SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM 8-A/A
(Amendment No. 1)
FOR REGISTRATION OF CERTAIN CLASSES OF SECURITIES
PURSUANT TO SECTION 12(b) OR 12(g) OF THE
SECURITIES EXCHANGE ACT OF 1934
HEALTH CARE REIT, INC.
(Exact name of registrant as specified in its charter)
DELAWARE 34-1096634
(State of incorporation) (I.R.S. Employer Identification No.)
One SeaGate, Suite 1500, Toledo, Ohio 43604
(Address of principal executive offices) (Zip Code)
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(B) OF THE ACT:
Title of each class Name of each exchange on which
to be so registered each class is to be registered
7 7/8% Series D Cumulative New York Stock Exchange
Redeemable Preferred Stock
If this Form relates to the registration of a class of securities pursuant to
Section 12(b) of the Exchange Act and is effective pursuant to General
Instruction A.(c), check the following box: [X]
If this Form relates to the registration of a class of securities pursuant to
Section 12(g) of the Exchange Act and is effective pursuant to General
Instruction A.(d), check the following box: [ ]
Securities Act registration statement file number to which this form relates:
333-73936
SECURITIES TO BE REGISTERED PURSUANT TO SECTION 12(G) OF THE ACT:
None
(Title of Class)
The purpose of this Amendment No. 1 is to incorporate the definitive Certificate
of Designation of 7 7/8% Series D Cumulative Redeemable Preferred Stock ("Series
D Preferred Stock") included as Exhibit 2.5 hereto.
INFORMATION REQUIRED IN REGISTRATION STATEMENT
ITEM 1. DESCRIPTION OF REGISTRANT'S SECURITIES TO BE REGISTERED.
GENERAL
Pursuant to our Second Restated Certificate of Incorporation (the
"Certificate"), we are authorized to issue up to 25,000,000 shares of preferred
stock, $1.00 par value per share, in one or more series, with such designations,
powers, preferences and relative, participating, optional or other special
rights and qualifications, limitations or restrictions thereon, including, but
not limited to, dividend rights, dividend rate or rates, conversion rights,
voting rights, rights and terms of redemption, including sinking fund
provisions, the redemption price or prices and the liquidation preferences in
each case, if any, as are permitted by Delaware law and as the Board of
Directors may determine by adoption of an amendment to the Certificate without
any further vote or action by our stockholders.
The following summary of the terms and provisions of the Series D Preferred
Stock does not purport to be complete and is qualified in its entirety by
reference to the pertinent sections in the Certificate and the Certificate of
Designation creating the Series D Preferred Stock, which have been furnished as
Exhibits 2.1 and 2.5, respectively.
MATURITY
The Series D Preferred Stock has no stated maturity and will not be subject
to any sinking fund or mandatory redemption.
DIVIDENDS
Holders of shares of the Series D Preferred Stock are entitled to receive,
when, as and if declared by our Board of Directors or authorized Board
committee, out of funds legally available for the payment of dividends,
cumulative preferential cash dividends at the rate of 7 7/8% of the liquidation
preference per annum per share, equivalent to $1.96875 per share.
Dividends on the Series D Preferred Stock shall be cumulative from the date
of original issue and shall be payable quarterly in arrears on or about the 15th
day of January, April, July and October or, if not a business day, the next
succeeding business day. The first dividend on the Series D Preferred Stock is
scheduled to be paid on October 15, 2003. Any dividend payable on the Series D
Preferred Stock for any partial dividend period will be computed on the basis of
a 360-day year consisting of twelve 30-day months. Dividends will be payable to
holders of record as they appear in our stock records at the close of business
on the applicable record date, which shall be the last day of the calendar month
first preceding the applicable dividend payment date or on such other date
designated by the Board of Directors for the payment of dividends that is not
more than 30 nor less than 10 days prior to such dividend payment date.
No dividends on shares of Series D Preferred Stock will be declared by the
Board of Directors or paid or set apart for payment by us if such declaration or
payment shall be restricted or prohibited by law.
Notwithstanding the foregoing, dividends on the Series D Preferred Stock
will accrue whether or not we have earnings, whether or not there are funds
legally available for the payment of such dividends and whether or not such
dividends are declared. Accrued but unpaid dividends on the Series D Preferred
Stock will not bear interest and holders of the Series D Preferred Stock will
not be entitled to any dividends in excess of full cumulative dividends
described above. Any dividend payment made on the Series D Preferred Stock will
first be credited against the earliest accumulated but unpaid dividend due with
respect to such shares that remains payable.
If, for any taxable year, we elect to designate as "capital gain dividends,"
as defined in Section 857 of the Internal Revenue Code, any portion of the
dividends, as determined for federal income tax purposes, paid or made available
for the year to holders of all classes of stock, then the portion of the capital
gains dividends that will be allocable to the holders of Series D Preferred
Stock will be the amount that the total dividends, as determined for federal
income tax purposes, paid or made available to the holders of the Series D
Preferred Stock for the year bears to the total dividends paid or made available
for the year to holders of all classes of stock. We will make a similar
allocation with respect to any of our undistributed long-term capital gains that
are to be included in our stockholders' long-term capital gains, based on the
allocation of the capital gains amount that would have resulted if such
undistributed long-term capital gains had been distributed as capital gains
dividends by us to our stockholders. See our Annual Report on Form 10-K for the
fiscal year ended December 31, 2002 under the heading "Taxation."
No full dividends will be declared or paid or set apart for payment on any
series of preferred stock ranking, as to dividends, on a parity with or junior
to the Series D Preferred Stock, other than a dividend in shares of any class of
stock ranking junior to the Series D Preferred Stock as to dividends and upon
liquidation, for any period unless full cumulative dividends have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for such payment on the Series D Preferred Stock
for all past dividend periods and the then current dividend period. When
dividends are not paid in full, or a sum sufficient for such full payment is not
so set apart, upon the Series D Preferred Stock and the shares of any other
series of preferred stock ranking on a parity as to dividends with the Series D
Preferred Stock, all dividends declared upon the Series D Preferred Stock and
any other series of preferred stock ranking on a parity as to dividends with the
Series D Preferred Stock will be declared pro rata so that the amount of
dividends declared per share of Series D Preferred Stock and such other series
of preferred stock will bear to each other the same ratio that accrued dividends
per share on the Series D Preferred Stock and such other series of preferred
stock bear to each other. If such other preferred stock does not have a
cumulative dividend, there will be no accrual in respect of unpaid dividends for
prior dividend periods for such preferred stock.
Except as provided in the immediately preceding paragraph, unless full
cumulative dividends on the Series D Preferred Stock have been or
contemporaneously are declared and paid or declared and a sum sufficient for the
payment thereof is set apart for payment for all past dividend periods and the
then current dividend period, no dividends (other than in shares of common stock
or other shares of capital stock ranking junior to the Series D Preferred Stock
as to dividends and upon liquidation) will be declared or paid or set aside for
payment nor will any other distribution be declared or made upon the common
stock, or any of our other capital stock ranking junior to or on a parity with
the Series D Preferred Stock as to dividends or upon liquidation. Further, no
shares of common stock or any other shares of our capital stock ranking junior
to or on a parity with the Series D Preferred Stock as to dividends or upon
liquidation will be redeemed, purchased or otherwise acquired by us for any
consideration, and no money will be paid to or made available for a sinking fund
for the redemption of any such shares of any such stock. However, such shares
may be converted into or exchanged for other capital stock of ours ranking
junior to the Series D Preferred Stock as to dividends and upon liquidation and
may be acquired by us for the purpose of preserving our qualification as a REIT.
LIQUIDATION PREFERENCES
Upon our voluntary or involuntary liquidation, dissolution or winding up of
our affairs, the holders of the Series D Preferred Stock are entitled to be paid
out of our assets legally available for distribution to our stockholders a
liquidation preference of $25.00 per share, plus an amount equal to any accrued
and unpaid dividends to the date of payment, before any distribution of assets
is made to holders of common stock or any other class or series of our capital
stock that ranks junior to the Series D Preferred Stock as to liquidation
rights.
REDEMPTION
The Series D Preferred Stock is not redeemable prior to July 9, 2008. On and
after July 9, 2008, we may redeem shares of the Series D Preferred Stock, at our
option at any time and from time to time, in whole or in part, upon not less
than 30 nor more than 60 days' written notice, for cash at a redemption price of
$25.00 per share, plus all accrued and unpaid dividends thereon to the date
fixed for redemption, to the extent we have funds legally available therefor.
The redemption price (other than the portion thereof consisting of accrued and
unpaid dividends) is payable solely out of the sale proceeds of our other
capital stock, which may include shares of other series of preferred stock. For
purposes of the preceding sentence, "capital stock" means any common stock,
preferred stock, depository shares, interests, participation or other ownership
interests (however designated) and any rights (other than debt securities
convertible into or exchangeable for equity securities) or options to purchase
any of the foregoing. Holders of Series D Preferred Stock to be redeemed must
surrender the certificates representing the shares of such Series D Preferred
Stock at the place designated in such notice and will be entitled to the
redemption price and any accrued and unpaid dividends payable upon such
redemption following such surrender. If notice of redemption of any shares of
Series D Preferred Stock has been given and if the funds necessary for such
redemption have been set aside by us in trust for the benefit of the holders of
any shares of Series D Preferred Stock so called for redemption, then from and
after the redemption date dividends will cease to accrue on such shares of
Series D Preferred Stock, such shares of Series D Preferred Stock will no longer
be deemed outstanding and all rights of the holders of such shares will
terminate, except the right to receive the redemption price. If less than all of
the outstanding Series D Preferred Stock is to be redeemed, the Series D
Preferred Stock to be redeemed will be selected pro rata (as nearly as may be
practicable without creating fractional shares) or by any other equitable method
determined by us.
Unless full cumulative dividends on all shares of Series D Preferred Stock
have been or contemporaneously are declared and paid or declared and a sum
sufficient for the payment thereof set apart for payment for all past dividend
periods and the then current dividend period, no shares of Series D Preferred
Stock will be redeemed unless all outstanding shares of Series D Preferred Stock
are simultaneously redeemed and we will not purchase or otherwise acquire
directly or indirectly any shares of Series D Preferred Stock (except by
exchange for our capital stock ranking junior to the Series D Preferred Stock as
to dividends and upon liquidation); provided, however, that the foregoing will
not prevent the purchase by us of shares of Series D Preferred Stock in order to
ensure that we continue to meet the requirements for qualification as a REIT, or
the purchase or acquisition of shares of Series D Preferred Stock pursuant to a
purchase or exchange offer made on the same terms to holders of all outstanding
shares of Series D Preferred Stock. See "Restrictions on Ownership and Transfer"
below. So long as no dividends are in arrears, we will be entitled at any time
and from time to time to repurchase shares of Series D Preferred Stock in
open-market transactions duly authorized by the Board of Directors and effected
in compliance with applicable laws.
Notice of redemption will be given by publication in a newspaper of general
circulation in the City of New York, such publication to be made once a week for
two successive weeks commencing not less than 30 nor more than 60 days prior to
the redemption date. A similar notice furnished by us will be mailed, postage
prepaid, not less than 30 nor more than 60 days prior to the redemption date,
addressed to the respective holders of record of the Series D Preferred Stock to
be redeemed at their respective addresses as they appear on the stock transfer
records of the transfer agent. No failure to give such notice or any defect
therein or in the mailing thereof will affect the validity of the proceedings
for the redemption of any shares of Series D Preferred Stock except as to the
holder to whom notice was defective or not given.
Each notice will state:
(i) the redemption date;
(ii) the redemption price;
(iii) the number of shares of Series D Preferred Stock to be redeemed;
(iv) the place or places where the Series D Preferred Stock is to be
surrendered for payment of the redemption price; and
(v) that dividends on the shares to be redeemed will cease to accrue on
such redemption date.
If less than all of the Series D Preferred Stock held by any holder is to be
redeemed, the notice mailed to such holder also will specify the number of
shares of Series D Preferred Stock held by such holder to be redeemed.
Immediately prior to any redemption of Series D Preferred Stock, we will
pay, in cash, any accumulated and unpaid dividends through the redemption date,
unless a redemption date falls after a dividend record date and prior to the
corresponding dividend payment date, in which case each holder of Series D
Preferred Stock at the close of business on such dividend record date will be
entitled to the dividend payable on such shares on the corresponding dividend
payment date notwithstanding the redemption of such shares before such dividend
payment date.
RANK
The Series D Preferred Stock will, with respect to dividend rights and
rights upon our liquidation, dissolution or winding up, rank:
- senior to all classes or series of our common stock, and to all equity
securities ranking junior to the Series D Preferred Stock with respect
to dividend rights or rights upon our liquidation, dissolution or
winding up,
- on parity with our Junior Participating Preferred Stock, Series A, our
8 7/8% Series B Cumulative Redeemable Preferred Stock, our Series C
Cumulative Convertible Preferred Stock and all other equity securities
to be issued by us the terms of which specifically provide that such
equity securities rank on parity with the Series D Preferred Stock with
respect to dividend rights or rights upon our liquidation, dissolution
or winding up, and
- junior to all equity securities issued by us the terms of which
specifically provide that such equity securities rank senior to the
Series D Preferred Stock with respect to dividend rights or rights upon
our liquidation, dissolution or winding up.
VOTING RIGHTS
Holders of the Series D Preferred Stock will not have any voting rights,
except as set forth below or as otherwise required by law.
Whenever dividends on the Series D Preferred Stock are in arrears for six or
more quarterly periods, whether or not consecutive, the holders of the Series D
Preferred Stock (voting separately as a class with holders of all other series
of our preferred stock upon which like voting rights have been conferred and are
exercisable) will be entitled to vote for the election of a total of two
additional directors of our Company. Such voting right would be exercisable at
the next annual meeting of stockholders or at a special meeting called by
holders of record of at least 25% of the Series D Preferred Stock or by holders
of any such other series of preferred stock so in arrears with like voting
rights (unless such request is received less than 90 days before the date fixed
for the next annual meeting of stockholders), and at each subsequent annual
meeting. Such voting right would continue until all dividends accumulated on the
Series D Preferred Stock for the past dividend periods and the dividend for the
then current dividend period either have been fully paid or have been declared
and a sum sufficient for the payment thereof set aside for payment.
So long as any shares of Series D Preferred Stock remain outstanding, we
will not, without the consent of the affirmative vote of the holders of at least
two-thirds of the shares of Series D Preferred Stock outstanding at the time
given in person or by proxy, either in writing or at a meeting (such Series D
Preferred Stock voting separately as a class):
- authorize, create or issue, or increase the authorized or issued amount
of, any series of stock ranking senior to such Series D Preferred Stock
with respect to payment of dividends, or in the distribution of assets
on liquidation, dissolution or winding up, or reclassify any of our
authorized stock into any such shares, or create, authorize or issue any
obligation or security convertible into or evidencing the right to
purchase any such shares, or
- repeal, amend, or otherwise change any of the provisions applicable to
the Series D Preferred Stock in any manner that materially and adversely
affects the powers, preferences, or other special rights or privileges
of the Series D Preferred Stock or the holders thereof.
However,
- increases in the amount of our authorized preferred stock or the
creation or issuance of other series of preferred stock, or
- increases in the amount of authorized shares of such series or of any
other series of preferred stock, in each case ranking on a parity with
or junior to the Series D Preferred Stock,
will not be deemed to materially and adversely affect such powers, preferences,
or other special rights or privileges.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required will be
effected, all outstanding shares of Series D Preferred Stock have been redeemed
or called for redemption upon proper notice and sufficient funds have been
deposited in trust to effect such redemption.
Except as expressly stated in the Certificate of Designation, the Series D
Preferred Stock will not have any relative, participating, optional or other
special voting rights and powers, and the consent of the holders thereof will
not be required for the taking of any corporate action, including, but not
limited to, any merger or consolidation in which we are involved or a sale of
all or substantially all of our assets, except to the extent that such merger,
consolidation or sale changes the express powers, preferences, rights or
privileges of the holders of the Series D Preferred Stock in a manner that would
materially and adversely affect the holders of the Series D Preferred Stock.
CONVERSION
The Series D Preferred Stock is not convertible into or exchangeable for any
of our other property or securities.
RESTRICTIONS ON OWNERSHIP AND TRANSFER
In addition to other qualifications, for us to qualify as a REIT, (1) not
more than 50% in value of our outstanding capital stock, including the Series D
Preferred Stock, may be owned, actually or constructively, by five or fewer
individuals at any time during the last half of our taxable year and (2) our
outstanding stock must be beneficially owned by 100 or more persons on 335 days
of a taxable year of 12 months or during a proportionate part of a shorter
taxable year, other than the first year for which a REIT election was made.
Under our by-laws we may refuse to transfer any shares, passing either by
voluntary transfer, by operation of law, or under the last will and testament of
any stockholder, if such transfer would or might, in the opinion of our Board of
Directors or counsel, disqualify us as a real estate investment trust. The
Certificate of Designation for the Series D Preferred Stock contains
restrictions on the ownership and transfer of the Series D Preferred Stock that
are designed to assist us in complying with certain REIT requirements.
Specifically, in addition to restating our authority to refuse transfers of the
Series D Preferred Stock that could disqualify us as a REIT, these restrictions
provide that no person may acquire shares of Series D Preferred Stock that, when
combined with all other holdings by such person of shares of Series D Preferred
Stock and our shares of any other class or series, would result in the direct or
indirect beneficial ownership by such person of our shares with a market value
exceeding 9.8% of the market value of all of our outstanding equity of all
classes, calculated on a combined basis. Further, these restrictions prohibit
any issuance or transfer of any Series D Preferred Stock to any person to the
extent that, following such issuance or transfer, such person would own shares
issued by us having an aggregate market value in excess of such total ownership
value limit. Any purported transfer of Series D Preferred Stock that would
otherwise result in any person violating such total ownership value limit, or
such higher limit as may be permitted by our Board of Directors in a particular
situation, will be void and have no force or effect. For purposes of the
application of these restrictions to any person, any securities convertible into
our shares and any rights or options to acquire our shares that are held by such
person shall be treated as if such conversion rights, acquisition rights and
options had been exercised.
If this provision of the Certificate of Designation is determined to be
invalid by virtue of any legal decision, statute, rule or regulation, then the
transferee of the shares of Series D Preferred Stock will be deemed to have
acted as our agent in acquiring such shares that are in excess of the limit, and
will be deemed to hold such excess shares on our behalf. As the equivalent of
treasury securities for such purposes, the excess shares 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 or any other
distribution with respect to such shares. Any person who receives dividends or
any other distribution in respect of the excess shares will hold the same as our
agent and for the transferee of the excess shares following a permitted
transfer.
The Certificate of Designation further provides that any person who violates
the above-described restrictions on ownership in acquiring actual or
constructive ownership of shares of Series D Preferred Stock is required to give
immediate notice to us and provide us with such other information as we may
request in order to determine the effect of such acquisition on our status as a
REIT.
The foregoing ownership and transfer restrictions will not preclude the
settlement of any transactions through the facilities of the NYSE or any other
national securities exchange or automated inter-dealer quotation system on which
the Series D Preferred Stock is traded. Settlement of any transaction, however,
will not negate the effect of the ownership and transfer restrictions described
above, which shall remain applicable to all acquiring persons.
ITEM 2. EXHIBITS.
2.1 Second Restated Certificate of Incorporation of the Company (filed with the
Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000,
and incorporated herein by reference thereto).
2.2 Certificate of Amendment of Second Restated Certificate of Incorporation of
the Company (filed with the Commission as Exhibit 3.1 to the Company's Form
10-K filed March 20, 2000, and incorporated herein by reference thereto).
2.3 Certificate of Amendment of Second Restated Certificate of Incorporation of
the Company (filed with the Commission as Exhibit 3.1 to the Company's Form
8-K filed June 13, 2003, and incorporated herein by reference thereto).
2.4 Amended and Restated By-Laws of the Registrant (filed with the Commission
as Exhibit 3.1 to the Company's Form 8-K filed October 24, 1997, and
incorporated herein by reference thereto).
2.5 Certificate of Designation of 7 7/8% Series D Cumulative Redeemable
Preferred Stock.
2.6 Specimen Share Certificate for 7 7/8% Series D Cumulative Redeemable
Preferred Stock (filed with the Commission as Exhibit 2.6 to the Company's
Form 8-A filed June 13, 2003, and incorporated herein by reference
thereto).
SIGNATURE
Pursuant to the requirements of Section 12 of the Securities Exchange Act of
1934, as amended, the Registrant has duly caused this registration statement to
be signed on its behalf by the undersigned, thereto duly authorized.
Dated: July 8, 2003 HEALTH CARE REIT, INC.
By /s/ George L. Chapman
------------------------------
George L. Chapman
Chairman of the Board and
Chief Executive Officer
INDEX TO EXHIBITS
2.1 Second Restated Certificate of Incorporation of the Company (filed with the
Commission as Exhibit 3.1 to the Company's Form 10-K filed March 20, 2000,
and incorporated herein by reference thereto).
2.2 Certificate of Amendment of Second Restated Certificate of Incorporation of
the Company (filed with the Commission as Exhibit 3.1 to the Company's Form
10-K filed March 20, 2000, and incorporated herein by reference thereto).
2.3 Certificate of Amendment of Second Restated Certificate of Incorporation of
the Company (filed with the Commission as Exhibit 3.1 to the Company's Form
8-K filed June 13, 2003, and incorporated herein by reference thereto).
2.4 Amended and Restated By-Laws of the Registrant (filed with the Commission
as Exhibit 3.1 to the Company's Form 8-K filed October 24, 1997, and
incorporated herein by reference thereto).
2.5 Certificate of Designation of 7 7/8% Series D Cumulative Redeemable
Preferred Stock.
2.6 Specimen Share Certificate for 7 7/8% Series D Cumulative Redeemable
Preferred Stock (filed with the Commission as Exhibit 2.6 to the Company's
Form 8-A filed June 13, 2003, and incorporated herein by reference
thereto).