-----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, KWNi0VRsdOTUTBAcarvFc+G0MLkaLL9hRCuTQqa7cjVfYpX4MFTnpSETARHxokLl JkeQk+z8ElSOqhrJY0USLw== 0000950152-03-010048.txt : 20031202 0000950152-03-010048.hdr.sgml : 20031202 20031202172749 ACCESSION NUMBER: 0000950152-03-010048 CONFORMED SUBMISSION TYPE: S-3 PUBLIC DOCUMENT COUNT: 5 FILED AS OF DATE: 20031202 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: S-3 SEC ACT: 1933 Act SEC FILE NUMBER: 333-110877 FILM NUMBER: 031033436 BUSINESS ADDRESS: STREET 1: ONE SEAGATE STE 1500 STREET 2: P O BOX 1475 CITY: TOLEDO STATE: OH ZIP: 43604 BUSINESS PHONE: 4192472800 S-3 1 l04340asv3.txt HEALTH CARE REIT, INC. S-3 As filed with the Securities and Exchange Commission on December 2, 2003 REGISTRATION NO. 333-_______ ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 FORM S-3 REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933 HEALTH CARE REIT, INC. ------------------------------------------- (Exact Name of Registrant as Specified in its Charter) DELAWARE 34-1096634 -------- ---------- (State or Other Jurisdiction of (I.R.S. Employer Identification Incorporation or Organization) Number) One SeaGate Suite 1500 Toledo, Ohio 43604 (419) 247-2800 - -------------------------------------------------------------------------------- (Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrant's Principal Executive Offices) GEORGE L. CHAPMAN Chairman of the Board and Chief Executive Officer Health Care REIT, Inc. One SeaGate, Suite 1500 Toledo, Ohio 43604 (419) 247-2800 - -------------------------------------------------------------------------------- (Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service) Copy to: Mary Ellen Pisanelli, Esquire Shumaker, Loop & Kendrick, LLP North Courthouse Square 1000 Jackson Toledo, Ohio 43624 (419) 241-9000 Approximate date of commencement of proposed sale to the public: From time to time after the effective date of this registration statement as determined by market conditions. If the only securities being registered on this Form are being offered pursuant to dividend or interest reinvestment plans, please check the following box: [ ] If any of the securities being registered on this Form are to be offered on a delayed or continuous basis pursuant to Rule 415 under the Securities Act of 1933, other than securities offered only in connection with dividend or interest reinvestment plans, check the following box: [X] If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, please check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. [ ] If delivery of the prospectus is expected to be made pursuant to Rule 434, please check the following box: [ ]
CALCULATION OF REGISTRATION FEE -------------------------------------------------------------------------------------------------------------- TITLE OF EACH CLASS OF PROPOSED MAXIMUM PROPOSED MAXIMUM AMOUNT OF SECURITIES TO AMOUNT TO BE OFFERING PRICE AGGREGATE REGISTRATION BE REGISTERED REGISTERED PER UNIT (1) OFFERING PRICE(1) FEE (1) ---------------------- --------------------- --------------------- --------------------- --------------- Common Stock, $1.00 par value 811,385 $34.475 $27,972,497 $2,262.98 per share --------------------------------------------------------------------------------------------------------------
(1) Determined in accordance with Rule 457(c) under the Securities Act of 1933 based on the average of the high and low reported sales prices on the New York Stock Exchange on November 25, 2003. THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(a) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT SHALL BECOME EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(a), MAY DETERMINE. HEALTH CARE REIT, INC. 811,385 SHARES OF COMMON STOCK Health Care REIT, Inc. is a self-administered, equity real estate investment trust that invests in health care facilities, primarily skilled nursing and assisted living facilities. We also invest in specialty care facilities. Founded in 1970, we were the first real estate investment trust to invest exclusively in health care facilities. Our principal executive offices are located at One SeaGate, Suite 1500, Toledo, Ohio, 43604, and the telephone number is (419) 247-2800. The persons and entities listed in this prospectus, whom we refer to as the "selling stockholders," may use this prospectus to offer and sell up to 811,385 shares of our common stock from time to time. We are registering these shares for offer and sale as required under the terms of a registration rights agreement between the selling stockholders and us. Our registration of the offered shares does not mean that any of the selling stockholders will offer or sell any of the shares. We will receive no proceeds of any sales of the offered shares by the selling stockholders, but we will incur expenses in connection with the offering. The selling stockholders may sell the offered shares in public or private transactions, on or off the New York Stock Exchange, at prevailing market prices or at privately negotiated prices. The selling stockholders may sell the offered shares directly or through agents or broker-dealers acting as principal or agent. Our shares of common stock are traded on the New York Stock Exchange under the symbol "HCN." On December 1, 2003, the last reported sales price of our common stock on the New York Stock Exchange was $35.10 per share. INVESTING IN OUR COMMON STOCK INVOLVES RISK. SEE "CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS AND RISK FACTORS" ON PAGE 2 IN THIS PROSPECTUS. NEITHER THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED THESE SECURITIES, OR DETERMINED IF THIS PROSPECTUS IS TRUTHFUL OR COMPLETE. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE. THE DATE OF THIS PROSPECTUS IS ______________ __, 2003. CAUTIONARY STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS AND RISK FACTORS We have made or incorporated by reference in this prospectus statements that constitute "forward-looking statements" as that term is defined in the federal securities laws. These forward-looking statements may 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 that 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," "estimate" 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. On May 28, 2003, the President signed into law legislation that, for individual taxpayers, will generally reduce the tax rate on corporate dividends to a maximum of 15% for tax years from 2003 to 2008. The dividends of a real estate investment trust ("REIT") generally will not qualify for this reduced tax rate because a REIT's income generally is not subject to corporate level tax. This new law could cause stock in non-REIT corporations to be a more attractive investment to individual investors than stock in REITs and could have an adverse effect on the market price of our equity securities. Other important factors are identified in our Annual Report on Form 10-K for the year ended December 31, 2002, and our Quarterly Report on Form 10-Q for the quarter ended September 30, 2003, which are incorporated by reference into this prospectus, and may be identified in documents filed by us with the SEC after the date hereof that are incorporated by reference into this prospectus, including factors identified under the headings "Business" and "Management's Discussion and Analysis of Financial Condition and Results of Operations." 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. 2 ABOUT THIS PROSPECTUS We have not authorized anyone to provide you with different or inconsistent information from that contained in this prospectus and the documents incorporated herein by reference. If anyone provides you with different or inconsistent information, you should not rely on it. You should assume that the information in this prospectus is accurate only as of the date hereof and that the documents incorporated herein by reference are accurate only as of the date that such documents were filed with the SEC. Our business, financial condition, results of operations and prospects may have changed since these dates. This prospectus does not constitute an offer to sell, or a solicitation of an offer to buy, any securities other than the shares of common stock offered hereby, or an offer to sell, or a solicitation of an offer to buy, such shares in any jurisdiction in which, or to any person to whom, such offer or solicitation would be unlawful. This prospectus and the documents incorporated herein by reference summarize material provisions of certain contracts and other documents. These are summaries only, and you may wish to review the full text of those documents for a full understanding of their terms and conditions. Unless otherwise indicated or unless the context requires otherwise, all references in this prospectus to "the Company," "we," "us," "our" and similar references mean Health Care REIT, Inc. and its subsidiaries. WHERE YOU CAN FIND ADDITIONAL INFORMATION This prospectus is part of a registration statement on Form S-3 we have filed with the SEC covering the shares of common stock that may be offered under this prospectus. This prospectus does not contain all the information set forth in the registration statement. We have omitted certain parts consistent with SEC rules. For further information, please see the registration statement, including its exhibits. Additionally, we file annual, quarterly and current reports, proxy statements and other information with the SEC, all of which are made available, free of charge, on our Internet Web site at www.hcreit.com under the heading "Investor Relations" as soon as reasonably practicable after they are filed with, or furnished to, the SEC. You can review our SEC filings and the registration statement by accessing the SEC's Internet site at http://www.sec.gov. You also may read and copy the registration statement and any reports, statements or other information on file at the SEC's public reference room at 450 Fifth Street, N.W., Washington, D.C. 20549. You can request copies of those documents upon payment of a duplicating fee to the SEC. You also may review a copy of the registration statement at the SEC's regional offices in Chicago, Illinois and New York, New York. Please call the SEC at 1-800-SEC-0330 for further information on the operation of the public reference rooms. You also can inspect our reports, proxy statements and other information about us at the offices of the New York Stock Exchange, 20 Broad Street, New York, New York 10005. DOCUMENTS INCORPORATED BY REFERENCE The SEC allows us to "incorporate by reference" the information we file with the SEC, which means: - we consider incorporated documents to be part of the prospectus; - we may disclose important information to you by referring you to those documents; and - information we subsequently file with the SEC will automatically update and supersede the information in this prospectus. This prospectus incorporates by reference the following documents which have been filed with the SEC: - Annual Report on Form 10-K for the year ended December 31, 2002. - Quarterly Reports on Form 10-Q for the quarters ended March 31, 2003, June 30, 2003 and September 30, 2003. 3 - Current Reports on Form 8-K filed February 6, 2003, March 14, 2003, May 12, 2003, June 13, 2003, July 8, 2003, July 10, 2003, September 24, 2003, October 1, 2003, October 30, 2003, November 7, 2003 and November 14, 2003. - The description of our common stock as set forth in our registration statement filed under the Exchange Act on Form 8-A on June 17, 1985, including any amendment or report for the purpose of updating such description. - The description of the rights to purchase our Series A junior participating preferred stock, par value $1.00 per share, associated with our common stock, as set forth in our registration statement filed under the Exchange Act on Form 8-A on August 3, 1994, including any amendment or report for the purpose of updating such description. - All subsequent documents filed by us under Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act of 1934 after the date of this prospectus and before the termination of the offering. Upon written or oral request, we will provide each person receiving this prospectus a free copy of any or all documents incorporated by reference into this prospectus, including any exhibits that are specifically incorporated by reference in such documents but otherwise without exhibits. You may direct such requests to: Erin C. Ibele, Vice President and Corporate Secretary Health Care REIT, Inc. One SeaGate, Suite 1500 Toledo, Ohio 43604 (419) 247-2800 www.hcreit.com USE OF PROCEEDS We are filing the registration statement of which this prospectus is a part pursuant to our contractual obligation to the holders named in the section entitled "Selling Stockholders." We will not receive any proceeds from the sale of the shares of common stock by the selling stockholders. However, we will pay registration expenses which we estimate to be approximately $30,000. RESTRICTIONS ON TRANSFER OF SECURITIES For us to qualify as a real estate investment trust, not more than 50% in value of our outstanding capital stock may be owned, directly or indirectly, by five or fewer individuals at any time during the last half of our taxable year. In order to ensure that this requirement is satisfied, under our by-laws we have the power to refuse to transfer shares of our common stock, or any security convertible into or exercisable for shares of our common stock, to any person whose acquisition of such shares or other securities would result in the direct or indirect beneficial ownership of more than 9.8% in value of our outstanding common stock. If any shares or other securities in excess of this limit are issued or transferred to any person, such issuance or transfer shall be valid only with respect to such amount of shares or securities as does not exceed this limit, and such issuance or transfer will be void with respect to the excess. If this provision of our by-laws is determined to be invalid by virtue of any legal decision, statute, rule or regulation, then the transferee of the shares or other securities will be deemed to have acted as our agent in acquiring the shares or other securities that are in excess of the limit, and will be deemed to hold such excess shares or securities on our behalf. As the equivalent of treasury securities for such purposes, the excess securities will not be entitled to any voting rights, will not be considered to be outstanding for quorum or voting purposes, and will not be entitled to receive dividends, interest or any other distribution with respect to such securities. Any person who receives dividends, interest or any other distribution in respect of the excess securities will hold the same as our agent and for the transferee of the excess securities following a permitted transfer. In addition, under our by-laws we may refuse to transfer any shares, passing either by voluntary transfer, by operation of law, or under the last will and testament of any stockholder, if such transfer would or might, in the opinion of our board of directors or counsel, disqualify us as a real estate investment trust. 4 DESCRIPTION OF CERTAIN PROVISIONS OF OUR CERTIFICATE OF INCORPORATION AND BY-LAWS ANTI-TAKEOVER PROVISIONS Our amended certificate of incorporation and by-laws contain provisions that may have the effect of discouraging persons from acquiring large blocks of our stock or delaying or preventing a change in our control. The material provisions that may have such an effect are: - Classification of our board of directors into three classes with the term of only one class expiring each year. - A provision permitting our board of directors to make, amend or repeal our by-laws. - Authorization for our board of directors to issue preferred stock in series and to fix the rights and preferences of the series, including, among other things, whether and to what extent the shares of any series will have voting rights and the extent of the preferences of the shares of any series with respect to dividends and other matters. - A prohibition on stockholders taking action by written consent in lieu of a meeting. - Advance notice procedures with respect to nominations of directors by stockholders. - The grant only to our board of directors of the right to call special meetings of stockholders. - Limitations on the number of shares of our capital stock that may be beneficially owned, directly or indirectly, by any one stockholder (see "Restrictions on Transfer of Securities" above). - Limitations on transactions that involve us and any stockholder who beneficially owns 5% or more of our common stock (see "Limitations on Transactions Involving Us and Our Stockholders" below). - A provision permitting amendment of certain of the provisions listed above by the stockholders only by an affirmative vote of the holders of at least three-quarters of all of the outstanding shares of our voting stock, voting together as a single class. LIMITATIONS ON TRANSACTIONS INVOLVING US AND OUR STOCKHOLDERS Under our by-laws, in addition to any vote otherwise required by law, our certificate of incorporation or our by-laws, the following transactions will require the affirmative vote of the holders of at least seventy-five percent of the voting power of our then outstanding shares of capital stock entitled to vote generally in the election of directors, voting together as a single class: - Our merger or consolidation with or into - any stockholder that owns 5% or more of our voting stock; or - any other corporation or entity which is, or after such merger or consolidation would be, an affiliate of a stockholder that owns 5% or more of our voting stock. - Any sale, lease, exchange, mortgage, pledge, transfer or other disposition of substantially all of our assets, in one transaction or a series of transactions, to or with any stockholder that owns 5% or more of our voting stock or an affiliate of any such stockholder. - Any reclassification of our securities, including any reverse stock split, or recapitalization or any other transaction that has the effect, directly or indirectly, of increasing the proportionate share of the outstanding shares of any class of our equity securities that is directly or indirectly owned by any stockholder that owns 5% or more of our voting stock or any affiliate of such a stockholder, whether or not the transaction involves such a stockholder. 5 - The adoption of any plan or proposal for our liquidation or dissolution proposed by or on behalf of a stockholder that owns 5% or more of our voting stock or any affiliate of such a stockholder. These provisions will not apply to any of the transactions described above if: - we are at the time of the consummation of the transaction, and at all times throughout the preceding twelve months have been, directly or indirectly, the beneficial owner of a majority of each class of the outstanding equity securities of the 5% stockholder that is a party to the transaction; or - the transaction has been approved by a majority of the members of our board of directors who, at the time such approval is given, were not affiliates or nominees of the 5% stockholder and were either members of our board of directors prior to the time that the 5% stockholder became a 5% stockholder, or were successors of such directors on the recommendation of a majority of such directors then on the board of directors; or - both of the following conditions have been met: - the aggregate amount of the cash and the fair market value, as determined in good faith by our board of directors, of the consideration other than cash to be received per share by holders of our voting stock in such transaction shall be at least equal to the highest per share price paid by the 5% stockholder for any shares of voting stock acquired by it within the two-year period immediately prior to the first public announcement of the proposal of the transaction, or in the transaction in which it became a 5% stockholder, whichever is higher; and - the consideration to be received by holders of a particular class of outstanding voting stock shall be in cash or in the same form as the 5% stockholder previously paid for shares of such voting stock. If the 5% stockholder paid for shares of any class of voting stock with varying forms of consideration, the form of consideration paid by the 5% stockholder for such class of voting stock shall be deemed to be either cash or the form used to acquire the largest number of shares of such class of voting stock previously acquired by the stockholder. The foregoing summary of certain provisions of our amended certificate of incorporation and by-laws does not purport to be complete or to give effect to provisions of statutory or common law. The foregoing summary is subject to, and qualified in its entirety by reference to, the provisions of applicable law and our amended certificate of incorporation and by-laws, copies of which are incorporated by reference as exhibits to the registration statement of which this prospectus is a part. SELLING STOCKHOLDERS The "selling stockholders" are those persons who may receive shares of our common stock upon conversion of our 6% Series E Cumulative Convertible and Redeemable Preferred Stock. We originally issued 1,060,000 shares of our Series E preferred stock in a private offering to Southern Assisted Living, Inc., a North Carolina corporation, in connection with the purchase of 32 assisted living facilities and two parcels of land from Southern Assisted Living and certain of its subsidiaries on September 29, 2003. Such shares were issued in payment of $26,500,000 of the purchase price for such facilities. Southern Assisted Living transferred 1,020,000 shares of our Series E preferred stock to the other selling stockholders listed below in a private resale. Such entities and persons were the holders of debt or equity securities of Southern Assisted Living at the time of the distribution of the shares of our Series E preferred stock to them. The following table provides the names of the selling stockholders, the number of shares of Series E preferred stock owned by the selling stockholders and the aggregate number of shares of common stock that will be owned by the selling stockholders if they convert all of the 1,060,000 shares of Series E preferred stock, based upon a conversion rate of approximately .76546 shares of common stock for each share of Series E preferred stock. The number of shares in the following table represents the number of shares of common stock into which the Series E preferred stock held by the selling stockholders are currently convertible, and assumes that no change in the conversion price, which determines the number of shares of our common stock issuable upon the conversion of a share of Series E preferred stock, will have occurred. As set forth in the Certificate of Designation which sets forth the terms of the Series E preferred stock, a change in the conversion price will occur if, after the issuance of the Series E preferred stock, we issue any shares of our common stock, or securities which are convertible into our common stock, at a price per share of common stock less than $32.66, except for issuances of common stock (i) upon the exercise of options, or the conversion of convertible securities, outstanding on the date of issuance of the Series E preferred stock, (ii) under our dividend reinvestment and stock purchase plan, (iii) in capital raising transactions with pricing discounts no greater than our normal and customary underwriting discounts, or (iv) 6 upon the exercise of certain future stock acquisition rights under any of our benefit or compensation plans. A change in the conversion price also will occur if, after the issuance of the Series E preferred stock, we declare a dividend on our common stock payable in common stock, split or subdivide our common stock or effect a reverse stock split or combine our common stock into a smaller number of shares. Since the selling stockholders may sell all, some or none of their shares, we cannot estimate the aggregate number of shares that the selling stockholders will sell pursuant to this prospectus or that each selling stockholder will own upon completion of the offering to which this prospectus relates. The selling stockholders named below may from time to time offer the shares of common stock offered by this prospectus:
Shares of Shares of Series Common Stock Shares of Shares of E Preferred Issuable on Common Common Stock Owned Conversion of Stock Stock Prior to Series E Otherwise Offered Name Conversion(1) Preferred Stock Owned(1) Hereby ---- ------------- --------------- -------- ------ Southern Assisted Living, Inc. 40,000 30,618 - 30,618 Kitty Hawk Capital Limited Partnership, III 58,248 44,586 - 44,586 Kitty Hawk Capital Limited Partnership, IV 44,346 33,945 - 33,945 The North Carolina Enterprise Fund Limited Partnership 73,373 56,164 - 56,164 Primus Capital Fund III Limited Partnership 96,014 73,495 - 73,495 Primus Capital Fund IV Limited Partnership 128,200 98,132 - 98,132 Primus Executive Fund Limited Partnership 5,342 4,089 - 4,089 PNC Venture Corp. (2) 236,672 181,163 - 181,163 Chartwell Capital Investors II, L.P. 221,731 169,726 - 169,726 Raymond James Capital Partners, L.P. 110,865 84,862 - 84,862 Lovett Miller Venture Fund II, Limited Partnership 44,346 33,945 - 33,945 Pier C. Borra (3) 863 660 73,666 660 --------- ------- ------ ------- Total 1,060,000 811,385 73,666 811,385
- ---------- (1) Based on information provided to us by the selling stockholders. Information on share ownership does not include any shares that may be owned by affiliates of the named holder. (2) Does not include any shares held by other selling stockholders in which PNC Venture Corp. has an interest. (3) Mr. Borra serves as a member of our Board of Directors. Mr. Borra's other share ownership includes 31,666 shares of common stock that are subject to issuance upon exercise by him of stock options exercisable on or after the date hereof, which stock options were granted under our 1997 Stock Plan for Non-Employee Directors. This prospectus does not constitute an offering of any of the shares of common stock otherwise owned by Mr. Borra. Such other share ownership by Mr. Borra is less than 1% of the total number of outstanding shares of our common stock. PLAN OF DISTRIBUTION This prospectus relates to the possible sale by the selling stockholders of shares of our common stock if, and to the extent that, the selling stockholders tender shares of our Series E preferred stock for conversion into common stock. The term "selling stockholder" include donees, pledgees or other transferees selling shares received in a "no-sale" transaction from a named selling stockholder after the date of this prospectus. We have registered the shares for sale by the selling stockholders to provide them with freely tradable securities, but registration of the shares does not necessarily mean that any of the shares will be offered or sold by the selling stockholders. Shares of our common stock may be sold from time to time to purchasers directly by the selling stockholders. Alternatively, the selling stockholders may from time to time offer the shares through dealers or agents, who may receive compensation in the form of commissions from the selling stockholders and the purchasers of shares for whom they may act as agent. The sale of the shares by the selling stockholders may be effected from time to time in one or more negotiated transactions at negotiated prices or in transactions on the New York Stock Exchange or any other exchange or automated quotation system on which the securities may then 7 be listed or quoted. In connection with distributions of the shares or otherwise, the selling stockholders may enter into hedging transactions with broker-dealers or other financial institutions. In connection with such transactions, broker-dealers or other financial institutions may engage in short sales of the common stock in the course of hedging the positions they assume with selling stockholders. The selling stockholders may also sell our common stock short and deliver the shares offered hereby to close out such short positions. The selling stockholders may also enter into option or other transactions with broker-dealers or other financial institutions under which they could be required or could elect to deliver the shares offered hereby, which shares could be resold by such broker-dealer or other financial institution pursuant to this prospectus (as supplemented or amended, if required, to reflect such transaction). The selling stockholders may also pledge shares to a broker-dealer or other financial institution, and, upon a default, such broker-dealer or other financial institution may effect sales of the pledged shares pursuant to this prospectus (as supplemented or amended, if required, to reflect such transaction). The selling stockholders and any dealers or agents that participate in the distribution of shares of our common stock may be deemed to be underwriters within the meaning of the Securities Act and any profit on the sale of shares of our common stock by them and any commissions received by any such dealers or agents might be deemed to be underwriting commissions under the Securities Act. When a selling stockholder elects to make a particular offer of shares covered by this prospectus, this prospectus and, if required, a prospectus supplement will be distributed, which, to the extent required, will identify any underwriting discounts, commissions and other compensation from such selling stockholder and any other required information. We have informed the selling stockholders that the anti-manipulative provisions of Regulation M promulgated under the Exchange Act may apply to their sales in the market. The selling stockholders also may resell all or a portion of the shares offered hereby in open market transactions in reliance upon Rule 144 under the Securities Act, provided they meet the criteria and conform to the requirements of such Rule. We will not receive any proceeds from the sale of the shares of common stock by the selling stockholders, but we have agreed to pay the following expenses, estimated to be $30,000, for the registration of the shares: - all registration and filing fees; - fees and expenses for complying with securities or blue sky laws, including reasonable fees and disbursements of counsel in connection with blue sky qualifications; and - the fees and expenses incurred in connection with listing our common stock on the New York Stock Exchange. We have no obligation to pay any discounts or commissions attributable to the sale of our common stock. We also have no obligation to pay any out-of-pocket expenses of the selling stockholders, or the agents who manage their accounts, or any transfer taxes relating to the registration or sale of the common stock. We have agreed to indemnify each of the selling stockholders and the selling brokers, dealer managers and similar securities industry professionals participating in the distribution, as well as their respective officers, directors, employees and agents and each person who controls such selling stockholder or securities industry professional within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act, against certain liabilities arising from the distribution of the shares, including liabilities arising under the Securities Act. Each of the selling stockholders has agreed to indemnify us, each of our directors and officers and each person who controls us, against specified losses, claims, damages, liabilities and expenses and any actions or proceedings arising under the securities laws in connection with this offering with respect to written information furnished to us by such selling stockholder for use herein and any violation or alleged violation by such selling stockholder of any federal, state or common law rule or regulation applicable to the sale of the shares under the registration statement of which this prospectus is a part. To comply with any applicable state securities laws, the offered shares may be sold only through registered or licensed brokers or dealers and the shares will not be sold in a particular state unless the shares have been registered or qualified for sale in such state or an exemption from registration or qualification is available. LEGAL OPINIONS The validity of the securities offered will be passed upon by Shumaker, Loop & Kendrick, LLP, Toledo, Ohio. EXPERTS Ernst & Young LLP, independent auditors, have audited our consolidated financial statements and schedules included in our Annual Report on Form 10-K for the year ended December 31, 2002, as set forth in their report, which is incorporated by reference in this prospectus and elsewhere in the registration statement. Our financial statements and schedules are incorporated by reference in reliance on Ernst & Young LLP's report, given on their authority as experts in accounting and auditing. 8 PART II INFORMATION NOT REQUIRED IN PROSPECTUS ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION. Expenses payable in connection with the issuance and distribution of the securities to be registered, other than underwriting discounts and commissions, are estimated as follows:
Securities and Exchange Commission filing fees $ 2,263 New York Stock Exchange listing fee $ 3,500 Legal fees and expenses $15,000 Accounting fees and expenses $ 5,000 Printing and miscellaneous costs $ 4,237 ------- TOTAL $30,000
ITEM 15. INDEMNIFICATION OF OFFICERS AND DIRECTORS. Section 7 of our Second Restated Certificate of Incorporation, as amended, provides that our directors will not be personally liable to us or our stockholders for monetary damages for breach of fiduciary duty as a director, except for liability (i) for any breach of the director's duty of loyalty to us or our stockholders, (ii) for acts or omissions not in good faith or which involve intentional misconduct or a knowing violation of law, (iii) under Section 174 of the General Corporation Law of Delaware (the "GCL"), or (iv) for any transaction from which the director derived any improper personal benefit. Section 7 also provides that if the GCL is amended to further eliminate or limit the personal liability of directors, then the liability of our directors will be eliminated or limited to the extent permitted by the GCL, as so amended. The Second Restated Certificate of Incorporation also states that any repeal or modification of the foregoing paragraph by our stockholders will not adversely affect any right or protection of our directors existing at the time of such repeal or modification. Our By-Laws provide that we will indemnify, to the extent permitted by the GCL, any person who was or is a party or is threatened to be made a party to any threatened, pending or completed action, suit or proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he or she is or was one of our directors or officers, or is or was serving at our request as a director, officer, employee, trustee, partner or agent of another corporation, partnership, joint venture, trust or other enterprise against expenses (including attorneys' fees), judgments, fines, and amounts paid in settlement, actually and reasonably incurred by him or her in connection with such action, suit or proceeding. We have entered into indemnification agreements to assure our directors and officers that they will be indemnified to the extent permitted by the Second Restated Certificate of Incorporation, By-Laws and Delaware law. The indemnification agreements cover any and all expenses, judgments, fines, penalties, and amounts paid in settlement, provide for the prompt advancement of all expenses incurred in connection with any proceeding and obligate the director or officer to reimburse us for all amounts so advanced if it is subsequently determined, as provided in the indemnification agreements, that the director or officer is not entitled to indemnification. Delaware law requires indemnification in cases where a director or officer has been successful in defending any claim or proceeding and permits indemnification, even if a director or officer has not been successful, in cases where the director or officer acted in good faith and in a manner that he or she reasonably believed was in, or not opposed to, the best interests of the corporation. To be indemnified with respect to criminal proceedings, the director or officer must also have had no reasonable cause to believe that his or her conduct was unlawful. In the case of a claim by a third party (i.e., a party other than the corporation), Delaware law permits indemnification for judgments, fines, and amounts paid in settlement, as well as expenses. In the case of a claim by, or in the right of, the corporation (including stockholder derivative suits), indemnification under the GCL is limited to expenses, but does not cover judgments or amounts paid in settlement, and no indemnification of expenses is permitted if the director or officer is adjudged liable to the corporation, unless a court determines that, despite such adjudication but in view of all of the circumstances, such indemnification is nonetheless proper. Delaware law also permits the advancement of expenses to directors and officers upon receipt of an undertaking to repay all amounts so advanced if it is ultimately determined that the director or officer has not met the applicable standard of conduct and is, therefore, not entitled to be indemnified. We maintain indemnification insurance that provides for reimbursement of indemnification payments properly and lawfully made to our directors and officers and coverage for directors and officers in situations where we cannot or do not indemnify them. ITEM 16. EXHIBITS 3.1 Second Restated Certificate of Incorporation of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000, and incorporated herein by reference thereto). 3.2 Certificate of Designation, Preferences and Rights of Junior Participating Preferred Stock, Series A, of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000, and incorporated herein by reference thereto). 3.3 Certificate of Designations, Preferences and Rights of Series C Cumulative Convertible Preferred Stock of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000, and incorporated herein by reference thereto). 3.4 Certificate of Amendment of Second Restated Certificate of Incorporation of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000, and incorporated herein by reference thereto). 3.5 Certificate of Amendment of Second Restated Certificate of Incorporation of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 8-K filed June 13, 2003, and incorporated herein by reference thereto). 3.6 Certificate of Designation of 7 7/8% Series D Cumulative Redeemable Preferred Stock of the Company (filed with the Commission as Exhibit 2.5 to the Company's Form 8-A/A filed July 8, 2003, and incorporated herein by reference thereto). 3.7 Certificate of Designation of 6% Series E Cumulative Convertible and Redeemable Preferred Stock of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 8-K filed October 1, 2003, and incorporated herein by reference thereto). 3.8 Amended and Restated By-Laws of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 8-K filed October 24, 1997, and incorporated herein by reference thereto). 4.1 The Company, by signing this Report, agrees to furnish the Securities and Exchange Commission upon its request a copy of any instrument that defines the rights of holders of long-term debt of Company and authorizes a total amount of securities not in excess of 10% of the total assets of the Company. 4.2 Series A Junior Participating Preferred Share Purchase Rights Agreement, dated as of July 19, 1994 (filed with the Commission as Exhibit 2 to the Company's Form 8-A filed August 3, 1994 (File No. 1-8923), and incorporated herein by reference thereto). 4.3 Indenture dated as of April 17, 1997 between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed April 21, 1997, and incorporated herein by reference thereto). 4.4 First Supplemental Indenture, dated as of April 17, 1997, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed April 21, 1997, and incorporated herein by reference thereto). 4.5 Second Supplemental Indenture, dated as of March 13, 1998, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed March 11, 1998, and incorporated herein by reference thereto). 4.6 Third Supplemental Indenture, dated as of March 18, 1999, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed March 17, 1999, and incorporated herein by reference thereto). 4.7 Fourth Supplemental Indenture, dated as of August 10, 2001, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed August 9, 2001, and incorporated herein by reference thereto). II-2 4.8 Supplemental Indenture No. 5, dated September 10, 2003, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed September 24, 2003, and incorporated herein by reference thereto). 4.9 Amendment No. 1, dated September 16, 2003, to Supplemental Indenture No. 5, dated September 10, 2003, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.3 to the Company's Form 8-K filed September 24, 2003, and incorporated herein by reference thereto). 4.10 Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed September 9, 2002, and incorporated herein by reference thereto). 4.11 Supplemental Indenture No. 1, dated as of September 6, 2002, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed September 9, 2002, and incorporated herein by reference thereto). 4.12 Amendment No. 1, dated March 12, 2003, to Supplemental Indenture No. 1, dated as of September 6, 2002, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed March 14, 2003, and incorporated herein by reference thereto). 4.13 Supplemental Indenture No. 2, dated as of September 10, 2003, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed September 24, 2003, and incorporated herein by reference thereto). 4.14 Amendment No. 1, dated September 16, 2003, to Supplemental Indenture No. 2, dated as of September 10, 2003, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.4 to the Company's Form 8-K filed September 24, 2003, and incorporated herein by reference thereto). 4.15 Supplemental Indenture No. 3, dated as of October 29, 2003, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed October 30, 2003, and incorporated herein by reference thereto). 4.16 Registration Rights Agreement, dated September 29, 2003, among the Company, Southern Assisted Living, Inc., and the holders of debt and equity securities of Southern Assisted Living, Inc. who are signatories thereto. 5 Opinion of Shumaker, Loop & Kendrick, LLP. 23.1 Consent of Ernst & Young LLP, independent auditors. 23.2 Consent of Shumaker, Loop & Kendrick, LLP to the use of their opinion as an exhibit to this Registration Statement is included in their opinion filed herewith as Exhibit 5. 24 Powers of Attorney. ITEM 17. UNDERTAKINGS (A) The undersigned Registrant hereby undertakes: (1) To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: (i) To include any prospectus required by section 10(a)(3) of the Securities Act of 1933; (ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the commission pursuant to Rule 424(b) if, in II-3 the aggregate, the changes in volume and price represent no more than a 20% change in the maximum aggregate offering price set forth in the "Calculation of Registration Fee" table in the effective registration statement; and (iii) To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement; provided, however, that paragraphs (A)(1)(i) and (A)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the Registrant pursuant to section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in the registration statement. (2) That, for the purpose of determining any liability under the Securities Act of 1933, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (3) To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. (B) The undersigned Registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. (C) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the Registrant pursuant to the foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the Registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the Registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue. II-4 SIGNATURES Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and has duly caused this registration statement to be signed on its behalf by the undersigned thereunto duly authorized in the City of Toledo, State of Ohio, on December 2, 2003. HEALTH CARE REIT, INC. By: /S/ George L. Chapman -------------------------- George L. Chapman Chairman of the Board and Chief Executive Officer (Principal Executive Officer) Pursuant to the requirements of the Securities Act of 1933, this registration statement has been signed below by the following persons in the capacities and on the dates indicated.
SIGNATURE TITLE DATE /s/ William C. Ballard, Jr.* Director December 2, 2003 ---------------------------- William C. Ballard, Jr. Director ---------------------------- Pier C. Borra /s/ Jeffrey H. Donahue* Director December 2, 2003 ---------------------------- Jeffrey H. Donahue /s/ Peter J. Grua* Director December 2, 2003 ---------------------------- Peter J. Grua /s/ Sharon M. Oster* Director December 2, 2003 ---------------------------- Sharon M. Oster /s/ Bruce G. Thompson* Director December 2, 2003 ---------------------------- Bruce G. Thompson /s/ R. Scott Trumbull* Director December 2, 2003 ---------------------------- R. Scott Trumbull /s/ Richard A. Unverferth* Director December 2, 2003 ---------------------------- Richard A. Unverferth /s/ George L. Chapman Chairman, Chief Executive Officer, December 2, 2003 ---------------------------- and Director (Principal Executive Officer) George L. Chapman /s/ Raymond W. Braun* President and Chief Financial Officer December 2, 2003 ---------------------------- (Principal Financial Officer) Raymond W. Braun /s/ Michael A. Crabtree* Treasurer December 2, 2003 ---------------------------- (Principal Accounting Officer) Michael A. Crabtree * By: /s/ George L. Chapman ----------------------------- George L. Chapman, as Attorney-in-Fact Dated: December 2, 2003
II-5 EXHIBIT INDEX 3.1 Second Restated Certificate of Incorporation of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000, and incorporated herein by reference thereto). 3.2 Certificate of Designation, Preferences and Rights of Junior Participating Preferred Stock, Series A, of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000, and incorporated herein by reference thereto). 3.3 Certificate of Designations, Preferences and Rights of Series C Cumulative Convertible Preferred Stock of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000, and incorporated herein by reference thereto). 3.4 Certificate of Amendment of Second Restated Certificate of Incorporation of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000, and incorporated herein by reference thereto). 3.5 Certificate of Amendment of Second Restated Certificate of Incorporation of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 8-K filed June 13, 2003, and incorporated herein by reference thereto). 3.6 Certificate of Designation of 7 7/8% Series D Cumulative Redeemable Preferred Stock of the Company (filed with the Commission as Exhibit 2.5 to the Company's Form 8-A/A filed July 8, 2003, and incorporated herein by reference thereto). 3.7 Certificate of Designation of 6% Series E Cumulative Convertible and Redeemable Preferred Stock of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 8-K filed October 1, 2003, and incorporated herein by reference thereto). 3.8 Amended and Restated By-Laws of the Company (filed with the Commission as Exhibit 3.1 to the Company's Form 8-K filed October 24, 1997, and incorporated herein by reference thereto). 4.1 The Company, by signing this Report, agrees to furnish the Securities and Exchange Commission upon its request a copy of any instrument that defines the rights of holders of long-term debt of Company and authorizes a total amount of securities not in excess of 10% of the total assets of the Company. 4.2 Series A Junior Participating Preferred Share Purchase Rights Agreement, dated as of July 19, 1994 (filed with the Commission as Exhibit 2 to the Company's Form 8-A filed August 3, 1994 (File No. 1-8923), and incorporated herein by reference thereto). 4.3 Indenture dated as of April 17, 1997 between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed April 21, 1997, and incorporated herein by reference thereto). 4.4 First Supplemental Indenture, dated as of April 17, 1997, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed April 21, 1997, and incorporated herein by reference thereto). 4.5 Second Supplemental Indenture, dated as of March 13, 1998, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed March 11, 1998, and incorporated herein by reference thereto). 4.6 Third Supplemental Indenture, dated as of March 18, 1999, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed March 17, 1999, and incorporated herein by reference thereto). 4.7 Fourth Supplemental Indenture, dated as of August 10, 2001, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed August 9, 2001, and incorporated herein by reference thereto). II-6 4.8 Supplemental Indenture No. 5, dated September 10, 2003, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed September 24, 2003, and incorporated herein by reference thereto). 4.9 Amendment No. 1, dated September 16, 2003, to Supplemental Indenture No. 5, dated September 10, 2003, to Indenture dated as of April 17, 1997, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.3 to the Company's Form 8-K filed September 24, 2003, and incorporated herein by reference thereto). 4.10 Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed September 9, 2002, and incorporated herein by reference thereto). 4.11 Supplemental Indenture No. 1, dated as of September 6, 2002, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed September 9, 2002, and incorporated herein by reference thereto). 4.12 Amendment No. 1, dated March 12, 2003, to Supplemental Indenture No. 1, dated as of September 6, 2002, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed March 14, 2003, and incorporated herein by reference thereto). 4.13 Supplemental Indenture No. 2, dated as of September 10, 2003, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.2 to the Company's Form 8-K filed September 24, 2003, and incorporated herein by reference thereto). 4.14 Amendment No. 1, dated September 16, 2003, to Supplemental Indenture No. 2, dated as of September 10, 2003, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.4 to the Company's Form 8-K filed September 24, 2003, and incorporated herein by reference thereto). 4.15 Supplemental Indenture No. 3, dated as of October 29, 2003, to Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Company's Form 8-K filed October 30, 2003, and incorporated herein by reference thereto). 4.16 Registration Rights Agreement, dated September 29, 2003, among the Company, Southern Assisted Living, Inc., and the holders of debt and equity securities of Southern Assisted Living, Inc. who are signatories thereto. 5 Opinion of Shumaker, Loop & Kendrick, LLP. 23.1 Consent of Ernst & Young LLP, independent auditors. 23.2 Consent of Shumaker, Loop & Kendrick, LLP to the use of their opinion as an exhibit to this Registration Statement is included in their opinion filed herewith as Exhibit 5. 24 Powers of Attorney. II-7 EX-4.16 3 l04340aexv4w16.txt EXHIBIT 4.16 EXHIBIT 4.16 REGISTRATION RIGHTS AGREEMENT This Registration Rights Agreement (the "Agreement") is entered into effective this 29th day of September, 2003 by and among Health Care REIT, Inc., a Delaware corporation ("HCN" or the "Company"), Southern Assisted Living, Inc., a North Carolina corporation ("SALI"), and the holders of debt or equity securities of SALI identified on the signature page hereof (the "Investor Group" and, together with SALI, the "Stockholders"). WHEREAS, the Company has, as of the date hereof, purchased certain assets of certain subsidiaries of SALI under an Asset Purchase Agreement dated as of September 29, 2003 (the "Acquisition Agreement") and, in connection therewith, has issued 1,060,000 shares of its 6% Series E Cumulative Convertible and Redeemable Preferred Stock (the "Series E Preferred Stock") to SALI, a portion of which Series E Preferred Stock has been transferred by SALI to the Investor Group; WHEREAS, the Series E Preferred Stock is convertible into common stock of the Company, par value $1.00 per share (the "Common Stock"); WHEREAS, the Series E Preferred Stock was issued to SALI in a private offering, was transferred to the Investor Group in a private resale supported by an Investment Intent Agreement signed by the Investment Group (the "Investment Intent Agreement"), and accordingly has not been registered under the Securities Act of 1933, as amended (the "Securities Act"); WHEREAS, the Common Stock, when issued on conversion of the Series E Preferred Stock, will be issued as part of the same private offering pursuant to exemptions from registration under the Securities Act and, accordingly, will not be registered under the Securities Act at the time of issuance thereof ; and WHEREAS, the Company has agreed to provide SALI and the Stockholders with the right to obtain registration under the Securities Act of the shares of Common Stock issuable upon conversion of shares of Series E Preferred Stock so that such Common Stock may be resold by them in public resale transactions; NOW, THEREFORE, in consideration of the premises, the performance by SALI under the Acquisition Agreement and other good and valuable consideration the receipt and sufficiency of which is hereby acknowledged, the parties hereby agree as follows: 1. CERTAIN DEFINITIONS In addition to the definitions set forth above, the following capitalized terms shall have the following meanings for purposes of this Agreement: Effective Date: The date the Shelf Registration is declared effective by the SEC. Holder: SALI, each Stockholder and any transferee as permitted under Section 7 hereof, holding Registrable Securities or securities convertible into Registrable Securities. 1 Exchange Act: The Securities Exchange Act of 1934, as amended from time to time. Indemnified Holder: See Section 6 (a). NASD: National Association of Securities Dealers, Inc. Person: An individual, partnership, corporation, trust or unincorporated organization, or a government or agency or political subdivision thereof. Prospectus: The prospectus included in any Registration Statement, as amended or supplemented by any prospectus supplement, with respect to the terms of the offering of any portion of the Registrable Securities, including post-effective amendments and all documents incorporated by reference in such prospectus. Registrable Securities: (i) Common Stock issued or issuable upon conversion of the Series E Preferred Stock, held by SALI, any Stockholder or any transferee as permitted by Section 7 hereof; and (ii) Common Stock issued as a dividend or other distribution with respect to, or in exchange or in replacement of, such Registrable Securities; provided that Common Stock shall cease to be Registrable Securities when the holder thereof may resell such Common Stock and any other Registrable Securities held by such holder to the public pursuant to Rule 144 of the SEC (or any similar provisions then in force) without volume restriction within a single 90-day period or when the certificate therefor ceases to contain the restricted stock legend specified in the Investment Intent Agreement or equivalent thereof and is freely tradable. Registration Expenses: See Section 5. Registration Statement: Any registration statement of the Company under the Securities Act that covers any of the Registrable Securities pursuant to the provisions of this Agreement, including (i) the Prospectus, (ii) any amendments and supplements to such Registration Statement, including post-effective amendments, and (iii) all exhibits and all documents incorporated by reference in such Registration Statement. SEC: The Securities and Exchange Commission. Shelf Registration: See Section 3. 2. SECURITIES SUBJECT TO THIS AGREEMENT The benefits of this Agreement are limited to Registrable Securities as held by SALI, any of the Stockholders and any transferees as permitted by Section 7 hereof. 3. SHELF REGISTRATION: TIMING OF FILING, EFFECTIVENESS AND PERIOD OF USABILITY Subject to the provisions of Section 4 hereof, the Company shall, as soon as practicable, but in any event within forty-five (45) days after the date of closing under the Acquisition Agreement (the "Closing Date"), file and shall thereafter use its commercially reasonable best efforts to cause to be declared effective, as soon as reasonably practicable following the filing 2 thereof, a Registration Statement on Form S-3 for an offering to be made on a continuous basis pursuant to Rule 415 (or similar rule that may be adopted by the SEC) under the Securities Act (a "Shelf Registration") covering all the Registrable Securities, which form shall be available for the sale of the Registrable Securities by the Holders for cash in market transactions or in accordance with such other intended method or methods of distribution thereof as identified by them to the Company in writing prior to the time of filing of the Registration Statement. The Company agrees to use its commercially reasonable best efforts to keep the Registration Statement continuously effective and usable for resale of Registrable Securities until 730 days (the "Effectiveness Period") from the Closing Date or such shorter period that will terminate when all the Registrable Securities covered by such Registration Statement have been sold pursuant to such Registration Statement, may be sold pursuant to Rule 144 by the Holders thereof without volume restriction within a single 90-day period, or are freely tradeable. Notwithstanding the foregoing, the Company shall have the right (i) to defer for a period of up to 90 days the filing of or the request for acceleration of effectiveness of the Registration Statement or, after effectiveness, to suspend effectiveness of the Registration Statement for a period of up to 90 days if, in the good faith judgment of the Board of Directors of the Company or upon the advice of counsel to the Company, such delay in filing or requesting acceleration of effectiveness or such suspension of effectiveness would be in the best interests of the Company at such time due to a pending material transaction or other material development that has not been publicly disclosed and the disclosure of which would not be in the best interests of the Company at such time (a "Material Transaction"), (ii) in the event that audited financial information for an entity that the Company has acquired or is proposing to acquire in whole or in part must be included in the Registration Statement but is not available, to defer the request for acceleration of effectiveness or, after effectiveness, to suspend effectiveness of the Registration Statement for a period of up to ten (10) days after the necessary audited financial information is available to the Company, (iii) to suspend sales under the Registration Statement in the event that the Company undertakes a public offering of Common Stock in an amount greater than $10 million for a period commencing five (5) days prior to the closing of the sale in the public offering until thirty (30) days after the closing of the sale to the public in the offering, unless the Company or, in the case of an underwritten offering, the lead underwriter for the offering, consents to a waiver of such suspension or to an earlier resumption of sales under the Registration Statement, or (iv) as required by law or rules and regulations of the SEC. Notwithstanding any provision herein to the contrary, the aggregate number of days during any given twelve month period in which the filing or the request for acceleration of effectiveness of the Registration Statement may be deferred, or the effectiveness of the Registration Statement, once effective, may be suspended at the request of the Company under sub-item (i) above shall not exceed ninety (90) days, and the Effectiveness Period shall be extended by the total number of days during which the filing or the request for acceleration of effectiveness of the Registration Statement has been deferred or the effectiveness of the Registration Statement has been suspended or sales under the Registration Statement have been suspended under sub-items (i) through (iii) above (such Effectiveness Period, including any such extensions, shall hereinafter be referred to as the "Effectiveness Period"). The Company will give each of the Holders prompt written notice of any decision to defer or suspend effectiveness of the Registration Statement and will use its best efforts to ensure that the filing, request for acceleration or use of the Registration Statement may be completed or resumed, as the case may be, as soon as, in the good faith judgment of the Board of Directors of the Company, is practicable. 3 In connection with the registration of Registrable Securities as provided in this Agreement, the Company shall be entitled to include in the Registration Statement any other securities of the Company (whether to be offered by the Company or other security holders of the Company and regardless of the proposed terms of transfer or sale of such other securities), provided that the inclusion of such securities shall not limit or reduce the number of Registrable Securities of the Holders included in such registration. 4. REGISTRATION PROCEDURES In connection with the Company's obligation to file and maintain effectiveness of the Registration Statement as provided in Section 3 hereof, but subject to the terms, conditions and limitations thereof, the Company will, as soon as practicable, but in any event within forty-five (45) days after the Closing Date: (a) prepare and file with the SEC the Registration Statement and such amendments and post-effective amendments to the Registration Statement, and such supplements to the Prospectus, as may be required by the rules, regulations or instructions applicable to the registration form utilized by the Company or by the Securities Act or rules and regulations thereunder for a shelf registration or otherwise necessary to achieve effectiveness of the Registration Statement and to keep the Registration Statement effective for the applicable period under the requirements of Section 3 hereof and cause the Prospectus as so supplemented to be filed pursuant to Rule 424 under the Securities Act; and comply with the provisions of the Securities Act with respect to the disposition of all securities covered by such Registration Statement during the applicable period in accordance with the intended methods of disposition by the sellers thereof set forth in such Registration Statement or supplement(s) to the Prospectus; (b) notify the Holders promptly, and confirm such advice in writing, (1) when the Registration Statement or any Prospectus supplement or post-effective amendment has been filed and, with respect to the Registration Statement or any post-effective amendment, when the same has become effective; (2) of the issuance by the SEC of any stop order suspending the effectiveness of the Registration Statement or the initiation of any proceedings for that purpose; and (3) of the receipt by the Company of any notification with respect to the suspension of the qualification of the Registrable Securities for sale in any jurisdiction or the initiation or threatening of any proceeding for such purpose. (c) make every commercially reasonable effort to avoid the issuance of, or if issued, obtain the withdrawal of any stop order or order suspending the use or effectiveness of the Registration Statement at the earliest possible date; 4 (d) furnish, without charge, to the Holders at least one conformed copy of the Registration Statement and any post-effective amendment thereto, including financial statements and schedules and all exhibits (but excluding documents and exhibits incorporated therein by reference) ; (e) deliver to the Holders without charge as many copies of the Prospectus (including each preliminary prospectus) and any amendment or supplement thereto as such persons may reasonably request for use by each Holder in connection with the offering and sale of the Registrable Securities covered by the Prospectus or any amendment or supplement thereto; (f) cooperate with the Holders to facilitate the timely preparation and delivery of certificates representing Registrable Securities to be sold and not bearing any restricted stock legends; (g) use its commercially reasonable best efforts to cause the Registrable Securities covered by the Registration Statement to be registered with or approved by such governmental agencies or authorities within the United States as may be necessary to enable the seller or sellers thereof to consummate the disposition of such Registrable Securities in such jurisdiction as the sellers may specify in response to inquiries to be made by the Company, provided that the Company will not be required to qualify generally to do business in any jurisdiction where it is not then so qualified or to take any action that would subject it to general service of process or taxation in any such jurisdiction where it is not then so subject; (h) if any event shall occur as a result of which it is necessary, in the opinion of 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, prepare a supplement or post-effective amendment to the Registration Statement or the related Prospectus or any document incorporated therein by reference or file any other required document so that, as thereafter delivered to the purchasers of the Registrable Securities, the Prospectus will not contain an untrue statement of a material fact or omit to state any material fact necessary to make the statements therein not misleading; (i) otherwise use its best efforts to comply with all applicable rules and regulations of the SEC and make generally available to its security holders an earnings statement satisfying the provisions of Section 11(a) of the Securities Act (in accordance with Rule 158 thereunder or otherwise) no later than 45 days after the end of the 12-month period (or 90 days, if such period is a fiscal year) beginning with the first month of the Company's first fiscal quarter commencing after the Effective Date, which statements shall cover said 12-month period; (j) if at any time an event of the kind described in Section 4 (h) shall occur, promptly notify the Holders that the use of the Prospectus must be discontinued; (k) cause the Common Stock issued to the Holders to be listed on the New York Stock Exchange. 5 Each selling holder of Registrable Securities as to which any registration is being effected agrees, as a condition to the registration obligations with respect to such holder provided herein, to (i) furnish to the Company such information regarding the distribution of such securities as the Company may from time to time reasonably request in writing, and (ii) give the Company at least TWO (2) FULL BUSINESS DAYS PRIOR WRITTEN NOTICE OF ANY SALE of the Registrable Securities pursuant to the Registration Statement, WHICH NOTICE SHALL COMPLY WITH ALL REQUIREMENTS UNDER SECTION 9(B) HEREOF. Each Holder agrees by acquisition of such Registrable Securities that, upon receipt of any notice from the Company described in paragraph 4(j), such Holder will forthwith discontinue disposition of Registrable Securities until such Holder's receipt of the copies of the supplemented or amended Prospectus contemplated by Section 4(h) hereof, or until it is advised in writing by the Company (which notice the Company shall give as promptly as possible), that the use of the Prospectus may be resumed, and has received copies of any additional or supplemental filings that are incorporated by reference in the Prospectus; and, if so directed by the Company, such Holder will deliver to the Company (at the Company's expense) all copies, other than permanent file copies then in such Holder's possession, of the Prospectus covering such Registrable Securities current at the time of receipt of such notice. 5. REGISTRATION EXPENSES (a) All expenses incident to the Company's performance of or compliance with this Agreement (the "Registration Expenses"), including without limitation: (1) all registration, filing and listing fees; (2) fees and expenses of compliance with securities or blue sky laws (including reasonable fees and disbursements of counsel in connection with blue sky qualifications of the Registrable Securities under the laws of such jurisdictions as the holders of a majority in principal amount of the Registrable Securities being sold may reasonably designate) ; (3) printing, messenger, telephone and delivery expenses; (4) fees and disbursements of counsel for the Company; (5) fees and disbursements of all independent certified public accountants of the Company (including the expenses of any special audit necessary to satisfy the requirements of the Securities Act and any "cold comfort" letters required by or incident to such performance) ; (6) securities acts liability insurance if the Company so desires; (7) fees and expenses of other Persons retained by the Company; and (8) fees and expenses associated with any NASD filing required to be made in connection with the Registration Statement. 6 will be borne by the Company, regardless of whether the Registration Statement becomes effective. The Company will, in any event, pay its internal expenses (including, without limitation, all salaries and expenses of its officers and employees performing legal or accounting duties), the expense of any annual audit, the fees and expenses incurred in connection with the listing of the securities to be registered on the New York Stock Exchange, rating agency fees and the fees and expenses of any Person, including special experts, retained by the Company. 6. INDEMNIFICATION AND CONTRIBUTION (a) Indemnification by the Company. The Company agrees to indemnify and hold harmless each Holder, its officers, directors, employees and agents and each Person who controls such holder within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (each such person being sometimes hereinafter referred to as an "Indemnified Holder") from and against all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and legal expenses) arising out of or based upon (i) any violation or alleged violation by the Company of any federal, state or common law rule or regulation applicable to the Company in connection with any registration or qualification effected hereunder, or (ii) any untrue statement or alleged untrue statement of a material fact contained in any Registration Statement or Prospectus or in any amendment or supplement thereto or in any preliminary prospectus, or arising out of or based upon any omission or alleged omission to state therein a material fact required to be stated therein or necessary to make the statements therein not misleading, except insofar as such losses, claims, damages, liabilities or expenses arise out of or are based upon any such untrue statement or omission or allegation thereof based upon information furnished in writing to the Company by such holder expressly for use therein; provided, however, that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission made in any preliminary prospectus if (i) such holder failed to send or deliver a copy of the Prospectus with or prior to the delivery of written confirmation of the sale of Registrable Securities, and (ii) the Prospectus would have corrected such untrue statement or omission; and provided further that the Company shall not be liable in any such case to the extent that any such loss, claim, damage, liability or expense arises out of or is based upon an untrue statement or alleged untrue statement or omission or alleged omission in the Prospectus, if such untrue statement or alleged untrue statement, omission or alleged omission is corrected in an amendment or supplement to the Prospectus and if, having previously been furnished by or on behalf of the Company with copies of the Prospectus as so amended or supplemented, such holder thereafter fails to deliver such Prospectus as so amended or supplemented prior to or concurrently with the sale of a Registrable Security to the person asserting such loss, claim, damage, liability or expense who purchased such Registrable Security from such holder. The Company will also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Holders. 7 If any action or proceeding (including any governmental investigation or inquiry) shall be brought or asserted against any Indemnified Holder in respect of which indemnity may be sought from the Company, such Indemnified Holder shall promptly notify the Company in writing, and the Company shall assume the defense thereof, including the employment of counsel reasonably satisfactory to such Indemnified Holder and the payment of all expenses. Indemnified Holders shall have the right, collectively, to employ their own counsel in any such action and to participate in the defense thereof, but the fees and expenses of such counsel shall be the expense of the Indemnified Holders unless (i) the Company has agreed to pay such fees and expenses or (ii) the Company shall have failed to assume the defense of such action or proceeding and employ counsel reasonably satisfactory to the Indemnified Holders in any such action or proceeding or (iii) the named parties to any such action or proceeding (including any impleaded parties) include the Indemnified Holders and the Company, and the Indemnified Holders shall have been advised by counsel that there may be one or more legal defenses available to the Indemnified Holders that are different from or additional to those available to the Company (in which case, if the Indemnified Holders notify the Company in writing that they elect to employ their own counsel at the expense of the Company, the Company shall not have the right to assume the defense of such action or proceeding on behalf of the Indemnified Holders, it being understood, however, that the Company shall not, in connection with any one such action or proceeding or separate but substantially similar or related actions or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of more than one separate firm of attorneys (together with appropriate local counsel) at any time for the Indemnified Holders, which firm shall be designated in writing by the Indemnified Holders representing at least a majority of the aggregate principal amount of the Registrable Securities). Any such fees and expenses payable by the Company shall be paid to the Indemnified Holders entitled thereto as incurred by the Indemnified Holders. The Company shall not be liable for any settlement of any such action or proceeding effected without its written consent, but if settled with its written consent, or if there be a final judgment for the plaintiff in any such action or proceeding, the Company agrees, subject to the terms and conditions hereof, to indemnify and hold harmless the Indemnified Holders from and against any loss or liability by reason of such settlement or judgment. (b) Indemnification bv the Holders. Each Holder agrees, severally and not jointly, to indemnify and hold harmless the Company, its respective directors and officers and each Person, if any, who controls the Company within the meaning of either Section 15 of the Securities Act or Section 20 of the Exchange Act (i) to the same extent as the foregoing indemnity from the Company to such Holder in connection with any Registration Statement pursuant to which any Holder sold or offered for resale any Registrable Securities, but only with respect to information relating to such Holder furnished in writing by such Holder expressly for use in any Registration Statement or Prospectus, or any amendment or supplement thereto, or any preliminary prospectus, and made in such Registration Statement or Prospectus or any amendment or supplement thereto in conformity with such writing, and (ii) from and against all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation and legal expenses) arising out of or based upon any violation or alleged violation by such Holder of any federal, state or common law rule or regulation applicable to the sale of the Registrable Securities under the Registration Statement; provided that the liability of all such Holders hereunder in aggregate (unless a Holder's liability hereunder is based upon such Holder's willful misconduct) shall not exceed the net proceeds received by all Holders in aggregate from the sale of Registrable Securities under such Registration Statement. In case any action or proceeding 8 shall be brought against the Company or its respective directors or officers or any such controlling person in respect of which indemnity may be sought against a Holder, such Holder shall have the rights and duties given the Company, and the Company or its respective directors or officers or such controlling person shall have the rights and duties given to each Holder by the preceding paragraph. Each such Holder will also indemnify underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution, their officers and directors and each Person who controls such Persons (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same extent as provided above with respect to the indemnification of the Company. The Company and each Holder shall be entitled to receive indemnities from underwriters, selling brokers, dealer managers and similar securities industry professionals participating in the distribution to the same extent as provided above with respect to information so furnished in writing by such Persons specifically for inclusion in any Prospectus or Registration Statement. (c) Contribution. If the indemnification provided for in this Section 6 is unavailable to an indemnified party under Section 6 (a) or Section 6(b) hereof (other than by reason of exceptions provided in those Sections) in respect of any losses, claims, damages, liabilities or expenses referred to therein, then each applicable indemnifying party, in lieu of indemnifying such indemnified party, shall contribute to the amount paid or payable by such indemnified party as a result of such losses, claims, damages, liabilities or expenses, (i) in such proportion as is appropriate to reflect the relative benefits received by the Company from the issuance of the Series E Preferred Stock pursuant to the Acquisition Agreement that were converted to Common Stock and sold pursuant to the Registration Statement on the one hand and each Holder of Registrable Securities from the offering of the Registrable Securities by such holder, on the other hand, or (ii) if the allocation provided by clause (i) above 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 each Holder on the other in connection with the actions, statements or omissions that resulted in such losses, claims, damages, or liabilities, as well as the other relevant equitable considerations. The relative fault shall be determined by reference to, among other things, whether the untrue or alleged untrue statement of a material fact or the omission or alleged omission to state a material fact relates to information supplied by the Company or the particular Holder and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such untrue statement or omission. The Company and the Holders agree that it would not be just and equitable if contributions pursuant to this subsection (c) were to be determined by pro rata allocation or by any other method of allocation that does not take account of the equitable considerations referred to in the first sentence of this subsection (c). The amount paid by an indemnified party as a result of the losses, claims, damages or liabilities referred to in the first sentence of this subsection (c) shall be deemed to include any legal or other expenses reasonably incurred by such indemnified party in connection with investigation or defending against any action or claim that is the subject of this subsection (c). Notwithstanding the provision of this subsection (c), the Holders in aggregate shall not be required to contribute any amount in excess of the net proceeds received by all Holders in aggregate from the sale of the Registrable Securities under the Registration Statement. No person guilty of fraudulent misrepresentation (within the meaning of Section 11 (f) of the Securities Act), shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. 9 7. TRANSFER OF RIGHTS. The rights contained herein may be assigned or otherwise conveyed to transferees or assignees of Registrable Securities or of Series E Preferred Stock that is then convertible into Registrable Securities, who shall be considered a "Holder" for purposes hereof, provided that (i) such transfer is a "Permitted Transfer" as defined herein, and (ii) such transfer takes place at least forty-eight (48) hours prior to the initial filing of the Registration Statement by the Company pursuant to the terms and conditions hereof unless the proposed transferee agrees in writing to reimburse the Company for all fees and expenses of preparing and filing any post-effective amendment to the Registration Statement that is necessary to include information on the transferee as a potential seller of the Registrable Securities. Any Holder that desires to assign or otherwise convey rights hereunder shall provide the Company with at least forty-eight (48) hours prior written notice of the proposed assignment. For purposes of this Agreement, a "Permitted Transfer" shall mean: (i) a transaction not involving a change in beneficial ownership; (ii) transactions involving distributions or transfers by a stockholder that is a partnership, limited liability company or corporation to (A) any of its partners, members or stockholders (as the case may be), (B) any of its retired partners, members or stockholders, (C) any of its affiliates, or (D) the estate of any of its partners, members or stockholders; (iii) transfers by any stockholder who is an individual to a trust for the benefit of such stockholder or his family; (iv) transfers by gift, will or intestate succession to the spouse, lineal descendants, whether by blood or by adoption, spouses of such descendants, ancestors, siblings, or direct lineal descendants, whether by blood or by adoption, of such siblings, of any stockholder or spouse of a stockholder or a trust or family limited partnership for the sole benefit of such persons; or (v) transfers to an "accredited investor", as defined in Rule 501 of the SEC under the Securities Act. 8. SEC RULE 144 The Company shall make and keep current public information available, within the meaning of SEC Rule 144, and file the reports required to be filed by it under the Securities Act and the Exchange Act in a timely manner and, if at any time it is not required to file such reports but in the past had been required to or did file such reports, it will, upon the request of any Holder, make available other information as required by, and so long as necessary to permit sales of Registrable Securities pursuant to, SEC Rule 144. 9. MISCELLANEOUS. (a) Amendments and Waivers. The provisions of this Agreement, including the provisions of this sentence, may not be amended, modified or supplemented, and waivers or consents to departures from the provisions hereof may not be given, unless the Company has obtained the written consent of holders of a majority of the Registrable Securities. Notwithstanding the foregoing, a waiver or consent to departure from the provisions hereof that relates exclusively to the rights of Holders of Registrable Securities whose securities are being sold pursuant to a Registration Statement and that does not directly or indirectly affect the rights of other Holders may be given by the holders of a majority of the Registrable Securities being sold. 10 (b) Notices. All notices, requests, consents and other communications hereunder shall be in writing, shall be sent by e-mail, telecopy, a nationally recognized overnight express courier service, or first-class registered or certified mail, all expenses prepaid, and shall be deemed given (i) when receipt is acknowledged if given by e-mail or telecopy, (ii) the next business day if sent by nationally recognized overnight express courier, or (iii) five (5) business days later if sent by first class registered or certified mail, and shall be addressed or directed as follows: (1) if to a Holder, in accordance with the information set forth on the signature page hereof as updated from time to time by the Holder in accordance with the provisions of this Section 9(b), or as otherwise provided to the company in writing by a transferee of a Holder; and (2) if to the Company, initially as set forth below and thereafter as updated from time to time in accordance with the provisions of this Section 9(b): To: Raymond W. Braun President and Chief Financial Officer Health Care REIT, Inc. One SeaGate, Suite 1500 P. O. Box 1475 Toledo, Ohio 43603-1475 Fax: (419) 247-2826 E-mail: rbraun@hcreit.com With A Copy To: Erin C. Ibele Vice President and Corporate Secretary Health Care REIT, Inc. One SeaGate, Suite 1500 P. O. Box 1475 Toledo, Ohio 43603-1475 Fax: (419) 247-2826 E-mail: eibele@hcreit.com and Mary Ellen Pisanelli, Esq. Shumaker, Loop & Kendrick, LLP 1000 Jackson Toledo, Ohio 43624-1573 Fax: (419) 241-6894 E-mail: mpisanelli@slk-law.com 11 (c) Successors and Assigns. This Agreement shall inure to the benefit of and be binding upon the successors and permitted assigns of each of the parties and shall inure to the benefit of each existing and future Holder. The Company may not assign its rights or obligations hereunder without the prior written consent of the Holders of a majority of the Registrable Securities, other than by operation of law pursuant to a merger or consolidation to which the Company is a party. (d) Headings. The headings in this Agreement are for convenience of reference only and shall not limit or otherwise affect the meaning hereof. (e) Severability. In the event that any one or more of the provisions contained herein, or the application thereof in any circumstance, is held invalid, illegal or unenforceable, the validity, legality and enforceability of any such provision in every other respect and of the remaining provisions contained herein shall not be affected or impaired thereby. (f) Counterparts. This Agreement may be executed in any number of counterparts by the parties hereto, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute one and the same instrument. (g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO, AS APPLIED TO CONTRACTS MADE AND PERFORMED WITHIN THE STATE OF OHIO, WITHOUT REGARD TO PRINCIPLES OF CONFLICTS OF LAW. 12 IN WITNESS WHEREOF, the undersigned have caused this Agreement to be executed as of the date first above written. HEALTH CARE REIT, INC. By: /s/ Erin C. Ibele -------------------------------- Print Name: Erin C. Ibele Title: Vice President and Corporate Secretary SOUTHERN ASSISTED LIVING, INC, By: /s/ Christopher W. Hollister -------------------------------- Print Name: Christopher W. Hollister Title: President INVESTOR GROUP: KITTY HAWK CAPITAL LIMITED PARTNERSHIP, III By: Kitty Hawk Partners Limited Partnership, III, General Partner By: /s/ Walter H. Wilkinson, Jr. ------------------------------------------------- Walter H. Wilkinson, Jr. General Partner KITTY HAWK CAPITAL LIMITED PARTNERSHIP, IV By: Kitty Hawk Partners Limited Liability Company, IV, General Partner By: /s/ Walter H. Wilkinson, Jr. -------------------------------------------------- Walter H. Wilkinson, Jr. Managing Member 13 THE NORTH CAROLINA ENTERPRISE FUND, LIMITED PARTNERSHIP By: The North Carolina Enterprise Corporation, General Partner By: /s/ Charles T. Closson ------------------------------------------------- Charles T. Closson, President and CEO PRIMUS CAPITAL FUND III LIMITED PARTNERSHIP By: Primus Venture Partners III Limited Partnership, General Partner By: Primus Venture Partners, Inc., General Partner By: /s/ Steven Rothman ---------------------------------------- Name: Steven Rothman Title: Secretary and Treasurer PRIMUS CAPITAL FUND IV LIMITED PARTNERSHIP By: Primus Venture Partners IV Limited Partnership, General Partner By: Primus Venture Partners IV, Inc., General Partner By: /s/ Steven Rothman ---------------------------------------- Name: Steven Rothman Title: Secretary and Treasurer PRIMUS EXECUTIVE FUND LIMITED PARTNERSHIP By: Primus Venture Partners IV Limited Partnership, General Partner By: Primus Venture Partners IV, Inc., General Partner By: /s/ Steven Rothman ---------------------------------------- Name: Steven Rothman Title: Secretary and Treasurer PNC VENTURE CORPORATION By: /s/ Gary J. Zentner ---------------------------------------------------------- Gary J. Zentner, President 14 CHARTWELL CAPITAL INVESTORS II, L.P. By: Chartwell Capital Management Company II, Investment Manager for Chartwell Capital Investors II, L.P. By: /s/ Ryan Burke ----------------------------------------- Name: Ryan Burke Title: VP & CFO Record ---------------------------------------------- Address: --------------------------------------------- Fax: ------------------------------------------------- E-mail: ---------------------------------------------- LOVETT MILLER VENTURE FUND II, LIMITED PARTNERSHIP By: Lovett Miller Venture Partners II, L.L.C., Its General Partner By: /s/ W. Radford Lovett, II ------------------------------------------------- Name: W. Radford Lovett, II Title: Managing Director RAYMOND JAMES CAPITAL PARTNERS, L.P. By: RJC PARTNERS, L.P., Its General Partner By: RJC PARTNERS, INC., Its General Partner By: /s/ David E. Thomas, Jr. ---------------------------------------- Name: David E. Thomas, Jr. Title: President /s/ Pier C. Borra - ----------------------------------------------------- Pier C. Borra 15 EX-5 4 l04340aexv5.txt EXHIBIT 5 EXHIBIT 5 [SHUMAKER, LOOP & KENDRICK, LLP LETTERHEAD] December 2, 2003 George L. Chapman Chairman of the Board and Chief Executive Officer Health Care REIT, Inc. One SeaGate, Suite 1500 Toledo, OH 43604 Re: HEALTH CARE REIT, INC. Registration Statement on Form S-3 SEC File No. 333- Our File No. 75449 Dear Mr. Chapman: We have acted as counsel to Health Care REIT, Inc. (the "Company") in connection with the preparation and filing of its Registration Statement on Form S-3 with the Securities and Exchange Commission pursuant to the requirements of the Securities Act of 1933, as amended, for the registration of 811,385 shares of the Company's common stock, $1.00 par value per share (hereinafter referred to as the "Shares"), for resale by the selling stockholders identified in the Registration Statement. In connection with the following opinion, we have examined and have relied upon such documents, records, certificates, statements, and instruments as we have deemed necessary or appropriate to render the opinion. In our examination, we have assumed the authenticity of all documents submitted to us as originals, the conformity to original documents of all documents submitted to us as certified or photostatic copies and the authenticity of the originals of such copies, the genuineness of all signatures, and the due authority of the parties (other than the Company) executing any such documents. Based upon the foregoing, it is our opinion that the Shares will be, when issued and sold in the manner set forth in the Registration Statement, legally and validly issued and fully paid and nonassessable. The undersigned hereby consents to the filing of this opinion as Exhibit 5 to the Registration Statement. Very truly yours, /s/ SHUMAKER, LOOP & KENDRICK, LLP SHUMAKER, LOOP & KENDRICK, LLP EX-23.1 5 l04340aexv23w1.txt EXHIBIT 23.1 EXHIBIT 23.1 CONSENT OF INDEPENDENT AUDITORS We consent to the reference to our firm under the caption "Experts" in the Registration Statement (Form S-3) and related Prospectus of Health Care REIT, Inc. for the registration of 811,385 shares of its 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. Toledo, Ohio /s/ ERNST & YOUNG LLP December 1, 2003 EX-24 6 l04340aexv24.txt EXHIBIT 24 EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, a director of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in the capacity of director, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ WILLIAM C. BALLARD, JR. -------------------------- William C. Ballard, Jr. Director EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, a director of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in the capacity of director, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ JEFFREY H. DONAHUE ----------------------------------- Jeffrey H. Donahue Director EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, a director of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in the capacity of director, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ PETER J. GRUA ----------------------------------- Peter J. Grua Director EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, a director of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, her true and lawful attorney-in-fact and agent, for her and in her name, place and stead, in the capacity of director, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as she might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets her hand this 14th day of November, 2003. /S/ SHARON M. OSTER ------------------------------- Sharon M. Oster Director EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, a director of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in the capacity of director, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ BRUCE G. THOMPSON ----------------------------------- Bruce G. Thompson Director EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, a director of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in the capacity of director, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ R. SCOTT TRUMBULL ----------------------------------- R. Scott Trumbull Director EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, a director of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in the capacity of director, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ RICHARD A. UNVERFERTH ----------------------------------- Richard A. Unverferth Director EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, a director, the Chairman of the Board and Principal Executive Officer of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints RAYMOND W. BRAUN, with full power to act, his true and lawful attorney-in-fact and agent, for him in his name, place and stead, in the capacities of director, Chairman of the Board and Principal Executive Officer of the Company, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ GEORGE L. CHAPMAN ----------------------------------- George L. Chapman Director, Chairman of the Board and Principal Executive Officer EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, the President and Principal Financial Officer of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act shares of the Company's of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in the capacities of President and Principal Financial Officer, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ RAYMOND W. BRAUN ----------------------------------- Raymond W. Braun President and Principal Financial Officer EXHIBIT 24 POWER OF ATTORNEY ----------------- KNOW ALL MEN BY THESE PRESENTS that the undersigned, the Principal Accounting Officer of Health Care REIT, Inc. (the "Company"), a Delaware corporation that contemplates filing a Registration Statement on Form S-3 ("Form S-3") with the Securities and Exchange Commission under the provisions of the Securities Act of 1933, as amended, for the purpose of registering under such Act of up to 811,385 shares of the Company's Common Stock, $1.00 par value, hereby constitutes and appoints GEORGE L. CHAPMAN, with full power to act, his true and lawful attorney-in-fact and agent, for him and in his name, place and stead, in the capacity of Principal Accounting Officer, to sign such Form S-3 and any and all amendments and supplements, including post-effective amendments thereto, and to file such Form S-3 and each such amendment and supplement, including post-effective amendments, so signed, with all exhibits thereto, and any and all other documents in connection therewith, with the Securities and Exchange Commission, any and all applications or other documents in connection with the listing of the Company's Common Stock on the New York Stock Exchange and any and all documents required to be filed with any state securities regulatory board or commission pertaining to the Form S-3, hereby granting unto said attorney-in-fact and agent, full power and authority to do and perform any and all acts and things requisite and necessary to be done in and about the premises, as fully to all intents and purposes as he might do in person, hereby ratifying and confirming all that said attorney-in-fact and agent, may lawfully do or cause to be done by virtue hereof. IN WITNESS WHEREOF, the undersigned hereunto sets his hand this 14th day of November, 2003. /S/ MICHAEL A. CRABTREE ----------------------------------- Michael A. Crabtree Treasurer and Principal Accounting Officer -----END PRIVACY-ENHANCED MESSAGE-----