-----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, C3UinenTU6uyYIRrBCi2CceyiH2qDN2kceoGOULDRtONbGXSqOnmIpH9Y3AizfFK ex2BcvvuIFfhg1xZA1kbfg== 0001017062-97-001754.txt : 19970929 0001017062-97-001754.hdr.sgml : 19970929 ACCESSION NUMBER: 0001017062-97-001754 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 19970924 ITEM INFORMATION: FILED AS OF DATE: 19970926 SROS: NYSE FILER: COMPANY DATA: COMPANY CONFORMED NAME: NATIONWIDE HEALTH PROPERTIES INC CENTRAL INDEX KEY: 0000780053 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 953997619 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 001-09028 FILM NUMBER: 97685749 BUSINESS ADDRESS: STREET 1: 610 NEWPORT CENTER DR STREET 2: STE 1150 CITY: NEWPORT BEACH STATE: CA ZIP: 92660 BUSINESS PHONE: 7142511211 MAIL ADDRESS: STREET 1: 4675 MACARTHUR COURT STREET 2: STE 1170 CITY: NEWSPORT BEACH STATE: CA ZIP: 92660 FORMER COMPANY: FORMER CONFORMED NAME: BEVERLY INVESTMENT PROPERTIES INC DATE OF NAME CHANGE: 19890515 8-K 1 FORM 8-K SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 __________ FORM 8-K CURRENT REPORT PURSUANT TO SECTION 13 OR 15(d) of the SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported) September 24, 1997 ------------------ NATIONWIDE HEALTH PROPERTIES, INC. ------------------------------------------------ (Exact name of registrant as specified in charter) Maryland 1-9028 95-3997619 - ------------------------------------------------------------------------------ (State or other (Commission file number) (IRS employer jurisdiction of identification incorporation) number) 610 Newport Center Drive, Suite 1150, Newport Beach, CA 92660-6429 - ------------------------------------------------------------------------------ (Address of principal executive offices) Registrant's telephone number, including area code: (714) 718-4400 -------------- Not Applicable - ------------------------------------------------------------------------------ (Former name or former address, if changed since last report) ITEM 7. FINANCIAL STATEMENTS AND EXHIBITS - ------ --------------------------------- 1.1 Underwriting Agreement, dated September 24, 1997, among the Registrant, Smith Barney Inc. and Morgan Stanley and Co. Incorporated. 3.1 Articles Supplementary to the Registrant's Amended and Restated Articles of Incorporation, dated September 24, 1997. 4.1 Form of 7.677% Series A Cumulative Preferred Step-Up REIT Securities Certificate. 8.1 Opinion of O'Melveny & Myers LLP regarding tax matters. SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the Registrant has duly caused this report to be signed on its behalf by the undersigned thereunto duly authorized. NATIONWIDE HEALTH PROPERTIES, INC. Date: September 25, 1997 By: /s/ MARK L. DESMOND ------------------------------------------- Name: Mark L. Desmond Title: Senior Vice President and Chief Financial Officer EX-1.1 2 UNDERWRITING AGREEMENT, DATED 9/24/1997 EXHIBIT 1.1 1,000,000 Shares NATIONWIDE HEALTH PROPERTIES, INC. 7.677% Series A Cumulative Preferred Step-Up REIT Securities (Par Value $1.00 per share) (Liquidation Preference $100.00 per share) UNDERWRITING AGREEMENT ---------------------- September 24, 1997 SMITH BARNEY INC. MORGAN STANLEY & CO. INCORPORATED c/o SMITH BARNEY INC. 388 Greenwich Street New York, New York 10013 Dear Sirs: Nationwide Health Properties, Inc., a Maryland corporation (the "Company"), proposes to issue and sell an aggregate of 1,000,000 shares (the "Shares") of its 7.677% Series A Cumulative Preferred Step-Up REIT Securities (par value $1.00 per share) (liquidation preference $100.00 per share) ("StREITs(SM)"), to Smith Barney Inc. and Morgan Stanley & Co. Incorporated (the "Underwriters"). The Company wishes to confirm as follows its agreement with each Underwriter in connection with the purchase of the Shares by the several Underwriters. 1. Registration Statement and Prospectus. The Company has prepared and ------------------------------------- filed with the Securities and Exchange Commission (the "Commission") in accordance with the provisions of the Securities Act of 1933, as amended, and the rules and regulations (the "Rules and Regulations") of the Commission thereunder (collectively, the "Act"), a registration statement on Form S-3 (Registration No. 333-17061) under the Act (the "registration statement"), including a prospectus for the registration of debt securities, depositary shares, common stock, par value $0.10 per share ("Common Stock"), securities warrants and preferred stock, par value $1.00 per share, including the Shares; and such amendments to such registration statement as may have been required prior to the date hereof have been filed with the Commission, and such amendments have been similarly prepared. Such registration statement and any post-effective amendments thereto have become effective under the Act. The Company also has filed, or proposes to file, with the Commission pursuant to Rule 424(b) under the Act, a prospectus supplement relating to the offering of the Shares. The term "Registration Statement" as used in this Agreement means the registration statement (including all financial schedules and exhibits), as amended at the time it became effective, as supplemented or amended prior to the execution of this Agreement. If it is contemplated, at the time this Agreement is executed, that a post-effective amendment to the registration statement will be filed and must be declared effective before the offering of the Shares may commence, the term "Registration Statement" as used in this Agreement means the registration statement as amended by said post-effective amendment. The term "Prospectus" as used in this Agreement means the prospectus in the form included in the Registration Statement at the time it was declared effective (the "Base Prospectus") together with the prospectus supplement relating to the offering of the Shares dated the date hereof in the form first filed with the Commission on or after the date hereof (the "Prospectus Supplement"). Any reference in this Agreement to the registration statement, the Registration Statement, the Base Prospectus or the Prospectus shall be deemed to refer to and include the documents incorporated by reference therein pursuant to Item 12 of Form S-3 under the Act, as of the date of the registration statement, the Registration Statement or the Prospectus, as the case may be, and any reference to any amendment or supplement to the registration statement, the Registration Statement or the Prospectus shall be deemed to refer to and include any documents filed after such date under the Securities Exchange Act of 1934, as amended (the "Exchange Act") which, upon filing, are incorporated by reference therein, as required by paragraph (b) of Item 12 of Form S-3. As used herein, the term "Incorporated Documents" means the documents which at the time are incorporated by reference in the registration statement, the Registration Statement, the Prospectus, or any amendment or supplement thereto. 2. Agreements to Sell and Purchase. The Company hereby agrees, subject to ------------------------------- all the terms and conditions set forth herein, to issue and sell to each Underwriter and, upon the basis of the representations, warranties and agreements of the Company herein contained and subject to all the terms and conditions set forth herein, each Underwriter agrees severally and not jointly to purchase from the Company, at a purchase price of $97.50 per Share (the "purchase price per share"), the number of Shares set forth opposite the name of such Underwriter in Schedule II hereto. 3. Terms of Public Offering. The Company has been advised by the ------------------------ Underwriters that they propose to make a public offering of the Shares as soon after this Agreement has become effective as in their judgment is advisable and initially to offer the Shares upon the terms set forth in the Prospectus. 4. Delivery of the Shares and Payment Therefor. Delivery to the ------------------------------------------- Underwriters of and payment for the Shares shall be made at the office of Smith Barney Inc., 388 Greenwich Street, New York, NY 10013, at 10:00 A.M., New York City time, on September 29, 1997 (the "Closing Date"). The documents required to be delivered by this Agreement shall be delivered at the office of O'Melveny & Myers LLP, 610 Newport Center Drive, Suite 1700, Newport Beach, California 92660-6429 on the Closing Date. The place of closing for the Shares and the Closing Date may be varied by agreement between Smith Barney Inc. and the Company. Certificates for the Shares to be purchased hereunder shall be registered in such names and in such denominations as Smith Barney Inc., on behalf of the Underwriters, shall request 2 prior to 1:00 P.M., New York City time, on the second business day preceding the Closing Date. Such certificates shall be made available to Smith Barney Inc. in New York City for inspection and packaging not later than 9:30 A.M., New York City time, on the business day next preceding the Closing Date. The certificates evidencing the Shares to be purchased hereunder shall be delivered to Smith Barney Inc., on behalf of the Underwriters, on the Closing Date against payment of the purchase price therefor in immediately available funds. 5. Agreements of the Company. The Company agrees with each Underwriter as ------------------------- follows: (a) If, at the time this Agreement is executed and delivered, it is necessary for the Registration Statement or a post-effective amendment thereto to be declared effective before the offering of the Shares may commence, the Company will endeavor to cause the Registration Statement or such post-effective amendment to become effective as soon as possible and will advise you promptly and, if requested by you, will confirm such advice in writing, when the Registration Statement or such post-effective amendment has become effective. (b) The Company will advise you promptly and, if requested by you, will confirm such advice in writing: (i) of any request by the Commission for amendment of or a supplement to the Registration Statement or the Prospectus or for additional information; (ii) of the issuance by the Commission of any stop order suspending the effectiveness of the Registration Statement or of the suspension of qualification of the Shares for offering or sale in any jurisdiction or the initiation of any proceeding for such purpose; and (iii) within the period of time referred to in the first sentence of paragraph (f) below, of any change in the Company's condition, financial or other, business, prospects, properties, net worth or results of operations, or of the happening of any event, which makes any statement of a material fact made in the Registration Statement or the Prospectus (as then amended or supplemented) untrue or which requires the making of any additions to or changes in the Registration Statement or the Prospectus (as then amended or supplemented) in order to state a material fact required by the Act to be stated therein or necessary in order to make the statements therein not misleading, or of the necessity to amend or supplement the Prospectus (as then amended or supplemented) to comply with the Act or any other law. If at any time the Commission shall issue any stop order suspending the effectiveness of the Registration Statement, the Company will use its reasonable efforts to obtain the withdrawal of such order at the earliest possible time. (c) The Company will furnish to you upon your request, without charge (i) two signed copies of the registration statement as originally filed with the Commission and of each amendment thereto, including financial statements and all exhibits to the registration statement, (ii) such number of conformed copies of the registration statement as originally filed and of each amendment thereto, but without exhibits, as you may reasonably request, (iii) such number of copies of the Incorporated Documents, without exhibits, as you may reasonably request, and (iv) two copies of the exhibits to the Incorporated Documents. (d) The Company will not file any amendment to the Registration Statement or make any amendment or supplement to the Prospectus or, prior to the end of the period of time referred to in the first sentence in paragraph (f) below, file any document which, upon filing 3 becomes an Incorporated Document, of which you shall not previously have been advised or to which, after you shall have received a copy of the document proposed to be filed, you shall reasonably object. (e) The Company will use its best efforts to meet the requirements to qualify as a "real estate investment trust" (a "REIT") under the Internal Revenue Code of 1986, as amended (the "Code") unless the Company's Board of Directors determines by resolution that it is in the best interests of the Company's stockholders not to so qualify. (f) As soon after the execution and delivery of this Agreement as possible and thereafter from time to time for such period as in the opinion of counsel for the Underwriters a prospectus is required by the Act to be delivered in connection with sales by the Underwriters or any dealer, the Company will promptly deliver to the Underwriters and each dealer, without charge, as many copies of the Prospectus (and of any amendment or supplement thereto) as you may reasonably request; provided, however, subsequent to the period ending nine months after the date of this Agreement, the Company shall not be required to pay the costs and expenses of the delivery of such requested copies of the Prospectus (and of any amendment or supplement thereto). The Company consents to the use of the Prospectus (and of any amendment or supplement thereto) in accordance with the provisions of the Act and with the securities or Blue Sky laws of the jurisdictions in the United States in which the Shares are offered by the Underwriters and by all dealers to whom Shares may be sold, both in connection with the offering and sale of the Shares and for such period of time thereafter as the Prospectus is required by the Act to be delivered in connection with sales by any Underwriter or dealer. If during such period of time any event shall occur that in the judgment of the Company or in the opinion of counsel for the Underwriters is required to be set forth in the Prospectus (as then amended or supplemented) or should be set forth therein in order to make the statements therein, in the light of the circumstances under which they were made, not misleading, or if it is necessary to supplement or amend the Prospectus (or to file under the Exchange Act any document which, upon filing, becomes an Incorporated Document) in order to comply with the Act or any other law, the Company will promptly prepare and, subject to the provisions of paragraph (d) above, file with the Commission an appropriate supplement or amendment thereto (or to such document), and will promptly furnish to the Underwriters and any dealers a reasonable number of copies thereof. In the event that the Company and you agree that the Prospectus should be amended or supplemented, the Company, if reasonably requested by you, will promptly issue a press release announcing or disclosing the matters to be covered by the proposed amendment or supplement. (g) The Company will cooperate with you and with counsel for the Underwriters in connection with the registration or qualification of the Shares for offering and sale by the Underwriters and by any dealers under the securities or Blue Sky laws of such jurisdictions in the United States as you may designate and will file such consents to service of process or other documents necessary or appropriate in order to effect such registration or qualification; provided that in no event shall the Company be obligated to qualify to do business in any jurisdiction where it is not now so qualified or to take any action which would subject it to service of process in suits, other than those arising out of the offering or sale of the Shares, in any jurisdiction where it is not now so subject. 4 (h) The Company will make generally available to its security holders a consolidated earnings statement, which need not be audited, covering a twelve- month period commencing after the effective date of the Registration Statement and ending not later than 15 months thereafter, as soon as practicable after the end of such period, which consolidated earnings statement shall satisfy the provisions of Section 11(a) of the Act. (i) During the period of three years hereafter, the Company will furnish to you (i) as soon as available, a copy of each report of the Company mailed to stockholders or filed with the Commission, and (ii) from time to time such other information concerning the Company as you may reasonably request. (j) If this Agreement shall terminate or shall be terminated after execution pursuant to any provisions hereof (otherwise than by notice given by you terminating this Agreement pursuant to Section 10 or Section 11 hereof) or if this Agreement shall be terminated by the Underwriters because of any failure or refusal on the part of the Company to comply with the terms or fulfill any of the conditions of this Agreement, the Company agrees to reimburse the Underwriters for all reasonable out-of-pocket expenses (including reasonable fees and expenses of counsel for the Underwriters) incurred by the Underwriters in connection herewith, but the Company shall not in any event be liable to the Underwriters for damages on account of loss of anticipated profits from the sale by them of the Shares. (k) The Company will apply the net proceeds from the sale of the Shares substantially in accordance with the description set forth in the Prospectus Supplement. (l) The Company will (i) prepare and timely file with the Commission under Rule 424(b) of the Act a Prospectus Supplement containing information previously omitted at the time of effectiveness of the Registration Statement and (ii) file on a timely basis all reports and any definitive proxy or information statements required to be filed by the Company with the Commission subsequent to the date of the Prospectus Supplement and prior to the termination of the offering of the Shares. 6. Representations and Warranties of the Company. The Company represents --------------------------------------------- and warrants to each Underwriter that: (a) The Company and the transactions contemplated by this Agreement meet the requirements for using Form S-3 under the Act. The registration statement in the form in which it became or becomes effective and also in such form as it may be when any post-effective amendment thereto shall become effective and the Prospectus and any supplement or amendment thereto when filed with the Commission under Rule 424(b) under the Act, complied or will comply in all material respects with the provisions of the Act and will not at any such times contain an untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein in light of the circumstances under which they were made not misleading, except that this representation and warranty does not apply to statements in or omissions from the registration statement or the prospectus made in reliance upon and in conformity with information relating to any Underwriter furnished to the Company in writing by or on behalf of any Underwriter through Smith Barney Inc. expressly for use therein. 5 (b) The Incorporated Documents, at the time they were filed with the Commission, complied in all material respects with the requirements of the Exchange Act and the rules and regulations thereunder, and, when read together and with the other information in or incorporated by reference in the Prospectus, did not contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading. (c) The Company has an authorized capitalization as set forth in the Prospectus. All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The Shares have been duly authorized and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms hereof, will be validly issued, fully paid and nonassessable, and will not be subject to any preemptive or similar rights. The shares of capital stock of the Company, including the StREITs(SM), conform to the description thereof in the Registration Statement and the Prospectus. (d) The Company has been duly incorporated and is validly existing as a corporation in good standing under the laws of the State of Maryland with corporate power and authority to own, lease and operate its properties and to conduct its business as described in the Registration Statement and the Prospectus; and the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the business or financial condition of the Company and its subsidiaries considered as one enterprise. (e) Each subsidiary of the Company which is a significant subsidiary as defined in Rule 405 of Regulation C under the Act (each a "Subsidiary" and collectively the "Subsidiaries") is listed on Schedule I hereto and has been duly incorporated and is validly existing as a corporation in good standing under the laws of the jurisdiction of its incorporation, has corporate power and authority to own, lease and operate its properties and conduct its business as described in the Registration Statement and the Prospectus and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the business or financial condition of the Company and its subsidiaries considered as one enterprise; and all of the issued and outstanding capital stock of each such Subsidiary has been duly authorized and validly issued, is fully paid and non- assessable and, except for directors' qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (f) Except as set forth in the Registration Statement or the Prospectus, there is no action, suit or proceeding before or by any court or governmental agency or body, domestic or foreign, now pending, or, to the knowledge of the Company, threatened, against the Company or any of its subsidiaries which is required to be disclosed in the Registration Statement or the Prospectus or which might in the opinion of the Company result in any material adverse change 6 in the business or financial condition of the Company and its subsidiaries considered as one enterprise, or which might materially and adversely affect the properties or assets thereof or which might materially and adversely affect the consummation of this Agreement; all pending legal or governmental proceedings to which the Company or any of its subsidiaries is a party or of which any of their respective property or assets is the subject which are not described in the Registration Statement or the Prospectus, including ordinary routine litigation incidental to its business, are, considered in the aggregate, not material; and there are no contracts or documents of the Company or any of its subsidiaries which are required to be filed as exhibits to the Registration Statement or any Incorporated Documents which have not been so filed. (g) Neither the Company nor any of its subsidiaries is in default in the performance or observance of any material obligation, agreement, covenant or condition contained in any contract, indenture, mortgage, loan agreement, note, lease or other instrument to which it is a party or by which it or any of them may be bound, or to which any of their property or assets is subject, which default would materially adversely affect the business or financial condition of the Company and its subsidiaries considered as one enterprise; neither the Company nor any of its subsidiaries is in violation of its charter or bylaws; the execution, delivery and performance of this Agreement, and the consummation of the transactions contemplated herein will not conflict with, or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any material contract, indenture, mortgage, loan agreement, note, lease or other instrument to which the Company or any of its subsidiaries is a party or by which it or any of them may be bound, or to which any of the property or assets of the Company or any such subsidiary is subject, nor will such action result in any violation of the provisions of the charter or bylaws of the Company or, to the best knowledge of the Company, any law, administrative regulation or administrative or court order or decree; and no consent, approval, authorization, order or decree of any court or governmental agency or body is required for the consummation by the Company of the transactions contemplated by this Agreement, except such as may be required under the Act, the Exchange Act or the rules and regulations thereunder or as may be required by state securities or Blue Sky laws. (h) The accountants, Arthur Andersen LLP, who have certified or shall certify the financial statements included or incorporated by reference in the Registration Statement and the Prospectus (or any amendment or supplement thereto) are independent public accountants as required by the Act. (i) The financial statements and any supporting schedules of the Company and its consolidated subsidiaries included or incorporated by reference in the Registration Statement and the Prospectus present fairly the consolidated financial position of the Company and its consolidated subsidiaries as of the dates indicated and the consolidated results of their operations for the periods specified; and, except as stated therein, said financial statements have been prepared in conformity with generally accepted accounting principles in the United States applied on a consistent basis; and any supporting schedules included or incorporated by reference in the Registration Statement present fairly the information required to be stated therein. 7 (j) The Company has duly authorized, executed and delivered this Agreement and this Agreement constitutes the valid and binding agreement of the Company. (k) Since the respective dates as of which information is given in the Registration Statement and the Prospectus, except as otherwise stated therein, (A) there has been no material adverse change in the condition, financial or otherwise, or in the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise, whether or not arising in the ordinary course of business and (B) there have been no material transactions entered into by the Company or any of its subsidiaries, other than those in the ordinary course of business. (l) The Company and its subsidiaries have good title to all real property or interests in real property owned by it or any of them, in each case free and clear of all liens, encumbrances and defects except such as are described in the Registration Statement or such as do not materially adversely affect the value of such property and interests as reflected in the Company's financial statements and do not materially interfere with the use made and proposed to be made of such property and interests by the Company and its subsidiaries; the instruments securing the Company's and its subsidiaries' real estate mortgage loans create valid liens upon the real properties described in such instruments enjoying the priorities intended, subject only to exceptions to title which do not materially adversely affect the value of such real properties and interests as reflected in the Company's financial statements; and no material real property or buildings are held under lease by the Company or any of its subsidiaries. (m) The Company has not distributed and, prior to the later to occur of (i) the Closing Date and (ii) completion of the distribution of the Shares, will not distribute any offering material in connection with the offering and sale of the Shares other than the Registration Statement, the Prospectus or other materials, if any, permitted by the Act. (n) The Company owns or possesses or has obtained all material governmental licenses, permits, consents, orders, approvals and other authorizations necessary to lease or own, as the case may be, and to operate each property and to carry on its business as presently conducted where its ownership or lease of any property or the conduct of its business requires such ownership or possession or the obtaining of such governmental licenses, permits, consents, orders, approvals and other authorizations and where the failure to do so would materially adversely affect the business or financial condition of the Company and its subsidiaries considered as one enterprise. (o) The Company maintains a system of internal accounting controls sufficient to provide reasonable assurances that (i) transactions are executed in accordance with management's general or specific authorization; (ii) transactions are recorded as necessary to permit preparation of financial statements in conformity with generally accepted accounting principles and to maintain accountability for assets; (iii) access to assets is permitted only in accordance with management's general or specific authorization; and (iv) the recorded accountability for assets is compared with existing assets at reasonable intervals and appropriate action is taken with respect to any differences. 8 (p) No holder of any security of the Company has any right to require registration of shares of Common Stock or any other security of the Company because of the filing of the Registration Statement or consummation of the transactions contemplated by this Agreement. (q) The Company has at all times since December 31, 1985 operated in such manner as to qualify as a REIT under the Code and intends to continue to operate in such manner. (r) The Company is not required to be registered under the Investment Company Act of 1940, as amended (the "Investment Company Act"). (s) The StREITs(SM) are rated at least "baa3" by Moody's Investors Service, Inc. and at least "BBB-" by Standard & Poor's Ratings Group. 7. Indemnification and Contribution. -------------------------------- (a) The Company agrees to indemnify and hold harmless each of you and each person, if any, who controls any Underwriter within the meaning of Section 15 of the Act or Section 20 of the Exchange Act from and against any and all losses, claims, damages, liabilities and expenses (including reasonable costs of investigation) arising out of or based upon any untrue statement or alleged untrue statement of a material fact contained in the Registration Statement or the Prospectus or in any amendment or supplement thereto, 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 untrue statement or omission or alleged untrue statement or omission which has been made therein or omitted therefrom in reliance upon and in conformity with the information relating to such Underwriter furnished in writing to the Company by or on behalf of any Underwriter expressly for use in connection therewith. The foregoing indemnity agreement shall be in addition to any liability which the Company may otherwise have. (b) If any action, suit or proceeding shall be brought against any Underwriter or any person controlling any Underwriter in respect of which indemnity may be sought against the Company, such Underwriter or such controlling person shall promptly notify the Company and the Company shall assume the defense thereof, including the employment of counsel and payment of all reasonable fees and expenses. Such Underwriter or any such controlling person shall have the right to employ separate counsel in any such action, suit or proceeding and to participate in the defense thereof, but the fees and expenses of such counsel shall be at the expense of such Underwriter or such controlling person unless (i) the Company has agreed in writing to pay such fees and expenses, (ii) the Company has failed to assume the defense and employ counsel, or (iii) the named parties to any such action, suit or proceeding (including any impleaded parties) include both such Underwriter or such controlling person and the Company and such Underwriter or such controlling person shall have been advised by its counsel that representation of such indemnified party and the Company by the same counsel would be inappropriate under applicable standards of professional conduct (whether or not such 9 representation by the same counsel has been proposed) due to actual or potential differing interests between them (in which case the Company shall not have the right to assume the defense of such action, suit or proceeding on behalf of such Underwriter or such controlling person). It is understood, however, that the Company shall, in connection with any one such action, suit or proceeding or separate but substantially similar or related actions, suits or proceedings in the same jurisdiction arising out of the same general allegations or circumstances, be liable for the reasonable fees and expenses of only one separate firm of attorneys (in addition to any local counsel) at any time for the Underwriters and controlling persons not having actual or potential differing interests with you or among themselves, which firm shall be designated in writing by Smith Barney Inc., and that all such reasonable fees and expenses shall be reimbursed as they are incurred. The Company shall not be liable for any settlement of any such action, suit or proceeding effected without its written consent, but if settled with such written consent, or if there be a final judgment for the plaintiff in any such action, suit or proceeding, the Company agrees to indemnify and hold harmless each Underwriter, to the extent provided in the preceding paragraph, and any such controlling person from and against any loss, claim, damage, liability or expense by reason of such settlement or judgment. (c) Each Underwriter agrees, severally and not jointly, to indemnify and hold harmless the Company, its directors, its officers who sign the Registration Statement, and any person who controls the Company within the meaning of Section 15 of the Act or Section 20 of the Exchange Act, to the same extent as the foregoing indemnity from the Company to each Underwriter, but only with respect to information relating to such Underwriter furnished in writing by or on behalf of such Underwriter through you expressly for use in the Registration Statement or the Prospectus or any amendment or supplement thereto. If any action, suit or proceeding shall be brought against the Company, any of its directors, any such officer, or any such controlling person based on the Registration Statement or the Prospectus, or any amendment or supplement thereto, and in respect of which indemnity may be sought against any Underwriter pursuant to this paragraph (c), such Underwriter shall have the rights and duties given to the Company by paragraph (b) above (except that if the Company shall have assumed the defense thereof such Underwriter shall not be required to do so, but may employ separate counsel therein and participate in the defense thereof, but the fees and expenses of such counsel shall be at such Underwriter's expense), and the Company, its directors, any such officer, and any such controlling person shall have the rights and duties given to the Underwriters by paragraph (b) above. The foregoing indemnity agreement shall be in addition to any liability which the Underwriters may otherwise have. (d) If the indemnification provided for in this Section 7 is unavailable to an indemnified party under paragraphs (a) or (c) hereof in respect of any losses, claims, damages, liabilities or expenses referred to therein, then an 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 on the one hand and the Underwriters on the other hand from the offering of the Shares, 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 the Underwriters on the other in connection with the 10 statements or omissions that resulted in such losses, claims, damages, liabilities or expenses, as well as any other relevant equitable considerations. The relative benefits received by the Company on the one hand and any Underwriters on the other shall be deemed to be in the same proportion as the total net proceeds from the offering (before deducting expenses) received by the Company bear to the total underwriting discounts and commissions received by the Underwriters, in each case as set forth in the table on the cover page of the Prospectus. The relative fault of the Company on the one hand and the Underwriters on the other hand 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 on the one hand or by the Underwriters on the other hand and the parties' relative intent, knowledge, access to information and opportunity to correct or prevent such statement or omission. (e) The Company and the Underwriters agree that it would not be just and equitable if contribution pursuant to this Section 7 were determined by a pro rata allocation (even if the Underwriters were treated as one entity for such purpose) or by any other method of allocation that does not take account of the equitable considerations referred to in paragraph (d) above. The amount paid or payable by an indemnified party as a result of the losses, claims, damages, liabilities and expenses referred to in paragraph (d) above shall be deemed to include, subject to the limitations set forth above, any legal or other expenses reasonably incurred by such indemnified party in connection with investigating any claim or defending any such action, suit or proceeding. Notwithstanding the provisions of this Section 7, no Underwriter shall be required to contribute any amount in excess of the amount by which the total price of the Shares underwritten by it and distributed to the public exceeds the amount of any damages which such Underwriter has otherwise been required to pay by reason of such untrue or alleged untrue statement or omission or alleged omission. No person guilty of fraudulent misrepresentation (within the meaning of Section 11(f) of the Act) shall be entitled to contribution from any person who was not guilty of such fraudulent misrepresentation. The Underwriters' obligation to contribute pursuant to this Section 7 are several in proportion to the respective number of StREITs(SM) set forth opposite their names in Schedule II hereto and not joint. (f) No indemnifying party shall, without the prior written consent of the indemnified party, effect any settlement of any pending or threatened action, suit or proceeding in respect of which any indemnified party is a party and indemnity could have been sought hereunder by such indemnified party, unless such settlement includes an unconditional release of such indemnified party from all liability on claims that are the subject matter of such action, suit or proceeding. (g) Any losses, claims, damages, liabilities or expenses for which an indemnified party is entitled to indemnification or contribution under this Section 7 shall be paid by the indemnifying party to the indemnified party as such losses, claims, damages, liabilities or expenses are incurred. The indemnity and contribution agreements contained in this Section 7 and the representations and warranties of the Company set forth in this Agreement shall remain operative and in full force and effect, regardless of (i) any investigation made by or on behalf of any Underwriter or any person controlling any Underwriter, the Company, its directors or officers, or any person controlling the Company, (ii) acceptance of any Shares and payment 11 therefor hereunder, and (iii) any termination of this Agreement. A successor to any Underwriter or any person controlling any Underwriter, or to the Company, its directors or officers, or any person controlling the Company, shall be entitled to the benefits of the indemnity, contribution and reimbursement agreements contained in this Section 7. 8. Conditions of Underwriter's Obligations. The several obligations of --------------------------------------- the Underwriters to purchase the Shares hereunder are subject to the following conditions: (a) If, at the time this Agreement is executed and delivered, it is necessary for a post-effective amendment to the registration statement to be declared effective before the offering of the Shares may commence, such post- effective amendment shall have become effective not later than 5:30 P.M., New York City time, on the date hereof, or at such later date and time as shall be consented to in writing by you, and all filings, if any, required by Rules 424 and 430A under the Act shall have been timely made; no stop order suspending the effectiveness of the registration statement shall have been issued and no proceeding for that purpose shall have been instituted or, to the knowledge of the Company or the Underwriters, threatened by the Commission, and any request of the Commission for additional information (to be included in the registration statement or the prospectus or otherwise) shall have been complied with. (b) Subsequent to the effective date of this Agreement, there shall not have occurred any event or development relating to or involving the Company or any officer or director of the Company which makes any statement made in the Prospectus untrue in any material respect or which, in the opinion of the Company and its counsel or the Underwriters and their counsel, requires the making of any addition to or change in the Prospectus in order to state a material fact required by the Act or any other law to be stated therein or necessary in order to make the statements therein not misleading, if amending or supplementing the Prospectus to reflect such event or development would, in your opinion, have a material adverse effect on the market for the Shares. (c) You shall have received on the Closing Date, an opinion of O'Melveny & Myers LLP, counsel for the Company, dated the Closing Date and addressed to you substantially in the form of Annex A hereto. (d) You shall have received on the Closing Date, an opinion of Brown & Wood LLP, counsel for the Underwriter, dated the Closing Date and addressed to you with respect to the matters referred to in clauses (v), (vi) (with respect to the third sentence only), (xiii), (ix) and (xviii) (excluding Incorporated Documents) of Annex A hereto and such other related matters as you may request. (e) You shall have received letters addressed to you and dated the Closing Date from Arthur Andersen LLP, independent certified public accountants, substantially in the form heretofore approved by you. (f) (i) No stop order suspending the effectiveness of the Registration Statement shall have been issued and no proceedings for that purpose shall have been taken or, to the knowledge of the Company, shall be contemplated by the Commission at or prior to the Closing 12 Date; (ii) there shall not have been any change in the capital stock of the Company nor any material increase in the short-term or long-term debt of the Company (other than in the ordinary course of business) from that set forth or contemplated in the Registration Statement or the Prospectus (or any amendment or supplement thereto); (iii) there shall not have been, since the respective dates as of which information is given in the Registration Statement and the Prospectus (or any amendment or supplement thereto), except as may otherwise be stated in the Registration Statement and Prospectus (or any amendment or supplement thereto), any material adverse change in the condition, financial or other, business, prospects, properties, net worth or results of operations of the Company and the Subsidiaries taken as a whole; (iv) the Company and the Subsidiaries shall not have any liabilities or obligations, direct or contingent (whether or not in the ordinary course of business), that are material to the Company and the Subsidiaries, taken as a whole, other than those reflected or incorporated by reference in the Registration Statement or the Prospectus (or any amendment or supplement thereto); and (v) all the representations and warranties of the Company contained in this Agreement shall be true and correct on and as of the date hereof and on and as of the Closing Date as if made on and as of the Closing Date, and you shall have received a certificate, dated the Closing Date and signed on behalf of the Company by the President or Vice President and the chief financial officer of the Company (or such other officers as are acceptable to you), to the effect set forth in this Section 8(f) and in Section 8(g) hereof. (g) The Company shall not have failed at or prior to the Closing Date to have performed or complied with any of its agreements herein contained and required to be performed or complied with by it hereunder at or prior to the Closing Date. (h) The Company shall have furnished or caused to be furnished to you such further certificates and documents as you shall have requested. (i) There shall not have been any announcement by any "nationally recognized statistical rating organization," as defined for purposes of Rule 436(g) under the Act, that (i) it is downgrading its rating assigned to any securities of the Company, or (ii) it is reviewing its rating assigned to any securities of the Company with a view to possible downgrading, or with negative implications, or direction not determined. All such opinions, certificates, letters and other documents will be in compliance with the provisions hereof only if they are satisfactory in form and substance to you and your counsel. Any certificate or document signed by any officer of the Company and delivered to you or to your counsel shall be deemed a representation and warranty by the Company to each Underwriter as to the statements made therein. 9. Expenses. The Company agrees to pay the following costs and expenses -------- and all other costs and expenses incident to the performance by it of its obligations hereunder: (i) the preparation, printing or reproduction, and filing with the Commission of the Registration Statement (including financial statements and exhibits thereto), the Prospectus, the Prospectus Supplement and each amendment or supplement to any of them; (ii) the printing (or reproduction) 13 and delivery (including postage, air freight charges and charges for counting and packaging) of such copies of the Registration Statement, the Prospectus, the Incorporated Documents, and all amendments or supplements to any of them, as may be reasonably requested for use in connection with the offering and sale of the Shares; (iii) the preparation, printing, authentication, issuance and delivery of certificates for the Shares, including any stamp taxes in connection with the original issuance and sale of the Shares; (iv) the printing (or reproduction) and delivery of this Agreement, the Blue Sky Memorandum and all other agreements or documents printed (or reproduced) and delivered in connection with the offering of the Shares; (v) the registration of the Shares under the Exchange Act if required by the Exchange Act; (vi) the registration or qualification of the Shares for offer and sale under the securities or Blue Sky laws of the several states as provided in Section 5(g) hereof (including the reasonable fees, expenses and disbursements of counsel for the Underwriters relating to the preparation, printing or reproduction, and delivery of the Blue Sky Memorandum and such registration and qualification); (vii) the filing fees in connection with any filings required to be made with the National Association of Securities Dealers, Inc.; (viii) the transportation and other expenses incurred by or on behalf of Company representatives in connection with presentations to prospective purchasers of the Shares; (ix) the fees and expenses associated with obtaining ratings for the Shares from nationally recognized statistical rating organizations; and (x) the fees and expenses of the Company's accountants and the fees and expenses of counsel (including local and special counsel) for the Company. 10. Effective Date of Agreement. This Agreement shall become effective: --------------------------- (i) upon the execution and delivery hereof by the parties hereto; or (ii) if, at the time this Agreement is executed and delivered, it is necessary for a post- effective amendment to the Registration Statement to be declared effective before the offering of the Shares may commence, when notification of the effectiveness of such post-effective amendment has been released by the Commission. Until such time as this Agreement shall have become effective, it may be terminated by the Company, by notifying you, or by you by notifying the Company. 11. Termination of Agreement. This Agreement shall be subject to ------------------------ termination in your absolute discretion, without liability on the part of any Underwriter to the Company by notice to the Company, if prior to the Closing Date: (i) trading in securities generally on the New York Stock Exchange, the American Stock Exchange or the Nasdaq National Market shall have been suspended or materially limited, (ii) a general moratorium on commercial banking activities in the State of New York or the State of California shall have been declared by either federal or state authorities, or (iii) there shall have occurred any outbreak or escalation of hostilities or other international or domestic calamity or crisis, the effect of which on the financial markets of the United States is such as to make it, in your judgment, impracticable or inadvisable to commence or continue the offering of the Shares at the offering price to the public set forth on the cover page of the Prospectus or to enforce contracts for the resale of the Shares by the Underwriter. Notice of such termination may be given to the Company by telegram, telecopy or telephone and shall be subsequently confirmed by letter. 12. Information Furnished by the Underwriters. The statements set forth ----------------------------------------- in the last paragraph on the cover page, the stabilization legend on the inside front cover, and the statements in the second and fourth paragraphs under the caption "Underwriting" in the Prospectus Supplement, 14 constitute the only information furnished by or on behalf of the Underwriters as such information is referred to in Sections 6(a) and 7 hereof. 13. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11 ------------- hereof, notice given pursuant to any provision of this Agreement shall be in writing and shall be delivered (i) if to the Company, at the office of the Company at 610 Newport Center Drive, Suite 1150, Newport Beach, California 92660, Attention: President; or (ii) if to the Underwriters, care of Smith Barney Inc., 388 Greenwich Street, New York, New York 10013, Attention: Manager, Investment Banking Division. This Agreement has been and is made solely for the benefit of the several Underwriters, the Company, its directors and officers, and the other controlling persons referred to in Section 7 hereof and their respective successors and assigns, to the extent provided herein, and no other person shall acquire or have any right under or by virtue of this Agreement. Neither the term "successor" nor the term "successors and assigns" as used in this Agreement shall include a purchaser from any Underwriter of any of the Shares in his status as such purchaser. 14. Applicable Law; Counterparts. This Agreement shall be governed by and ---------------------------- construed in accordance with the laws of the State of California applicable to contracts made and to be performed within the State of California. This Agreement may be signed in various counterparts which together constitute one and the same instrument. If signed in counterparts, this Agreement shall not become effective unless at least one counterpart hereof shall have been executed and delivered on behalf of each party hereto. 15 Please confirm that the foregoing correctly sets forth the agreement between the Company and the several Underwriters. Very truly yours, NATIONWIDE HEALTH PROPERTIES, INC. /s/ R. BRUCE ANDREWS By:_______________________________ Name: R. Bruce Andrews Title: President and Chief Executive Officer Confirmed as of the date first above mentioned. SMITH BARNEY INC. MORGAN STANLEY & CO. INCORPORATED By: SMITH BARNEY INC. /s/ DAVID GATELY By:_______________________________________ Managing Director 16 SCHEDULE I ---------- Significant Subsidiaries of the Company --------------------------------------- (as such term is defined in Rule 405 of Regulation C under the Act) ------------------------------------------------------------------- National Health Properties Finance Corporation, a Delaware corporation SCHEDULE II ----------- NATIONWIDE HEALTH PROPERTIES, INC.
Number of Underwriter StREITs(SM) ----------- ----------- Smith Barney Inc............................................. 500,000 Morgan Stanley & Co. Incorporated............................ 500,000 --------- Total................................................... 1,000,000 =========
ANNEX A ------- Opinion of O'Melveny & Myers L.L.P. ----------------------------------- (i) The Company has been duly incorporated and is validly existing in good standing under the laws of the State of Maryland. (ii) The Company has corporate power to own its properties and assets and to carry on its business as described in the Registration Statement and the Prospectus. (iii) To the best of such counsel's knowledge, the Company is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise. (iv) Nationwide Health Properties Finance Corporation, a Delaware corporation, has been duly incorporated and is validly existing in good standing under the laws of the jurisdiction of its incorporation with corporate power to conduct its business as currently conducted and is duly qualified as a foreign corporation to transact business and is in good standing in each jurisdiction in which such qualification is required, whether by reason of the ownership or leasing of property or the conduct of business, except where the failure to so qualify would not have a material adverse effect on the condition, financial or otherwise, or the earnings, business affairs or business prospects of the Company and its subsidiaries considered as one enterprise; and all of the issued and outstanding capital stock of Nationwide Health Properties Finance Corporation has been duly authorized and validly issued, is fully paid and non- assessable and, except for directors' qualifying shares, is owned by the Company, directly or through subsidiaries, free and clear of any security interest, mortgage, pledge, lien, encumbrance, claim or equity. (v) The execution, delivery and performance of this Agreement has been duly authorized by all necessary corporate action on the part of the Company, and has been duly executed and delivered by the Company. (vi) The Company has an authorized capitalization as set forth in the Prospectus. All of the issued shares of capital stock of the Company have been duly authorized and validly issued and are fully paid and nonassessable. The Shares have been duly authorized and, when issued and delivered to the Underwriters against payment therefor in accordance with the terms of this Agreement, will be validly issued, fully paid and nonassessable, and will not be subject to any preemptive or similar rights. The StREITs/SM/ conform in all material respects to the description thereof contained in the Registration Statement and the Prospectus. (vii) The form of certificates for the Shares conform to the requirements of the Maryland General Corporation Law. i (viii) The Registration Statement has been declared effective under the Act and, to the best of such counsel's knowledge, no stop order suspending the effectiveness of the Registration Statement has been issued or threatened by the Commission; and any required filing of the Prospectus pursuant to Rule 424(b) has been made in accordance with Rule 424(b). (ix) The Registration Statement, on the date it became effective, appeared on its face to comply in all material respects with the requirements as to form for registration statements on Form S-3 under the Act and the related rules and regulations in effect at the date of effectiveness, except no opinion need be expressed concerning the financial statements and other financial information contained or incorporated by reference therein or any Statement of Eligibility of any trustee on Form T-1 filed as an exhibit thereto. (x) Each of the Incorporated Documents (other than the financial statements and other financial data included or incorporated by reference therein, as to which no opinion need be rendered) on the respective dates they were filed, appeared on their face to comply in all material respects with the Exchange Act and the rules and regulations thereunder in effect at the respective dates of their filing. (xi) The statements in the Prospectus under the captions "Description of StREITs(SM)", "Description of Preferred Stock" and "Certain Federal Income Tax Considerations", to the extent that they constitute matters of law, summaries of legal matters or documents, or legal conclusions, have been reviewed by such counsel and are correct in all material respects. (xii) No order, authorization, consent, permit or approval of any governmental authority is required on the part of the Company for the consummation of the transactions contemplated by this Agreement, except such as may be required under the Act or the Exchange Act or state securities or Blue Sky laws. (xiii) The Company is not an "investment company" within the meaning of the Investment Company Act. (xiv) To the best of such counsel's knowledge, there are no legal or governmental proceedings pending or threatened which are required to be disclosed in the Registration Statement or the Prospectus, other than those disclosed therein. (xv) To the best of such counsel's knowledge, except as otherwise stated or incorporated by reference in the Prospectus, the Company's execution and delivery of and performance of its obligations under this Agreement do not (A) conflict with or constitute a breach of, or default under, or result in the creation or imposition of any lien, charge or encumbrance upon any property or assets of the Company or any of its subsidiaries pursuant to any agreement, indenture, lease or other instrument to which the Company or any of its subsidiaries is a party or which the Company or any subsidiary may be bound, (B) result in any violation of the provisions of the charter or bylaws of the Company or (C) result in any violation of any applicable law, administrative regulation or administrative or court decree the effect of which would be material to the Company and its subsidiaries taken as a whole. ii (xvi) Such counsel does not know of any contract or other document required to be described or referred to in the Registration Statement or the Prospectus or to be filed or incorporated by reference as an exhibit to the Registration Statement or any Incorporated Document that are not described or referred to or filed or incorporated by reference as an exhibit thereto. (xvii) Based upon current law, including relevant statutes, regulations and judicial and administrative precedent (which is subject to change on a retroactive basis), and subject to all of the limitations, qualifications, conditions and factual assumptions set forth herein, the Company has qualified as a REIT under the Code, for each taxable year commencing with its taxable year ended December 31, 1993, and the organization and method of operation of the Company and each of its subsidiaries will enable the Company to continue to meet the requirements for qualification and taxation as a REIT for its taxable year ending December 31, 1997 and each taxable year thereafter. However, such counsel may state that they are unable to opine whether the Company will actually continue to qualify as a REIT because such qualification will depend on future transactions and events that cannot be known at the date of such opinion. (xviii) In connection with such counsel's participation in the preparation of the Registration Statement and the Prospectus, such counsel has not independently verified the accuracy, completeness or fairness of the statements contained or incorporated therein, and the limitations inherent in the examination made by such counsel and the knowledge available to such counsel are such that such counsel is unable to assume, and does not assume, any responsibility for such accuracy, completeness or fairness. However, on the basis of such counsel's review and participation in conferences in connection with the preparation of the Registration Statement and the Prospectus, and relying as to materiality to a large extent upon opinions of officers and other representatives of the Company, such counsel does not believe that the Registration Statement as of its effective date contained any untrue statement of a material fact or omitted to state a material fact required to be stated therein or necessary to make the statements therein not misleading, and such counsel does not believe that the Prospectus and the Incorporated Documents, considered as a whole on the date hereof, contain any untrue statement of a material fact or omit to state a material fact required to be stated therein or necessary to make the statements therein, in light of the circumstances under which they were made, not misleading. However, such counsel expresses no opinion or belief as to any document filed by the Company under the Exchange Act, whether before or after the effective date of the Registration Statement, except to the extent that any such document is an Incorporated Document read together with the Registration Statement or the Prospectus and considered as a whole, nor does such counsel express any opinion or belief as to the exhibits, financial statements and other financial and statistical information contained or incorporated by reference in the Registration Statement, the Prospectus or the Incorporated Documents. iii EX-3.1 3 ARTICLES SUPPLEMENTARY TO THE REGISTRANT'S AMENDED EXHIBIT 3.1 NATIONWIDE HEALTH PROPERTIES, INC. Articles Supplementary NATIONWIDE HEALTH PROPERTIES, INC., a Maryland corporation, having its principal Maryland office in Baltimore, Maryland (the "Corporation"), hereby certifies to the Maryland State Department of Assessments and Taxation that: FIRST: Pursuant to authority expressly vested in the Board of Directors of the Corporation by the Amended and Restated Articles of Incorporation of the Corporation (the "Articles"), the Board of Directors has duly classified 1,000,000 shares of the Preferred Stock (par value $1.00 per share) of the Corporation as 7.677% Series A Cumulative Preferred Step-Up REIT Securities (par value $1.00 per share) of the Corporation (the "StREITs(SM") and has provided for the issuance of such shares. SECOND: The StREITs(SM) classified hereby shall have the following preferences, conversion and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption and shall be subject to all provisions of the Articles relating to the stock of the Corporation generally: 1. Designation and Amount. The designation of StREITs(SM) described in Article FIRST hereof shall be "7.677% Series A Cumulative Preferred Step-Up REIT Securities (par value $1.00 per share)." The number of shares of StREITs(SM) to be authorized shall be 1,000,000. 2. Dividends and Distribution Provisions. (a) Subject to the rights of series of Preferred Stock which may from time to time come into existence, holders of StREITs(SM) shall be entitled to receive, when and as declared by the Board of Directors, out of funds legally available for the payment of dividends, cumulative preferential cash dividends at the rate of 7.677% of the liquidation preference per annum (equivalent to $7.677 per share per annum) through September 30, 2012 and at the rate of 9.677% of the liquidation preference per annum (equivalent to $9.677 per share per annum) thereafter. Such dividends shall be cumulative from the date of original issue and shall be payable quarterly in arrears on the last day of March, June, September and December or, if not a business day, the next succeeding business day (each, a "Dividend Payment Date"). The first dividend will be due on December 31, 1997. Such first dividend and any dividend distribution payable on the StREITs(SM) for any partial distribution period will be computed on the basis of a 360-day year consisting of twelve 30-day months. Dividends will be payable to holders of record as they appear in the records of the Corporation at the close of business on the applicable record date, which shall be on such date designated by the Board of Directors of the Corporation for the payment of dividends that is not more than 30 nor less than 10 days prior to such Dividend Payment Date (each, a "Dividend Record Date"). (b) Dividends on the StREITs(SM) will accrue whether or not the Corporation has earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared. No interest, or sum of money in lieu of interest, shall be payable in respect of any dividend payment or payments on the StREITs(SM) which may be in arrears. Holders of the StREITs(SM) will not be entitled to any dividends in excess of the full cumulative dividends as described above. (c) If, for any taxable year, the Company elects to designate as "capital gain dividends" (as defined in Section 857 of the Internal Revenue Code of 1986, as amended (the "Code")) any portion (the "Capital Gains Amount") of the dividends (within the meaning of the Code) paid or made available for the year to holders of all classes of shares of capital stock, including preferred shares (the "Total Dividends"), then the portion of the Capital Gains Amount that will be allocable to the holders of StREITs(SM) will be the Capital Gains Amount multiplied by a fraction, the numerator of which will be the total dividends (within the meaning of the Code) paid or made available to the holders of the StREITs(SM) for the year and the denominator of which will be the Total Dividends. (d) If any StREITs(SM) are outstanding and except if the Company determines it is necessary to maintain its status as a REIT, no dividends shall be declared or paid or set apart for payment on any series of capital stock of the Corporation ranking, as to dividends, on parity with or junior to StREITs(SM) for any period unless full cumulative dividends have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the StREITs(SM) for all past dividend periods and the then current dividend period. When dividends are not paid in full (or a sum sufficient for such full payment is not set apart) upon the StREITs(SM) and the shares of any other series of capital stock ranking on parity as to dividends with the StREITs(SM), all dividends declared upon StREITs(SM) and any other series of capital stock ranking on parity as to dividends with StREITs(SM) shall be declared pro rata so that the amount of dividends declared per share on the StREITs(SM) and such other series of capital stock shall in all cases bear to each other the same ratio that accrued dividends per share on the StREITs(SM) and such other series of capital stock bear to each other. (e) Except as provided in Section 2(d) or if the Company determines it is necessary to maintain its status as a 2 REIT, unless full cumulative dividends on the StREITs(SM) have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods and the then current dividend period, no dividends (other than in shares of Common Stock or other capital stock ranking junior to StREITs(SM) as to dividends and upon liquidation) shall be declared or paid or set aside for payment or other dividend shall be declared or made upon the shares of Common Stock or any other capital stock of the Corporation ranking junior to or on parity with StREITs(SM) as to dividends or amounts upon liquidation, nor shall any shares of Common Stock or any other capital stock of the Corporation ranking junior to or on a parity with StREITs(SM) as to dividends or amounts upon liquidation be redeemed, purchased or otherwise acquired for any consideration (or any moneys be paid to or made available for a sinking fund for the redemption of any such stock) by the Corporation (except by conversion into or exchange for other capital stock of the Corporation ranking junior to StREITs(SM) as to dividends and amounts upon liquidation). (f) Any dividend payment made on the StREITs(SM) shall first be credited against the earliest accrued but unpaid dividend due with respect to the StREITs(SM) which remains payable. 3. Liquidation Rights. (a) Upon any voluntary or involuntary liquidation, dissolution or winding up of the affairs of the Corporation, then, before any distribution or payment shall be made to the holders of any shares of Common Stock or any other class or series of capital stock of the Corporation ranking junior to StREITs(SM) in the distribution of assets upon any liquidation, dissolution or winding up of the affairs of the Corporation, the holders of StREITs(SM) shall be entitled to receive out of assets of the Corporation legally available for distribution to stockholders, liquidation distributions in the amount of the liquidation preference of $100.00 per share, plus an amount equal to all distributions accrued and unpaid thereon. After payment of the full amount of the liquidating distributions to which they are entitled, the holders of StREITs(SM) will have no right or claim to any of the remaining assets of the Corporation. In the event that, upon any such voluntary or involuntary liquidation, dissolution or winding up, the available assets of the Corporation are insufficient to pay the amount of the liquidation distributions on all outstanding StREITs(SM) and the corresponding amounts payable on all shares of other classes or series of capital stock of the Corporation ranking on parity with the StREITs(SM) in the distribution of assets upon any liquidation, dissolution or winding up of the affairs of the Corporation ("Parity Shares"), then the holders of the StREITs(SM) and all other Parity Shares shall share ratably in any such distribution of assets in proportion to the full liquidating distributions to which they would otherwise be respectively entitled. 3 (b) A consolidation or merger of the Corporation with or into any other entity, or the sale, lease or conveyance of all or substantially all of the property or business of the Corporation, shall not be deemed to constitute a liquidation, dissolution or winding up of the affairs of the Corporation. 4. Redemption. (a) The StREITs(SM) are not redeemable prior to September 30, 2007. On and after September 30, 2007, the Corporation at its option upon not less than 30 nor more than 60 days' written notice, may redeem the StREITs(SM), in whole or in part, at any time or from time to time, for cash at a redemption price of $100.00 per share, plus an amount equal to all dividends accrued and unpaid thereon to the date fixed for redemption, without interest. The redemption price of the StREITs(SM) (other than the portion thereof consisting of accrued and unpaid dividends) is payable solely out of proceeds from the sale of other capital stock of the Corporation, which may include common stock, preferred stock, depositary shares, participation or other ownership interests in the Corporation, however designated and any rights (other than debt securities convertible into or exchangeable for capital stock), warrants or options to purchase any thereof. Holders of StREITs(SM) to be redeemed shall surrender such StREITs(SM) at the place designated in such notice and shall be entitled to the redemption price and any accrued and unpaid dividends payable upon such redemption following such surrender. If fewer than all of the outstanding StREITs(SM) are to be redeemed, the number of shares to be redeemed will be determined by the Corporation, and such shares may be redeemed pro rata from the holders of record of such shares in proportion to the number of such shares held by such holders (with adjustments to avoid redemption of fractional shares) or by lot in a manner determined by the Corporation. (b) Unless full cumulative dividends on all StREITs(SM) and all Parity Shares shall have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods and the then current dividend period, no StREITs(SM) or Parity Shares shall be redeemed unless all outstanding StREITs(SM) and Parity Shares are simultaneously redeemed; provided, however, that the foregoing shall not prevent the purchase or acquisition of StREITs(SM) pursuant to a purchase or exchange offer made on the same terms to holders of all outstanding StREITs(SM) or Parity Shares, as the case may be. Furthermore, unless full cumulative dividends on all outstanding StREITs(SM) and Parity Shares have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for payment for all past dividend periods and the then current dividend period, the Corporation shall not purchase or otherwise acquire directly or indirectly any StREITs(SM) or Parity Shares (except by conversion into or exchange for shares of capital stock of the Corporation 4 ranking junior to the StREITs(SM) and Parity Shares as to dividends and amounts upon liquidation). (c) Notice of redemption will be mailed at least 30 days but not more than 60 days before the redemption date to each holder of record of the StREITs(SM) at the address shown on the share transfer books of the Corporation. Each notice shall state: (i) the redemption date; (ii) the number of StREITs (SM) to be redeemed; (iii) the redemption price; (iv) the place or places where certificates for StREITs(SM) are to be surrendered for payment of the redemption price; and (v) that dividends on the StREITs(SM) will cease to accrue on such redemption date. If fewer than all StREITs(SM) are to be redeemed, the notice mailed to each such holder thereof shall also specify the number of StREITs(SM) to be redeemed from each such holder. If notice of redemption of any StREITs(SM) has been given and if the funds necessary for such redemption have been set aside by the Corporation in trust for the benefit of the holders of StREITs(SM) so called for redemption, then from and after the redemption date, dividends will cease to accrue on the StREITs(SM), such StREITs(SM) shall no longer be deemed outstanding and all rights of the holders of such shares will terminate, except the right to receive the redemption price. (d) The holders of StREITs(SM) at the close of business on a Dividend Record Date will be entitled to receive the dividends payable with respect to such StREITs(SM) on the corresponding Dividend Payment Date notwithstanding the redemption thereof between such Dividend Record Date and the corresponding Dividend Payment Date or the Corporation's default in the payment of the dividend due. Except as provided above, the Corporation will make no payment or allowance for unpaid dividends, whether or not in arrears, on StREITs(SM) which have been called for redemption. (e) The StREITs(SM) will not be subject to any sinking fund or mandatory redemption. However, in order to preserve the Corporation's status as a REIT, as defined in the Code, the StREITs(SM) may be subject to purchase by the Corporation, as provided in Article IV of the Articles of this Corporation. 5. Voting Rights. (a) Except as indicated in this Section 5, or except as otherwise from time to time required by applicable law, the holders of StREITs(SM) will have no voting rights. (b) If six quarterly dividends (whether or not consecutive) payable on the StREITs(SM) or any Parity Shares are in arrears, whether or not earned or declared, the number of directors then constituting the Board of Directors of the Corporation will be increased by two, and the holders of StREITs(SM), voting together as a class with the holders of any 5 other series of Parity Shares with like voting rights, will have the right to elect two additional directors to serve on the Corporation's Board of Directors at any annual meeting of stockholders or a properly called special meeting of the holders of StREITs(SM) and such other Parity Shares until all dividends accumulated on such StREITs(SM) and Parity Shares have been declared and paid or set aside for payment. The term of office of all directors so elected will terminate with the termination of such voting rights. (c) The approval of two-thirds of the outstanding StREITs(SM), voting separately as a class, is required in order to (i) amend the Corporation's Articles Supplementary or Articles of Incorporation to affect materially and adversely the rights, preferences or voting power of the holders of the StREITs(SM), (ii) enter into a share exchange that affects the StREITs(SM), or consolidate with or merge the Corporation with or into any other corporation, unless in each such case each StREITs(SM) remains outstanding without a material adverse change to its terms and rights or is converted into or exchanged for preferred stock of the surviving entity having preferences and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms or conditions of redemption thereof identical to that of the StREITs(SM), or (iii) authorize, reclassify, create or increase the authorized amount of any class of capital stock having rights senior to the StREITs(SM) with respect to the payment of dividends or amounts upon liquidation, dissolution or winding up of the affairs of the Corporation. However, the Corporation may create additional classes of Parity Shares and shares ranking junior to the StREITs(SM) as to distributions or amounts upon liquidation, dissolution or winding up of the affairs of the Corporation ("Junior Shares"), increase the authorized number of Parity Shares and Junior Shares and issue additional series of Parity Shares and Junior Shares without the consent of any holder of StREITs(SM) or Parity Shares. (d) Except as provided above and as required by law, the holders of StREITs(SM) are not entitled to vote on any merger or consolidation involving the Corporation, or a sale of all or substantially all of the assets of the Corporation. 6. Conversion. The StREITs(SM) are not convertible into or exchangeable for any other property or securities of the Corporation at the option of the holder. 6 IN WITNESS WHEREOF, NATIONWIDE HEALTH PROPERTIES, INC. has caused these presents to be signed in its name and on its behalf by its President and Chief Executive Officer and witnessed by its Assistant Secretary on September 24, 1997. WITNESS: NATIONWIDE HEALTH PROPERTIES, INC. /s/ MARK L. DESMOND By: /s/ R. BRUCE ANDREWS - -------------------- ------------------------------------- Mark L. Desmond R. Bruce Andrews Assistant Secretary President and Chief Executive Officer THE UNDERSIGNED, President and Chief Executive Officer of NATIONWIDE HEALTH PROPERTIES, INC., who executed on behalf of the Corporation the Articles Supplementary of which this certificate is made a part, hereby acknowledges in the name and on behalf of said Corporation the foregoing Articles Supplementary to be the corporate act of said Corporation and hereby certifies that the matters and facts set forth herein with respect to the authorization and approval thereof are true in all material respects under the penalties of perjury. /s/ R. BRUCE ANDREWS -------------------------------- R. Bruce Andrews EX-4.1 4 FORM OF 7.677% SERIES A CUMULATIVE PREFERRED STEPUP EXHIBIT 4.1 PREFERRED STEP-UP PREFERRED STEP-UP REIT SECURITIES REIT SECURITIES PA NATIONWIDE HEALTH PROPERTIES, INC. FORMED UNDER THE LAWS OF THE STATE OF MARYLAND SEE REVERSE FOR CERTAIN DEFINITIONS CUSIP 638620 20 3 THIS CERTIFIES THAT IS THE RECORD HOLDER OF FULLY PAID AND NONASSESSABLE SHARES OF 7.677% SERIES A CUMULATIVE PREFERRED STEP-UP REIT SECURITIES, PAR VALUE $1.00 PER SHARE of Nationwide Health Properties, Inc. transferable on the share register of the Corporation by the holder hereof in person or by duly authorized attorney upon surrender of this Certificate properly endorsed. This Certificate is not valid until countersigned by the Transfer Agent and registered by the Registrar. Reference is made to the statement on the reverse hereof with respect to the classes or series of shares, and certain restrictions on the transferability thereof. Witness the facsimile seal of the Corporation and the facsimile signatures of its duly authorized officers. Dated: /s/ DON M. PEARSON /s/ R. BRUCE ANDREWS SECRETARY PRESIDENT COUNTERSIGNED AND REGISTERED: THE BANK OF NEW YORK TRANSFER AGENT AND REGISTRAR BY AUTHORIZED SIGNATURE [SEAL OF NATIONWIDE HEALTH PROPERTIES, INC.] NATIONWIDE HEALTH PROPERTIES, INC. Nationwide Health Properties, Inc. is authorized to issue two classes of shares, Common and Preferred, and the Preferred may be issued in one or more series. The corporation will furnish to any stockholder, on request and without charge, a statement of the designations, preferences, conversions and other rights, voting powers, restrictions, limitations as to dividends, qualifications and terms and conditions of redemption of the stock of each class, or series, which the corporation is authorized to issue and any other information required by Section 2-211 of the Corporations and Associations Article of the Annotated Code of Maryland. The board of directors of the corporation has authority to fix all or any of the dividend rights, dividend rate, conversion rights, voting rights, rights and terms of redemption (including sinking fund provisions), the redemption price or prices, and the liquidation preferences of any wholly unissued Preferred shares or of any wholly unissued series of Preferred shares, the number of shares constituting any unissued series of Preferred shares, and the designations of such shares. The transfer of these shares to any person who would thereby hold beneficial interest of more than 9.9% of the outstanding shares of stock of the Corporation may be prohibited or void or subject to other transfer restriction or redemption rights as set forth in the Articles of Incorporation. The Corporation will furnish information concerning such restrictions to any stockholder on request and without charge. The following abbreviations, when used in the inscription on the face of this certificate, shall be construed as though they were written out in full according to applicable laws or regulations: TEN COM -- as tenants in common UNIF GIFT MIN ACT -- ___________________Custodian_______________ TEN ENT -- as tenants by the entireties (Cust) (Minor) JT TEN -- as joint tenants with right of under Uniform Gifts to Minors survivorship and not as tenants Act _______________________________________ in common (State) UNIF TRF MIN ACT -- _____________Custodian (until age____________) (Cust) ______________________under Uniform Transfers (Minor) to Minors Act________________________________ (State)
Additional abbreviations may also be used though not in the above list. FOR VALUE RECEIVED,___________________________ hereby sell, assign and transfer unto PLEASE INSERT SOCIAL SECURITY OR OTHER IDENTIFICATION NUMBER OF ASSIGNEE - -------------------------------------------------------------------------------- (PLEASE PRINT OR TYPEWRITE NAME AND ADDRESS, INCLUDING ZIP CODE, OF ASSIGNEE) - -------------------------------------------------------------------------------- - -------------------------------------------------------------------------------- - --------------------------------------------------------------------------Shares of the capital stock represented by the within Certificate, and do hereby constitute and appoint - ------------------------------------------------------------------------Attorney to transfer the said stock on the books of the within named Corporation with full power of substitution in the premises. Dated_____________________________ X_______________________________________ X_______________________________________ Signature(s) Guaranteed NOTICE: THE SIGNATURE(S) TO THIS ASSIGNMENT MUST CORRESPOND WITH THE NAME(S) AS WRITTEN UPON THE FACE OF THE CERTIFICATE IN EVERY PARTICULAR, WITHOUT ALTERATION OR ENLARGEMENT OR ANY CHANGE WHATEVER. By___________________________________________________________________________ THE SIGNATURE(S) SHOULD BE GUARANTEED BY AN ELIGIBLE GUARANTOR INSTITUTION (BANKS, STOCKBROKERS, SAVINGS AND LOAN ASSOCIATIONS AND CREDIT UNIONS WITH MEMBERSHIP IN AN APPROVED SIGNATURE GUARANTEE MEDALLION PROGRAMS, PURSUANT TO S.E.C. RULE 17Ad-15. EX-8.1 5 OPINION OF O'MELVENY & MYERS LLP EXHIBIT 8.1 [LETTERHEAD OF O'MELVENY & MYERS LLP] September 24th 1 9 9 7 614,055-84 LA3-800541.V1A Nationwide Health Properties, Inc. 610 Newport Center Drive, Suite 1150 Newport Beach, California 92660 Re: Nationwide Health Properties, Inc. - Form S-3 Registration Statement ------------------------------------ Gentlemen: In connection with the above Registration Statement regarding the proposed issuance and sale of the 7.677% Series A Cumulative Preferred Step-Up REIT Securities (Liquidation Preference $100 per Share) of Nationwide Health Properties, Inc., a Maryland corporation (the "Company"), you have requested our opinion whether the Company qualified as a real estate investment trust (a "REIT") under sections 856 through 860 of the Internal Revenue Code of 1986, as amended (the "Code"), for its taxable year ended December 31, 1996 and whether it will continue to so qualify if it operates subsequent to June 30, 1997 in the same manner as it has prior to that date. You have also asked our opinion whether the Company should be treated as the owner of its properties listed in the schedule which you provided to us (the "Properties") for federal income tax purposes and whether the leases with respect to such Properties (the "Leases") should be treated as true leases, and not financing arrangements, for such purposes. All capitalized terms in this opinion and not otherwise defined herein shall have the same respective meanings as set forth in the Registration Statement. As of July 25, 1997, we delivered our opinion (the "7/25/97 Opinion") concerning the qualification of the Company as a REIT for its taxable year ended December 31, 1996 and its Page 2 - Nationwide Health Properties, Inc. - September 24, 1997 continuing qualifications as a REIT if it operated subsequent to June 30, 1997 in the same manner as it had prior to that date. The 7/25/97 Opinion, and the certificates, documents and other materials referred to therein, are hereby incorporated by reference. Since July 25, 1997, there have been delivered to us certain certificates and schedules prepared and executed by Company personnel, setting forth certain factual representations regarding the Company and its assets and operations. This opinion specifically relies on such documents, certificates and schedules and assumes that the facts represented therein will not change in any material way so long as the Company seeks to qualify as a REIT. On the basis of the foregoing and subject to all of the qualifications, conditions and factual assumptions set forth herein and in the 7/25/97 Opinion, we are of the opinion that for the calendar year 1996, the Company met each of the requirements for qualification as a REIT, and if the Company operates subsequent to June 30, 1997 in the same manner as it has prior to such date, it will continue to so qualify, provided that the various tests for qualification as a REIT relating to its income, assets, distributions, ownership and certain administrative matters are satisfied in those years. However, we are unable to opine whether the Company will actually continue to qualify as a REIT because such qualification will depend on future transactions and events which cannot be known at this time. We also wish to advise you that on the basis of and in reliance on the foregoing and on the facts set forth in the Registration Statement, it is the opinion of O'Melveny & Myers LLP that under current law, including relevant statutes, regulations, and judicial and administrative precedent (which law is subject to change on a retroactive basis), a court, more likely than not, would hold that the Company would be treated as the owner of the Properties for federal income tax purposes and the Leases would be treated as true leases, and not financing arrangements, for such purposes. You should be aware that this opinion is not binding on the Internal Revenue Service and no assurance can be given that the Internal Revenue Service may not successfully challenge the conclusions set forth in this opinion. If the Internal Revenue Service successfully challenged such conclusions, the Company would not be entitled to claim depreciation with respect to the Properties and might be compelled to make deficiency dividends to satisfy the 95% dividend distribution requirement or lose its REIT status. Respectfully submitted, /s/ O'Melveny & Myers LLP -----END PRIVACY-ENHANCED MESSAGE-----