omit to state a material fact necessary in
order to make the statements therein, in the light of the circumstances
prevailing at that subsequent time, not misleading, the Company will promptly
notify you and will promptly amend or supplement, at its own expense, such
Issuer Free Writing Prospectus to eliminate or correct such conflict, untrue
statement or omission.
(g) Time of Sale
Information. If at any time prior to
Closing Time (A) any event shall occur or condition shall exist as a
result of which the Time of Sale Information as then amended or supplemented
would include any untrue statement of a material fact or omit to state any
material fact necessary in order to make the statements therein, in the light
of the circumstances, not misleading or (B) it is necessary to amend or
supplement the Time of Sale Information to comply with law, the Company will
immediately notify you thereof and forthwith prepare and, subject to
paragraph (c) above, file with the Commission (to the extent required) and
furnish to you and to such dealers as you may designate, such amendments or
supplements to the Time of Sale Information as may be necessary so that the
statements in the Time of Sale Information as so amended or supplemented will
not, in the light of the circumstances, be misleading or so that the Time of
Sale Information will comply with law.
(h) Blue Sky Qualifications. The Company will endeavor, in cooperation
with you, to qualify the Securities for offering and sale under the applicable
securities laws of such states and other jurisdictions of the United States as
you may designate; provided, however, that the Company shall not
be obligated to file any general consent to service of process or to qualify as
a foreign corporation in any jurisdiction in which it is not so qualified. In each jurisdiction in which the Securities
shall have been so qualified, the Company will file such statements and reports
as may be required by laws of such jurisdiction to continue such qualification
in effect for as long as may be required for the distribution of the
Securities.
(i) Earnings Statement. The Company will make generally available to
its security holders as soon as practicable, but not later than 90 days after
the close of the period covered thereby, an earnings statement (in form
complying with the provisions of Rule 158 of the 1933 Act Regulations)
covering the twelve month period beginning not later than the first day of the
Company’s fiscal quarter next following the “effective date” (as defined in
said Rule 158) of the Registration Statement.
(j) Use of Proceeds. The Company will use the net proceeds received
by it from the sale of the Securities in the manner to be specified in the
Prospectus Supplement under “Use of Proceeds.”
(k) Preparation of
Prospectus Supplement. Immediately
following the execution of this Agreement, the Company will prepare a prospectus
supplement, dated the date hereof (the “Prospectus Supplement”), containing the
terms of the Securities, the plan of distribution thereof and such other
information as may be required by the 1933 Act or the 1933 Act Regulations or
as you and the Company deem appropriate, and will file or transmit for filing
with the Commission in accordance with Rule 424(b) of the 1933 Act
Regulations copies of the Prospectus (including such Prospectus Supplement).
13
(l) Reporting Requirements. The Company, during the Prospectus Delivery
Period, will file promptly all documents required to be filed with the
Commission pursuant to Section 13, 14 or 15 of the 1934 Act within the
time periods required by the 1934 Act and the 1934 Act Regulations.
(m) Lock-up Period.
During a period of 30 days from the date of this Agreement, the Company
will not without your prior written consent, directly or indirectly
(i) offer, pledge, sell, contract to sell, sell any option or contract to
purchase, purchase any option or contract to sell, grant any option, right or
warrant to purchase or otherwise transfer or dispose of any shares of Common
Stock or any securities convertible into or exercisable or exchangeable for
Common Stock or file any registration statement under the 1933 Act relating to
any shares of Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, or publicly announce the intention to make any
such offer, pledge, sale, contract to sell, purchase, grant, transfer,
disposition or filing, or (ii) enter into any swap or other agreement or
transaction that transfers, in whole or in part, directly or indirectly, the
economic consequences of ownership of Common Stock, whether any such swap,
agreement, or other transaction described in (i) or (ii) above is to be settled
by delivery of Common Stock, other securities, in cash or otherwise, except for
(A) Common Stock issued pursuant to this Agreement, (B) Common Stock
issued or options to purchase Common Stock granted pursuant to existing
employee benefit plans of the Company, (C) non-managing member units
exchangeable for shares of Common Stock issued by subsidiaries of the Company
in connection with the acquisition of properties or interests therein (provided
that such units referred to in this clause (C) are not exchangeable for
Common Stock for at least one year from the date of issuance thereof and the
Company does not cause or permit (by waiver or otherwise) the exchange of such
units for Common Stock during such one year period), (D) Common Stock
issuable upon the exchange of non-managing member units of subsidiaries of the
Company outstanding on the date of this Agreement or (E) registration
statements filed in connection with future business combination transactions or
registration statements on Form S-8 filed to register shares of
Common Stock that are issuable pursuant to existing employee benefit plans of
the Company. Notwithstanding the
foregoing, if (1) during the last 17 days of the 30-day restricted
period the Company issues an earnings release or material news or a material
event relating to the Company occurs or (2) prior to the expiration of the
30-day restricted period, the Company announces that it will release
earnings results or becomes aware that material news or a material event will
occur during the 16-day period beginning on the last day of the 30-day
restricted period, the restrictions imposed in this clause (m) shall
continue to apply until the expiration of the 18-day period beginning on the
issuance of the earnings release or the occurrence of the material news or
material event unless waived in writing by you.
The Company agrees that it will notify the directors and officers named
in Schedule A hereto of any extension of the 30-day restricted period pursuant
to the immediately preceding sentence.
(n) Record Retention.
The Company will, pursuant to reasonable procedures developed in good
faith, retain copies of each Issuer Free Writing Prospectus that is not filed
with the Commission in accordance with Rule 433 of the 1933 Act
Regulations.
Section 4. Payment of Expenses. The Company will pay all expenses incident to
the performance of its obligations under this Agreement, including (i) the
printing and filing of the Registration Statement as originally filed and of
each amendment thereto, and the Time of Sale
14
Information, and the
Prospectus and any amendments or supplements thereto and any “Canadian”
wrappers, (ii) the preparation, issuance and delivery of the certificates
for the Securities to you, (iii) the fees and disbursements of the Company’s
counsel and accountants, (iv) the qualification of the Securities under
securities laws in accordance with the provisions of Section 3(h) hereof,
including filing fees and the reasonable fee and disbursements of your counsel
in connection therewith and in connection with the preparation of a Blue Sky
Survey, (v) the printing and delivery to you in quantities as hereinabove
stated of copies of the Registration Statement as originally filed and of each
amendment thereto, any Issuer Free Writing Prospectus and of the Prospectus and
any amendments or supplements thereto, (vi) the printing and delivery to
you of copies of the Blue Sky Survey, (vii) the fees and expenses incurred
in connection with the listing of the Securities on the New York Stock
Exchange, and (viii) any fees or expenses of a depositary in connection
with holding the securities in book-entry form.
If this Agreement is cancelled or terminated by you in
accordance with the provisions of Section 5 or Section 9(a)(i)
hereof, the Company shall reimburse you for all of your out-of-pocket expenses,
including the reasonable fees and disbursements of your counsel.
Section 5. Conditions of the Underwriter’s
Obligations.
The obligations of the Underwriter hereunder are
subject to the accuracy of the representations and warranties of the Company
herein contained, to the performance by the Company of its obligations
hereunder, and to the following further conditions:
(a) Effectiveness of Registration Statement. At Closing Time (and, if any Option
Securities are purchased, at the relevant Date of Delivery) no order suspending
the effectiveness of the Registration Statement shall have been issued under
the 1933 Act or proceedings therefor initiated or threatened by the
Commission pursuant to Rule 401(g)(2) of the 1933 Act Regulations or
pursuant to Section 8A of the 1933 Act.
The Prospectus and each Issuer Free Writing Prospectus shall have been
filed or transmitted for filing with the Commission pursuant to
Rule 424(b) of the 1933 Act Regulations (in the case of an Issuer Free
Writing Prospectus, to the extent required by Rule 433 of the 1933 Act
Regulations) and prior to the Closing Time the Company shall have provided
evidence satisfactory to you of such timely filing or transmittal.
(b) Opinions. At
Closing Time you shall have received:
(1) The favorable
opinion, dated as of Closing Time, of Latham & Watkins LLP,
special counsel to the Company, as set forth in Exhibit A hereto.
(2) The favorable
opinion, dated as of Closing Time, of Latham & Watkins LLP,
special counsel for the Company, in form and scope satisfactory to your counsel
and subject to customary assumptions, limitations and exceptions acceptable to
your counsel, to the effect that:
(i) the Company was organized and has operated
in conformity with the requirements for qualification as a real estate
investment trust under the Internal Revenue Code of 1954 for its taxable years
ending December 31, 1985 and 1986 and in conformity with the
15
requirements for qualification as a real estate
investment trust under the Code commencing with its taxable year ending
December 31, 1987, and its proposed method of operation will enable the
Company to continue to meet the requirements for qualification and taxation as
a real estate investment trust under the Code; and
(ii) the statements in the Base Prospectus
set forth under the caption “United States Federal Income Tax Considerations,” insofar as they purport to summarize certain
provisions of the statutes or regulations referred to therein, are accurate
summaries in all material respects.
(3) A statement by
Latham & Watkins LLP that no facts came to its attention that
caused it to believe that the Registration Statement, at the time of its
effective date (including the Rule 430B Information), contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, that
the Time of Sale Information, at the Time of Sale, contained an untrue
statement of a material fact or omitted to state a material fact required to be
stated therein or necessary to make the statements therein not misleading, or
that the Prospectus, as of the date of the Prospectus Supplement or at Closing
Time, contained or contains an untrue statement of a material fact or omitted
or omits to state a material fact necessary to make the statements therein, in
the light of the circumstances under which they were made, not misleading; it
being understood that Latham & Watkins LLP expresses no belief
with respect to (i) the financial statements, schedules or other financial data
included or incorporated by reference in, or omitted from, the Registration Statement,
the Time of Sale Information or the Prospectus or (ii) any Form T-1.
(4) The favorable
opinion, dated as of Closing Time, of Ballard Spahr Andrews &
Ingersoll, LLP, Maryland corporate counsel for the Company, in form and
scope satisfactory to your counsel, to the effect that:
(i) The Company has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the State of Maryland.
(ii) The Company has the corporate power
and authority to own, lease and operate its properties and to conduct its
business as described in the Time of Sale Information and the Prospectus.
(iii) The authorized capital stock of the
Company is as set forth in line items “Preferred Stock” and “Common Stock” set
forth in the consolidated balance sheet as of September 30, 2006 contained in
the Company’s Quarterly Report on Form 10-Q for the quarter ended
September 30, 2006.
(iv) The Securities have been duly
authorized by all necessary corporate action on the part of the Company for
issuance and sale to you pursuant to this Agreement and, when issued and
delivered by the
16
Company pursuant to this Agreement against payment of
the consideration set forth herein, will be validly issued and fully paid and
non assessable. The issuance of such
Securities is not subject to preemptive rights under the charter or bylaws of
the Company or the Maryland General Corporation Law.
(v) The Securities conform to the
description thereof contained in the Time of Sale Information and the
Prospectus and the form of certificate used to evidence the Securities is in
due and proper form.
(vi) Texas HCP, Inc. has been duly
incorporated and is validly existing as a corporation in good standing under
the laws of the State of Maryland and has the corporate power and authority to
own, lease and operate its properties and to conduct its business as described
in the Prospectus. All of the issued and
outstanding shares of capital stock of Texas HCP, Inc. have been duly
authorized and validly issued, are fully paid and non assessable and are owned
by the Company, directly or through subsidiaries, free and clear of any
security interest, mortgage, pledge, lien, encumbrance or claim.
(vii) The execution and delivery of this
Agreement has been duly and validly authorized by all necessary corporate
action on the part of the Company under its charter and bylaws and the
MGCL. This Agreement has been duly
executed and delivered by the Company.
(viii) The issuance and sale of the Securities
by the Company and the compliance by the Company with the provisions of this
Agreement and the consummation of the transactions contemplated hereby, will
not result in any violation of the provisions of the charter or bylaws of the Company.
(ix) No authorization, approval, consent,
decree or order of any Maryland court or governmental authority or agency is
required under the MGCL for the consummation by the Company of the transactions
contemplated by this Agreement or in connection with the sale of the Securities
hereunder, except such as may have been obtained or rendered, as the case may
be.
In rendering its opinion,
Ballard Spahr Andrews & Ingersoll, LLP shall state that each of
Sidley Austin LLP, in rendering its opinion pursuant to
Section 5(b)(6), and Latham & Watkins LLP, in rendering its
opinion pursuant to Section 5(b)(1), may rely upon such opinion as to
matters arising under the laws of the State of Maryland.
17
(5) Opinion of
Company Counsel. The favorable
opinion, dated as of Closing Time, of Edward J. Henning, General Counsel of the
Company, in form and scope satisfactory to your counsel, to the effect that:
(i) To the best of such counsel’s
knowledge and information, the Company is duly qualified as a foreign
corporation to transact business and is in good standing in each jurisdiction
in which its ownership or lease of substantial properties or the conduct of its
business requires such qualification, except where the failure to so qualify
would not have a material adverse effect on the condition, financial or
otherwise, or the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise.
(ii) To the best of such counsel’s
knowledge and information, each Significant Subsidiary of the Company is duly
qualified as a foreign corporation, limited liability company or partnership,
as the case may be, to transact business and is in good standing in each
jurisdiction in which its ownership or lease of substantial properties or the conduct
of its business requires such qualification, except where the failure to so
qualify and be in good standing would not have a material adverse effect on the
condition, financial or otherwise, or the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise.
(iii) To the best of such counsel’s knowledge
and information, no material default exists in the due performance or
observance by the Company or any of its subsidiaries of any obligation, agreement,
covenant or condition contained in any contract, indenture, mortgage, loan
agreement, note, lease or other instrument described or referred to in the
Registration Statement, the Time of Sale Information or the Prospectus or filed
as an exhibit thereto or incorporated by reference therein which would have a
material adverse effect on the condition, financial or otherwise, or in the
earnings, business affairs or business prospects of the Company and its
subsidiaries considered as one enterprise.
(iv) To the best of such counsel’s knowledge
and information, there are no contracts, indentures, mortgages, loan
agreements, notes, leases or other instruments or documents required to be
described or referred to in the Registration Statement, the Time of Sale Information
or the Prospectus or to be filed as exhibits thereto other than those described
or referred to therein or filed or incorporated by reference as exhibits
thereto and the descriptions thereof or references thereto are correct.
(v) The authorized, issued and outstanding
capital stock of the Company is as set forth in the line items “Preferred
Stock” and “Common Stock” set forth in the consolidated balance sheet as of
September 30, 2006 contained in the Company’s Quarterly Report on Form 10-Q
for the quarter ended September 30, 2006 (except for subsequent issuances,
if any, pursuant to reservations, agreements, dividend reinvestment plans or
18
employee or director stock plans referred to in the
Prospectus), and the shares of issued and outstanding Common Stock and
Preferred Stock have been duly authorized and validly issued and are fully paid
and non-assessable.
(vi) The issue and sale of the Securities
and the compliance by the Company with the provisions of this Agreement and the
consummation of the transactions contemplated herein will not, to the best of
such counsel’s knowledge and information, result in any material violation of
any order applicable to the Company of any court or governmental agency or body
having jurisdiction over the Company or any of its subsidiaries or any of their
properties.
(vii) To the best of such counsel’s knowledge
and information, there are no legal or governmental proceedings pending or
threatened which are required to be disclosed in the Time of Sale Information
or the Prospectus or otherwise incorporated by reference therein that are not
so disclosed.
(6) The favorable
opinion, dated as of Closing Time, of Sidley Austin LLP, counsel to the
Underwriter, with respect to such matters as you may reasonably request. In rendering such opinion, Sidley
Austin LLP may rely upon the opinion of Ballard Spahr Andrews &
Ingersoll, LLP, rendered pursuant to Section 5(b)(4), as to matters
arising under the laws of the State of Maryland.
(7) In giving its
opinion required by subsection (b)(6) of this Section, Sidley
Austin LLP shall additionally state that no facts have come to its
attention that have caused it to believe that the Registration Statement, at
the time of its effective date and at the date of the Prospectus Supplement,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, that the Time of Sale Information, at the Time of Sale,
contained an untrue statement of a material fact or omitted to state a material
fact required to be stated therein or necessary to make the statements therein
not misleading, or that the Prospectus, as of the date of the Prospectus
Supplement or at Closing Time, included or includes 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; it being understood that such counsel shall
express no belief with respect to (i) the financial statements, schedules and
other financial data included or incorporated by reference in or omitted from
the Registration Statement, the Time of Sale Information or the Prospectus or
(ii) any Form T-1.
In giving their opinions,
Latham & Watkins LLP, Edward J. Henning, Ballard Spahr
Andrews & Ingersoll, LLP and Sidley Austin LLP may rely, to
the extent recited therein, (A) as to all matters of fact, upon
certificates and written statements of officers of the Company, and (B) as
to the qualification and good standing of the Company and each
19
Significant Subsidiary to
do business in any state or jurisdiction, upon certificates of appropriate
government officials.
(c) Officers’ Certificate. At Closing Time there shall not have been,
since the date hereof or since the respective dates as of which information is
given in the Registration Statement and the Prospectus or the Time of Sale
Information, any material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business, and you shall have received a
certificate of the President or a Vice President of the Company and of the
chief financial or chief accounting officer of the Company, dated as of Closing
Time, to the effect that (i) there has been no such material adverse change,
(ii) the representations and warranties in Section 1 hereof are true and
correct with the same force and effect as though expressly made at and as of
Closing Time, (iii) the Company has performed or complied with all
agreements and satisfied all conditions on its part to be performed or
satisfied at or prior to Closing Time, (iv) no order suspending the
effectiveness of the Registration Statement has been issued and no proceedings
for that purpose have been initiated or, to the best knowledge and information
of such officer, threatened by the Commission, (v) no examination pursuant
to Section 8(c) of the 1933 Act concerning the Registration Statement has
been initiated by the Commission, and (vi) the Company has not become the
subject of a proceeding under Section 8A of the 1933 Act in connection
with the offering of the Securities. As
used in this Section 5(c), the term “Prospectus” means the Prospectus in
the form first used to confirm sales of the Securities.
(d) Accountants’ Comfort Letters. At the time of the execution of this
Agreement, you shall have received from each of Ernst & Young LLP
and PricewaterhouseCoopers LLP a letter, dated such date, in form and
substance satisfactory to you, containing statements and information of the
type ordinarily included in accountants “comfort letters” to underwriters with
respect to financial statements and financial information included and
incorporated by reference in the Registration Statement, the Time of Sale
Information and the Prospectus (including, without limitation, the pro forma
financial statements) and each substantially in the same form as the respective
draft letter previously delivered to and approved by you.
(e) Bring-down Comfort Letters. At Closing Time, you shall have received from
each of Ernst & Young LLP and PricewaterhouseCoopers LLP a
letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in their respective letters furnished pursuant to
subsection (d) of this Section, except that the specified date referred to
therein shall be a date not more than three business days prior to Closing
Time.
(f) Additional Documents. At Closing Time and each Date of Delivery, if
your counsel shall have been furnished with such documents and opinions as they
may reasonably require for the purpose of enabling them to pass upon the
issuance and sale of the Securities as herein contemplated and related
proceedings, or in order to evidence the accuracy and completeness of any of
the representations and warranties, or the fulfillment of any of the
conditions, herein contained; and all proceedings taken by the Company in
connection with the issuance and sale of the Securities as herein contemplated
shall be satisfactory in form and substance to you and your counsel.
20
(g) Listing. At
Closing Time the Securities shall have been duly listed, subject to notice of
issuance, on the New York Stock Exchange.
(h) Lock-up Agreements.
You shall have received an agreement substantially in the form
heretofore agreed to with you signed by the persons listed on Schedule A
hereto, dated as of the date of this Agreement.
(i) Option To Purchase Additional Securities. In the event you exercise the option provided
in Section 2 hereof to purchase all or any portion of the Option
Securities, the representations and warranties of the Company contained herein
and the statements in any certificates furnished by the Company hereunder shall
be true and correct as of each Date of Delivery, and you shall have received:
(1) The favorable opinion of
Latham & Watkins LLP, special counsel for the Company, in form
and substance satisfactory to your counsel, dated such Date of Delivery,
relating to the Option Securities and otherwise to the same effect as the
opinion required by Sections 5(b)(1) and 5(b)(3) hereof.
(2) The favorable opinion of
Latham & Watkins LLP, special counsel for the Company, in form
and substance satisfactory to your counsel, dated such Date of Delivery,
reaffirming their opinion delivered at Closing Time pursuant to
Section 5(b)(2) hereof.
(3) The favorable opinion of
Ballard Spahr Andrews & Ingersoll, LLP, Maryland corporate
counsel for the Company, in form and substance satisfactory to your counsel,
dated such Date of Delivery, relating to the Option Securities and otherwise to
the same effect as the opinion required by Section 5(b)(4) hereof.
(4) The favorable opinion of
Edward J. Henning, General Counsel of the Company, in form and substance
satisfactory to your counsel, dated such Date of Delivery, reaffirming his
opinion delivered at Closing Time pursuant to Section 5(b)(5) hereof.
(5) The favorable opinion of
Sidley Austin LLP, counsel for the Underwriter, dated such Date of
Delivery, relating to the Option Securities and otherwise to the same effect as
the opinion required by Sections 5(b)(6) and 5(b)(7) hereof.
(6) A certificate of the
President or a Vice President of the Company and the chief financial or chief
accounting officer of the Company, dated such Date of Delivery, confirming that
the certificate delivered at Closing Time pursuant to Section 5(c) hereof
remains true and correct as of such Date of Delivery.
(7) A letter from each of
Ernst & Young LLP and PriceWaterhouseCoopers LLP, in form
and substance satisfactory to you,
21
dated such Date of Delivery, substantially the same in
scope and substance as the letter furnished to you pursuant to
Section 5(e) hereof except that the “specified date” in the letter
furnished pursuant to this subsection shall be a date not more than three
business days prior to such Date of Delivery.
If any condition specified in this Section shall
not have been fulfilled when and as required to be fulfilled, this Agreement
may be terminated by you by notifying the Company at any time at or prior to
Closing Time, and such termination shall be without liability of any party to
any other party except as provided in Section 4 hereof. Notwithstanding any such termination, the
provisions of Sections 1, 4, 6, 7 and 8 shall remain in effect.
Section 6. Indemnification.
(a) Indemnification of the Underwriter. The Company agrees to indemnify and hold
harmless the Underwriter, its directors and officers, and each person, if any,
who controls the Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act, as follows:
(i) against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, arising out of
any untrue statement or alleged untrue statement of a material fact contained
in the Registration Statement (or any amendment thereto), or any omission or alleged
omission therefrom of a material fact required to be stated therein or
necessary to make the statements therein not misleading or arising out of any
untrue statement or alleged untrue statement of a material fact contained in
the Prospectus (or any amendment or supplement thereto), or any Issuer Free
Writing Prospectus or any Time of Sale Information or any “issuer information”
(as defined in Rule 433(h) under the 1933 Act) filed or required to be
filed pursuant to Rule 433(a) under the 1933 Act, or the omission or
alleged omission therefrom of a material fact necessary in order to make the
statements therein, in the light of the circumstances under which they were
made, not misleading;
(ii) against any and all loss,
liability, claim, damage and expense whatsoever, as incurred, to the extent of
the aggregate amount paid in settlement of any litigation, or any investigation
or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue statement or omission, or
any such alleged untrue statement or omission, if such settlement is effected
with the written consent of the Company; and
(iii) against any and all expense
whatsoever, as incurred (including, subject to Section 6(c) hereof, the
fees and disbursements of counsel chosen by you), reasonably incurred in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue statement or
omission, or any such alleged untrue statement or omission, to the extent that
any such expense is not paid under (i) or (ii) above;
22
provided,
however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue
statement or omission or alleged untrue statement or omission made in reliance
upon and in conformity with written information furnished to the Company by you
expressly for use in the Registration Statement (or any amendment thereto) or
the Prospectus (or any amendment or supplement thereto), or any Issuer Free
Writing Prospectus or any Time of Sale Information, or made in reliance upon
the Trustee’s Form T-1 filed as an exhibit to the Registration Statement.
(b) Indemnification of the Company, Directors and Officers. The Underwriter agrees to indemnify and hold
harmless the Company, its directors, each of its officers who signed the
Registration Statement, and each person, if any, who controls the Company
within the meaning of Section 15 of the 1933 Act or Section 20
of the 1934 Act against any and all loss, liability, claim, damage and expense
described in the indemnity contained in subsection (a) of this
Section, as incurred, but only with respect to untrue statements or omissions,
or alleged untrue statements or omissions, made in the Registration Statement
(or any amendment thereto) or the Prospectus (or any amendment or supplement
thereto) or any Issuer Free Writing Prospectus or any Time of Sale Information
in reliance upon and in conformity with written information furnished to the
Company by you expressly for use therein.
(c) Actions Against Parties; Notification. Each indemnified party shall give written
notice as promptly as reasonably practicable to each indemnifying party of any
action commenced against it in respect of which indemnity may be sought
hereunder, but failure to so notify an indemnifying party shall not relieve
such indemnifying party from any liability hereunder to the extent it is not
materially prejudiced as a result thereof and in any event shall not relieve it
from any liability which it may have otherwise than on account of this
indemnity agreement. In the case of
parties indemnified pursuant to Section 6(a) above, counsel to the
indemnified parties shall be selected by you, and, in the case of parties
indemnified pursuant to Section 6(b) above, counsel to the indemnified
parties shall be selected by the Company.
An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the
indemnifying party shall not (except with the consent of the indemnified party)
also be counsel to the indemnified party.
In no event shall the indemnifying parties be liable for fees and
expenses of more than one counsel (in addition to any local counsel) separate
from their own counsel for all indemnified parties in connection with any one
action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying party shall, without the
prior written consent of the indemnified parties, settle or compromise or
consent to the entry of any judgment with respect to any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or
threatened, or any claim whatsoever in respect of which indemnification or
contribution could be sought under Section 6 or Section 7 hereof
(whether or not the indemnified parties are actual or potential parties
thereto), unless such settlement, compromise or consent (i) includes an
unconditional release of each indemnified party from all liability arising out
of such litigation, investigation, proceeding or claim and (ii) does not include
a statement as to or an admission of fault, culpability or a failure to act by
or on behalf of any indemnified party.
(d) Settlement without Consent if Failure to Reimburse. If at any time an indemnified party shall
have requested an indemnifying party to reimburse the indemnified party
23
for fees and expenses of counsel, such
indemnifying party agrees that it shall be liable for any settlement of the
nature contemplated by Section 6(a)(ii) effected without its written
consent if (i) such settlement is entered into more than 45 days after
receipt by such indemnifying party of the aforesaid request, (ii) such
indemnifying party shall have received notice of the terms of such settlement
at least 30 days prior to such settlement being entered into and (iii) such
indemnifying party shall not have reimbursed such indemnified party in
accordance with such request prior to the date of such settlement.
(e) EDGAR. For
purposes of this Section 6, all references to the Registration Statement,
any Issuer Free Writing Prospectus or the Prospectus, or any amendment or
supplement to any of the foregoing, shall be deemed to include, without
limitation, any electronically transmitted copies thereof filed with the
Commission pursuant to EDGAR.
Section 7. Contribution. If the indemnification provided for in
Section 6 hereof is for any reason unavailable to or insufficient to hold
harmless an indemnified party in respect of any losses, liabilities, claims,
damages or expenses referred to therein, then each indemnifying party shall contribute
to the aggregate amount of such losses, liabilities, claims, damages and
expenses incurred by such indemnified party, as incurred, (i) in such
proportion as is appropriate to reflect the relative benefits received by the
Company, on the one hand, and you, on the other hand, from the offering of the
Securities pursuant to this Agreement or (ii) if the allocation provided
by clause (i) is not permitted by applicable law, in such proportion as is
appropriate to reflect not only the relative benefits referred to in
clause (i) above but also the relative fault of the Company, on the one
hand, and of you, on the other hand, in connection with the statements or
omissions which resulted in such losses, liabilities, claims, damages or
expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Company, on the
one hand, and you, on the other hand, in connection with the offering of the
Securities pursuant to this Agreement shall be deemed to be in the same
respective proportions as the total net proceeds from the offering of the
Securities pursuant to this Agreement (before deducting expenses) received by
the Company and the total underwriting discount received by you, in each case
as set forth on the cover of the Prospectus Supplement bear to the aggregate
public offering price of the Securities as set forth on such cover.
The relative fault of the Company, on the one hand,
and you, on the other hand, shall be determined by reference to, among other
things, whether any such untrue or alleged untrue statement of a material fact
or omission or alleged omission to state a material fact relates to information
supplied by the Company or by you and the parties’ relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
The Company and the Underwriter agree that it would
not be just and equitable if contribution pursuant to this Section 7 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 7. The aggregate amount of
losses, liabilities, claims, damages and expenses incurred by an indemnified
party and referred to above in this Section 7 shall be deemed to include
any legal or other expenses reasonably incurred by such indemnified party in
investigating, preparing or defending against any litigation, or any
investigation or proceeding by
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any governmental agency or body, commenced or
threatened, or any claim whatsoever based upon any such untrue or alleged
untrue statement or omission or alleged omission.
Notwithstanding the provisions of this Section 7,
you shall be required to contribute any amount in excess of the amount by which
the total price at which the Securities underwritten by you were offered
exceeds the amount of any damages which you have otherwise been required to pay
by reason of any such untrue or alleged untrue statement or omission or alleged
omission.
No person guilty of fraudulent misrepresentation
(within the meaning of Section 11(f) of the 1933 Act) shall be
entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 7, each person, if
any, who controls the Underwriter within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Underwriter, and each director of the Company,
each officer of the Company who signed the Registration Statement, and each person,
if any, who controls the Company within the meaning of Section 15 of the
1933 Act or Section 20 of the 1934 Act shall have the same
rights to contribution as the Company.
Section 8. Representations, Warranties and Agreements
to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or
contained in certificates of officers of the Company submitted pursuant hereto,
shall remain operative and in full force and effect, regardless of any
investigation made by or on behalf of the Underwriter or any controlling
person, or by or on behalf of the Company, and shall survive delivery of the
Securities to the Underwriter.
Section 9. Termination.
(a) The Underwriter may terminate this Agreement, by notice to
the Company, at any time at or prior to Closing Time (and, if any Option
Securities are to be purchased on a Date of Delivery which occurs after the
Closing Time, the Underwriter may terminate the obligation to purchase such
Option Securities, by notice to the Company, at any time on or prior to such
Date of Delivery) (i) if there has been since the date of this Agreement
or since the respective dates as of which information is given in the
Prospectus or the Time of Sale Information, any material adverse change in the
condition, financial or otherwise, or in the earnings, business affairs or
business prospects of the Company and its subsidiaries considered as one
enterprise, whether or not arising in the ordinary course of business,
(ii) if there has occurred any material adverse change in the financial
markets in the United States, any outbreak of hostilities or other calamity or
crisis or change or development involving a prospective change in national or
international political, financial or economic conditions, in each case the
effect of which on the financial markets of the United States is such as to
make it, in the Underwriter’s judgment, impracticable to market the Securities
or enforce contracts for the sale of the Securities, (iii) if trading in
any securities of the Company has been suspended by the Commission or a
national securities exchange, or if trading generally on either the American
Stock Exchange or the New York Stock Exchange or in the NASDAQ Global Market
has been suspended, or minimum or maximum prices for trading have been fixed,
or maximum ranges for prices for securities have been required, by either of
said exchanges or by the NASDAQ Global Market or by order of the
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Commission, the NASD or any other
governmental authority, or a material disruption has occurred in commercial
banking or securities settlement or clearance services in the United States, or
(iv) if a banking moratorium has been declared by either federal, New
York, Maryland or California authorities.
As used in this Section 9(a), the term “Prospectus” means the
Prospectus in the form first used to confirm sales of the Securities.
(b) If this Agreement is terminated pursuant to this Section,
such termination shall be without liability of any party to any other party
except as provided in Section 4 hereof.
Notwithstanding any such termination, the provisions of Sections 4,
6, 7 and 8 shall remain in effect.
Section 10. Certain Agreements of the Underwriter. The Underwriter hereby represents and agrees
that:
(a) It has not and will
not use, authorize use of, refer to, or participate in the plan for use of, any
“free writing prospectus,” as defined in Rule 405 of the 1933 Act
Regulations other than (i) a free writing prospectus that, solely as a result
of use by the Underwriter, would not trigger an obligation to file such free
writing prospectus with the Commission pursuant to Rule 433 of the 1933 Act
Regulations, (ii) any Issuer Free Writing Prospectus listed on
Exhibit C or prepared pursuant to Section 1(a)(iii) or Section 3(c)
above (including any electronic road show), or (iii) any free writing
prospectus prepared by the Underwriter and approved in writing by the Company
in advance of the use of such free writing prospectus.
(b) It is not subject to
any pending proceeding under Section 8A of the 1933 Act with respect to
the offering (and will promptly notify the Company if any such proceeding
against it is initiated during the Prospectus Delivery Period).
Section 11. Notices.
Unless otherwise provided herein, all notices required
under the terms and provisions hereof shall be in writing, either delivered by
hand, by mail or by telex, telecopier or telegram, and any such notice shall be
effective when received at the address specified below.
If to the Company:
Health Care Property Investors, Inc.
3760 Kilroy Airport Way, Suite 300
Long Beach, California 90806
Attention: Legal Department
Facsimile: (562) 733-5200
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With a copy to (which shall not constitute notice):
R. Scott Shean, Esq.
Latham & Watkins LLP
650 Town Center Drive, Suite 2000
Costa Mesa, California 92626-1925
Facsimile: (714) 755-8290
If to the Underwriter:
Goldman, Sachs & Co.
One New York Plaza, 42nd Floor
New York, New York
10004
Attention: Registration Department
Facsimile: (212) 902-9316
With a copy to (which shall not constitute notice):
Paul C. Pringle, Esq.
Sidley Austin LLP
555 California Street, Suite 2000
San Francisco, California 94104-1715
Facsimile: (415) 772-7400
or
at such other address as such party may designate from time to time by notice
duly given in accordance with the terms of this Section 11.
Section 12. Parties. This Agreement shall inure to the benefit of
and be binding upon the Underwriter and the Company and their respective
successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any
person, firm or corporation, other than the Underwriter and the Company and
their respective successors and the controlling persons and the officers and
directors referred to in Sections 6 and 7 hereof and their heirs and legal
representatives any legal or equitable right, remedy or claim under or in
respect of this Agreement or any provision herein contained. This Agreement and all conditions and
provisions hereof are intended to be for the sole and exclusive benefit of the
Underwriter and the Company and their respective successors, and said
controlling persons and said officers and directors and their heirs and legal
representatives, and for the benefit of no other person, firm or corporation. No purchaser of Securities from the
Underwriter shall be deemed to be a successor merely by reason of such
purchase.
Section 13. Governing Law and Time. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York applicable to
agreements made and to be performed in such State. Unless stated otherwise, all specified times
of day refer to New York City time.
Section 14. No Advisory or Fiduciary Relationship. The Company acknowledges and agrees that
(i) the purchase and sale of the Securities pursuant to this Agreement,
including the determination of the public offering price of the Securities and
any related discounts and
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commissions, are arm’s-length
commercial transactions between the Company, on the one hand, and you, on the
other hand, (ii) in connection with the offering contemplated hereby and
the process leading to such transaction you are and have been acting solely as
a principal and is not the agent or fiduciary of the Company or its
stockholders, creditors, employees or any other party, (iii) you have not
assumed or will assume an advisory or fiduciary responsibility in favor of the
Company with respect to the offering contemplated hereby or the process leading
thereto (irrespective of whether you have advised or are currently advising the
Company on other matters) and you have no obligation to the Company with
respect to the offering contemplated hereby except the obligations expressly
set forth in this Agreement, (iv) you and your respective affiliates may
be engaged in a broad range of transactions that involve interests that differ
from those of the Company, and (v) you have not provided any legal,
financial, accounting, regulatory or tax advice with respect to the offering
contemplated hereby and the Company has consulted its own legal, financial,
accounting, regulatory and tax advisors to the extent it deemed appropriate.
Section 15. Other Provisions. This Agreement supersedes all prior
agreements and understandings (whether written or oral) between the Company and
the Underwriter, or any of them, with respect to the subject matter hereof.
The Company and the Underwriter hereby irrevocably
waives, to the fullest extent permitted by applicable law, any and all right to
trial by jury in any legal proceeding arising out of or relating to this
Agreement or the transactions contemplated hereby.
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If the foregoing is in accordance with your
understanding of our agreement, please sign and return to the Company a
counterpart hereof, whereupon this instrument, along with all counterparts,
will become a binding agreement between the Underwriter and the Company in
accordance with its terms.
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Very truly yours,
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HEALTH CARE PROPERTY INVESTORS, INC.
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By:
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/s/ Edward J.
Henning
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Name:
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Edward J. Henning
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Title:
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Senior Vice President, General Counsel
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and Corporate Secretary
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CONFIRMED AND ACCEPTED,
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as of the date first above written:
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GOLDMAN, SACHS & CO.
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/s/ GOLDMAN, SACHS & CO.
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(Goldman,
Sachs & Co.)
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