-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, MGERl3pI/5wFhyEWDinfZakmYcm0KU9fycgEaQ5TI2r/C0cW0EaaoyWJ6UFloJYq VSKY+TyLQD64G83wZhOzNQ== 0000950152-03-006726.txt : 20030710 0000950152-03-006726.hdr.sgml : 20030710 20030709215002 ACCESSION NUMBER: 0000950152-03-006726 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20030708 ITEM INFORMATION: Other events ITEM INFORMATION: Financial statements and exhibits FILED AS OF DATE: 20030710 FILER: COMPANY DATA: COMPANY CONFORMED NAME: HEALTH CARE REIT INC /DE/ CENTRAL INDEX KEY: 0000766704 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 341096634 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-08923 FILM NUMBER: 03780988 BUSINESS ADDRESS: STREET 1: ONE SEAGATE STE 1500 STREET 2: P O BOX 1475 CITY: TOLEDO STATE: OH ZIP: 43604 BUSINESS PHONE: 4192472800 8-K 1 l00802ae8vk.txt HEALTH CARE REIT, INC. SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of Report (Date of Earliest Event Reported): July 8, 2003 HEALTH CARE REIT, INC. (Exact name of registrant as specified in its charter) Delaware 1-8923 34-1096634 (State or other jurisdiction (Commission (IRS Employer of incorporation) File Number) Identification No.) One SeaGate, Suite 1500, P.O. Box 1475, Toledo, Ohio 43603-1475 (Address of principal executive offices) (Zip Code) (Registrant's telephone number, including area code): 419-247-2800 1 ITEM 5. OTHER EVENTS. On July 8, 2003, the Company issued a press release to announce investments of $132.1 million for the quarter ended March 31, 2003. The press release is posted on the Company's Web site (www.hcreit.com) under the heading Press Releases. The press release has been furnished as Exhibit 99.1 to this Current Report. Arnold & Porter issued a tax opinion to the Company in connection with the Company's sale on July 9, 2003 of 4,000,000 shares of its 7 7/8% Series D Cumulative Redeemable Preferred Stock pursuant to the Company's Registration Statement on Form S-3 (File No. 333-73936), declared effective December 7, 2001, and the Prospectus Supplement dated June 11, 2003. The tax opinion has been furnished as Exhibit 8.1 to this Current Report. The Company has entered into a purchase agreement for the purchase and sale of 1,583,100 shares of common stock, $1.00 par value per share, of the Company pursuant to the Company's Registration Statement on Form S-3 (File No. 333-73936), declared effective December 7, 2001. The purchase agreement has been furnished as Exhibit 10.1 to this Current Report. In connection with this transaction, Ernst & Young LLP has consented to be named as an expert in the Prospectus Supplement dated July 9, 2003. The consent has been furnished as Exhibit 23.1 to this Current Report. ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS. (c) Exhibits. 8.1 Tax Opinion of Arnold & Porter. 10.1 Purchase Agreement by and among Cohen & Steers Capital Management, Inc., its client accounts described therein and the Company, dated July 9, 2003. 23.1 Consent of Independent Auditors. 99.1 Press Release dated July 8, 2003. 2 SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, the Registrant has duly caused this Report to be signed on its behalf by the undersigned thereunto duly authorized. HEALTH CARE REIT, INC. By: /s/ GEORGE L. CHAPMAN --------------------------- George L. Chapman Its: Chairman of the Board and Chief Executive Officer Dated: July 9, 2003 3 EXHIBIT INDEX Designation Number Under Item 601 of Exhibit No. Regulation S-K Description - ----------- -------------- ----------- 8.1 8 Tax Opinion of Arnold & Porter. 10.1 10 Purchase Agreement by and among Cohen & Steers Capital Management, Inc., its client accounts described therein and the Company, dated July 9, 2003. 23.1 23 Consent of Independent Auditors. 99.1 99 Press Release dated July 8, 2003. 4 EX-8.1 3 l00802aexv8w1.txt EX-8.1 TAX OPINION OF ARNOLD & PORTER Exhibit 8.1 July 9, 2003 Health Care REIT, Inc. One SeaGate Suite 1500 Toledo, Ohio 43604 Re: Federal Income Tax Consequences Ladies and Gentlemen: We have acted as special tax counsel to Health Care REIT, Inc., a Delaware corporation (the "Company"), in connection with the issuance and sale of 4,000,000 shares of 7-7/8% Series D Cumulative Redeemable Preferred Stock, par value $1.00 per share (the "Preferred Stock"), pursuant to a prospectus supplement dated June 11, 2003 ("Prospectus Supplement") to the prospectus dated December 7, 2001 (collectively, the "Prospectus") included in the Company's Registration Statement on Form S-3 (File No. 333-73936) (the "Registration Statement"), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended. You have requested our opinion regarding certain U.S. federal income tax matters in connection with the filing of the Registration Statement. Certain capitalized terms used herein without definition are as defined in the Registration Statement. In giving this opinion, we have examined the following: - the Certificate of Designation of 7-7/8% Series D Cumulative Redeemable Preferred Stock of Health Care REIT, Inc., dated July 8, 2003; - the Second Restated Certificate of Incorporation, as amended, of the Company; - the Amended and Restated Bylaws of the Company; - the Company's Annual Report on Form 10-K for the year ended December 31, 2002; - the Prospectus; - the taxable REIT subsidiary election for HCRI Tucson Inc.; and Health Care REIT, Inc. July 9, 2003 Page 2 - such other documents as we have deemed necessary or appropriate for purposes of this opinion. In connection with the opinions rendered below, we have assumed with your consent that: 1. Each of the documents referred to above has been duly authorized, executed and delivered; is authentic, if an original, or is accurate, if a copy; and has not been amended; 2. During its taxable years ended December 31, 1998 through December 31, 2002, the Company has operated, and, in future taxable years, the Company will operate, in a manner that has caused or will make, as the case may be, the factual representations relating to the ownership, operation, future method of operations, and compliance of the Company with the real estate investment trust ("REIT") provisions of the Internal Revenue Code of 1986, as amended (the "Code"), and the Treasury Regulations (the "Regulations") thereunder, as in effect as of the date hereof, contained in a certificate, dated July 9, 2003 and executed by a duly appointed officer of the Company (the "Officer's Certificate"), true for such years; 3. The Company will not make any amendments to its organizational documents after the date of this opinion that would affect its qualification as a REIT under sections 856-860 of the Code for any taxable year; and 4. No action will be taken by the Company after the date hereof that would have the effect of altering the facts upon which the opinions set forth below are based. In our capacity as special tax counsel to the Company, we have made such legal and factual examinations and inquiries as we have deemed necessary or appropriate for purposes of our opinions rendered below. For the purposes of rendering these opinions, we have not made an independent investigation of the facts set forth in any documents delivered to us, including, without limitation, the Officer's Certificate. We have relied completely upon the Company's representations that the information presented in such documents accurately reflects all material facts. In the course of our representation of the Company, we have not been made aware of any facts inconsistent with such factual representations. In addition, where such factual representations involve terms defined or used in the Code, the Regulations, published rulings of the Internal Revenue Service (the "Service") or other relevant authority, we have explained such terms to the Company's representatives and are satisfied that the Company's representatives understand such terms and are capable of making such factual representations. Health Care REIT, Inc. July 9, 2003 Page 3 Based on the Code, Regulations, documents, assumptions and statements set forth above, the factual representations set forth in the Officer's Certificate and our review of the discussion in the Prospectus under the captions "Additional U.S. Federal Income Tax Considerations" and "REIT Qualification" and the discussion in the Company's Annual Report on Form 10-K for the year ended December 31, 2002 under the caption "Taxation," we are of the opinion that: (a) the Company qualified to be taxed as a REIT pursuant to sections 856 through 860 of the Code for its taxable years ended December 31, 1998 through December 31, 2002, and the Company's organization and current and proposed method of operation will enable it to continue to meet the requirements for qualification and taxation as a REIT under the Code for all future taxable years; and (b) the descriptions of the law and the legal conclusions contained in the Prospectus under the captions "Additional U.S. Federal Income Tax Considerations" and "REIT Qualification" and in the Company's Annual Report on Form 10-K under the caption "Taxation," fairly summarize the federal income tax considerations that are likely to be material to a holder of the Preferred Stock. We will not review on a continuing basis the Company's compliance with the documents or assumptions set forth above, or the factual representations set forth in the Officer's Certificate. Accordingly, no assurance can be given that the actual results of the Company's operations for any given taxable year will satisfy the requirements for qualification and taxation as a REIT. The foregoing opinions are based on current provisions of the Code and the Regulations, published administrative interpretations thereof and published court decisions and assume that none of these will change. No assurance, however, can be given that the law will not change in a way that will prevent the Company from qualifying as a REIT. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement. In giving this consent, we do not acknowledge that we are in the category of persons whose consent is required by Section 7 of the Securities Act of 1933, as amended, or the rules and regulations promulgated thereunder by the SEC. The foregoing opinions are limited to the U.S. federal income tax matters addressed herein, Health Care REIT, Inc. July 9, 2003 Page 4 and no other opinions are rendered with respect to other federal tax matters or to any issues arising under the tax laws of any other country, or any state or locality. We undertake no obligation to update the opinions expressed herein after the date of this letter. This opinion letter may not be distributed, or quoted in whole or in part, or otherwise reproduced in any document, or filed with any governmental agency, in each case without our express written consent. Very truly yours, /s/ Arnold & Porter ARNOLD & PORTER EX-10.1 4 l00802aexv10w1.txt EX-10.1 PURCHASE AGREEMENT Exhibit 10.1 PURCHASE AGREEMENT This Purchase Agreement (this "Agreement"), dated as of July 9, 2003, is by and among Cohen & Steers Capital Management, Inc. ("Cohen & Steers"), the client accounts of Cohen & Steers, as set forth on Schedule A (each a "PURCHASER" and collectively the "PURCHASERS"), and Health Care REIT, Inc. (the "SELLER"). WHEREAS, the PURCHASERS, desire to purchase from SELLER, and SELLER desires to issue and sell to PURCHASERS, in the aggregate 1,583,100 shares of common stock of SELLER, par value $1.00 per share (the "Shares"), with the number of Shares acquired by each PURCHASER set forth on Schedule A. NOW, THEREFORE, in consideration of the mutual promises herein contained, the parties hereto agree as follows: 1. Purchase and Sale. Subject to the terms and conditions hereof, the PURCHASERS hereby agree to purchase from SELLER, and SELLER agrees to issue and sell to PURCHASERS, the Shares at a price per share of $30.32 for an aggregate purchase amount of $47,999,592 (the "Purchase Price"). 2. Representations and Warranties of PURCHASER. Each PURCHASER represents and warrants that: (a) Due Authorization. The PURCHASER is duly authorized to purchase the Shares. This Agreement has been duly authorized, executed and delivered by the PURCHASER and constitutes a legal, valid and binding agreement of the PURCHASER, enforceable against the PURCHASER in accordance with its terms except as may be limited by (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights or remedies of creditors or (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law and the discretion of the court before which any proceeding therefor may be brought. (b) Prospectus and Prospectus Supplement. The PURCHASER has received a copy of SELLER's Prospectus dated December 7, 2001, and Prospectus Supplement dated July 9, 2003 (collectively, the "Prospectus"). 3. Representations and Warranties of SELLER. SELLER represents and warrants that: (a) Due Authorization. This Agreement has been duly authorized, executed and delivered by SELLER and constitutes a legal, valid and binding agreement of SELLER, enforceable against SELLER in accordance with its terms except as may be limited by (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights or remedies of creditors or (ii) the effect of general principles of equity, whether enforcement is considered in a proceeding in equity or at law and the discretion of the court before which any proceeding therefor may be brought. (b) Organization and Authority. SELLER has been duly organized and is validly existing in good standing under the laws of Delaware, with full power and authority to own or lease and occupy its properties and conduct its business as described in the Prospectus. (c) Issuance of the Shares. The Shares have been duly and validly authorized and, when issued and delivered pursuant to this Agreement, will be fully paid and nonassessable and will be listed, subject to notice of issuance, on the New York Stock Exchange effective as of the Closing (as defined in Paragraph 6 of this Agreement). (d) Absence of Conflicts. The execution, delivery and performance of this Agreement and the consummation of transactions contemplated herein do not and will not result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the SELLER. 4. Representation and Warranty of Cohen & Steers. Cohen & Steers hereby represents and warrants that: (a) It is an investment adviser duly registered with the Securities and Exchange Commission under the Investment Advisers Act of 1940. (b) It has been duly authorized to act as investment adviser on behalf of each PURCHASER. (c) It has the power and authority to enter into and execute this Agreement on behalf of each PURCHASER. (d) This Agreement has been duly executed and delivered by Cohen & Steers and constitutes a legal, valid and binding agreement of Cohen & Steers, enforceable against Cohen & Steers in accordance with its terms except as may be limited by (i) the effect of bankruptcy, insolvency, reorganization, moratorium or other similar laws relating to or affecting the rights or remedies of creditors or (ii) the effect of general principles of equity, whether enforcement is considered in a 2 proceeding in equity or at law and the discretion of the court before which any proceeding therefor may be brought. 5. Conditions to Obligations of the Parties. As a condition to Closing, each of the representations and warranties of the parties hereto shall be true and correct in all respects. 6. Closing. The transactions contemplated hereby shall be consummated on July 14, 2003 (such time and date of payment and delivery being herein called the "Closing"). At the Closing, settlement shall occur through Jeffries & Company, Inc., or an affiliate thereof, on a delivery versus payment basis through the DTC ID System. 7. Governing Law. This Agreement shall be construed in accordance with and governed by the substantive laws of the State of New York. 8. Entire Agreement. This Agreement constitutes the entire agreement between the parties hereto with respect to the subject matter hereof and may be amended only in a writing that is executed by each of the parties hereto. 9. Counterparts. This Agreement may be executed in separate counterparts, each of which shall be deemed an original, and all of which together shall be deemed to constitute one and the same instrument. [THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK] 3 IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed and delivered as of the date first above written. HEALTH CARE REIT, INC. By: /s/ George L. Chapman -------------------------------- Name: George L. Chapman Title: Chairman and Chief Executive Officer COHEN & STEERS CAPITAL MANAGEMENT, INC., on behalf of itself and each PURCHASER set forth on Schedule A By: /s/ Joseph M. Harvey -------------------------------- Name: Joseph M. Harvey Title: SVP 4 SCHEDULE A ----------
Name of Client Number of Shares - -------------- ---------------- Cohen & Steers Equity Income Fund, Inc. 198,600 Fairfax County Uniformed Retirement System 1,000 North Shore-Long Island Jewish Health System, Inc. 1,500 North Shore-Long Island Jewish Health System Cash Balance Plan 500 New York State Teachers' Retirement System 16,400 Cohen & Steers Advantage Income Realty Fund, Inc. 99,300 University of Mass. Foundation Inc. 800 Associated Electric Gas Insurance Services 5,000 Land America Title Insurance Corporation 2,500 United Mine Workers of America 1974 Pension Trust 9,900 New York Community Trust 1,600 Cohen & Steers REIT & Preferred Income Fund, Inc. 1,241,500 Cornell University 4,500
EX-23.1 5 l00802aexv23w1.txt EX-23.1 CONSENT OF INDEPENDENT AUDITORS Exhibit 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Prospectus Supplement dated July 7, 2003 to the Registration Statement (Form S-3 No. 333-73936) and related Prospectus of Health Care REIT, Inc. for the offering of up to $50 million shares of common stock, and to the incorporation by reference therein of our report dated January 17, 2003, with respect to the consolidated financial statements and schedules of Health Care REIT, Inc. included in its Annual Report (Form 10-K) for the year ended December 31, 2002, filed with the Securities and Exchange Commission. /s/ Ernst & Young LLP Toledo, Ohio July 7, 2003 EX-99.1 6 l00802aexv99w1.txt EX-99.1 PRESS RELEASE Exhibit 99.1 [HEALTH CARE REIT LOGO] F O R I M M E D I A T E R E L E A S E July 8, 2003 For more information contact: Ray Braun (419) 247-2800 Mike Crabtree (419) 247-2800 Scott Estes (419) 247-2800 HEALTH CARE REIT, INC. ANNOUNCES GROSS INVESTMENTS OF $132.1 MILLION FOR SECOND QUARTER SECOND QUARTER CALL SCHEDULED FOR JULY 16, 2003 Toledo, Ohio, July 8, 2003.....HEALTH CARE REIT, INC. (NYSE/HCN) announced today that it had completed $132.1 million of gross investments during the second quarter of 2003. The investment activity during the quarter was approximately 96 percent real property investments and four percent loans. Facility-based investments include 24 percent assisted living facilities, 68 percent skilled nursing facilities and 8 percent specialty care facilities. Aggregate funding was provided to 17 operators in 14 states. Also during the quarter, the company had $5.1 million of asset sales and loan payoffs relating to one assisted living facility and one parcel of land. Net investments for the quarter totaled $127.0 million. "Once again, we are pleased to report the continued successful execution of our investment strategy," commented George L. Chapman, chief executive officer of Health Care REIT, Inc. "Approximately $115.7 million of second quarter investments related to two transactions that closed on June 30. We completed a $90.8 million acquisition of a portfolio consisting of 18 skilled nursing facilities and two assisted living facilities with 2,890 beds and located in four states. The facilities were master leased to a new private operator for the company. We also completed the sale-leaseback acquisition of three assisted living facilities for $24.9 million. The acquisition of this quality real estate further strengthens and diversifies our portfolio." Through June 30, 2003, the company has completed gross investments of $183.7 million, offset by $20.8 million of asset sales and loan payoffs, generating $162.9 million in net new investments. The company also confirmed that it will release its 2003 second quarter earnings results on July 15, 2003, after the market closes. A conference call is scheduled for 11:00 a.m. EDST on July 16, 2003, to discuss these results. The information to be discussed on the call will be contained in the company's earnings release, which will also be available on the press releases page of the company's Web site (http://www.hcreit.com). The conference call will be accessible by telephone and through the Internet. Telephone access will be available by dialing 973-582-2785 or 888-338-6461. Callers to this number will be able to listen to the company's business update. For those unable to listen to the call live, a taped rebroadcast will be available beginning two hours after completion of the live call on July 16, 2003 through July 23, 2003. To access the rebroadcast, dial 973-341-3080 or 877-519-4471. The conference ID number is 4024271. To participate on the webcast, log on to www.hcreit.com or www.ccbn.com 15 minutes before the call to download the necessary software. A replay will be available on these Web sites for 90 days. Health Care REIT, Inc., with headquarters in Toledo, Ohio, is a real estate investment trust that invests in health care facilities, primarily skilled nursing and assisted living facilities. For more information on Health Care REIT, Inc., via facsimile at no cost, dial 1-800-PRO-INFO and enter the company code - HCN. More information is available on the Internet at http://www.hcreit.com. This document may contain "forward-looking" statements as defined in the Private Securities Litigation Reform Act of 1995. These forward-looking statements concern the possible expansion of our portfolio; the performance of our operators and properties; our ability to enter into agreements with new viable tenants for properties which we take back from financially troubled tenants, if any; our ability to make distributions; our policies and plans regarding investments, financings and other matters; our tax status as a real estate investment trust; our ability to appropriately balance the use of debt and equity; and our ability to access capital markets or other sources of funds. When we use words such as "believe," "expect," "anticipate," or similar expressions, we are making forward-looking statements. Forward-looking statements are not guarantees of future performance and involve risks and uncertainties. Our expected results may not be achieved, and actual results may differ materially from our expectations. This may be a result of various factors, including, but not limited to: the status of the economy; the status of capital markets, including prevailing interest rates; compliance with and changes to regulations and payment policies within the health care industry; changes in financing terms; competition within the health care and senior housing industries; and changes in federal, state and local legislation. Finally, we assume no obligation to update or revise any forward-looking statements or to update the reasons why actual results could differ from those projected in any forward-looking statements. ##### -----END PRIVACY-ENHANCED MESSAGE-----