4.75% Convertible Senior Notes Due
2026
UBS Securities
LLC
Deutsche Bank Securities Inc.
As Representatives of the Several Underwriters
c/o UBS Securities
LLC
299 Park Avenue
New York, New York 10171-0026
Health Care REIT,
Inc., a Delaware corporation (the “Company”), proposes
to sell to the underwriters (the “Underwriters”) named
in Schedule I hereto for whom you are acting as
representatives (the “Representatives”), $300,000,000
aggregate principal amount of the Company’s 4.75% Convertible
Senior Notes due 2026 (the “Notes” and, such principal
amount, the “Firm Notes”), to be issued pursuant to the
provisions of an indenture to be dated as of November 20,
2006, between the Company and The Bank of New York Trust Company,
N.A., as trustee (the “Trustee”), as supplemented by a
supplemental indenture thereto, to be dated as of November 20,
2006 (the indenture, as so supplemented, the
“Indenture”). In addition, solely for the purpose of
covering over-allotments, the Company proposes to grant to the
Underwriters the option to purchase from the Company up to
$45,000,000 aggregate principal amount of Notes (the “Option
Notes”) as set forth below.
The Notes will be
convertible into shares of common stock of the Company, $1.00 par
value per share (“Common Stock”), in the manner
described in the Indenture. The shares of Common Stock into which
the Notes may be converted are referred to herein as the
“Underlying Securities.”
As the
Representatives, you have advised the Company (a) that you are
authorized to enter into this Agreement and (b) that the
Underwriters are willing to purchase, acting severally and not
jointly, the Firm Notes set forth in Schedule I hereto, plus
such Option Notes if the Underwriters elect to exercise the
over-allotment option in whole or in part for the account of the
Underwriters. The Firm Notes and the Option Notes (to the extent
such option is exercised) are herein collectively sometimes
referred to as the “Notes.”
In consideration
of the mutual agreements contained herein and of the interests of
the parties in the transactions contemplated hereby, the parties
hereto agree as follows:
1. Representations and Warranties of the Company. The
Company represents and warrants to the Underwriters as
follows:
(i) An
“automatic shelf registration statement” as defined in
Rule 405 under the Securities Act of 1933, as amended (the
“Securities Act”), on Form S-3 (File
No. 333-134082) in respect of the Notes and the Underlying
Securities, including a form of prospectus (the “Base
Prospectus”), has been prepared and filed by the Company not
earlier than three years prior to the date hereof, in conformity
with the requirements of the Securities Act, and the rules and
regulations of the Securities and Exchange Commission (the
“Commission”) thereunder (the “Rules and
Regulations”). The Company and the transactions contemplated
by this Agreement meet the requirements and comply with the
conditions for the use of Form S-3. Copies of such registration
statement, including any amendments thereto, the Base Prospectus,
as supplemented by any preliminary prospectus (including any
preliminary prospectus supplement) relating to the Notes used prior
to the date hereof (a “Preliminary Prospectus”), and
including the documents incorporated in the Base Prospectus by
reference, and the exhibits, financial statements and schedules to
such registration statement, in each case as finally amended and
revised, have heretofore been delivered by the Company to the
Representatives. Such registration statement is herein referred to
as the “Registration Statement,” which shall be deemed
to include all information omitted therefrom in reliance upon
Rules 430A, 430B or 430C under the Securities Act and
contained in the Prospectus referred to below, has become effective
under the Securities Act and no post-effective amendment to the
Registration Statement has been filed as of the date of this
Agreement. “Prospectus” means the form of prospectus
relating to the Notes first filed with the Commission pursuant to
and within the time limits described in Rule 424(b) under the
Securities Act and in accordance with Section 4(i) hereof. Any
reference herein to the Registration Statement, any Preliminary
Prospectus or to the Prospectus or to any amendment or supplement
to any of the foregoing documents shall be deemed to refer to and
include any documents incorporated by reference therein, and, in
the case of any reference herein to the Prospectus, also shall be
deemed to include any documents incorporated by reference therein,
and any supplements or amendments thereto, filed with the
Commission after the date of filing of the Prospectus under Rule
424(b) under the Securities Act, and prior to the termination of
the offering of the Notes by the Underwriters.
(ii) As of the
Applicable Time (as defined below), at all times during the period
that begins at the Applicable Time and ends as of the Closing Date,
and as of the Closing Date or the Option Closing Date, as the case
may be, neither (i) the General Use Free Writing
Prospectus(es) (as defined below) issued at or prior to the
Applicable Time, and the Statutory Prospectus (as defined below),
all considered together (collectively, the “General
Disclosure Package”), nor (ii) any individual Limited
Use Free Writing Prospectus (as defined below), when considered
together with the General Disclosure Package, included or will
include any untrue statement of a material fact or omitted or will
omit to state a material fact necessary in order to make the
statements therein, in the light of the circumstances under which
they were made, not misleading provided, however, that the Company
makes no representations or warranties as to information contained
in or omitted from any Issuer Free Writing Prospectus, in reliance
upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the
Representatives, specifically for use therein, it being understood
and agreed that the only such information is that described in
Section 13 herein. As used in this subsection and elsewhere in
this Agreement:
“Applicable
Time” means 11:00 p.m. (New York time) on the date of
this Agreement or such other time as agreed to by the Company and
the Representatives.
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“Statutory
Prospectus” means the Base Prospectus, as amended and
supplemented immediately prior to the Applicable Time, including
any document incorporated by reference therein and any prospectus
supplement deemed to be a part thereof.
“Issuer Free
Writing Prospectus” means any “issuer free writing
prospectus,” as defined in Rule 433 under the Securities
Act, relating to the Notes in the form filed or required to be
filed with the Commission or, if not required to be filed, in the
form retained in the Company’s records pursuant to Rule
433(g) under the Securities Act.
“General Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is identified on Schedule II to this
Agreement.
“Limited Use
Free Writing Prospectus” means any Issuer Free Writing
Prospectus that is not a General Use Free Writing
Prospectus.
(iii) The Company
has been duly organized and is validly existing as a corporation in
good standing under the laws of the State of Delaware, with
corporate power and authority to own its properties and conduct its
business as described in the Registration Statement, the General
Disclosure Package and the Prospectus; the Company is duly
qualified to transact business in all jurisdictions in which the
conduct of its business requires such qualification, and in which
the failure to qualify would (a) have a materially adverse
effect upon the business of the Company and its Subsidiaries (as
defined below), taken as a whole, (b) adversely affect the
issuance, validity or enforceability of the Notes or the
enforceability of the Indenture or (c) adversely affect the
consummation of the transactions contemplated by this Agreement
(each of (a), (b) and (c) above, a “Material
Adverse Effect”). All of the Company’s subsidiaries are
listed in Schedule III hereto (the
“Subsidiaries”).
(iv) The Notes
have been duly authorized and, when issued, authenticated and
delivered pursuant to this Agreement and the Indenture, will be
(a) duly and validly executed, authenticated, issued and
delivered and will constitute valid and binding obligations of the
Company enforceable against the Company in accordance with their
terms, except to the extent that enforcement thereof may be limited
by (x) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws now or hereafter in effect
relating to creditors’ rights generally and (y) general
principles of equity and the limits of specific performance and
injunctive relief (regardless of whether enforceability is
considered in a proceeding at law or in equity), (b) entitled
to the benefits provided by the Indenture, and (c) convertible
into Common Stock in accordance with the Indenture; the Indenture
has been duly authorized and qualified under the Trust Indenture
Act of 1939, as amended (the “Trust Indenture Act”),
and constitutes a valid and binding instrument of the Company
enforceable against the Company in accordance with its terms,
except to the extent that enforcement thereof may be limited by
(x) bankruptcy, insolvency, reorganization, fraudulent
conveyance, moratorium or similar laws now or hereafter in effect
relating to creditors’ rights generally and (y) general
principles of equity and the limits of specific performance and
injunctive relief (regardless of whether enforceability is
considered in a proceeding at law or in equity); the Notes and the
Indenture will conform to the statements relating thereto contained
in the Registration Statement, the General Disclosure Package and
the Prospectus; and the Underlying Securities issuable upon
conversion of the Notes in accordance with the Indenture and the
Notes have been duly authorized and reserved for issuance, and when
issued and delivered upon conversion of the Notes in accordance
with the Indenture, will be duly and validly issued, fully paid and
free of statutory and contractual preemptive rights, resale rights,
rights of first refusal and similar rights.
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(v) The
information contained in the section captioned
“Capitalization” in the Registration Statement and the
Prospectus (and any similar section or information contained in the
General Disclosure Package) sets forth the authorized, issued and
outstanding capitalization of the Company at the indicated date;
all of the issued shares of capital stock of the Company have been
duly and validly authorized and issued and are fully paid and
non-assessable; and the shares of Common Stock of the Company are
duly listed on the New York Stock Exchange.
(vi) The shares of
authorized capital stock of the Company, including the Underlying
Securities, conform with the statements concerning them in the
Registration Statement, the General Disclosure Package and the
Prospectus.
(vii) The
Commission has not issued an order preventing or suspending the use
of any Preliminary Prospectus, any Issuer Free Writing Prospectus
or the Prospectus relating to the proposed offering of the Notes,
and no proceeding for that purpose or pursuant to Section 8A
of the Securities Act has been instituted or, to the
Company’s knowledge, threatened by the Commission. The
Registration Statement contains, and the Prospectus and any
amendments or supplements thereto will contain, all statements
which are required to be stated therein by, and will conform to,
the requirements of the Securities Act, the Trust Indenture Act and
the rules and regulations of the Commission thereunder. The
documents incorporated, or to be incorporated, by reference in the
Prospectus, at the time filed with the Commission conformed or will
conform, in all material respects to the requirements of the
Securities Exchange Act of 1934 (“Exchange Act”) or the
Securities Act, as applicable, and the rules and regulations of the
Commission thereunder. The Registration Statement and any amendment
thereto do not contain, and will not contain, any untrue statement
of a material fact and do not omit, and will not omit, to state a
material fact required to be stated therein or necessary to make
the statements therein not misleading. The Prospectus and any
amendments and supplements thereto do not contain, and will not
contain, any untrue statement of a material fact; and do not omit,
and will not omit, to state a material fact necessary in order to
make the statements therein, in the light of the circumstances
under which they were made, not misleading; provided, however, that
the Company makes no representations or warranties as to
information contained in or omitted from the Registration Statement
or the Prospectus, or any such amendment or supplement, in reliance
upon, and in conformity with, written information furnished to the
Company by or on behalf of any Underwriter through the
Representatives, specifically for use therein, it being understood
and agreed that the only such information is that described in
Section 13 herein.
(viii) Each Issuer
Free Writing Prospectus, as of its issue date and at all subsequent
times through the completion of the public offer and sale of the
Notes or until any earlier date that the Company notified or
notifies the Representatives as described in the next sentence, did
not, does not and will not include any information that conflicted,
conflicts or will conflict with the information contained in the
Registration Statement or the Prospectus, including any document
incorporated by reference and any prospectus supplement deemed to
be a part thereof that has not been superseded or
modified.
(ix) The Company
has not, directly or indirectly, distributed and will not
distribute any offering material in connection with the offering
and sale of the Notes other than any Preliminary Prospectus, the
Prospectus and other materials, if any, permitted under the
Securities Act and consistent with Section 4(ii) below. The
Company will file with the Commission all Issuer Free Writing
Prospectuses in the time and manner required under Rules 163(b)(2)
and 433(d) under the Securities Act.
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(x) (a) At
the time of filing the Registration Statement, (b) at the time
of the most recent amendment thereto for the purposes of complying
with Section 10(a)(3) under the Securities Act (whether such
amendment was by post-effective amendment, incorporated report
filed pursuant to Section 13 or 15(d) of the Exchange Act or
form of prospectus), (c) at the time the Company or any person
acting on its behalf (within the meaning, for this clause only, of
Rule 163(c) under the Securities Act) made any offer relating to
the Notes in reliance on the exemption of Rule 163 under the
Securities Act and (d) at the date hereof, the Company is a
“well-known seasoned issuer” as defined in
Rule 405 under the Securities Act. The Company has not
received from the Commission any notice pursuant to
Rule 401(g)(2) under the Securities Act objecting to the use
of the automatic shelf registration form.
(xi) (a) At
the earliest time after the filing the Registration Statement that
the Company or another offering participant made a bona fide offer
(within the meaning of Rule 164(h)(2) under the Securities Act) of
the Notes and (b) as of the date hereof (with such date being
used as the determination date for purposes of this clause(b)), the
Company was not and is not an “ineligible issuer” (as
defined in Rule 405 under the Securities Act, without taking
into account any determination by the Commission pursuant to
Rule 405 under the Securities Act that it is not necessary
that the Company be considered an ineligible issuer), including,
without limitation, for purposes of Rules 164 and 433 under
the Securities Act with respect to the offering of the Notes as
contemplated by the Registration Statement.
(xii) The
financial statements of (a) the Company, together with related
notes and schedules, as set forth or incorporated by reference in
the Registration Statement, the General Disclosure Package and the
Prospectus, present fairly the financial position and the results
of operations of the Company and its Subsidiaries at the indicated
dates and for the indicated periods and (b) Windrose Medical
Properties Trust, a Maryland real estate investment trust
(“Windrose”), together with the related notes and
schedules, as set forth or incorporated by reference in the
Registration Statement, the General Disclosure Package and the
Prospectus, present fairly the financial position and the results
of operations of Windrose and its subsidiaries at the indicated
dates and for the indicated periods. Such financial statements and
the related notes and schedules have been prepared in accordance
with generally accepted accounting principles, consistently applied
throughout the periods involved, and all adjustments necessary for
a fair presentation of results for such periods have been made. All
pro forma financial statements or data included or incorporated by
reference in the Registration Statement, the General Disclosure
Package and the Prospectus comply with the requirements of the
Securities Act and the Exchange Act, and the assumptions used in
the preparation of such pro forma financial statements and data are
reasonable, the pro forma adjustments used therein are appropriate
to give effect to the transactions or circumstances described
therein and the pro forma adjustments have been properly applied to
the historical amounts in the compilation of those statements and
data. The summary financial and statistical data included or
incorporated by reference in the Registration Statement, the
General Disclosure Package and the Prospectus present fairly the
information shown therein and, to the extent based upon or derived
from the financial statements, have been compiled on a basis
consistent with the financial statements presented therein. All
disclosures contained in the Registration Statement, the General
Disclosure Package and the Prospectus, including the documents
incorporated by reference therein, regarding “non-GAAP
financial measures” (as such term is defined by the Rules and
Regulations) comply with Regulation G of the Exchange Act and
Item 10 of Regulation S-K under the Securities Act, to
the extent applicable.
(xiii) There is no
action or proceeding pending or, to the knowledge of the Company,
threatened (a) against the Company or its Subsidiaries or
(b) involving any property of the Company or its Subsidiaries
before any court or administrative agency which, if
determined
5
adversely to
the Company or its Subsidiaries, might reasonably be expected to
result in any Material Adverse Effect, except as set forth in the
Registration Statement, the General Disclosure Package and the
Prospectus.
(xiv) The Company,
together with its Subsidiaries, has good and marketable title to
all of the properties and assets reflected in the financial
statements hereinabove described (or as described in the
Registration Statement, the General Disclosure Package and the
Prospectus as owned by it), subject to no lien, mortgage, pledge,
charge or encumbrance of any kind except those reflected in such
financial statements (or as described in the Registration
Statement, the General Disclosure Package and the Prospectus) or
which are not material in amount or which do not interfere with the
use made or proposed to be made of the property. The leases,
agreements to purchase and mortgages to which the Company or any of
its Subsidiaries is a party, and the guaranties of third parties
(a) are the legal, valid and binding obligations of the
Company, its Subsidiaries and, to the knowledge of the Company, of
all other parties thereto, and the Company knows of no default or
defenses currently existing with respect thereto which might
reasonably be expected to result in any Material Adverse Effect,
and (b) conform to the descriptions thereof set forth in the
Registration Statement, the General Disclosure Package and the
Prospectus. Each mortgage which the Company or any of its
Subsidiaries holds on the properties described in the Registration
Statement, the General Disclosure Package and the Prospectus
constitutes a valid mortgage lien for the benefit of the Company or
its Subsidiary, as the case may be, on such property.
(xv) The Company
has filed all Federal, state and foreign income tax returns which
have been required to be filed and has paid all taxes indicated by
said returns and all assessments received by it to the extent that
such taxes have become due and are not being contested in good
faith. All tax liabilities have been adequately provided for in the
financial statements of the Company.
(xvi) Since the
respective dates as of which information is given in the
Registration Statement, the General Disclosure Package and the
Prospectus, as each may be amended or supplemented, there has not
been any material adverse change or any development involving a
prospective material adverse change in or affecting the condition,
financial or otherwise, of the Company or the earnings, capital
stock (except that Common Stock of the Company has increased due to
option exercises, the Company’s dividend reinvestment program
and conversions of preferred stock), business affairs, management,
or business prospects of the Company, whether or not occurring in
the ordinary course of business, and the Company has not incurred
any material liabilities or obligations and there has not been any
material transaction entered into by the Company, other than
transactions in the ordinary course of business and transactions
described in the Registration Statement, the General Disclosure
Package and the Prospectus, as each may be amended or supplemented.
The Company has no material contingent obligations which are not
disclosed in the Registration Statement, the General Disclosure
Package and the Prospectus.
(xvii) The Company
is not in violation of its charter or by-laws. No Subsidiary is in
violation of its charter or by-laws, which violation will have, or
after any required notice and passage of any applicable grace
period would have, a Material Adverse Effect. Neither the Company
nor any of its Subsidiaries are (a) in default under any
agreement, lease, contract, indenture or other instrument or
obligation to which it is a party or by which it or any of its
properties is bound, (b) in violation of any statute, or
(c) in violation of any order, rule or regulation applicable
to the Company, its Subsidiaries or its properties, of any court or
of any regulatory body, administrative agency or other governmental
body, any of which defaults or
6
violations
described in clauses (a) through (c) will have, or after
any required notice and passage of any applicable grace period
would have, a Material Adverse Effect. The issue and sale of the
Notes and the performance by the Company of all of its obligations
under the Notes, the Indenture and this Agreement and the
consummation of the transactions herein and therein contemplated
and the fulfillment of the terms hereof and thereof will not after
any required notice and passage of any applicable grace period
conflict with or constitute a violation of any statute or conflict
with or result in a breach of any of the terms or provisions of,
constitute a default under or result in the imposition of any lien
pursuant to, any indenture, mortgage, deed of trust or other
agreement or instrument to which the Company, or any of its
Subsidiaries, is a party or by which it or any of its properties
may be bound, or a violation of its charter or by-laws or any
order, rule or regulation applicable to the Company, its
Subsidiaries or its properties of any court or of any regulatory
body, administrative agency or other governmental body.
(xviii) Each
approval, consent, order, authorization, designation, declaration
or filing by or with any regulatory, administrative or other
governmental body necessary in connection with the execution and
delivery by the Company of this Agreement and the consummation of
the transactions contemplated by this Agreement and the Indenture
(except such additional steps as may be required by the Commission,
the National Association of Securities Dealers, Inc. (the
“NASD”) or may be necessary to qualify the Notes for
public offering by the Underwriters under state securities or Blue
Sky laws) has been obtained or made by the Company, and is in full
force and effect.
(xix) The Company
and its Subsidiaries hold all material licenses, certificates and
permits from governmental authorities which are necessary to the
conduct of their businesses and neither the Company nor any of its
Subsidiaries have received any notice of infringement or of
conflict with asserted rights of others with respect to any
patents, patent rights, trade names, trademarks or copyrights,
which infringement is material to the business of the Company and
its Subsidiaries.
(xx) The Company
qualifies as a real estate investment trust pursuant to
Sections 856 through 860 of the Internal Revenue Code of 1986,
as amended, has so qualified for the taxable years ended
December 31, 1984 through December 31, 2005 and no
transaction or other event has occurred or is contemplated which
would prevent the Company from so qualifying for its current
taxable year.
(xxi) To the best
of the Company’s knowledge, (a) Ernst & Young LLP,
who have certified certain of the financial statements and related
schedules filed with the Commission as part of, or incorporated by
reference in, the Registration Statement, the General Disclosure
Package and the Prospectus, is an independent registered public
accounting firm with respect to the Company as required by the
Securities Act and the Rules and Regulations and the Public Company
Accounting Oversight Board (the “PCAOB”) and
(b) KPMG LLP, who have certified certain of the financial
statements and related schedules filed with the Commission as part
of, or incorporated by reference in, the Registration Statement,
the General Disclosure Package and the Prospectus, is an
independent registered public accounting firm with respect to
Windrose as required by the Securities Act and the Rules and
Regulations and the PCAOB.
(xxii) The Company
and its Subsidiaries maintain a system of internal accounting
controls sufficient to provide reasonable assurance that
(a) transactions are executed in accordance with
management’s general or specific authorization;
(b) transactions are recorded as necessary to permit
preparation of financial statements in conformity with generally
accepted accounting principles and to maintain accountability for
assets; (c) access to assets is permitted
7
only in
accordance with management’s general or specific
authorization; and (d) the recorded accountability for assets
is compared with existing assets at reasonable intervals and
appropriate action is taken with respect to any
differences.
(xxiii) The
Company has established and maintains disclosure controls and
procedures (as such term is defined in Rules 13a-14 and 15d-14
under the Exchange Act); such disclosure controls and procedures
are designed to ensure that material information relating to the
Company, including its Subsidiaries, is made known to the
Company’s Chief Executive Officer and its Chief Financial
Officer by others within those entities, and such disclosure
controls and procedures are effective to perform the functions for
which they were established; the Company’s auditors and the
Audit Committee of the Board of Directors of the Company have been
advised of: (a) any significant deficiencies in the design or
operation of internal controls which could adversely affect the
Company’s ability to record, process, summarize, and report
financial data; and (b) any fraud, whether or not material,
that involves management or other employees who have a role in the
Company’s internal controls; any material weaknesses in
internal controls have been identified for the Company’s
auditors; and since the date of the most recent evaluation of such
disclosure controls and procedures, there have been no significant
changes in internal controls or in other factors that could
significantly affect internal controls, including any corrective
actions with regard to significant deficiencies and material
weaknesses.
(xxiv) Since
July 30, 2002, the Company has not, directly or indirectly,
including through any subsidiary: (a) extended credit,
arranged to extend credit, or renewed any extension of credit, in
the form of a personal loan, to or for any director or executive
officer of the Company, or to or for any family member or affiliate
of any director or executive officer of the Company; or
(b) made any material modification, including any renewal
thereof, to any term of any personal loan to any director or
executive officer of the Company, or any family member or affiliate
of any director or executive officer, which loan was outstanding on
July 30, 2002.
(xxv) To the
knowledge of the Company, after inquiry of its officers and
directors, there are no affiliations with any NASD member firm
among the Company’s officers, directors, or principal
stockholders, except as set forth in the Registration Statement,
the General Disclosure Package and the Prospectus, or as otherwise
disclosed in writing to the Underwriters.
(xxvi) This
Agreement and the Indenture have been duly authorized, executed and
delivered by the Company.
(xxvii) Neither
the Company nor any of its officers or directors has taken nor will
any of them take, directly or indirectly, any action resulting in a
violation of Regulation M promulgated under the Exchange Act,
or designed to cause or result in, or which has constituted or
which reasonably might be expected to constitute, the stabilization
or manipulation of the price of the Notes or the Underlying
Securities. The Company acknowledges that the Underwriters may
engage in transactions that stabilize, maintain or otherwise affect
the price of the Notes or the Underlying Securities, including
stabilizing bids, syndicate covering transactions and the
imposition of penalty bids.
(xxviii) The
Underlying Securities have been approved for listing upon official
notice of issuance on the New York Stock Exchange.
(xxix) The Company
is not, and immediately after the sale of the Notes pursuant to the
terms and conditions of this Agreement will not be, an
“investment company” or a company
8
“controlled” by an “investment
company” within the meaning of the Investment Company Act of
1940.
2. Purchase, Sale and Delivery of the Notes. On the
basis of the representations, warranties and covenants herein
contained, and subject to the conditions herein set forth, the
Company agrees to sell to each Underwriter, and each Underwriter,
severally and not jointly, agrees to purchase from the Company, the
principal amount of Firm Notes set forth opposite the name of such
Underwriter in Schedule I hereto (plus any additional
principal amount of Notes which such Underwriter may become
obligated to purchase pursuant to the provisions of Section 11
hereof) at a purchase price of 98.00% of the principal amount
thereof, plus accrued interest (if any) to the Closing Date (as
defined below).
Payment
of the purchase price for, and delivery of certificate(s) for, the
Firm Notes shall be made at the offices of UBS Securities LLC, 299
Park Avenue, New York, New York, at 10:00 a.m. New York time,
on November 20, 2006 or at such other time and date thereafter
as the Representatives and the Company shall agree upon, such time
and date being herein referred to as the “Closing
Date.” (As used herein, “business day” means a
day on which the New York Stock Exchange is open for trading and on
which banks in New York are open for business and not permitted by
law or executive order to be closed). Payment for the Firm Notes to
be sold hereunder is to be made by Federal Funds wire transfer to
an account designated by the Company, against delivery of the Firm
Notes to the Underwriters. The Firm Notes will be evidenced by a
single definitive global certificate in book entry form, fully
registered in the name of Cede & Co., as nominee for The
Depository Trust Company (“DTC”), or registered in such
other names and in such denominations as the Representatives
request in writing not later than the second full business day
prior to the Closing Date. The single global certificate will be
made available for inspection by the Representatives at least one
business day prior to the Closing Date at such place as the
Representatives, DTC and the Company shall agree.
In
addition, on the basis of the representations and warranties herein
contained and subject to the terms and conditions herein set forth,
the Company hereby grants an option to the Underwriters to purchase
severally the Option Notes at the purchase price as set forth in
the first paragraph of this Section 2. The option granted
hereby may be exercised in whole or in part by giving notice
(i) at any time before the Closing Date and (ii) only
once thereafter within 30 days after the date of this
Agreement, by the Representatives to the Company setting forth the
principal amount of Option Notes as to which the several
Underwriters are exercising the option and the time and date at
which such Option Notes are to be delivered. The time and date at
which the Option Notes are to be delivered shall be determined by
the Representatives but shall not be earlier than three nor later
than 10 full business days after the exercise of such option, nor
in any event prior to the Closing Date (such time and date being
herein referred to as the “Option Closing Date”). If
the date of exercise of the option is three or more days before the
Closing Date, the notice of exercise shall set the Closing Date as
the Option Closing Date. The option with respect to the Option
Notes granted hereunder may be exercised only to cover
over-allotments in the sale of the Firm Notes by the Underwriters.
The Representatives may cancel such option at any time prior to its
expiration by giving written notice of such cancellation to the
Company. To the extent, if any, that the option is exercised,
payment for the Option Notes shall be made by Federal Funds wire
transfer to an account designated by the Company, against delivery
of the Option Notes to the Underwriters. Such payment and delivery
are to be made at the offices of UBS Securities LLC, 299 Park
Avenue, New York, New York, at 10:00 a.m. New York time, on
the Option Closing Date. To the extent, if any, that the option is
exercised, the Option Notes will be evidenced by a single
definitive global certificate in book entry form, fully registered
in the name of Cede & Co., as nominee for DTC, or registered in
such other names and in such denominations as the Representatives
request in writing not later than the second full business day
prior to the Option Closing Date. The single global certificate
will be made available for inspection by the Representatives at
least one business day prior to the Option Closing Date at such
place as the Representatives, DTC and the Company shall
agree.
9
3. Offering by the Underwriters. It is understood that
the several Underwriters are to make a public offering of the Notes
as soon as the Representatives deem it advisable to do so. The
Notes are to be initially offered to the public at the price and
upon the terms set forth in the Prospectus. The Representatives may
from time to time thereafter change the public offering price and
other selling terms.
4. Covenants of the Company. The Company covenants and
agrees with the Underwriters that:
(i) The
Company will (a) prepare and timely file with the Commission
under Rule 424(b) (without reliance on Rule 424(b)(8)) under
the Securities Act a Prospectus in a form approved by the
Representatives containing information previously omitted at the
time of effectiveness of the Registration Statement in reliance on
Rules 430A, 430B or 430C under the Securities Act,
(b) not file any amendment to the Registration Statement or
distribute an amendment or supplement to the General Disclosure
Package or the Prospectus or document incorporated by reference
therein of which the Representatives shall not previously have been
advised and furnished with a copy or to which the Representatives
shall have reasonably objected in writing or which is not in
compliance with the Rules and Regulations for so long as the
Representatives may deem necessary to in order to complete the
distribution of the Notes and (c) file on a timely basis all
reports and any definitive proxy or information statements required
to be filed by the Company with the Commission subsequent to the
date of the Prospectus and prior to the termination of the offering
of the Notes by the Underwriters; provided, however, that for each
such report or preliminary or definitive proxy or information
statement, the Company will not file any such report or preliminary
or definitive proxy or information statement, or amendment thereto,
of which the Representatives shall not previously have been advised
and furnished with a copy or to which the Representatives shall
have reasonably objected in writing or which is not in compliance
with the Exchange Act.
(ii) The Company
will (a) not make any offer relating to the Notes that would
constitute an Issuer Free Writing Prospectus or that would
otherwise constitute a “free writing prospectus” (as
defined in Rule 405 under the Securities Act) required to be
filed by the Company with the Commission under Rule 433 under
the Securities Act unless the Representatives approve its use in
writing prior to first use (each, a “Permitted Free Writing
Prospectus”); provided that the prior written consent of the
Representatives hereto shall be deemed to have been given in
respect of the Issuer Free Writing Prospectus(es) included in
Schedule II hereto, (b) treat each Permitted Free Writing
Prospectus as an Issuer Free Writing Prospectus, (c) comply
with the requirements of Rules 163, 164 and 433 under the
Securities Act applicable to any Issuer Free Writing Prospectus,
including the requirements relating to timely filing with the
Commission, legending and record keeping and (d) not take any
action that would result in an Underwriter or the Company being
required to file with the Commission pursuant to Rule 433(d) under
the Securities Act a free writing prospectus prepared by or on
behalf of such Underwriter that such Underwriter otherwise would
not have been required to file thereunder.
(iii) The Company
will prepare a final term sheet (the “Final Term
Sheet”) reflecting the final terms of the Notes, in form and
substance satisfactory to the Representatives, and shall file such
Final Term Sheet as an Issuer Free Writing Prospectus pursuant to
Rule 433 under the Securities Act prior to the close of
business two business days after the date hereof; provided that the
Company shall provide the Representatives with copies of any such
Final Term Sheet a reasonable amount of time prior to such proposed
filing and will not use or file any such document to which the
Representatives or counsel to the Underwriters shall reasonably
object.
10
(iv) The Company
will advise the Representatives promptly (a) when any
post-effective amendment to the Registration Statement or new
registration statement relating to the Notes shall have become
effective, or any supplement to the Prospectus shall have been
filed, (b) of the receipt of any comments from the Commission,
(c) of any request of the Commission for amendment of the
Registration Statement or the filing of a new registration
statement or any amendment or supplement to the General Disclosure
Package or the Prospectus or any document incorporated by reference
therein or otherwise deemed to be a part thereof or for any
additional information, and (d) of the issuance by the
Commission of any stop order suspending the effectiveness of the
Registration Statement or such new registration statement or any
order preventing or suspending the use of any Preliminary
Prospectus, any Issuer Free Writing Prospectus or the Prospectus,
or of the institution of any proceedings for that purpose for so
long as the Representatives may deem necessary in order to complete
the distribution of the Notes, or of the suspension of the
qualification of the Notes for offering or sale in any
jurisdiction, and the Company will use its best efforts to prevent
(x) the issuance of any such stop order suspending the
effectiveness of the Registration Statement or such new
registration statement or any order preventing or suspending the
use of any Preliminary Prospectus, any Issuer Free Writing
Prospectus or the Prospectus, or (y) any such suspension of the
qualification of the Notes for offering or sale in any
jurisdiction, and to obtain as soon as possible the lifting of any
such order, if issued, or such suspension of
qualification.
(v) The Company
will pay the fees applicable to the Registration Statement in
connection with the offering of the Notes within the time required
by Rule 456(b)(1)(i) under the Securities Act (without
reliance on the proviso to Rule 456(b)(1)(i) under the
Securities Act) and in compliance with Rule 456(b) and Rule 457(r)
under the Securities Act.
(vi) If at any
time when Notes remain unsold by the Underwriters the Company
receives from the Commission a notice pursuant to
Rule 401(g)(2) under the Securities Act or otherwise ceases to
be eligible to use the automatic shelf registration statement form,
the Company will (a) promptly notify the Representatives,
(b) promptly file a new registration statement or
post-effective amendment on the proper form relating to the Notes
and the Underlying Securities, in a form satisfactory to the
Representatives, (c) use its best efforts to cause such
registration statement or post-effective amendment to be declared
effective as soon as practicable (if such filing is not otherwise
effective immediately pursuant to Rule 462 under the
Securities Act), and (d) promptly notify the Representatives
of such effectiveness. The Company will take all other action
necessary or appropriate to permit the public offering and sale of
the Notes to continue as contemplated in the Registration Statement
that was the subject of the notice under Rule 401(g)(2) under
the Securities Act or for which the Company has otherwise become
ineligible. References herein to the Registration Statement
relating to the Notes and the Underlying Securities shall include
such new registration statement or post-effective amendment, as the
case may be.
(vii) If
immediately prior to the third anniversary (the “Renewal
Deadline”) of the initial effective date of the Registration
Statement, any of the Notes remain unsold by the Underwriters, the
Company will, prior to the Renewal Deadline file, if it has not
already done so and is eligible to do so, a new automatic shelf
registration statement relating to the Notes and the Underlying
Securities, in a form satisfactory to the Representatives. If the
Company is not eligible to file an automatic shelf registration
statement, the Company will, prior to the Renewal Deadline, if it
has not already done so, file a new shelf registration statement
relating to the Notes, in a form satisfactory to the
Representatives, and will use its best efforts to cause such
registration statement to be declared effective within
180 days after the Renewal Deadline. The Company will take all
other action necessary or appropriate to permit the public offering
and sale
11
of the Notes to
continue as contemplated in the expired registration statement.
References herein to the Registration Statement shall include such
new automatic shelf registration statement or such new shelf
registration statement, as the case may be.
(viii) The Company
will deliver to, or upon the order of, the Representatives, from
time to time, as many copies of any Preliminary Prospectus or any
Issuer Free Writing Prospectus as the Representatives may
reasonably request. The Company will deliver to, or upon the order
of, the Representatives during the period when delivery of a
Prospectus (or, in lieu thereof, the notice referred to under Rule
173(a) under the Securities Act) is required under the Securities
Act, as many copies of the Prospectus in final form, or as
thereafter amended or supplemented, as the Representatives may
reasonably request. The Company will deliver to the Representatives
at or before the Closing Date, one signed copy of the Registration
Statement and all amendments thereto including all exhibits filed
therewith, and will deliver to the Representatives such number of
copies of the Registration Statement, including documents
incorporated by reference therein, but without exhibits, and of all
amendments thereto, as the Representatives may reasonably
request.
(ix) The Company
will comply with the Securities Act and the Rules and Regulations
and the Exchange Act, and the rules and regulations of the
Commission thereunder, so as to permit the completion of the
distribution of the Notes as contemplated in this Agreement and the
Prospectus. Subject to the provisions of Section 4(i) above, if
during the period in which a prospectus (or, in lieu thereof, the
notice referred to under Rule 173(a) under the Securities Act) is
required by law to be delivered by an Underwriter or a dealer any
event shall occur as a result of which, in the judgment of the
Company or in the opinion of counsel for the Underwriters, it
becomes necessary to amend or supplement the Prospectus in order to
make the statements therein, in the light of the circumstances
existing at the time the Prospectus is delivered to a purchaser,
not misleading, or, if it is necessary at any time to amend or
supplement the Prospectus to comply with any law, the Company
promptly will either (a) prepare and file with the Commission
an appropriate amendment to the Registration Statement or
supplement to the Prospectus or (b) prepare and file with the
Commission an appropriate filing under the Exchange Act which shall
be incorporated by reference in the Prospectus so that the
Prospectus as so amended or supplemented will not, in the light of
the circumstances when it is so delivered, be misleading, or so
that the Prospectus will comply with law.
(x) If the General
Disclosure Package is being used to solicit offers to buy the Notes
at a time when the Prospectus is not yet available to prospective
purchasers and any event shall occur as a result of which, in the
judgment of the Company or in the reasonable opinion of the
Underwriters, it becomes necessary to amend or supplement the
General Disclosure Package in order to make the statements therein,
in the light of the circumstances, not misleading, or to make the
statements therein not conflict with the information contained in
the Registration Statement then on file, or if it is necessary at
any time to amend or supplement the General Disclosure Package to
comply with any law, the Company promptly will either
(a) prepare, file with the Commission (if required) and
furnish to the Underwriters and any dealers an appropriate
amendment or supplement to the General Disclosure Package or
(b) prepare and file with the Commission an appropriate filing
under the Exchange Act which shall be incorporated by reference in
the General Disclosure Package so that the General Disclosure
Package as so amended or supplemented will not, in the light of the
circumstances, be misleading or conflict with the Registration
Statement then on file, or so that the General Disclosure Package
will comply with law.
(xi) The Company
will make generally available to its security holders, as soon as
it is practicable to do so, but in any event not later than
15 months after the effective date of the
12
Registration
Statement (as defined in Rule 158(c) under the Securities Act), an
earnings statement (which need not be audited) in reasonable
detail, covering a period of twelve consecutive months beginning
after the effective date of the Registration Statement, which
earnings statement shall satisfy the requirements of Section 11(a)
of the Securities Act and Rule 158 under the Securities
Act.
(xii) The Company
will, for a period of five years from the Closing Date, deliver to
the Representatives copies of annual reports and copies of all
other documents, reports and information furnished by the Company
to its stockholders or filed with any securities exchange pursuant
to the requirements of such exchange or with the Commission
pursuant to the Securities Act or the Exchange Act. The Company
will deliver to the Representatives similar reports with respect to
significant subsidiaries, as that term is defined in the Rules and
Regulations, which are not consolidated in the Company’s
financial statements.
(xiii) The Company
will use the net proceeds from the sale of the Notes pursuant to
this Agreement in the manner specified under the heading “Use
of Proceeds” in the Prospectus.
(xiv) No offering,
sale or other disposition of any Notes, Common Stock or any
securities of the Company that are substantially similar to the
Notes or the Common Stock will be made for a period of 90 days
after the date of this Agreement, directly or indirectly, by the
Company otherwise than hereunder or with the prior written consent
of Deutsche Bank Securities Inc. and UBS Securities LLC, except
that the Company may, without such consent, (a) issue
securities under the Company’s equity compensation plans for
officers, employees, and non-employee directors described in the
Company’s Annual Report on Form 10-K for the fiscal year
ended December 31, 2005; (b) issue shares upon the
exercise of options or other stock rights issued pursuant to the
Company’s equity compensation plans for officers, employees,
and non-employee directors described in the Company’s Annual
Report on Form 10-K for the fiscal year ended December 31,
2005; (c) sell shares of Common Stock pursuant to the Amended
and Restated Dividend Reinvestment and Stock Purchase Plan filed
with the Commission on December 11, 2003; (d) issue
shares of Common Stock upon conversion of any shares of 6%
Series E Cumulative Convertible and Redeemable Preferred Stock
outstanding as of the date hereof; or (e) issue shares of its
capital stock under the Company’s Registration Statement on
Form S-4 (File No. 333-138006) in connection with the proposed
merger of Windrose with and into a subsidiary of the
Company.
(xv) Between the
date of this Agreement and the Closing Date, the Company will not
take any action or authorize any action that would result in an
adjustment of the conversion price of the Notes if the Notes had
been issued on the date hereof; and
(xvi) The Company
will reserve and keep available at all times, free of preemptive
rights, shares of Common Stock for the purpose of enabling the
Company to satisfy any obligations to issue its Common Stock upon
conversion of the Notes.
5. Costs
and Expenses. The Company will pay all costs, expenses and fees
incident to the performance of its obligations under this Agreement
and the Indenture, including, without limiting the generality of
the foregoing, the following: the fees incident to the preparation,
issuance, execution, authentication and delivery of the Notes,
including any expenses of the Trustee; the fees payable to rating
agencies in connection with the rating of the Notes; accounting
fees of the Company and Windrose; the fees and disbursements of
counsel for the Company; the cost of printing and delivering to, or
as requested by, the Underwriters, copies of the Registration
Statement, the Preliminary Prosp
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