sv3asr
As filed with the Securities and Exchange Commission on May 10, 2010
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-3
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
HEALTH CARE REIT, INC.
(Exact Name of
Registrant as Specified in its Charter)
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DELAWARE
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34-1096634 |
(State or Other Jurisdiction
of Incorporation or Organization)
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(I.R.S. Employer
Identification Number) |
One SeaGate
Suite 1500
Toledo, Ohio 43604
(419) 247-2800
(Address, Including Zip Code, and Telephone Number, Including Area Code, of
Registrants Principal Executive Offices)
George L. Chapman
Chairman, Chief Executive Officer and President
Health Care REIT, Inc.
One SeaGate, Suite 1500
Toledo, Ohio 43604
(419) 247-2800
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code,
of Agent for Service)
With a copy to:
Mary Ellen Pisanelli, Esq.
Shumaker, Loop & Kendrick, LLP
North Courthouse Square
1000 Jackson Street
Toledo, Ohio 43604
(419) 241-9000
Approximate date of commencement of proposed sale to the public: From time to time after the
effective date of this registration statement.
If the only securities being registered on this Form are being offered pursuant to dividend or
interest reinvestment plans, please check the following box: o
If any of the securities being registered on this Form are to be offered on a delayed or continuous
basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box: þ
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b)
under the Securities Act, please check the following box and list the Securities Act registration
statement number of the earlier effective registration statement for the same offering. o
If this Form is a post-effective amendment filed pursuant to Rule 462(c) under the Securities Act,
check the following box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. o
If this Form is a registration statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the Commission pursuant to Rule
462(e) under the Securities Act, check the following box. þ
If this Form is a post-effective amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or additional classes of securities
pursuant to Rule 413(b) under the Securities Act, check the following box. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer þ
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Accelerated filer o
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Non-accelerated filer o
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Smaller reporting company o |
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(Do not check if a smaller reporting company) |
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CALCULATION OF REGISTRATION FEE
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PROPOSED MAXIMUM |
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PROPOSED MAXIMUM |
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TITLE OF SHARES TO BE |
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AMOUNT TO BE |
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OFFERING PRICE |
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AGGREGATE |
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AMOUNT OF |
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REGISTERED |
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REGISTERED |
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PER SHARE(1) |
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OFFERING PRICE |
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REGISTRATION FEE (2) |
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Common Stock, $1.00
par value |
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3,942,099 |
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$40.74 |
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$160,601,113 |
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$11,451 |
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(1) |
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Estimated solely for purposes of calculating the registration fee based upon the average of the
high and low prices reported for the shares of the common stock on the New York Stock Exchange on
May 6, 2010, pursuant to Rule 457(c). |
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(2) |
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The filing fee of $8,209 relating to 6,057,901 shares of common stock that are being carried
forward from the registration statement on Form S-3 (File No. 333-142987) filed by Health Care
REIT, Inc. on May 15, 2007 was previously paid in connection with the filing of such registration
statement. |
This registration statement includes 6,057,901 shares of common stock registered under the
registration statement on Form S-3 (File No. 333-142987) filed by Health Care REIT, Inc. on May 15,
2007, which have not been sold. Pursuant to Rule 415(a)(6) under the Securities Act of 1933, the
$8,209 filing fee previously paid in connection with such unsold shares will continue to be applied
to such unsold shares. The offering of the unsold shares under the prior registration statement
will be deemed terminated as of the date of effectiveness of this registration statement.
PROSPECTUS
HEALTH
CARE REIT, INC.
THIRD AMENDED AND RESTATED
DIVIDEND REINVESTMENT
AND STOCK PURCHASE PLAN
10,000,000 Shares of Common Stock, $1.00 Par Value Per
Share
With this prospectus, we are offering you the opportunity to
participate in our Third Amended and Restated Dividend
Reinvestment and Stock Purchase Plan (the Plan). The
Plan allows our existing stockholders to increase their holdings
of our common stock and gives new investors an opportunity to
make an initial investment in our common stock.
PLAN
HIGHLIGHTS
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If you are an existing stockholder, you may purchase additional
shares of our common stock by reinvesting all or a portion of
the dividends paid on your shares of common stock and by making
optional cash payments of not less than $50 up to a maximum of
$5,000 per month. In some instances, we may permit optional cash
payments in excess of this maximum if we approve your request
for waiver.
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If you are a new investor, you may join the Plan by making an
initial investment of not less than $1,000 up to a maximum of
$5,000. In some instances, we may permit initial investments in
excess of this maximum if we approve your request for waiver.
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Regardless of whether you are an existing stockholder or a new
investor, you may purchase shares of our common stock at a
discount ranging from 0% to 5% (currently set at 2%) without
paying any service fees, brokerage trading fees or other
charges. This discount applies to reinvested dividends and
optional cash payments. However, no discount will be available
for shares acquired in the open market. We may adjust the
discount in our discretion at any time and will announce changes
to the discount at least 30 days prior to the next
investment date. If we approve your request for waiver of the
monthly volume limit, we may offer you a discount ranging from
0% to 5%.
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Once you enroll in the Plan, you may authorize electronic
deductions from your bank account for optional cash payments.
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Your participation in the Plan is voluntary and you may
terminate your account at any time. If you elect not to
participate in the dividend reinvestment portion of the Plan,
you will receive dividends, if and when declared by our board of
directors, by check or automatic deposit to a bank account that
you designate.
Investing in our shares of common stock involves risks. You
should consider certain risk factors before enrolling in the
Plan. See Risk Factors and Cautionary
Statement Concerning Forward-Looking Statements on pages 3
and 4 of this prospectus for more information. We suggest you
retain this prospectus for future reference.
Our shares of common stock are listed on the New York Stock
Exchange under the symbol HCN. On May 7, 2010,
the last reported sales price of our common stock on the New
York Stock Exchange was $40.55 per share. Our executive offices
are located at One SeaGate, Suite 1500, Toledo, Ohio 43604,
telephone number:
419-247-2800,
facsimile:
419-247-2826,
and website: www.hcreit.com.
This prospectus is not an offer to sell these shares and it is
not soliciting an offer to buy these shares in any state where
the offer or sale is not permitted.
NEITHER
THE SECURITIES AND EXCHANGE COMMISSION NOR ANY STATE
SECURITIES COMMISSION HAS APPROVED OR DISAPPROVED OF THESE
SECURITIES
OR PASSED UPON THE ADEQUACY OR ACCURACY OF THIS PROSPECTUS.
ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL
OFFENSE.
The date of this prospectus is May 10, 2010.
RISK
FACTORS
Before you decide to participate in the Plan and invest in
shares of our common stock, you should be aware of the following
material risks in making such an investment. You should consider
carefully these risk factors together with all information
included or incorporated by reference in this prospectus before
you decide to participate in the Plan and purchase shares of
common stock. In addition, you should consult your own financial
and legal advisors before making an investment.
You will not know the share price of our common stock at the
time you make an investment decision.
You will not know the price of the shares you are purchasing
under the Plan at the time you authorize the investment or elect
to have your dividends reinvested.
The share price of our common stock may fluctuate between the
time you make an investment decision and the time the shares are
purchased or sold.
The price of our shares may fluctuate between the time you
decide to purchase shares under the Plan and the time of actual
purchase. In addition, during this time period, you may become
aware of additional information that might affect your
investment decision.
If you instruct the Administrator to sell shares under the Plan,
you will not be able to direct the time or price at which your
shares are sold. The share price of our common stock may decline
between the time you decide to sell shares and the time of
actual sale.
If you decide to withdraw from the Plan and request a
certificate for whole shares credited to you under the Plan, the
share price of our common stock may decline between the time you
decide to withdraw and the time you receive the certificate.
The share price of our common stock could be affected by
several factors.
The share price of our common stock depends upon several
factors, including, but not limited to: our financial condition,
performance and prospects; general economic and financial market
conditions; changes in estimates by analysts; the market for
similar securities issued by real estate investment trusts; and
our ability to meet analysts estimates. In addition, the
market price of our common stock may be affected by future sales
of our securities, including additional issuances of common
stock and securities convertible into common stock. These
factors, among others, could significantly depress the trading
price of our common stock.
Our issuance of additional securities may reduce the market
price for our shares.
The market price of our common stock may be affected by future
sales of our securities, including those made pursuant to the
equity distribution agreement with UBS Securities LLC and other
additional issuances of common stock and securities convertible
into common stock. In addition, UBS Securities LLC, as agent for
sales under the equity distribution agreement, will not engage
in any transactions that stabilize the price of our common
stock. We also are required to issue common stock to the holders
of the Series E Cumulative Convertible and Redeemable
Preferred Stock, the Series G Cumulative Convertible
Preferred Stock, the 4.75% Convertible Senior Notes due
2026, the 4.75% Convertible Senior Notes due 2027 and the
3.00% Convertible Senior Notes due 2029 if and when the
holders exercise their conversion rights. The number of shares
of common stock that we may issue upon conversion could be
significant and dilutive to our existing stockholders.
Holders of our outstanding shares of preferred stock have,
and holders of any future outstanding shares of preferred stock
will have, liquidation, dividend and other rights that are
senior to the rights of the holders of our common stock.
Since our board of directors has the authority to designate and
issue preferred stock with liquidation, dividend and other
rights that are senior to those of our common stock, our issued
and outstanding shares of preferred stock, as well as any that
may be issued in the future, would receive, upon our voluntary
or involuntary liquidation, dissolution or winding up, before
any payment is made to holders of our common stock, their
liquidation preferences as well as any accrued and unpaid
distributions. These payments would reduce the remaining amount
of our assets, if any, available for distribution to holders of
our common stock.
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Certain provisions in our certificate of incorporation and
by-laws may restrict your ownership of shares of our capital
stock and/or
discourage or prevent a change in our control.
In order to assist us in maintaining our qualification as a REIT
for U.S. federal income tax purposes, our by-laws provide
that no person may own, or be deemed to own by virtue of the
attribution rules of the Internal Revenue Code, more than 9.8%
of the value of our outstanding capital stock, subject to
certain exceptions. For this purpose, all options, warrants,
convertible securities or other rights to acquire our common
stock will be treated as if all such rights had been exercised.
If any shares or other securities in excess of this limit are
issued or transferred to any person, such issuance or transfer
shall be valid only with respect to such amount of shares or
securities as does not exceed this limit, and such issuance or
transfer will be void with respect to the excess. See
Restrictions on Transfer of Securities.
Provisions in our certificate of incorporation and by-laws and
Delaware law could prevent or deter an acquisition of us by a
third party, even if the acquisition would be favorable to you.
See Description of Certain Provisions of Our Certificate
of Incorporation and By-Laws.
Our ability to pay dividends in the future is subject to many
factors.
Our ability to pay dividends may be impaired if any of the risks
described in this prospectus or incorporated by reference into
this prospectus were to occur. In addition, payment of our
dividends depends upon our earnings, our financial condition,
maintenance of our REIT status and other factors as our board of
directors may deem relevant from time to time.
Other important factors are identified in our Annual
Report.
Other important factors are identified in our Annual Report on
Form 10-K
for the year ended December 31, 2009, which is incorporated
by reference into this prospectus, and may be identified in
documents filed by us with the Securities and Exchange
Commission (the SEC or the Commission)
after the date hereof that are incorporated by reference into
this prospectus, including factors identified under the headings
Business, Risk Factors and
Managements Discussion and Analysis of Financial
Condition and Results of Operations.
CAUTIONARY
STATEMENT CONCERNING FORWARD-LOOKING STATEMENTS
This prospectus and the documents incorporated by reference in
this prospectus contain forward-looking statements
as that term is defined under federal securities laws. These
forward-looking statements include, but are not limited to,
those regarding:
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the possible expansion of our portfolio;
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the sale of properties;
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the performance of our operators/tenants and properties;
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our ability to enter into agreements with new viable tenants for
vacant space or for properties that we take back from
financially troubled tenants, if any;
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our occupancy rates;
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our ability to acquire, develop
and/or
manage properties;
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our ability to make distributions to stockholders;
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our policies and plans regarding investments, financings and
other matters;
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our tax status as a real estate investment trust;
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our critical accounting policies;
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our ability to appropriately balance the use of debt and equity;
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our ability to access capital markets or other sources of
funds; and
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our ability to meet earnings guidance.
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When we use words such as may, will,
intend, should, believe,
expect, anticipate, project,
estimate or similar expressions, we are making
forward-looking statements. Forward-looking statements are not
guarantees of future performance and involve risks and
uncertainties. Our expected results may not be achieved, and
actual results may differ materially from our expectations. This
may be a result of various factors, including, but not limited
to:
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the status of the economy;
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the status of capital markets, including availability and cost
of capital;
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issues facing the health care industry, including compliance
with, and changes to, regulations and payment policies,
responding to government investigations and punitive settlements
and operators/tenants difficulty in cost-effectively
obtaining and maintaining adequate liability and other insurance;
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changes in financing terms;
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competition within the health care, senior housing and life
science industries;
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negative developments in the operating results or financial
condition of operators/tenants, including, but not limited to,
their ability to pay rent and repay loans;
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our ability to transition or sell facilities with profitable
results;
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the failure to make new investments as and when anticipated;
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acts of God affecting our properties;
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our ability to re-lease space at similar rates as vacancies
occur;
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our ability to timely reinvest sale proceeds at similar rates to
assets sold;
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operator/tenant or joint venture partner bankruptcies or
insolvencies;
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the cooperation of joint venture partners;
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government regulations affecting Medicare and Medicaid
reimbursement rates and operational requirements;
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regulatory approval and market acceptance of the products and
technologies of life science tenants;
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liability or contract claims by or against operators/tenants;
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unanticipated difficulties
and/or
expenditures relating to future acquisitions;
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environmental laws affecting our properties;
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changes in rules or practices governing our financial
reporting; and
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legal and operational matters, including real estate investment
trust qualification and key management personnel recruitment and
retention.
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We assume no obligation to update or revise any forward-looking
statements or to update the reasons why actual results could
differ from those projected in any forward-looking statements.
ABOUT
THIS PROSPECTUS
We have not authorized anyone to provide you with different or
inconsistent information from that contained in this prospectus
and the documents incorporated herein by reference. If anyone
provides you with different or inconsistent information, you
should not rely on it. You should assume that the information in
this prospectus is accurate only as of the date hereof and that
the documents incorporated herein by reference are accurate only
as of the date that such documents were filed with the SEC. Our
business, financial condition, results of operations and
prospects may have changed since these dates. This prospectus
does not constitute an offer to sell, or a solicitation of an
offer to buy, any securities other than the shares of common
stock offered hereby, or an offer to sell, or a
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solicitation of an offer to buy, such shares in any jurisdiction
in which, or to any person to whom, such offer or solicitation
would be unlawful.
This prospectus and the documents incorporated herein by
reference summarize material provisions of certain contracts and
other documents. These are summaries only, and you may wish to
review the full text of those documents for a full understanding
of their terms and conditions.
Unless otherwise indicated or unless the context requires
otherwise, all references in this prospectus to the
Company, we, us,
our and similar references mean Health Care REIT,
Inc. and its subsidiaries.
WHERE YOU
CAN FIND ADDITIONAL INFORMATION
This prospectus is part of a registration statement that we have
filed with the SEC covering the common stock that may be offered
under this prospectus. The registration statement, including the
attached exhibits and schedules, contains additional relevant
information about the common stock.
Additionally, we file annual, quarterly and current reports,
proxy statements and other information with the SEC, all of
which are made available, free of charge, on our Internet
website at www.hcreit.com as soon as reasonably practicable
after they are filed with, or furnished to, the SEC. You can
review our SEC filings and the registration statement by
accessing the SECs Internet site at
http://www.sec.gov.
You also may read and copy the registration statement and any
reports, statements or other information on file at the
SECs public reference room at 100 F Street,
N.E., Washington, D.C. 20549. You can request copies of
those documents upon payment of a duplicating fee to the SEC.
Please call the SEC at
1-800-SEC-0330
for further information on the operation of the public reference
room. Our filings with the SEC are also available through the
New York Stock Exchange, 20 Broad Street, New York, New
York 10005.
This prospectus does not contain all the information set forth
in the registration statement. We have omitted certain parts
consistent with SEC rules. For further information, please see
the registration statement.
DOCUMENTS
INCORPORATED BY REFERENCE
The SEC allows us to incorporate by reference the
information we file with the SEC, which means:
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we consider incorporated documents to be part of the prospectus;
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we may disclose important information to you by referring you to
those documents; and
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information we subsequently file with the SEC will automatically
update and supersede the information in this prospectus.
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This prospectus incorporates by reference the following
documents we filed with the SEC; provided, however, that we are
not incorporating any documents or information deemed to have
been furnished and not filed in accordance with SEC rules:
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Annual Report on
Form 10-K
for the year ended December 31, 2009.
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Quarterly Report on
Form 10-Q
for the quarter ended March 31, 2010.
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Current Reports on
Form 8-K
filed on March 15, 2010, April 5, 2010, April 7,
2010 and May 10, 2010.
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The description of our common stock as set forth in our
registration statement filed under the Exchange Act on
Form 8-A
on June 17, 1985, including any amendment or report for the
purpose of updating such description.
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The description of the rights to purchase our Series A
Junior Participating Preferred Stock, par value $1.00 per share,
associated with our common stock, as set forth in our
registration statement filed under the Exchange Act on
Form 8-A
on August 3, 1994, including any amendment or report for
the purpose of updating such description.
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The description of our
77/8%
Series D Cumulative Redeemable Preferred Stock as set forth
in the registration statement filed under the Exchange Act on
Form 8-A/A
on July 8, 2003, including any amendment or report for the
purpose of updating such description.
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The description of our
75/8%
Series F Cumulative Redeemable Preferred Stock as set forth
in the registration statement filed under the Exchange Act on
Form 8-A
on September 10, 2004, including any amendment or report
for the purpose of updating such description.
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The description of our 7.5% Series G Cumulative Convertible
Preferred Stock as set forth in the registration statement filed
under the Exchange Act on
Form 8-A
on December 18, 2006, including any amendment or report for
the purpose of updating such description.
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All subsequent documents filed by us under Sections 13(a),
13(c), 14 or 15(d) of the Exchange Act of 1934 after the date of
this prospectus and before the termination of the offering.
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other than the portions of such documents that by statute or
rule, by designation in such document or otherwise, are not
deemed to be filed with the SEC or are not required to be
incorporated herein by reference.
This prospectus summarizes material provisions of contracts and
other documents to which we refer. Since this prospectus may not
contain all the information that you may find important, you
should review the full text of those documents. Upon request, we
will provide each person receiving this prospectus a free copy
of any or all documents incorporated by reference into this
prospectus. You may direct such requests to:
Erin C. Ibele
Senior Vice President-Administration and Corporate Secretary
Health Care REIT, Inc.
One SeaGate, Suite 1500
Toledo, Ohio 43604
(419) 247-2800
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ABOUT OUR
COMPANY
We are a real estate investment trust that invests across the
full spectrum of senior housing and health care real estate. We
also provide an extensive array of property management and
development services. As of March 31, 2010, our broadly
diversified portfolio consisted of 608 properties in
39 states.
Our principal executive offices are located at One SeaGate,
Suite 1500, Toledo, Ohio, 43604, and our telephone number
is
(419) 247-2800.
Our website address is www.hcreit.com. The information on our
website is not part of this prospectus.
Our
Strategy
Our primary objectives are to protect stockholder capital and
enhance stockholder value. We seek to pay consistent cash
dividends to stockholders and create opportunities to increase
dividend payments to stockholders as a result of annual
increases in rental and interest income and portfolio growth. To
meet these objectives, we invest across the full spectrum of
senior housing and health care real estate and diversify our
investment portfolio by property type, operator/tenant and
geographic location.
For additional information regarding our business, please see
the information under the heading Business in our
most recent Annual Report on
Form 10-K,
which is incorporated by reference in this prospectus.
The
Portfolio
The following table summarizes our portfolio as of
March 31, 2010:
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Investments
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Percentage of
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Number of
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# Beds/Units
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Investment per
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Type of Property
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(In thousands)
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Investments
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Properties
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or Sq. Ft.
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metric(1)
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States
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Senior housing facilities
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$
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2,546,029
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38.1
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%
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229
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18,199
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units
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$140,580
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per unit
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33
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Skilled nursing facilities
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1,457,083
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21.9
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%
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207
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27,923
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beds
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52,182
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per bed
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26
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Hospitals
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673,271
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10.1
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%
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29
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1,716
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beds
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460,437
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per bed
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13
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Medical office buildings
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1,663,877
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25.0
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%
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137
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7,028,449
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sq. ft.
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246
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per sq. ft.
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23
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Life science buildings(2)
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325,925
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4.9
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%
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6
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n/a
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1
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Totals
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$
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6,666,185
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100.0
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%
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608
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39
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(1) |
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Investment per metric was computed by using the total
investment amount of $6,534,136,000, which includes net real
estate investments and unfunded construction commitments for
which initial funding has commenced which amounted to
$6,340,260,000 and $193,876,000, respectively. |
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(2) |
|
Includes our share of unconsolidated joint venture investments.
Please see Note 7 to our unaudited financial statements
included in our Quarterly Report on Form
10-Q for the
quarter ended March 31, 2010 for additional information. |
We invest in senior housing and health care real estate. We
diversify our investment portfolio by property type,
operator/tenant and geographic location. In determining whether
to invest in a property, we focus on the following: (1) the
experience of the obligors management team; (2) the
historical and projected financial and operational performance
of the property; (3) the credit of the obligor;
(4) the security for the lease or loan; and (5) the
capital committed to the property by the obligor. We conduct
market research and analysis for all potential investments. In
addition, we review the value of all properties, the interest
rates and covenant requirements of any debt to be assumed and
the anticipated sources of repayment of any existing debt that
is not to be assumed.
We monitor our investments through a variety of methods
determined by the type of property. Our asset management process
for investment properties generally includes review of monthly
financial statements and other operating data for each property,
periodic review of obligor creditworthiness, periodic property
inspections and review of covenant compliance relating to
licensure, real estate taxes, letters of credit and other
collateral. Our internal property management division actively
manages and monitors the medical office building portfolio with
a comprehensive process including tenant relations, tenant lease
expirations, the mix of health service providers,
hospital/health system relationships, property performance,
capital improvement needs and market conditions
8
among other things. In monitoring our portfolio, our personnel
use a proprietary database to collect and analyze
property-specific data. Additionally, we conduct extensive
research to ascertain industry trends and risks.
Through asset management and research, we evaluate the operating
environment in each propertys market to determine whether
payment risk is likely to increase. When we identify
unacceptable levels of payment risk, we seek to mitigate,
eliminate or transfer the risk. We categorize the risk as
obligor, property or market risk. For obligor risk, we typically
find a substitute operator/tenant to run the property. For
property risk, we usually work with the operator/tenant to
institute property-level management changes to address the risk.
Finally, for market risk, we often encourage an obligor to
change its capital structure, including refinancing the property
or raising additional equity. Through these asset management and
research efforts, we are generally able to intervene at an early
stage to address payment risk, and in so doing, support both the
collectability of revenue and the value of our investment.
RESTRICTIONS
ON TRANSFER OF SECURITIES
For us to qualify as a real estate investment trust, not more
than 50% in value of our outstanding capital stock may be owned,
directly or indirectly, by five or fewer individuals at any time
during the last half of our taxable year. In order to ensure
that this requirement is satisfied, our by-laws (with respect to
our common stock and preferred stock) and our certificates of
designation (for our preferred stock) provide that no person may
acquire securities that would result in the direct or indirect
beneficial ownership of more than 9.8% of our common stock or
more than 9.8% in value of our outstanding capital stock by such
person. For purposes of application of such limitations to any
person, all options, warrants, convertible securities or other
rights to acquire our common stock held directly or indirectly
by such person will be treated as if all such rights had been
exercised. If any securities in excess of this limit are issued
or transferred to any person, such issuance or transfer shall be
valid only with respect to such amount of securities as does not
exceed this limit, and such issuance or transfer will be void
with respect to the excess. The board of directors may grant
limited exemptions from the ownership restrictions set forth in
the by-laws to specified persons if the board determines that
each such limited exemption is in the best interests of us and
our stockholders.
Our by-laws and certificates of designation further provide
that, if the foregoing stock ownership limitations are
determined to be invalid by virtue of any legal decision,
statute, rule or regulation, then the transferee of the shares
or other securities will be deemed to have acted as our agent in
acquiring the shares or other securities that are in excess of
the limit, and will be deemed to hold such excess shares or
securities on our behalf. As the equivalent of treasury
securities for such purposes, the excess securities will not be
entitled to any voting rights, will not be considered to be
outstanding for quorum or voting purposes, and will not be
entitled to receive dividends, interest or any other
distribution with respect to such securities. Any person who
receives dividends, interest or any other distribution in
respect of the excess securities will hold the same as our agent
and for the transferee of the excess securities following a
permitted transfer.
In addition, under our by-laws and certificates of designation,
we may refuse to transfer any shares, passing either by
voluntary transfer, by operation of law, or under the last will
and testament of any stockholder, if such transfer would or
might, in the opinion of our board of directors or counsel,
disqualify us as a real estate investment trust.
DESCRIPTION
OF CERTAIN PROVISIONS OF OUR CERTIFICATE OF
INCORPORATION AND BY-LAWS
Anti-Takeover
Provisions
Our certificate of incorporation and by-laws contain provisions
that may have the effect of discouraging persons from acquiring
large blocks of our stock or delaying or preventing a change in
our control. The material provisions that may have such an
effect are:
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Classification of our board of directors into three classes with
the term of only one class expiring each year.
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A provision permitting our board of directors to make, amend or
repeal our by-laws.
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9
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Authorization for our board of directors to issue preferred
stock in series and to fix the rights and preferences of the
series, including, among other things, whether and to what
extent the shares of any series will have voting rights and the
extent of the preferences of the shares of any series with
respect to dividends and other matters.
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A prohibition on stockholders taking action by written consent
in lieu of a meeting.
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Advance notice procedures with respect to nominations of
directors by stockholders and proposals by stockholders of
business at an annual meeting.
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The grant only to our board of directors of the right to call
special meetings of stockholders.
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Limitations on the number of shares of our capital stock that
may be beneficially owned, directly or indirectly, by any one
stockholder (see Restrictions on Transfer of
Securities above).
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Limitations on transactions that involve us and any stockholder
who beneficially owns 5% or more of our voting stock (see
Limitations on Transactions Involving Us and
Our Stockholders below).
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A provision permitting amendment by the stockholders of certain
of the provisions listed above only by an affirmative vote of
the holders of at least three-quarters of all of the outstanding
shares of our voting stock, voting together as a single class.
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Limitations
on Transactions Involving Us and Our Stockholders
Under our by-laws, in addition to any vote otherwise required by
law, our certificate of incorporation or our by-laws, the
following transactions will require the affirmative vote of the
holders of at least 75% of the voting power of our then
outstanding shares of capital stock entitled to vote generally
in the election of directors, voting together as a single class:
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Our merger or consolidation with or into
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any stockholder that owns 5% or more of our voting stock; or
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any other corporation or entity which is, or after such merger
or consolidation would be, an affiliate of a stockholder that
owns 5% or more of our voting stock.
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Any sale, lease, exchange, mortgage, pledge, transfer or other
disposition of substantially all of our assets, in one
transaction or a series of transactions, to or with any
stockholder that owns 5% or more of our voting stock or an
affiliate of any such stockholder.
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Any reclassification of our securities, including any reverse
stock split, or recapitalization or any other transaction that
has the effect, directly or indirectly, of increasing the
proportionate share of the outstanding shares of any class of
our equity securities that is directly or indirectly owned by
any stockholder that owns 5% or more of our voting stock or any
affiliate of such a stockholder, whether or not the transaction
involves such a stockholder.
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The adoption of any plan or proposal for our liquidation or
dissolution proposed by or on behalf of a stockholder that owns
5% or more of our voting stock or any affiliate of such a
stockholder.
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These provisions will not apply to any of the transactions
described above if:
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We are at the time of the consummation of the transaction, and
at all times throughout the preceding twelve months have been,
directly or indirectly, the owner of a majority of each class of
the outstanding equity securities of the 5% stockholder that is
a party to the transaction; or
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The transaction has been approved by a majority of the members
of our board of directors who, at the time such approval is
given, were not affiliates or nominees of the 5%
stockholder; or
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Both of the following conditions have been met:
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the aggregate amount of the cash and the fair market value, as
determined in good faith by our board of directors, of the
consideration other than cash to be received per share by
holders of our voting stock in
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such transaction shall be at least equal to the highest per
share price paid by the 5% stockholder for any shares of voting
stock acquired by it:
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within the two-year period immediately prior to the first public
announcement of the proposal of the transaction, or
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in the transaction in which it became a 5% stockholder,
whichever is higher; and
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the consideration to be received by holders of a particular
class of outstanding voting stock shall be in cash or in the
same form as the 5% stockholder previously paid for shares of
such voting stock. If the 5% stockholder paid for shares of any
class of voting stock with varying forms of consideration, the
form of consideration to be paid by the 5% stockholder for such
class of voting stock shall be either cash or the form used to
acquire the largest number of shares of such class of voting
stock previously acquired by the stockholder.
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The foregoing summary of certain provisions of our certificate
of incorporation and by-laws does not purport to be complete or
to give effect to provisions of statutory or common law. The
foregoing summary is subject to, and qualified in its entirety
by reference to, the provisions of applicable law and our
certificate of incorporation and by-laws, copies of which are
incorporated by reference as exhibits to the registration
statement of which this prospectus is a part.
THE
PLAN
Description
of the Plan
Who is eligible to participate in the
Plan? New investors and existing stockholders of
Health Care REIT, Inc. are eligible to participate in the Plan.
How does a new investor participate in the
Plan? If you are a new investor and would like to
participate in the Plan, please read this prospectus before you
invest. Once you have read this prospectus, you may complete the
enclosed enrollment form and mail it to the Administrator in the
envelope provided. Alternatively, you may enroll on-line through
Investor
ServiceDirect®
at www.bnymellon.com/shareowner/isd. Simply click the
Investment Plan Enrollment button at the easy
search screen, then select the ticker symbol button and
enter HCN. Please follow the instructions for authorizing an
initial investment and indicate whether you want to participate
in the dividend reinvestment portion of the Plan.
New investors can participate in the Plan by making an initial
investment in our common stock of not less than $1,000 up to a
maximum of $5,000, unless a request for waiver has been granted
(in which case the initial investment may exceed $5,000). If you
are a new investor, you may make an initial investment by:
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Authorizing an electronic debit of at least $1,000 but not more
than $5,000 from your U.S. bank account. This alternative
is available to on-line investors only; or
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Mailing a check for at least $1,000 but not more than $5,000 to
the Administrator along with your enrollment form. Please make
the check payable to HCN/BNY Mellon.
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The purchase price for shares purchased with an initial
investment of not less than $1,000 up to a maximum of $5,000
will be equal to the market price less a discount ranging from
0% to 5% (currently set at 2%). This discount applies to
reinvested dividends and optional cash payments. However, no
discount will be available for shares acquired in the open
market. We may adjust the discount in our discretion at any time
and will announce changes to the discount at least 30 days
prior to the next investment date. See Purchases and
Pricing of Shares for a description of how the market
price is determined. We will not issue shares at a price that is
less than 95% of the average high and low sales prices of our
common stock on the investment date. If you request a waiver and
we approve it, your initial investment may exceed $5,000. See
Optional Cash Payments and Initial Investments in Excess
of $5,000 Request for Waiver and
Purchases and Pricing of Shares Purchased Pursuant to
a Request for Waiver for more information.
11
How does an existing stockholder participate in the
Plan? Enrollment is available on-line through
Investor
ServiceDirect®
at www.bnymellon.com/shareowner/isd. See
Administration for information on how to access
Investor
ServiceDirect®.
Alternatively, you may enroll by completing the enclosed
enrollment form and mailing it to the Administrator in the
envelope provided. Your participation will begin promptly after
your Plan enrollment is received. Once you enroll, your
participation continues automatically for as long as you wish to
participate in the Plan.
You may change your dividend reinvestment election at any time
on-line through Investor
ServiceDirect®
or by notifying the Administrator in writing. To be effective
with respect to a particular dividend, any such change must be
received by the Administrator on or before the record date for
that dividend. Except in unusual circumstances, the record date
will be approximately 20 days in advance of the dividend
payment date.
You may, of course, choose not to reinvest any of your
dividends, in which case the Administrator will remit any
dividends to you by check or automatic deposit to a bank account
that you designate.
As an existing stockholder, what are my investment options
under the Plan? Once enrolled in the Plan, you
may elect to:
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Reinvest all or a portion of your dividends in additional shares
of our common stock; and/or
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Make optional cash payments of not less than $50 up to a maximum
of $5,000 per month unless a request for waiver has been granted
(in which case your optional cash payments may exceed $5,000 for
the month in which the waiver is granted), regardless of whether
dividends are being reinvested. The $50 minimum applies only to
optional cash payments by existing Plan participants. New
investors must make an initial investment of not less than
$1,000.
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The purchase price for shares purchased with reinvested
dividends and optional cash payments up to $5,000 per month will
be equal to the market price less a discount ranging from 0% to
5% (currently set at 2%). This discount applies to reinvested
dividends and optional cash payments. However, no discount will
be available for shares acquired in the open market. We may
adjust the discount in our discretion at any time and will
announce changes to the discount at least 30 days prior to
the next investment date. See Purchases and Pricing of
Shares for a description of how the market price is
determined. You may make optional cash payments in excess of
$5,000 in any month only if we grant your request for waiver. If
a request for waiver is approved, we may offer discounts ranging
from 0% to 5%.
How do I make an optional cash payment under the
Plan? If you already own shares of our common
stock, are enrolled in the Plan and want to make optional cash
payments, you can authorize an individual automatic deduction
from your bank account through Investor
ServiceDirect®
or send a check to the Administrator for each optional cash
payment. If you choose to submit a check, please make sure to
include the contribution form from your Plan statement and mail
it to the address specified on the Plan statement. If you wish
to make regular monthly optional cash payments, you may
authorize automatic monthly deductions from your bank account.
Optional cash payments may not be less than $50, and the total
of all optional cash payments may not exceed $5,000 in any
month, unless a request for waiver has been granted (in which
case your optional cash payments may exceed $5,000 for the month
in which the waiver is granted).
Who is the administrator of the Plan? The Bank
of New York Mellon (the Administrator) administers
the Plan. Certain administrative support will be provided to the
Administrator by its designated affiliates. If you have
questions regarding the Plan, please write to the Administrator
at the following address: The Bank of New York Mellon
c/o BNY
Mellon Shareowner Services, P.O. Box 358035,
Pittsburgh, PA
15252-8035,
or call the Administrator at 1-888-216-7206 (if you are inside
the United States or Canada) or 1-201-680-6578 (if you are
outside the United States or Canada). An automated voice
response system is available 24 hours a day, 7 days a
week. Customer service representatives are available from
9:00 a.m. to 7:00 p.m., Eastern Standard Time, Monday
through Friday (except holidays). In addition, you may visit the
BNY Mellon Shareowner Services website at
www.bnymellon.com/shareowner/isd. At this website, you can
enroll in the Plan, obtain information, and perform certain
transactions on your Plan account via Investor
ServiceDirect®.
See Administration for more information regarding
Investor
ServiceDirect®
and the administration of the Plan.
12
When are funds invested under the Plan? The
investment date for initial investments and optional cash
payments will be the dividend payment date for months in which a
dividend is payable (generally, on or about the 20th day of
February, May, August and November). For those months in which a
dividend is not payable, the investment date for initial
investments and optional cash payments will be the 20th day of
the month, or the next succeeding business day if the 20th falls
on a weekend or holiday. In the unlikely event that, due to
unusual market conditions, the Administrator is unable to invest
the funds within 35 days, the Administrator will return the
funds to you by check. No interest will be paid on funds held by
the Administrator pending investment.
How do I make optional cash payments or an initial investment
in excess of the maximum monthly amount? If you
wish to make optional cash payments in excess of $5,000 in any
month or an initial investment in excess of $5,000, see
Optional Cash Payments and Initial Investments in Excess
of $5,000 Request for Waiver for more
information.
Who pays the brokerage trading fees and other
expenses? We will pay all brokerage trading fees
or other charges on shares purchased through the Plan. You may
be responsible for certain charges if you withdraw from the Plan.
Purpose
The purpose of the Plan is to provide a convenient and
economical way for our stockholders to invest all or a portion
of their cash dividends in additional shares of our common
stock. The Plan also allows our stockholders and new investors
to purchase additional shares of our common stock.
Eligibility
of New Investors
If you are a new investor, you can participate in the Plan by
making an initial investment in our common stock of not less
than $1,000 up to a maximum of $5,000. You may make an initial
investment in excess of $5,000 only if we grant your request for
waiver. New investors may join the Plan by completing the
enclosed enrollment form and delivering it, along with an
initial investment, to the Administrator. Alternatively, you may
enroll in the Plan on-line through Investor
ServiceDirect®
at www.bnymellon.com/shareowner/isd. See How does a new
investor participate in the Plan? for more information
on how to make an initial investment through Investor
ServiceDirect®.
Eligibility
of Existing Stockholders
If you are a current holder of record of our common stock, you
may participate in the Plan unless receipt of shares through the
Plan would cause you to beneficially own more than 9.8% of our
outstanding shares. See Restrictions on Transfer of
Securities and Description of Certain Provisions of
our Certificate of Incorporation and By-Laws for more
information. Eligible stockholders may join the Plan by
completing an enrollment form and delivering it to the
Administrator. Alternatively, you may enroll in the Plan on-line
through Investor
ServiceDirect®
at www.bnymellon.com/shareowner/isd. See How do I make
an optional cash payment under the Plan? for more
information on how to make an optional cash payment through
Investor
ServiceDirect®.
If you own shares that are registered in someone elses
name (for example, a bank, broker, or trustee) and you want to
participate in the Plan, you may be able to arrange for that
person to handle the reinvestment of dividends. If not, your
shares should be withdrawn from street name or other
form of registration and should be registered in your own name.
Alternatively, your broker or bank may offer a program that
allows you to participate in a plan without having to withdraw
your shares from street name.
If you are already a participant in the Plan, you need not take
any further action in order to maintain your present
participation.
Administration
The Bank of New York Mellon (the Administrator)
administers the Plan. Certain administrative support will be
provided to the Administrator by its designated affiliates.
13
You can enroll in the Plan, obtain information, and perform
certain transactions on your Plan account on-line via Investor
ServiceDirect®
(ISD). New investors establish a Personal Identification Number
(PIN) when setting up their account. For existing stockholders
to gain access and establish a PIN, use the
12-digit
Investor Identification Number (IID) which can be found in
a bolded box on your check stub, statement or advice. In order
to access your account through ISD, you will be required to
complete an account activation process. This one-time
authentication process will be used to validate your identity in
addition to your
12-digit IID
and self-assigned PIN.
To access Investor
ServiceDirect®
please visit the BNY Mellon Shareowner Services website at:
www.bnymellon.com/shareowner/isd
You can contact stockholder customer service toll-free within
the United States and Canada at:
1-888-216-7206
If you are calling from outside the United States or Canada,
please contact stockholder customer service at:
1-201-680-6578
An automated voice response system is available 24 hours a
day, 7 days a week. Customer service representatives are
available from 9:00 a.m. to 7:00 p.m., Eastern
Standard Time, Monday through Friday (except holidays).
You may write to the Administrator at the following address:
The Bank of
New York Mellon
c/o BNY
Mellon Shareowner Services
P.O. Box 358035
Pittsburgh, PA
15252-8035
Please include a reference to Health Care REIT, Inc. in all
correspondence.
Purchases
and Pricing of Shares
The market price for purchases of shares will be equal to the
average of the daily closing prices of our shares, as quoted by
the New York Stock Exchange Composite Transaction list as
published in the Wall Street Journal, for a period of 10 trading
days immediately preceding the investment date. However, we will
not issue shares at a price that is less than 95% of the average
of the high and low sales prices of our common stock on the
investment date.
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The purchase price for shares purchased with reinvested
dividends, initial investments up to $5,000 and optional cash
payments up to $5,000 per month will be the market price less a
discount ranging from 0% to 5% (currently set at 2%). This
discount applies to reinvested dividends and optional cash
payments. However, no discount will be available for shares
acquired in the open market. We may adjust the discount in our
discretion at any time and will announce changes to the discount
at least 30 days prior to the next investment date.
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If a request for waiver is approved, the purchase price for
shares purchased with optional cash payments in excess of $5,000
for any month or an initial investment in excess of $5,000 will
be determined as provided in Purchases and Pricing of
Shares Purchased Pursuant to a Request for Waiver.
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For months when a dividend is payable, the investment date will
be the dividend payment date for the quarter. Dividend payment
dates normally occur on or about the 20th day of February, May,
August, and November. For those months in which we do not pay a
dividend, the investment date will be the 20th day of the month,
or the next succeeding business day if the 20th falls on a
weekend or holiday. Your account will be credited with that
number of shares, including fractions computed to four decimal
places, equal to the total amount to be invested by you divided
by the applicable purchase price per share.
Except for certain charges incurred in connection with
withdrawal from the Plan, there are no brokerage trading fees or
other charges on shares purchased through the Plan.
14
Participation
Any eligible stockholder and new investor may join the Plan by
completing an enrollment form and returning it to the
Administrator at the following address: The Bank of New York
Mellon
c/o BNY
Mellon Shareowner Services, P.O. Box 358035,
Pittsburgh, PA
15252-8035.
If you are an eligible stockholder, you may submit an initial
optional cash payment of between $50 and $5,000 with your
completed enrollment form. If you are a new investor, you must
submit an initial investment of between $1,000 and $5,000 with
your completed enrollment form. Alternatively, you may enroll
on-line at www.bnymellon.com/shareowner/isd. You may make an
initial optional cash payment or an initial investment in excess
of $5,000 only if we grant your request for waiver.
If the Administrator receives your enrollment form on or before
the record date for the payment of the next dividend
(approximately 20 days in advance of the dividend payment
date), that dividend will be invested in additional shares of
common stock for your Plan account. If the enrollment form is
received in the period after any dividend record date, that
dividend will be paid by check or automatic deposit to a bank
account that you designate and your initial dividend
reinvestment will commence with the following dividend.
Once enrolled in the Plan, you can meet your individual
objectives by choosing among the following categories or
combinations of investments:
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You may reinvest all or a portion of the cash dividends paid on
your shares of common stock in additional shares of our common
stock.
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You may invest by making optional cash payments of not less than
$50 up to a maximum of $5,000 per month unless a request for
waiver has been granted (in which case your optional cash
payments may exceed $5,000 for the month in which the waiver is
granted), regardless of whether dividends are being reinvested.
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The $50 minimum described above applies only to optional cash
payments by Plan participants. New investors must make an
initial investment of not less than $1,000.
By enrolling in the Plan, you direct the Administrator to apply
dividends and any optional cash payments you might make as a
participant to the purchase of additional shares of our common
stock in accordance with the Plans terms and conditions.
Unless otherwise instructed, the Administrator will
automatically reinvest all dividends declared on shares held
under the Plan. If you do not want the dividends paid on your
shares to be reinvested, you must provide notice to the
Administrator. See Administration for information on
how to contact the Administrator. To be effective for a
particular dividend payment, the Administrator must receive such
notice on or before the record date for that dividend
(approximately 20 days in advance of the dividend payment
date). If the notice is received after the record date,
dividends paid on shares held in your account will be reinvested
and credited to your account. Your request will then be
processed as soon as practicable after the dividends are
reinvested.
Optional cash payments and initial investments can be delivered
to the Administrator in the form of a check made payable to
HCN/BNY Mellon, or by authorizing electronic transfers from your
bank account by accessing your Plan account on-line through
Investor
ServiceDirect®
at www.bnymellon.com/shareowner/isd. If you send a check, please
complete the transaction stub attached to your Plan statement
and then mail it with your payment to the address specified on
the Plan statement. A $35 fee will be assessed for a check or
electronic debit that is returned for insufficient funds.
The Administrator must receive the optional cash payment of an
existing stockholder at least one business day prior to the
investment date.
Cost
We will pay all brokerage trading fees, the annual cost of
administration and, unless provided otherwise in this Plan, all
other charges incurred in connection with the purchase of shares
acquired under the Plan, if any. Certain charges may be incurred
by you if you withdraw from the Plan as described below. See
Withdrawal by Participant.
15
Date for
Investment of Funds under the Plan
For months when a dividend is payable, the investment date will
be the dividend payment date for the quarter. Dividend payment
dates normally occur on or about the 20th day of February, May,
August, and November. For those months in which we do not pay a
dividend, the investment date will be the 20th day of the month,
or the next succeeding business day if the 20th falls on a
weekend or holiday. In the unlikely event that, due to unusual
market conditions, the Administrator is unable to invest the
funds within 35 days, the Administrator will return the
funds to you by check. No interest will be paid on funds held by
the Administrator pending investment.
Discounts
The discount on shares purchased with reinvested dividends,
initial investments up to $5,000 and optional cash payments up
to $5,000 per month will range from 0% to 5% (currently set at
2%). This discount applies to reinvested dividends and optional
cash payments. However, no discount will be available for shares
acquired in the open market. We may adjust the discount in our
discretion at any time and will announce changes to the discount
at least 30 days prior to the next investment date.
The discount, if any, on shares purchased pursuant to a request
for waiver is described in Purchases and Pricing of
Shares Purchased Pursuant to a Request for Waiver.
Initial
Investments by New Investors
New investors can participate in the Plan by making an initial
investment in our common stock of not less than $1,000 up to a
maximum of $5,000, unless a request for waiver has been granted
(in which case the initial investment may exceed $5,000). An
initial investment by a new investor may be made by enclosing a
check with the enrollment form. Checks should be made payable to
HCN/BNY Mellon. Alternatively, new investors may enroll on-line
at www.bnymellon.com/shareowner/isd.
The Administrator must receive your payment at least one
business day prior to the investment date. Funds received after
the investment date will be held for investment in the following
month. If you deliver an initial investment to the
Administrator, but decide that you do not want to make the
initial investment, you must deliver a written request for a
refund to the Administrator. See Administration for
information on how to contact the Administrator. The
Administrator must receive your request for a refund no later
than two business days prior to the investment date. In the
unlikely event that, due to unusual market conditions, the
Administrator is unable to invest the funds within 35 days,
the Administrator will return the funds to you by check. No
interest will be paid on funds held by the Administrator pending
investment.
Optional
Cash Payments by Existing Stockholders
Every month, you may purchase additional shares through optional
cash payments, regardless of whether dividends are being
reinvested. Optional cash payments may not be less than $50, and
the total of all optional cash payments submitted by an
individual stockholder may not exceed $5,000 in any month,
unless a request for waiver has been granted (in which case the
optional cash payments may exceed $5,000 for the month in which
the waiver is granted). The $50 minimum applies only to optional
cash payments by existing Plan participants. New investors must
make an initial investment of not less than $1,000. There is no
obligation either to make an optional cash payment in any month
or to invest the same amount of cash in each month.
If you already own shares of our common stock, are enrolled in
the Plan and want to make optional cash payments, you can
authorize an individual automatic deduction from your bank
account through Investor
ServiceDirect®
or send a check to the Administrator for each optional cash
payment. If you choose to submit a check, please make sure to
include the contribution form from your Plan statement and mail
it to the address specified on the Plan statement. If you wish
to make regular monthly optional cash payments, you may
authorize automatic monthly deductions from your bank account.
Optional cash payments must be sent so that the Administrator
receives the payment at least one business day prior to the
investment date. Funds received after the investment date will
be held for investment in the following month. If you deliver an
optional cash payment to the Administrator, but decide that you
do not want to make the
16
optional cash payment, you must deliver a written request for a
refund to the Administrator. See Administration for
information on how to contact the Administrator. The
Administrator must receive your request for a refund no later
than two business days prior to the investment date. In the
unlikely event that, due to unusual market conditions, the
Administrator is unable to invest the funds within 35 days,
the Administrator will return the funds to you by check. No
interest will be paid on funds held by the Administrator pending
investment.
Use of
Multiple Accounts
If you set up multiple accounts using variations of the same
name, bearing the same social security number or tax
identification number, do anything else, regardless of the form,
for the purpose of evading the $5,000 limitation on initial
investments and monthly optional cash payments, you will be
considered a single participant for purposes of the $5,000
limitation. If you have some shares of common stock registered
in your name and other shares registered under a nominees
or brokers street name, or in the name of a corporation,
trust, co-tenancy, partnership or other entity of which you are
an affiliate, you and all of your affiliates may
only invest a total of $5,000 per month under the Plan. For
purposes of this Plan, affiliate is defined in the
same manner as in Rule 405 of the Securities Act of 1933
and includes any person or persons controlling, controlled by or
under common control with you. Separate custodial or trust
accounts for separate beneficiaries will, however, be entitled
to invest up to $5,000 per account each month. Purchases made
for an account of a participant in a plan that is qualified
under Section 401(a) of the Internal Revenue Code of 1986,
as amended, will not be included in this $5,000 limitation.
Optional
Cash Payments and Initial Investments in Excess of
$5,000 Request for Waiver
If you want to make optional cash payments in excess of $5,000
in any month or an initial investment in excess of $5,000, you
must receive our written approval. To obtain our written
approval, you must submit a request for waiver form. You can
obtain a request for waiver form by contacting the
Administrators Waiver Department at 1-201-680-5300 and
upon completion, please send it to the Administrators
Waiver Department via facsimile at 1-201-680-4688.
We have the sole discretion whether to approve any request to
make an optional cash payment or initial investment in excess of
the maximum amount and to set the terms of any such optional
cash payment or initial investment. If we approve your request
for waiver, the Administrator will notify you promptly. In
deciding whether to approve a request for waiver, we will
consider relevant factors, including, but not limited to, the
following:
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Whether the Plan is then acquiring newly issued shares directly
from us or acquiring shares in the open market or in privately
negotiated transactions from third parties;
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Our need for additional funds;
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The attractiveness of obtaining additional funds through the
sale of common stock as compared to other sources of funds;
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The purchase price likely to apply to any sale of common stock;
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The stockholder submitting the request;
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The extent and nature of the stockholders prior
participation in the Plan;
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The number of shares of common stock held of record by the
stockholder; and
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The aggregate number of optional cash payments and initial
investments in excess of $5,000 for which requests for waiver
have been submitted by all existing stockholders and new
investors.
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If requests for waiver are submitted for an aggregate amount in
excess of the amount we are then willing to accept, we may honor
such requests in order of receipt, pro rata or by any other
method that we determine to be appropriate. The Plan does not
provide for a predetermined maximum amount that an existing
stockholder or new investor may invest or a maximum number of
shares that may be purchased pursuant to a request for waiver,
except that no stockholder may own more than 9.8% of our
outstanding shares.
17
Purchases
and Pricing of Shares Purchased Pursuant to a Request for
Waiver
If a request for waiver is approved, the price of shares
purchased pursuant to the request for waiver will be determined
using a pricing period of not less than one but not more than 10
trading days commencing on a date set by us. Optional cash
payments or initial investments made pursuant to a request for
waiver will be used to purchase shares of our common stock as
soon as practicable on or after the business day following the
last day of the pricing period. This date is referred to as the
waiver investment date. The Administrator will apply all good
funds received on or before the first business day before the
pricing period to purchase shares of our common stock. Funds
received after this date will be returned to you.
For purposes of determining the price per share on the waiver
investment date, the price will be equal to the average of the
high and low sales prices of our shares, computed up to four
decimal places, if necessary, as quoted on the New York Stock
Exchange, for the applicable trading days immediately preceding
the waiver investment date. The purchase price on any waiver
investment date may be reduced by the waiver discount, if any,
but in no event will the purchase price be less than 95% of the
average high and low sales prices of our common stock on the
waiver investment date. This means that if the average of the
daily high and low sales prices during the pricing period (for
trading days in which the threshold price, as described in the
next paragraph, is satisfied) is less than 95% of the average
high and low sales prices on the waiver investment date, the
purchase price per share on the waiver investment date will be
increased so that it is equal to 95% of the average high and low
sales prices on the waiver investment date.
For any pricing period, we may establish a minimum purchase
price per share, referred to as the threshold price, applicable
to optional cash payments and initial investments made pursuant
to a request for waiver. At least two business days prior to the
first day of the applicable pricing period, we will decide
whether to establish a threshold price, and if so, its amount.
We will notify the Administrator as to the amount of the
threshold price, if any. We will make this determination at our
discretion after a review of current market conditions, the
level of participation in the Plan and current and projected
capital needs.
If a threshold price is established for any pricing period, it
will be fixed as a dollar amount that the average of the high
and low sales prices of our common stock as quoted by the NYSE
for each trading day during the applicable pricing period must
equal or exceed (not adjusted for a waiver discount, if any). In
the event that the threshold price is not satisfied for a
trading day in the pricing period, then that trading day will be
excluded from the pricing period and all trading prices for that
trading day will be excluded from the determination of the
purchase price. In addition, we will exclude from the pricing
period and from the determination of the purchase price any
trading day in which no trades of common stock are made on the
NYSE. Thus, for example, for a
five-day
pricing period, if the threshold price is not satisfied or no
trades of our common stock are reported for one of the five
trading days in the pricing period, then the purchase price will
be based on the remaining four trading days in which the
threshold price is satisfied.
In addition, a portion of each optional cash payment or initial
investment will be returned for each trading day of a pricing
period in which the threshold price is not satisfied or for each
trading day in which no trades of our common stock are reported
on the NYSE. The amount returned will be equal to a pro rata
portion of the amount of the optional cash payment or initial
investment (not just the amount in excess of $5,000) for each
trading day that the threshold price is not satisfied or in
which no trades of our common stock are reported. For example,
for a
five-day
pricing period, if the threshold price is not satisfied or no
trades of our common stock are reported for one of the five
trading days in the pricing period, then
1/5
(or 20%) of the optional cash payment or initial investment will
be returned without interest.
The establishment of the threshold price and the possible return
of a portion of an optional cash payment or initial investment
applies only to optional cash payments and initial investments
made pursuant to a request for waiver. Setting a threshold price
for a pricing period will not affect the setting of a threshold
price for a subsequent pricing period. We may waive our right to
set a threshold price for any pricing period. Neither we nor the
Administrator is required to provide you with any written notice
as to the threshold price for any pricing period. You may
contact the Administrators Waiver Department at
1-201-680-5300 to find out if a threshold price has been fixed
or waived for any given pricing period.
18
For each pricing period, we may establish a discount from the
market price applicable to optional cash payments and initial
investments made pursuant to a request for waiver. This waiver
discount, if any, will range from 0% to 5% of the purchase price
and may vary for each pricing period. The waiver discount, if
any, will be established at our sole discretion after a review
of current market conditions, the level of participation in the
Plan, the attractiveness of obtaining additional funds through
the sale of our common stock as compared to other sources of
funds and current and projected capital needs. You may obtain
information regarding the maximum waiver discount, if any, by
contacting the Administrators Waiver Department at
1-201-680-5300. Setting a waiver discount for a particular
pricing period will not affect the setting of a waiver discount
for any subsequent pricing period. The waiver discount, if any,
will apply only to optional cash payments and initial
investments in excess of $5,000. The waiver discount will apply
to the entire optional cash payment or initial investment made
pursuant to a waiver and not just the portion in excess of
$5,000. The discount applicable to reinvested dividends, initial
investments up to $5,000 and optional cash payments up to $5,000
per month will not apply to initial investments and optional
cash payments made pursuant to a request for waiver.
We will only establish a threshold price or waiver discount for
shares that are purchased directly from us.
Number of
Shares to be Purchased for the Participant
The number of shares, including fractional shares, purchased
under the Plan will depend on the amount of your cash dividend,
the amount of your optional cash payments, the amount of your
initial investment, and the price of the shares determined as
provided above. Shares purchased under the Plan, including
fractional shares, will be credited to your account. Both whole
and fractional shares will be purchased. Fractional shares will
be computed to four decimal places.
This prospectus relates to 10,000,000 shares of our common
stock registered for sale under the Plan. We cannot assure you
there will be enough shares to meet the requirements under the
Plan. If we do not have a sufficient number of registered shares
to meet the Plan requirements during any month, the portion of
any reinvested dividends, optional cash payments, and initial
investments received by the Administrator but not invested in
our shares under the Plan will be returned to participants
without interest.
There is no special limitation on the cumulative number of
shares that may be purchased under the Plan. However, purchases
under the Plan are subject to the general restrictions contained
in our by-laws that prohibit purchases of shares that could
disqualify us as a real estate investment trust. See
Restrictions on Transfer of Securities and
Description of Certain Provisions of our Certificate of
Incorporation and By-Laws for more information.
Source of
Shares Purchased under the Plan
Shares purchased under the Plan will normally come from our
authorized but unissued shares of common stock. However, we
reserve the right to instruct the Administrator to purchase
shares for you in the open market, rather than issue new shares.
Such market purchases may be made on any securities exchange
where shares of our common stock are traded, in the
over-the-counter
market or in negotiated transactions, and may be on such terms
as to price, delivery, and otherwise as the Administrator may
determine. You will pay no service fees, brokerage trading fees
or other charges on purchases under the Plan whether shares are
newly issued or purchased in the open market.
Method
for Changing Dividend Reinvestment Election
You may change your dividend reinvestment election at any time
on-line through Investor
ServiceDirect®
or by notifying the Administrator in writing. See
Administration for information on how to contact the
Administrator. To be effective with respect to a particular
dividend, any such change must be received by the Administrator
on or before the record date for that dividend (approximately
20 days in advance of the dividend payment date).
19
Withdrawal
by Participant
You may discontinue the reinvestment of your dividends at any
time by providing written notice to the Administrator.
Alternatively, you may change your dividend election on-line
under account management service at
www.bnymellon.com/shareowner/isd. See Administration
for information on how to contact the Administrator. To be
effective for a particular dividend payment, the Administrator
must receive notice on or before the record date for that
dividend (approximately 20 days in advance of the dividend
payment date). The Administrator will continue to hold your
shares unless you request a certificate for any full shares and
a check for any fractional share. In addition, you may request
that all or part of your shares be sold. When your shares are
sold, you will receive the proceeds less a handling charge of
$15.00 and any brokerage trading fees.
Upon withdrawal, you may elect to stop the investment of any
initial investment or optional cash payment by delivering a
written request for a refund to the Administrator. The
Administrator must receive your request for a refund no later
than two business days prior to the investment date.
Generally, an eligible stockholder or new investor may again
become a participant in the Plan. However, we reserve the right
to reject the enrollment of a previous participant in the Plan
on grounds of excessive joining and termination. This
reservation is intended to minimize administrative expense and
to encourage use of the Plan as a long-term investment service.
Share
Certificates and Safekeeping
Shares of our common stock that you acquire under the Plan will
be maintained in your Plan account in non-certificated form for
safekeeping. Safekeeping protects your shares against loss,
theft or accidental destruction and also provides a convenient
way for you to keep track of your shares. Only shares held in
safekeeping may be sold through the Plan.
If you own shares of our common stock in certificated form, you
may deposit your certificates for those shares with the
Administrator, free of charge. The Administrator will provide
mail loss insurance coverage for certificates with a value not
exceeding $100,000 in any one shipping package. Certificates
should be delivered to the Administrator at 500 Ross Street,
Room #0675, Pittsburgh, PA 15262 by United States Post
Office registered mail, a national courier service or other
receipted delivery service. Please note that mail loss insurance
covers only the replacement of shares of our common stock and in
no way protects against any loss resulting from fluctuations in
the value of our shares.
Reports
to Participants
The Administrator will send a transaction notice confirming the
details of each transaction that you make. When you participate
in the dividend reinvestment feature, you will receive a
quarterly statement of your account.
Responsibilities
Under the Plan
We, the Administrator and any agent will not be liable in
administering the Plan for any act done in good faith, or for
any omission to act in good faith, including, without
limitation, any claim of liability arising out of failure to
terminate a participants account upon that
participants death prior to the receipt of notice in
writing of such death. Since we have delegated all
responsibility for administering the Plan to the Administrator,
we specifically disclaim any responsibility for any of its
actions or inactions in connection with the administration of
the Plan.
You should recognize that neither we, the Administrator, nor any
agent can assure you of a profit or protect you against a loss
on shares purchased under the Plan.
Interpretation
and Regulation of the Plan
We reserve the right to interpret and regulate the Plan.
20
Suspension,
Modification or Termination of the Plan
We reserve the right to suspend, modify or terminate the Plan at
any time. Participants will be notified of any suspension,
modification or termination of the Plan. Upon our termination of
the Plan, a certificate will be issued to you for the number of
full shares in your account. Any fractional share in your
account will be converted to cash and remitted to you by check
or automatic deposit to a bank account that you designate.
Miscellaneous
Effect of Stock Dividend, Stock Split or Rights
Offering. Any shares we distribute as a stock
dividend on shares (including fractional shares) credited to
your account under the Plan, or upon any split of such shares,
will be credited to your account. Share dividends or splits
distributed on all other shares held by you and registered in
your own name will be mailed directly to you.
In a rights offering, rights applicable to shares credited to
your account under the Plan will be sold by the Administrator
and the proceeds will be credited to your account under the Plan
and applied to the purchase of shares on the next investment
date. If you want to exercise, transfer or sell any portion of
the rights applicable to the shares credited to your account
under the Plan, you must request, at least two days prior to the
record date for the issuance of any such rights, that shares
credited to your account be transferred from your account and
registered in your name. Except in unusual circumstances, the
record date will be approximately 20 days in advance of the
dividend payment date.
Effect of Transfer of All Shares in Participants
Name. If you dispose of all the shares of our
common stock registered in your name, but do not give notice of
withdrawal to the Administrator, the Administrator will
continue to reinvest the cash dividends on any shares held in
your account under the Plan until the Administrator is otherwise
notified. See Withdrawal by Participant for more
information on how to withdraw from the Plan.
Voting of Participants Shares Held Under
Plan. The shares credited to your account under
the Plan will be voted in accordance with your instructions. If
you are a participant in the Plan and are not a holder of record
of shares in your own name, you will be furnished with a form of
proxy covering the shares credited to your account under the
Plan. If you are a participant in the Plan and are the holder of
record of shares in your own name, your proxy will be deemed to
include shares, if any, credited to your account under the Plan
and the shares held under the Plan will be voted in the same
manner as the shares registered in your own name. If a proxy is
not returned, none of your shares will be voted unless you vote
in person. If you want to vote in person at a meeting of
stockholders, a proxy for shares credited to your account under
the Plan may be obtained upon written request received by the
Administrator at least 15 days before the meeting.
LIMITATION
OF LIABILITY
The Plan provides that neither we nor the Administrator, nor any
independent agent will be liable in administering the Plan for
any act done in good faith or any omission to act in good faith
in connection with the Plan. This limitation includes, but is
not limited to, any claims of liability relating to:
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The failure to terminate your Plan account upon your death prior
to receiving written notice of your death; or
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The purchase or sale prices reflected in your Plan account or
the dates of purchases or sales of shares under the Plan; or
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Any loss or fluctuation in the market value of our shares after
the purchase or sale of shares under the Plan.
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The foregoing limitation of liability does not represent a
waiver of any rights you may have under applicable securities
laws.
21
USE OF
PROCEEDS
The net proceeds we realize from sales of our authorized and
unissued shares of common stock pursuant to the Plan will be
used for general corporate purposes, which may include investing
in health care and senior housing properties and repaying
borrowings under our credit facilities or other outstanding
indebtedness. Pending such use, any net proceeds from this
offering may be invested in short-term, investment grade,
interest-bearing securities, certificates of deposit or indirect
or guaranteed obligations of the United States. We do not know
either the number of shares that will be purchased under the
Plan or the prices at which the shares will be sold to
participants.
FEDERAL
INCOME TAX CONSEQUENCES
All participants are urged to consult their own tax advisors to
determine the particular tax consequences that may result from
their participation in the Plan and the subsequent disposal by
them of shares purchased under the Plan. The income tax
consequences for participants who do not reside in the United
States will vary from jurisdiction to jurisdiction. In the case
of a foreign stockholder whose distributions are subject to
United States income tax withholding, the amount of the tax to
be withheld will be deducted from the amount of the distribution
and the balance will be reinvested.
The following is a brief summary of the material federal income
tax considerations applicable to the Plan, which is for general
information only and is not tax advice. The information in this
section is based on the Internal Revenue Code of 1986, as
amended (Code), current, temporary and proposed
Treasury Regulations thereunder, the legislative history of the
Code, current administrative interpretations and practices of
the Internal Revenue Service (including its practices and
policies as endorsed in private letter rulings, which are not
binding on the Internal Revenue Service except with respect to a
taxpayer that receives such a ruling), and court decisions, all
as of the date of this prospectus. Future legislation, Treasury
Regulations, administrative interpretations or court decisions
could significantly change the current law or adversely affect
existing interpretations of current law. Any change could apply
retroactively to transactions preceding the date of the change.
We have not received nor do we intend to seek a private letter
ruling from the Internal Revenue Service regarding the Plan.
Tax
Consequences of Dividend Reinvestment
We will not issue shares at a price that is less than 95% of the
average high and low sales prices of our common stock on the
investment date.
In the case of common shares purchased by the Administrator from
us, participants in the Plan will be treated, for federal income
tax purposes, as having received a distribution equal to the
fair market value, as of the investment date, of the common
shares purchased with their reinvested dividends. The discount,
if any, will be treated as being part of the distribution
received by a participant. The discount shall not exceed more
than 5% of the average of the high and low sales prices of our
common stock on the investment date, and brokerage fees or other
commissions, if any, paid by us for the benefit of participants
shall be included when determining the discount.
In the event the Administrator purchases common shares in open
market transactions or in negotiated transactions with third
parties, the Internal Revenue Service has indicated in private
letter rulings that the amount of the distribution received by a
participant would include the fair market value of the common
shares purchased with reinvested dividends and a pro rata share
of any brokerage trading fees or other related charges paid by
us in connection with the Administrators purchase of the
common shares on behalf of the participant. The Plan currently
provides that we will pay brokerage trading fees for the
purchase of common shares in the open market or in negotiated
transactions with third parties.
As in the case of non-reinvested cash distributions, the
distributions described above will constitute taxable dividend
income to participants to the extent of our current and
accumulated earnings and profits allocable to the distributions
and any excess distributions will constitute a return of capital
which reduces the basis of the participants common shares
or results in gain to the extent that excess distributions
exceed the participants tax basis in his, her or its
common shares. In addition, if we designate part or all of our
distributions as capital gain distributions, those designated
amounts would be treated by a participant as long-term capital
gains.
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A participants tax basis in his, her or its common shares
acquired under the Plan will generally equal the total amount of
distributions a participant is treated as receiving, as
described above. A participants holding period in his,
her, or its common shares generally begins on the day following
the date on which the common shares are credited to the
participants Plan account.
Tax
Consequences of Optional Cash Payments
The Internal Revenue Service has indicated through private
letter rulings that participants participating in the dividend
reinvestment part of the Plan and who elect to purchase shares
by optional cash payments or as an initial investment will be
treated as having received a distribution equal to the excess,
if any, of the fair market value on the investment date of the
common shares purchased over the amount of the cash payment made
by the participant.
Also, if the Administrator acquires common shares in an open
market transaction or in a negotiated transaction with third
parties, the Internal Revenue Service has indicated through
private letter rulings that a participant will be treated as
receiving a distribution equal to a pro rata share of any
brokerage trading fees or other related charges paid by us on
behalf of the participant. The Plan currently provides that we
will pay brokerage trading fees for the purchase of common
shares in the open market or in negotiated transactions with
third parties.
Any distributions which the participant is treated as receiving,
including the discount, would be taxable income or gain or
reduce the basis in common shares, or some combination of these
treatments, under the rules described above under Tax
Consequences of Dividend Reinvestment.
The Internal Revenue Service has issued private letter rulings
that state that a participant who participates solely in the
cash purchase portion of a plan would not be treated as having
received a distribution of the discount amount and, therefore,
would not realize any income upon purchase attributable to the
discount. Private letter rulings are only binding on the
Internal Revenue Service with respect to the taxpayer to which
the ruling was issued. Therefore, there can be no assurance that
the Internal Revenue Service would take this position with
respect to transactions occurring under the Plan.
The tax basis of shares acquired by optional cash payments or as
an initial investment will generally equal the total amount of
distribution a participant is treated as receiving, as described
above, plus the amount of the cash payment. A participants
holding period for common shares purchased under the Plan
generally will begin on the day following the date on which
common shares are credited to the participants Plan
account.
Tax
Consequences of Dispositions
A participant may realize gain or loss when shares are sold or
exchanged, whether the sale or exchange is made at the
participants request upon withdrawal from the Plan or
takes place after withdrawal from or termination of the Plan
and, in the case of a fractional share, when the participant
receives a cash payment for a fraction of a share credited to
his or her account. The amount of the gain or loss will be the
difference between the amount that the participant receives for
the shares or fraction of a share and the tax basis for the
shares or fraction of a share.
Backup
Withholding and Administrative Expenses
In general, any dividend reinvested under the Plan is not
subject to federal income tax withholding. We or the
Administrator may be required to deduct as backup
withholding on all distributions paid to a stockholder,
regardless of whether those distributions are reinvested.
Similarly, the Administrator may be required to deduct backup
withholding from all proceeds of sales of common shares held in
a plan account. A participant is subject to backup withholding
if, (1) the participant has failed to properly furnish us
and the Administrator with his, her or its taxpayer
identification number; (2) the Internal Revenue Service
notifies us or the Administrator that the identification number
furnished by the participant is incorrect; (3) the Internal
Revenue Service notifies us or the Administrator that backup
withholding should be commenced because the participant failed
to report properly distributions paid to him, her or it; or
(4) when required to do so, the participant fails to
certify, under penalties of perjury, that the participant is not
subject to backup withholding.
23
Backup withholding amounts will be withheld from dividends
before those dividends are reinvested under the Plan. Therefore,
dividends to be reinvested under the Plan by participants
subject to backup withholding will be reduced by the backup
withholding amount. The withheld amounts constitute a credit on
the participants income tax return.
We intend to take the position that administrative expenses of
the Plan paid by us are not constructive distributions to
participants.
Our
Taxation
We elected to be taxed as a real estate investment trust
(REIT) commencing with our first fiscal year. We
intend to remain qualified as a REIT, but there is no guarantee
that we will qualify or remain qualified as a REIT for
subsequent years. In any year in which we qualify as a REIT, in
general, we will not be subject to federal income tax on that
portion of our REIT taxable income or capital gain that is
distributed to stockholders. We may, however, be subject to tax
at normal corporate rates on any taxable income or capital gain
not distributed.
If we fail to qualify as a REIT in any taxable year, we will be
subject to federal income tax, including any applicable
alternative minimum tax, on our taxable income at regular
corporate rates. Distributions to stockholders in any year in
which we fail to qualify as a REIT will not be deductible nor
will any particular amount of distributions be required to be
made in any year.
The preceding paragraphs provide a summary of the complex
federal income tax rules governing our taxation as a REIT. A
more detailed discussion of the federal taxation of us and our
stockholders is provided in our Annual Report on
Form 10-K
for the year ended December 31, 2009.
PLAN OF
DISTRIBUTION
The shares of our common stock sold under the Plan will be
either newly issued or purchased in the open market. A
registered broker/dealer that is affiliated with the
Administrator will assist in the identification of investors and
provide other related services, but will not be acting as an
underwriter with respect to shares of our common stock sold
under the Plan. You will pay no service fees or brokerage
trading fees whether shares are newly issued or purchased in the
open market. However, if you request that shares be sold, you
will receive the proceeds less a handling charge of $15.00 and
any brokerage trading fees. The common stock is currently listed
on the New York Stock Exchange.
In connection with the administration of the Plan, we may be
requested to approve investments made pursuant to requests for
waiver of the monthly volume limit by or on behalf of existing
stockholders and new investors who may be engaged in the
securities business. Persons who acquire shares of our common
stock through the Plan and resell them shortly after acquiring
them, including coverage of short positions, under certain
circumstances, may be participating in a distribution of
securities that would require compliance with Regulation M
under the Securities Exchange Act of 1934, and may be considered
to be underwriters within the meaning of the Securities Act of
1933. We will not extend to any such person any rights or
privileges other than those to which he, she or it would be
entitled as a Plan participant, nor will we enter into any
agreement with any such person regarding the resale or
distribution by any such person of the shares of our common
stock so purchased. We may, however, accept optional cash
payments and initial investments made pursuant to requests for
waiver by such persons.
From time to time, financial intermediaries, including brokers
and dealers, and other persons may engage in positioning
transactions in order to benefit from any waiver discounts
applicable to optional cash payments and initial investments
made pursuant to requests for waiver under the Plan. Those
transactions may cause fluctuations in the trading volume of our
common stock. Financial intermediaries and such other persons
who engage in positioning transactions may be deemed to be
underwriters. We have no arrangements or understandings, formal
or informal, with any person relating to the sale of shares of
our common stock to be received under the Plan. We reserve the
right to modify, suspend or terminate participation in the Plan
by otherwise eligible persons to eliminate practices that are
deemed by us to be inconsistent with the purposes of the Plan.
24
LEGAL
MATTERS
Certain legal matters regarding the shares of common stock
offered hereby will be passed upon for us by Shumaker,
Loop & Kendrick, LLP, Toledo, Ohio. As of May 10,
2010, the attorneys of Shumaker, Loop & Kendrick, LLP
participating in the preparation of this prospectus, the
registration statement and the required legal opinions
beneficially held, in the aggregate, approximately
2,500 shares of our common stock and 1,000 shares of
our preferred stock. Arnold & Porter LLP will pass
upon certain federal income tax matters relating to us.
EXPERTS
Ernst & Young LLP, independent registered public
accounting firm, has audited our consolidated financial
statements and schedules included in our Current Report on
Form 8-K
dated May 10, 2010, and the effectiveness of our internal
control over financial reporting as of December 31, 2009,
included in our Annual Report on
Form 10-K
for the year ended December 31, 2009, as set forth in their
reports, which are incorporated by reference in this prospectus
and elsewhere in the registration statement. Our financial
statements and schedules are incorporated by reference in
reliance upon Ernst & Young LLPs reports, given
on their authority as experts in accounting and auditing.
25
PART II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
Set forth below is a statement of the estimated expenses, other than any underwriting
discounts and commissions, to be incurred by the Company in connection with the offering of common
stock described in this registration statement.
|
|
|
|
|
SEC registration fee |
|
$ |
11,451 |
|
Printing expenses and postage |
|
|
10,000 |
|
Legal fees and expenses |
|
|
17,500 |
|
Accounting fees and expenses |
|
|
5,000 |
|
Listing fees |
|
|
14,783 |
|
Miscellaneous |
|
|
1,266 |
|
TOTAL |
|
$ |
60,000 |
|
Item 15. Indemnification of Officers and Directors.
Section 7 of our Second Restated Certificate of Incorporation, as amended, provides that our
directors will not be personally liable to us or our stockholders for monetary damages for breach
of fiduciary duty as a director, except for liability (1) for any breach of the directors duty of
loyalty to us or our stockholders, (2) for acts or omissions not in good faith or which involve
intentional misconduct or a knowing violation of law, (3) under Section 174 of the Delaware General
Corporation Law (the DGCL), or (4) for any transaction from which the director derived any
improper personal benefit. Section 7 also provides that if the DGCL is amended to further
eliminate or limit the personal liability of directors, then the liability of our directors will be
eliminated or limited to the extent permitted by the DGCL, as so amended. The Second Restated
Certificate of Incorporation also states that any repeal or modification of the foregoing paragraph
by our stockholders will not adversely affect any right or protection of our directors existing at
the time of such repeal or modification.
Our Second Amended and Restated By-Laws provide that we will indemnify, to the extent
permitted by the DGCL, any current or past director or officer of the Company who was or is a party
or is threatened to be made a party to any threatened, pending or completed action, suit or
proceeding, whether civil, criminal, administrative or investigative, by reason of the fact that he
or she is or was a director, officer, employee or agent of the Company, or is or was serving at our
request as a director, officer, employee, trustee, partner, agent or fiduciary of another
corporation, partnership, joint venture, employee benefit plan, trust or other enterprise, against
expenses (including attorneys fees), judgments, fines, penalties and amounts paid in settlement,
actually and reasonably incurred by him or her in connection with such threatened, pending or
completed action, suit or proceeding. Our Second Amended and Restated By-Laws further obligate us
to pay all expenses incurred by a current or past director or officer in defending or investigating
a threatened or pending action, suit or proceeding of the nature referenced above in advance of the
final disposition of such action, suit or proceeding upon receipt of an undertaking by or on behalf
of such person to repay such amount if it is ultimately determined that he or she is not entitled
to be indemnified by us as provided above. Under these provisions, however, we are not obligated
to indemnify any person in connection with a proceeding initiated by such person unless such
proceeding is in connection with a claim by such person to enforce rights as stated above or was
authorized or consented to by our Board of Directors.
We have entered into indemnification agreements with our directors, executive officers and
officers to assure them that they will be indemnified to the extent permitted by the Second
Restated Certificate of Incorporation, Second Amended and Restated By-Laws and Delaware law. The
indemnification agreements cover, subject to certain exceptions and limitations, any and all
expenses, judgments, fines, penalties, and amounts paid in settlement, provide for the prompt
advancement of all expenses incurred in connection with any threatened, pending or completed
action, suit or proceeding, or any inquiry or investigation, and obligate the director, executive
officer or officer to reimburse us for all amounts so advanced if it is subsequently determined, as
provided in the indemnification agreements, that the director, executive officer or officer is not
entitled to indemnification.
Delaware law requires indemnification in cases where a director or officer has been successful
in defending any claim or proceeding and permits indemnification, even if a director or officer has
not been successful, in cases where the director or officer acted in good faith and in a manner
that he or she reasonably believed was in, or not opposed to, the best interests of the
corporation. To be indemnified with respect to criminal proceedings, the director or officer must
also have had no reasonable cause to believe that his or her conduct was unlawful. In the case of
a claim by a third party (i.e., a party other than the corporation), Delaware law permits
indemnification for expenses (including attorneys fees), judgments, fines, and amounts paid in
settlement. In the case of a claim by, or in the right of, the corporation (including stockholder
derivative suits), indemnification under the DGCL is limited to expenses
(including attorneys fees) and no indemnification of expenses is permitted if the director or
officer is adjudged liable to the corporation unless a court determines that, despite such
adjudication but in view of all of the circumstances, such indemnification is nonetheless proper.
Delaware law also permits the advancement of expenses to directors and officers upon receipt of an
undertaking to repay all amounts so advanced if it is ultimately determined that the director or
officer has not met the applicable standard of conduct and is, therefore, not entitled to be
indemnified.
We maintain indemnification insurance that provides for reimbursement of indemnification
payments properly and lawfully made to our directors and officers and coverage, subject to certain
exceptions and limitations, for directors and officers in situations where we cannot or do not
indemnify them.
Item 16. Exhibits.
The exhibits to this registration statement are listed in the Exhibit Index and are
incorporated by reference herein.
Item 17. Undertakings.
(A) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this Registration Statement:
(i) To include any prospectus required by section 10(a)(3) of the Securities Act of
1933;
(ii) To reflect in the prospectus any facts or events arising after the effective date
of the Registration Statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set forth
in the Registration Statement. Notwithstanding the foregoing, any increase or decrease in
volume of securities offered (if the total dollar value of securities offered would not
exceed that which was registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no
more than a 20% change in the maximum aggregate offering price set forth in the Calculation
of Registration Fee table in the effective Registration Statement; and
(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the Registration Statement or any material change to such information
in the Registration Statement;
provided, however, that paragraphs (A)(1)(i), (A)(1)(ii) and (A)(1)(iii) of this section do not
apply if the information required to be included in a post-effective amendment by those paragraphs
is contained in reports filed with or furnished to the Commission by the Registrant pursuant to
section 13 or section 15(d) of the Securities Exchange Act of 1934 that are incorporated by
reference in the Registration Statement, or is contained in a form of prospectus filed pursuant to
Rule 424(b) that is a part of the Registration Statement.
(2) That, for the purpose of determining any liability under the Securities Act of 1933, each
such post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) Each prospectus filed by the Registrant pursuant to Rule 424(b)(3) shall be deemed
to be part of the Registration Statement as of the date the filed prospectus was deemed part
of and included in the Registration Statement; and
(ii) Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5), or (b)(7)
as part of a registration statement in reliance on Rule 430B relating to an offering made
pursuant to Rule 415(a)(1)(i), (vii), or (x) for the purpose of providing the information
required by Section 10(a) of the Securities Act of 1933 shall be deemed to be part of and
included in the registration statement as of the earlier of the date such form of prospectus
is first used after effectiveness or the date of the first contract of sale of securities in
the offering described in the prospectus. As provided in Rule 430B, for liability purposes of
the issuer and any person that is at that date an underwriter, such date shall be deemed to
be a new effective date of the registration statement relating to the securities in the
registration statement to which that prospectus relates, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof. Provided, however, that
II-2
no statement made in a registration statement or prospectus that is part of the
registration statement or made in a document incorporated or deemed incorporated by reference
into the registration statement or prospectus that is part of the registration statement
will, as to a purchaser with a time of contract of sale prior to such effective date,
supersede or modify any statement that was made in the registration statement or prospectus
that was part of the registration statement or made in any such document immediately prior to
such effective date.
(5) That, for the purpose of determining liability of the Registrant under the Securities Act
of 1933 to any purchaser in the initial distribution of the securities, the undersigned Registrant
undertakes that in a primary offering of securities of the undersigned Registrant pursuant to this
Registration Statement, regardless of the underwriting method used to sell the securities to the
purchaser, if the securities are offered or sold to such purchaser by means of any of the following
communications, the undersigned Registrant will be a seller to the purchaser and will be considered
to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned Registrant relating to
the offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of
the undersigned Registrant or used or referred to by the undersigned Registrant;
(iii) The portion of any other free writing prospectus relating to the offering
containing material information about the undersigned Registrant or its securities provided
by or on behalf of the undersigned Registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
Registrant to the purchaser.
(B) The undersigned Registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act of 1933, each filing of the Registrants annual report pursuant to Section
13(a) or Section 15(d) of the Securities Exchange Act of 1934 that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(C) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions or otherwise, the Registrant has been advised that in the opinion of the
Securities and Exchange Commission such indemnification is against public policy as expressed in
the Act and is, therefore, unenforceable. In the event that a claim for indemnification against
such liabilities (other than the payment by the Registrant of expenses incurred or paid by a
director, officer or controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person in connection with
the securities being registered, the Registrant will, unless in the opinion of its counsel the
matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the
question whether such indemnification by it is against public policy as expressed in the Act and
will be governed by the final adjudication of such issue.
II-3
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant certifies that it
has reasonable grounds to believe that it meets all of the requirements for filing on Form S-3 and
has duly caused this registration statement to be signed on its behalf by the undersigned hereunto
duly authorized in the City of Toledo, State of Ohio, on May 10, 2010.
|
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|
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HEALTH CARE REIT, INC.
|
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|
By: |
/s/ George L. Chapman
|
|
|
|
George L. Chapman |
|
|
|
Chairman, Chief Executive Officer and President
(Principal Executive Officer) |
|
|
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints George L. Chapman his or her attorney-in-fact with power of substitution for him in any
and all capacities, to sign any amendments, supplements, subsequent registration statements
relating to the offering to which this registration statement relates, or other instruments he or
she deems necessary or appropriate, and to file the same, with exhibits thereto, and other
documents in connection therewith, with the Securities and Exchange Commission, hereby ratifying
and confirming all that said attorney-in-fact or his substitute may do or cause to be done by
virtue hereof.
Pursuant to the requirements of the Securities Act of 1933, this registration statement has
been signed below on May 10, 2010 by the following person in the capacities indicated.
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/s/ William C. Ballard, Jr.*
William C. Ballard, Jr., Director
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/s/ Sharon M. Oster*
Sharon M. Oster, Director
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/s/ Pier C. Borra*
Pier C. Borra, Director
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/s/ Jeffrey R. Otten*
Jeffrey R. Otten, Director
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/s/ Thomas J. Derosa*
Thomas J. DeRosa, Director
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/s/ R. Scott Trumbull*
R. Scott Trumbull, Director
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/s/ Jeffrey H. Donahue*
Jeffrey H. Donahue, Director
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/s/ George L. Chapman
George L. Chapman, Chairman, Chief Executive Officer
and President and Director (Principal Executive Officer)
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/s/ Peter J. Grua*
Peter J. Grua, Director
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/s/ Scott A. Estes*
Scott A. Estes, Executive Vice President and
Chief Financial Officer (Principal Financial Officer)
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/s/ Fred S. Klipsch*
Fred S. Klipsch, Director
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/s/ Paul D. Nungester, Jr.*
Paul D. Nungester, Jr., Vice President and Controller
(Principal Accounting Officer)
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*By: |
/s/ George L. Chapman
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George L. Chapman, Attorney-in-Fact |
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II-4
EXHIBIT INDEX
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|
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|
|
3.1 |
(a) |
|
Second Restated Certificate of Incorporation of the Company (filed with the Commission as
Exhibit 3.1 to the Companys Form 10-K filed March 20, 2000 (File No. 001-08923), and
incorporated herein by reference thereto). |
|
3.1 |
(b) |
|
Certificate of Designation, Preferences and Rights of Junior Participating Preferred
Stock, Series A, of the Company (filed with the Commission as Exhibit 3.1 to the Companys
Form 10-K filed March 20, 2000 (File No. 001-08923), and incorporated herein by reference
thereto). |
|
3.1 |
(c) |
|
Certificate of Amendment of Second Restated Certificate of Incorporation of the Company
(filed with the Commission as Exhibit 3.1 to the Companys Form 10-K filed March 20, 2000
(File No. 001-08923), and incorporated herein by reference thereto). |
|
3.1 |
(d) |
|
Certificate of Amendment of Second Restated Certificate of Incorporation of the Company
(filed with the Commission as Exhibit 3.1 to the Companys Form 8-K filed June 13, 2003
(File No. 001-08923), and incorporated herein by reference thereto). |
|
3.1 |
(e) |
|
Certificate of Designation of 7 7/8% Series D Cumulative Redeemable Preferred Stock of
the Company (filed with the Commission as Exhibit 2.5 to the Companys Form 8-A/A filed
July 8, 2003 (File No. 001-08923), and incorporated herein by reference thereto). |
|
3.1 |
(f) |
|
Certificate of Designation of 6% Series E Cumulative Convertible and Redeemable Preferred
Stock of the Company (filed with the Commission as Exhibit 3.1 to the Companys Form 8-K
filed October 1, 2003 (File No. 001-08923), and incorporated herein by reference thereto). |
|
3.1 |
(g) |
|
Certificate of Designation of 7 5/8% Series F Cumulative Redeemable Preferred Stock of
the Company (filed with the Commission as Exhibit 2.5 to the Companys Form 8-A filed
September 10, 2004 (File No. 001-08923), and incorporated herein by reference thereto). |
|
3.1 |
(h) |
|
Certificate of Designation of 7.5% Series G Cumulative Convertible Preferred Stock of the
Company (filed with the Commission as Exhibit 3.1 to the Companys Form 8-K filed December
20, 2006 (File No. 001-08923), and incorporated herein by reference thereto). |
|
3.1 |
(i) |
|
Certificate of Amendment of Second Restated Certificate of Incorporation of the Company
(filed with the Commission as Exhibit 3.9 to the Companys Form 10-Q filed August 9, 2007
(File No. 001-08923), and incorporated herein by reference thereto). |
|
3.2 |
|
|
Second Amended and Restated By-Laws of the Company (filed with the Commission as
Exhibit 3.1 to the Companys Form 8-K filed October 29, 2007 (File No. 001-08923), and
incorporated herein by reference thereto). |
|
4.1 |
|
|
The Company, by signing this Report, agrees to furnish the Securities and Exchange
Commission upon its request a copy of any instrument that defines the rights of holders of
long-term debt of the Company and authorizes a total amount of securities not in excess of
10% of the total assets of the Company. |
|
4.2 |
(a) |
|
Indenture for Senior Debt Securities, dated as of September 6, 2002, between the Company
and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the Companys Form 8-K
filed September 9, 2002 (File No. 001-08923), and incorporated herein by reference
thereto). |
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4.2 |
(b) |
|
Supplemental Indenture No. 1, dated as of September 6, 2002, to Indenture for Senior Debt
Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed
with the Commission as Exhibit 4.2 to the Companys Form 8-K filed September 9, 2002 (File
No. 001-08923), and incorporated herein by reference thereto). |
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4.2 |
(c) |
|
Amendment No. 1, dated March 12, 2003, to Supplemental Indenture No. 1, dated as of
September 6, 2002, to Indenture for Senior Debt Securities, dated as of September 6, 2002,
between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.1 to the
Companys Form 8-K filed March 14, 2003 (File No. 001-08923), and incorporated herein by
reference thereto). |
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4.2 |
(d) |
|
Supplemental Indenture No. 2, dated as of September 10, 2003, to Indenture for Senior
Debt Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank
(filed with the Commission as Exhibit 4.2 to the Companys Form 8-K filed September 24,
2003 (File No. 001-08923), and incorporated herein by reference thereto). |
II-5
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4.2 |
(e) |
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Amendment No. 1, dated September 16, 2003, to Supplemental Indenture No. 2, dated as of
September 10, 2003, to Indenture for Senior Debt Securities, dated as of September 6, 2002,
between the Company and Fifth Third Bank (filed with the Commission as Exhibit 4.4 to the
Companys Form 8-K filed September 24, 2003 (File No. 001-08923), and incorporated herein
by reference thereto). |
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4.2 |
(f) |
|
Supplemental Indenture No. 3, dated as of October 29, 2003, to Indenture for Senior Debt
Securities, dated as of September 6, 2002, between the Company and Fifth Third Bank (filed
with the Commission as Exhibit 4.1 to the Companys Form 8-K filed October 30, 2003 (File
No. 001-08923), and incorporated herein by reference thereto). |
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4.2 |
(g) |
|
Amendment No. 1, dated September 13, 2004, to Supplemental Indenture No. 3, dated as of
October 29, 2003, to Indenture for Senior Debt Securities, dated as of September 6, 2002,
between the Company and The Bank of New York Trust Company, N.A., as successor to Fifth
Third Bank (filed with the Commission as Exhibit 4.1 to the Companys Form 8-K filed
September 13, 2004 (File No. 001-08923), and incorporated herein by reference thereto). |
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4.2 |
(h) |
|
Supplemental Indenture No. 4, dated as of April 27, 2005, to Indenture for Senior Debt
Securities, dated as of September 6, 2002, between the Company and The Bank of New York
Trust Company, N.A. (filed with the Commission as Exhibit 4.1 to the Companys Form 8-K
filed April 28, 2005 (File No. 001-08923), and incorporated herein by reference thereto). |
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4.2 |
(i) |
|
Supplemental Indenture No. 5, dated as of November 30, 2005, to Indenture for Senior Debt
Securities, dated as of September 6, 2002, between the Company and The Bank of New York
Trust Company, N.A. (filed with the Commission as Exhibit 4.1 to the Companys Form 8-K
filed November 30, 2005 (File No. 001-08923), and incorporated herein by reference
thereto). |
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4.3 |
(a) |
|
Indenture, dated as of November 20, 2006, between the Company and The Bank of New York
Trust Company, N.A. (filed with the Commission as Exhibit 4.1 to the Companys Form 8-K
filed November 20, 2006 (File No. 001-08923), and incorporated herein by reference
thereto). |
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4.3 |
(b) |
|
Supplemental Indenture No. 1, dated as of November 20, 2006, between the Company and The
Bank of New York Trust Company, N.A. (filed with the Commission as Exhibit 4.2 to the
Companys Form 8-K filed November 20, 2006 (File No. 001-08923), and incorporated herein by
reference thereto). |
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4.3 |
(c) |
|
Supplemental Indenture No. 2, dated as of July 20, 2007, between the Company and The Bank
of New York Trust Company, N.A. (filed with the Commission as Exhibit 4.1 to the Companys
Form 8-K filed July 20, 2007 (File No. 001-08923), and incorporated herein by reference
thereto). |
|
4.4 |
(a) |
|
Indenture, dated as of March 15, 2010, between the Company and The Bank of New York
Mellon Trust Company, N.A. (filed with the Commission as Exhibit 4.1 to the Companys Form
8-K filed March 15, 2010 (File No. 001-08923), and incorporated herein by reference
thereto). |
|
4.4 |
(b) |
|
Supplemental Indenture No. 1, dated as of March 15, 2010, between the Company and The
Bank of New York Mellon Trust Company, N.A. (filed with the Commission as Exhibit 4.2 to
the Companys Form 8-K filed March 15, 2010 (File No. 001-08923), and incorporated herein
by reference thereto). |
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4.4 |
(c) |
|
Supplemental Indenture No. 2, dated as of April 7, 2010, between the Company and The Bank
of New York Mellon Trust Company, N.A. (filed with the Commission as Exhibit 4.2 to the
Companys Form 8-K filed April 7, 2010 (File No. 001-08923), and incorporated herein by
reference thereto). |
|
4.5 |
|
|
Form of Indenture for Senior Subordinated Debt Securities (filed with the Commission as
Exhibit 4.9 to the Companys Form S-3 (File No. 333-73936) filed November 21, 2001, and
incorporated herein by reference thereto). |
|
4.6 |
|
|
Form of Indenture for Junior Subordinated Debt Securities (filed with the Commission as
Exhibit 4.10 to the Companys Form S-3 (File No. 333-73936) filed November 21, 2001, and
incorporated herein by reference thereto). |
|
5.1 |
|
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Opinion of Shumaker, Loop & Kendrick, LLP. |
|
8.1 |
|
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Tax
Opinion of Arnold & Porter LLP. |
|
23.1 |
|
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Consent of Ernst & Young LLP, independent registered public accounting firm. |
II-6
|
|
|
|
|
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23.2 |
|
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The consent of Shumaker, Loop & Kendrick, LLP, to the use of their opinion as an
exhibit to this Registration Statement is included in their opinion filed as Exhibit 5.1. |
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24.1 |
|
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Power of Attorney executed by William C. Ballard, Jr. (Director). |
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24.2 |
|
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Power of Attorney executed by Pier C. Borra (Director). |
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24.3 |
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Power of Attorney executed by Thomas J. DeRosa (Director). |
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24.4 |
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Power of Attorney executed by Jeffrey H. Donahue (Director). |
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24.5 |
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Power of Attorney executed by Peter J. Grua (Director). |
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24.6 |
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Power of Attorney executed by Fred S. Klipsch (Director). |
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24.7 |
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Power of Attorney executed by Sharon M. Oster (Director). |
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24.8 |
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Power of Attorney executed by Jeffrey R. Otten (Director). |
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24.9 |
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Power of Attorney executed by R. Scott Trumbull (Director). |
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24.10 |
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Power of Attorney executed by George L. Chapman (Director, Chairman of the Board,
Chief Executive Officer and President and Principal Executive Officer). |
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24.11 |
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Power of Attorney executed by Scott A. Estes (Executive Vice President and Chief
Financial Officer and Principal Financial Officer). |
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24.12 |
|
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Power of Attorney executed by Paul D. Nungester, Jr. (Vice President and Controller
and Principal Accounting Officer). |
|
99.1 |
|
|
Form of Enrollment Form for Health Care REIT, Inc. Dividend Reinvestment & Stock
Purchase Plan (filed with the Commission as Exhibit 99.1 to the Companys Form S-3 (File
No. 333-104831) filed April 29, 2003, and incorporated herein by reference thereto). |
II-7