Exhibit 1.1
FORM OF UNDERWRITING AGREEMENT
[NUMBER OF SECURITIES]
NATIONWIDE HEALTH PROPERTIES, INC.
[Description of Securities Offered]
UNDERWRITING AGREEMENT
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____________, 199_
[Name of Underwriter]
[Address of Underwriter]
Dear Ladies and Gentlemen:
Nationwide Health Properties, Inc., a Maryland corporation (the "Company"),
proposes to issue and sell an aggregate of [number of/dollar amount of
securities] (the "Securities") of its [describe securities] to [name of
underwriter] (the "Underwriters").
The Company wishes to confirm as follows its agreement with each
Underwriter in connection with the purchase of the Securities by the several
Underwriters.
1. Registration Statement and Prospectus. The Company has prepared and filed
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with the Securities and Exchange Commission (the "Commission") in accordance
with the provisions of the Securities Act of 1933, as amended, and the rules and
regulations (the "Rules and Regulations") of the Commission thereunder
(collectively, the "Act"), [a] registration statement[s] on Form S-3
(Registration[s] No. 333-_____ and No. 333-_____) under the Act (collectively,
the "registration statement"), including a prospectus for the registration of
debt securities, depositary shares, common stock, par value $0.10 per share
("Common Stock"), securities warrants and preferred stock, par value $1.00 per
share, including the Securities; and such amendments to such registration
statement as may have been required prior to the date hereof have been filed
with the Commission, and such amendments have been similarly prepared. Such
registration statement and any post-effective amendments thereto have become
effective under the Act. The Company also has filed, or proposes to file, with
the Commission pursuant to Rule 424(b) under the Act, a prospectus supplement
relating to the offering of the Securities.
The term "Registration Statement" as used in this Agreement means the
registration statement (including all financial schedules and exhibits), as
amended at the time it became effective, as supplemented or amended prior to the
execution of this Agreement. If it is contemplated, at the time this Agreement
is executed, that a post-effective amendment to the registration statement will
be filed and must be declared effective before the offering of the Securities
may commence, the term "Registration Statement" as used in this Agreement means
the registration statement as amended by said post-effective amendment. The
term "Prospectus" as used in this Agreement means the prospectus in the form
included in the Registration Statement at the time it was declared effective
(the "Base Prospectus") together with the prospectus supplement relating to the
offering of the Securities dated the date hereof in the form first filed with
the Commission on or after the date hereof (the "Prospectus Supplement"). Any
reference in this Agreement to the registration statement, the Registration
Statement, the Base Prospectus or the Prospectus shall be deemed to refer to and
include the documents incorporated by reference therein pursuant to Item 12 of
Form S-3 under the Act, as of the date of the registration statement, the
Registration Statement or the Prospectus, as the case may be, and any reference
to any amendment or supplement to the registration statement, the Registration
Statement or the Prospectus shall be deemed to refer to and include any
documents filed after such date under the Securities Exchange Act of 1934, as
amended (the "Exchange Act") which, upon filing, are incorporated by reference
therein, as required by paragraph (b) of Item 12 of Form
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S-3. As used herein, the term "Incorporated Documents" means the documents
which at the time are incorporated by reference in the registration statement,
the Registration Statement, the Prospectus, or any amendment or supplement
thereto.
2. Agreements to Sell and Purchase. The Company hereby agrees, subject to all
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the terms and conditions set forth herein, to issue and sell to each Underwriter
and, upon the basis of the representations, warranties and agreements of the
Company herein contained and subject to all the terms and conditions set forth
herein, each Underwriter agrees severally and not jointly to purchase from the
Company, at a purchase price of $_______ per Security (the "purchase price per
security]"), the number of Securities set forth opposite the name of such
Underwriter in Schedule II hereto.
3. Terms of Public Offering. The Company has been advised by the Underwriters
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that they propose to make a public offering of the Securities as soon after this
Agreement has become effective as in their judgment is advisable and initially
to offer the Securities upon the terms set forth in the Prospectus.
4. Delivery of the Securities and Payment Therefor. Delivery to the
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Underwriters of and payment for the Securities shall be made at the offices of
the Company, 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000-0000, at 10:00 a.m., New York City time, on _____________, 199_ (the
"Closing Date"). The documents required to be delivered by this Agreement shall
be delivered at the offices of O'Melveny & Xxxxx LLP, 000 Xxxxxxx Xxxxxx Xxxxx,
Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx 00000-0000 on the Closing Date. The place
of closing for the Securities and the Closing Date may be varied by agreement
between [name of underwriter], and the Company.
[Certificates/other documents] for the Securities to be purchased hereunder
shall be registered in such names and in such denominations as [name of
underwriter], on behalf of the Underwriters, shall request prior to 10:00 a.m.,
New York City time, on the second business day preceding the Closing Date. Such
certificates shall be made available to [name of underwriter], in [city] for
inspection and packaging not later than 10:00 a.m., [New York City/Los Angeles]
time, on the business day next preceding the Closing Date. The
[certificates/other documents] evidencing the Securities to be purchased
hereunder shall be delivered to [name of underwriter], on behalf of the
Underwriters, on the Closing Date against payment of the purchase price therefor
in immediately available funds.
5. Agreements of the Company. The Company agrees with each Underwriter as
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follows:
(a) If, at the time this Agreement is executed and delivered, it is
necessary for the Registration Statement or a post-effective amendment thereto
to be declared effective before the offering of the Securities may commence, the
Company will endeavor to cause the Registration Statement or such post-effective
amendment to become effective as soon as possible and will advise you promptly
and, if requested by you, will confirm such advice in writing, when the
Registration Statement or such post-effective amendment has become effective.
(b) The Company will advise you promptly and, if requested by you, will
confirm such advice in writing: (i) of any request by the Commission for
amendment of or a supplement to the Registration Statement or the Prospectus or
for additional information; (ii) of the issuance by the Commission of any stop
order suspending the effectiveness of the Registration Statement or of the
suspension of qualification of the Securities for offering or sale in any
jurisdiction or the initiation of any proceeding for such purpose; and (iii)
within the period of time referred to in the first sentence of paragraph (f)
below, of any change in the Company's condition, financial or other, business,
prospects, properties, net worth or results of operations, or of the happening
of any event, which makes any statement of a material fact made in the
Registration Statement or the Prospectus (as then amended or supplemented)
untrue or which requires the making of any additions to or changes in the
Registration Statement or the Prospectus (as then amended or supplemented) in
order to state a material fact required by the Act to be stated therein or
necessary in order to make the statements therein not misleading, or of the
necessity to amend or supplement the Prospectus (as then amended or
supplemented) to comply with the Act or any other law. If at any time the
Commission shall issue any stop order suspending the effectiveness of the
Registration Statement, the Company will use its reasonable efforts to obtain
the withdrawal of such order at the earliest possible time.
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(c) The Company will furnish to you upon your request, without charge (i)
one photocopy of the signed registration statement as originally filed with the
Commission and of each amendment thereto, including financial statements and all
exhibits to the registration statement, (ii) such number of conformed copies of
the registration statement as originally filed and of each amendment thereto,
but without exhibits, as you may reasonably request, (iii) such number of copies
of the Incorporated Documents, without exhibits, as you may reasonably request,
and (iv) such number of copies of the exhibits to the Incorporated Documents, as
you may reasonably request.
(d) The Company will not file any amendment to the Registration Statement
or make any amendment or supplement to the Prospectus or, prior to the end of
the period of time referred to in the first sentence in paragraph (f) below,
file any document which, upon filing becomes an Incorporated Document, of which
you shall not previously have been advised or to which, after you shall have
received a copy of the document proposed to be filed, you shall reasonably
object.
(e) The Company will use its best efforts to meet the requirements to
qualify as a "real estate investment trust" (a "REIT") under the Internal
Revenue Code of 1986, as amended (the "Code") unless the Company's Board of
Directors determines by resolution that it is in the best interests of the
Company's stockholders not to so qualify.
(f) As soon after the execution and delivery of this Agreement as possible
and thereafter from time to time for such period as in the opinion of counsel
for the Underwriters a prospectus is required by the Act to be delivered in
connection with sales by the Underwriters or any dealer, the Company will
promptly deliver to the Underwriters and each dealer, without charge, as many
copies of the Prospectus (and of any amendment or supplement thereto) as you may
reasonably request; provided, however, subsequent to the period ending nine
months after the date of this Agreement, the Company shall not be required to
pay the costs and expenses of the delivery of such requested copies of the
Prospectus (and of any amendment or supplement thereto). The Company consents
to the use of the Prospectus (and of any amendment or supplement thereto) in
accordance with the provisions of the Act and with the securities or Blue Sky
laws of the jurisdictions in the United States in which the Securities are
offered by the Underwriters and by all dealers to whom Securities may be sold,
both in connection with the offering and sale of the Securities and for such
period of time thereafter as the Prospectus is required by the Act to be
delivered in connection with sales by any Underwriter or dealer. If during such
period of time any event shall occur that in the judgment of the Company or in
the opinion of counsel for the Underwriters is required to be set forth in the
Prospectus (as then amended or supplemented) or should be set forth therein in
order to make the statements therein, in the light of the circumstances under
which they were made, not misleading, or if it is necessary to supplement or
amend the Prospectus (or to file under the Exchange Act any document which, upon
filing, becomes an Incorporated Document) in order to comply with the Act or any
other law, the Company will promptly prepare and, subject to the provisions of
paragraph (d) above, file with the Commission an appropriate supplement or
amendment thereto (or to such document), and will promptly furnish to the
Underwriters and any dealers a reasonable number of copies thereof.
(g) The Company will cooperate with you and with counsel for the
Underwriters in connection with the registration or qualification of the
Securities for offering and sale by the Underwriters and by any dealers under
the securities or Blue Sky laws of such jurisdictions in the United States as
you may designate and will file such consents to service of process or other
documents necessary or appropriate in order to effect such registration or
qualification; provided that in no event shall the Company be obligated to
qualify to do business in any jurisdiction where it is not now so qualified or
to take any action which would subject it to service of process in suits, other
than those arising out of the offering or sale of the Securities, in any
jurisdiction where it is not now so subject.
(h) The Company will make generally available to its security holders a
consolidated earnings statement, which need not be audited, covering a twelve-
month period commencing after the effective date of the Registration Statement
and ending not later than 15 months thereafter, as soon as practicable after the
end of such period, which consolidated earnings statement shall satisfy the
provisions of Section 11(a) of the Act.
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(i) The Company will apply the net proceeds from the sale of the Securities
substantially in accordance with the description set forth in the Prospectus
Supplement.
(j) The Company will (i) prepare and timely file with the Commission under
Rule 424(b) of the Act a Prospectus Supplement containing information previously
omitted at the time of effectiveness of the Registration Statement and (ii) file
on a timely basis all reports required to be filed by the Company with the
Commission subsequent to the date of the Prospectus Supplement and prior to the
termination of the offering of the Securities.
6. Representations and Warranties of the Company. The Company represents and
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warrants to each Underwriter that:
(a) The Company and the transactions contemplated by this Agreement meet
the requirements for using Form S-3 under the Act. The registration statement
in the form in which it became or becomes effective and also in such form as it
may be when any post-effective amendment thereto shall become effective and the
Prospectus and any supplement or amendment thereto when filed with the
Commission under Rule 424(b) under the Act, complied or will comply in all
material respects with the provisions of the Act and will not at any such times
contain an untrue statement of a material fact or omit to state a material fact
required to be stated therein or necessary to make the statements therein in
light of the circumstances under which they were made not misleading, except
that this representation and warranty does not apply to statements in or
omissions from the registration statement or the prospectus made in reliance
upon and in conformity with information relating to any Underwriter furnished to
the Company in writing by or on behalf of any Underwriter, expressly for use
therein.
(b) The Incorporated Documents, at the time they were filed with the
Commission, complied in all material respects with the requirements of the
Exchange Act and the rules and regulations thereunder, and, when read together
and with the other information in or incorporated by reference in the
Prospectus, did not contain any untrue statement of a material fact or omit to
state a material fact required to be stated therein or necessary in order to
make the statements therein, in the light of the circumstances under which they
were made, not misleading.
(c) The Company has an authorized capitalization as set forth in the
Prospectus. All of the issued shares of capital stock of the Company have been
duly authorized and validly issued and are fully paid and nonassessable. The
Securities have been duly authorized and, when issued and delivered to the
Underwriters against payment therefor in accordance with the terms hereof, will
be validly issued, fully paid and nonassessable, and will not be subject to any
preemptive or similar rights. The shares of capital stock of the Company,
including the Securities, conform to the description thereof in the Registration
Statement and the Prospectus.
(d) The Company has been duly incorporated and is validly existing as a
corporation in good standing under the laws of the State of Maryland with
corporate power and authority to own, lease and operate its properties and to
conduct its business as described in the Registration Statement and the
Prospectus; and the Company is duly qualified as a foreign corporation to
transact business and is in good standing in each jurisdiction in which such
qualification is required, whether by reason of the ownership or leasing of
property or the conduct of business, except where the failure to so qualify
would not have a material adverse effect on the business or financial condition
of the Company and its subsidiaries considered as one enterprise.
(e) Each subsidiary of the Company which is a significant subsidiary as
defined in Rule 405 of Regulation C under the Act (each a "Subsidiary" and
collectively the "Subsidiaries") is listed on Schedule I hereto and has been
duly incorporated and is validly existing as a corporation in good standing
under the laws of the jurisdiction of its incorporation, has corporate power and
authority to own, lease and operate its properties and conduct its business as
described in the Registration Statement and the Prospectus and is duly qualified
as a foreign corporation to transact business and is in good standing in each
jurisdiction in which such qualification is required, whether by reason of the
ownership or leasing of property or the conduct of business, except where the
failure to so qualify would not have a material adverse effect on the business
or
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financial condition of the Company and its subsidiaries considered as one
enterprise; and all of the issued and outstanding capital stock of each such
Subsidiary has been duly authorized and validly issued, is fully paid and non-
assessable and, except for directors' qualifying shares, is owned by the
Company, directly or through subsidiaries, free and clear of any security
interest, mortgage, pledge, lien, encumbrance, claim or equity.
(f) Except as set forth in the Registration Statement or the Prospectus,
there is no action, suit or proceeding before or by any court or governmental
agency or body, domestic or foreign, now pending, or, to the knowledge of the
Company, threatened, against the Company or any of its subsidiaries which is
required to be disclosed in the Registration Statement or the Prospectus or
which might in the opinion of the Company result in any material adverse change
in the business or financial condition of the Company and its subsidiaries
considered as one enterprise, or which might materially and adversely affect the
properties or assets thereof or which might materially and adversely affect the
consummation of this Agreement; all pending legal or governmental proceedings to
which the Company or any of its subsidiaries is a party or of which any of their
respective property or assets is the subject which are not described in the
Registration Statement or the Prospectus, including ordinary routine litigation
incidental to its business, are, considered in the aggregate, not material; and
there are no contracts or documents of the Company or any of its subsidiaries
which are required to be filed as exhibits to the Registration Statement or any
Incorporated Documents which have not been so filed.
(g) Neither the Company nor any of its subsidiaries is in default in the
performance or observance of any material obligation, agreement, covenant or
condition contained in any contract, indenture, mortgage, loan agreement, note,
lease or other instrument to which it is a party or by which it or any of them
may be bound, or to which any of their property or assets is subject, which
default would materially adversely affect the business or financial condition of
the Company and its subsidiaries considered as one enterprise; neither the
Company nor any of its subsidiaries is in violation of its charter or bylaws;
the execution, delivery and performance of this Agreement, and the consummation
of the transactions contemplated herein will not conflict with, or constitute a
breach of, or default under, or result in the creation or imposition of any
lien, charge or encumbrance upon any property or assets of the Company or any of
its subsidiaries pursuant to any material contract, indenture, mortgage, loan
agreement, note, lease or other instrument to which the Company or any of its
subsidiaries is a party or by which it or any of them may be bound, or to which
any of the property or assets of the Company or any such subsidiary is subject,
nor will such action result in any violation of the provisions of the charter or
bylaws of the Company or, to the best knowledge of the Company, any law,
administrative regulation or administrative or court order or decree; and no
consent, approval, authorization, order or decree of any court or governmental
agency or body is required for the consummation by the Company of the
transactions contemplated by this Agreement, except such as may be required
under the Act, the Exchange Act or the rules and regulations thereunder or as
may be required by state securities or Blue Sky laws.
(h) The accountants, Xxxxxx Xxxxxxxx LLP, who have certified or shall
certify the financial statements included or incorporated by reference in the
Registration Statement and the Prospectus (or any amendment or supplement
thereto) are independent public accountants as required by the Act.
(i) The financial statements and any supporting schedules of the Company
and its consolidated subsidiaries included or incorporated by reference in the
Registration Statement and the Prospectus present fairly the consolidated
financial position of the Company and its consolidated subsidiaries as of the
dates indicated and the consolidated results of their operations for the periods
specified; and, except as stated therein, said financial statements have been
prepared in conformity with generally accepted accounting principles in the
United States applied on a consistent basis; and any supporting schedules
included or incorporated by reference in the Registration Statement present
fairly the information required to be stated therein.
(j) The Company has duly authorized, executed and delivered this Agreement
and this Agreement constitutes the valid and binding agreement of the Company.
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(k) Since the respective dates as of which information is given in the
Registration Statement and the Prospectus, except as otherwise stated therein,
(A) there has been no material adverse change in the condition, financial or
otherwise, or in the earnings, business affairs or business prospects of the
Company and its subsidiaries considered as one enterprise, whether or not
arising in the ordinary course of business and (B) there have been no material
transactions entered into by the Company or any of its subsidiaries, other than
those in the ordinary course of business.
(l) The Company and its subsidiaries have good title to all real property
or interests in real property owned by it or any of them, in each case free and
clear of all liens, encumbrances and defects except such as are described in the
Registration Statement or such as do not materially adversely affect the value
of such property and interests as reflected in the Company's financial
statements and do not materially interfere with the use made and proposed to be
made of such property and interests by the Company and its subsidiaries; the
instruments securing the Company's and its subsidiaries' real estate mortgage
loans create valid liens upon the real properties described in such instruments
enjoying the priorities intended, subject only to exceptions to title which do
not materially adversely affect the value of such real properties and interests
as reflected in the Company's financial statements; and no material real
property or buildings are held under lease by the Company or any of its
subsidiaries.
(m) The Company owns or possesses or has obtained all material
governmental licenses, permits, consents, orders, approvals and other
authorizations necessary to lease or own, as the case may be, and to operate
each property and to carry on its business as presently conducted where its
ownership or lease of any property or the conduct of its business requires such
ownership or possession or the obtaining of such governmental licenses, permits,
consents, orders, approvals and other authorizations and where the failure to do
so would materially adversely affect the business or financial condition of the
Company and its subsidiaries considered as one enterprise.
(n) The Company has at all times since December 31, 1985 operated in such
manner as to qualify as a REIT under the Code and intends to continue to operate
in such manner.
(o) The Company is not required to be registered under the Investment
Company Act of 1940, as amended (the "Investment Company Act").
7. Indemnification and Contribution.
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(a) The Company agrees to indemnify and hold harmless each of you and each
person, if any, who controls any Underwriter within the meaning of Section 15 of
the Act or Section 20 of the Exchange Act from and against any and all losses,
claims, damages, liabilities and expenses arising out of or based upon any
untrue statement or alleged untrue statement of a material fact contained in the
Registration Statement or the Prospectus or in any amendment or supplement
thereto, or arising out of or based upon any omission or alleged omission to
state therein a material fact required to be stated therein or necessary to make
the statements therein not misleading, except insofar as such losses, claims,
damages, liabilities or expenses arise out of or are based upon any untrue
statement or omission or alleged untrue statement or omission which has been
made therein or omitted therefrom in reliance upon and in conformity with the
information relating to such Underwriter furnished in writing to the Company by
or on behalf of any Underwriter expressly for use in connection therewith. The
foregoing indemnity agreement shall be in addition to any liability which the
Company may otherwise have.
(b) If any action, suit or proceeding shall be brought against any
Underwriter or any person controlling any Underwriter in respect of which
indemnity may be sought against the Company, such Underwriter or such
controlling person shall promptly notify the Company and the Company shall
assume the defense thereof, including the employment of counsel and payment of
all reasonable fees and expenses. Such Underwriter or any such controlling
person shall have the right to employ separate counsel in any such action, suit
or proceeding and to participate in the defense thereof, but the fees and
expenses of such counsel shall be at the expense of such Underwriter or such
controlling person unless (i) the Company has agreed in writing to pay such fees
and expenses, (ii) the Company has failed to assume the defense and employ
counsel, or (iii) the named parties to any such action, suit or proceeding
(including any impleaded parties)
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include both such Underwriter or such controlling person and the Company and
such Underwriter or such controlling person shall have been advised by its
counsel that representation of such indemnified party and the Company by the
same counsel would be inappropriate under applicable standards of professional
conduct (whether or not such representation by the same counsel has been
proposed) due to actual or potential differing interests between them (in which
case the Company shall not have the right to assume the defense of such action,
suit or proceeding on behalf of such Underwriter or such controlling person).
It is understood, however, that the Company shall, in connection with any one
such action, suit or proceeding or separate but substantially similar or related
actions, suits or proceedings in the same jurisdiction arising out of the same
general allegations or circumstances, be liable for the reasonable fees and
expenses of only one separate firm of attorneys (in addition to any local
counsel) at any time for the Underwriters and controlling persons not having
actual or potential differing interests with you or among themselves, which firm
shall be designated in writing by [name of underwriter], and that all such
reasonable fees and expenses shall be reimbursed as they are incurred. The
Company shall not be liable for any settlement of any such action, suit or
proceeding effected without its written consent, but if settled with such
written consent, or if there be a final judgment for the plaintiff in any such
action, suit or proceeding, the Company agrees to indemnify and hold harmless
each Underwriter, to the extent provided in the preceding paragraph, and any
such controlling person from and against any loss, claim, damage, liability or
expense by reason of such settlement or judgment.
(c) Each Underwriter agrees, severally and not jointly, to indemnify and
hold harmless the Company, its directors, its officers who sign the Registration
Statement, and any person who controls the Company within the meaning of Section
15 of the Act or Section 20 of the Exchange Act, to the same extent as the
foregoing indemnity from the Company to each Underwriter, but only with respect
to information relating to such Underwriter furnished in writing by or on behalf
of such Underwriter expressly for use in the Registration Statement or the
Prospectus or any amendment or supplement thereto. If any action, suit or
proceeding shall be brought against the Company, any of its directors, any such
officer, or any such controlling person based on the Registration Statement or
the Prospectus, or any amendment or supplement thereto, and in respect of which
indemnity may be sought against any Underwriter pursuant to this paragraph (c),
such Underwriter shall have the rights and duties given to the Company by
paragraph (b) above (except that if the Company shall have assumed the defense
thereof such Underwriter shall not be required to do so, but may employ separate
counsel therein and participate in the defense thereof, but the fees and
expenses of such counsel shall be at such Underwriter's expense), and the
Company, its directors, any such officer, and any such controlling person shall
have the rights and duties given to the Underwriters by paragraph (b) above.
The foregoing indemnity agreement shall be in addition to any liability which
the Underwriters may otherwise have.
(d) If the indemnification provided for in this Section 7 is unavailable to
an indemnified party under paragraphs (a) or (c) hereof in respect of any
losses, claims, damages, liabilities or expenses referred to therein, then an
indemnifying party, in lieu of indemnifying such indemnified party, shall
contribute to the amount paid or payable by such indemnified party as a result
of such losses, claims, damages, liabilities or expenses (i) in such proportion
as is appropriate to reflect the relative benefits received by the Company on
the one hand and the Underwriters on the other hand from the offering of the
Securities, or (ii) if the allocation provided by clause (i) above is not
permitted by applicable law, in such proportion as is appropriate to reflect not
only the relative benefits referred to in clause (i) above but also the relative
fault of the Company on the one hand and the Underwriters on the other in
connection with the statements or omissions that resulted in such losses,
claims, damages, liabilities or expenses, as well as any other relevant
equitable considerations. The relative benefits received by the Company on the
one hand and any Underwriters on the other shall be deemed to be in the same
proportion as the total net proceeds from the offering (before deducting
expenses) received by the Company bear to the total underwriting discounts and
commissions received by the Underwriters, in each case as set forth in the table
on the cover page of the Prospectus. The relative fault of the Company on the
one hand and the Underwriters on the other hand shall be determined by reference
to, among other things, whether the untrue or alleged untrue statement of a
material fact or the omission or alleged omission to state a material fact
relates to information supplied by the Company on the one hand or by the
Underwriters on the other hand and the parties' relative intent, knowledge,
access to information and opportunity to correct or prevent such statement or
omission.
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(e) The Company and the Underwriters agree that it would not be just and
equitable if contribution pursuant to this Section 7 were determined by a pro
rata allocation (even if the Underwriters were treated as one entity for such
purpose) or by any other method of allocation that does not take account of the
equitable considerations referred to in paragraph (d) above. The amount paid or
payable by an indemnified party as a result of the losses, claims, damages,
liabilities and expenses referred to in paragraph (d) above shall be deemed to
include, subject to the limitations set forth above, any legal or other expenses
reasonably incurred by such indemnified party in connection with investigating
any claim or defending any such action, suit or proceeding. Notwithstanding the
provisions of this Section 7, no Underwriter shall be required to contribute any
amount in excess of the amount by which the total price of the Securities
underwritten by it and distributed to the public exceeds the amount of any
damages which such Underwriter has otherwise been required to pay by reason of
such untrue or alleged untrue statement or omission or alleged omission. No
person guilty of fraudulent misrepresentation (within the meaning of Section
11(f) of the Act) shall be entitled to contribution from any person who was not
guilty of such fraudulent misrepresentation. The Underwriters' obligation to
contribute pursuant to this Section 7 are several in proportion to the
respective number of Securities set forth opposite their names in Schedule II
hereto and not joint.
(f) No indemnifying party shall, without the prior written consent of the
indemnified party, effect any settlement of any pending or threatened action,
suit or proceeding in respect of which any indemnified party is a party and
indemnity could have been sought hereunder by such indemnified party, unless
such settlement includes an unconditional release of such indemnified party from
all liability on claims that are the subject matter of such action, suit or
proceeding.
(g) Any losses, claims, damages, liabilities or expenses for which an
indemnified party is entitled to indemnification or contribution under this
Section 7 shall be paid by the indemnifying party to the indemnified party as
such losses, claims, damages, liabilities or expenses are incurred. The
indemnity and contribution agreements contained in this Section 7 and the
representations and warranties of the Company set forth in this Agreement shall
remain operative and in full force and effect, regardless of (i) any
investigation made by or on behalf of any Underwriter or any person controlling
any Underwriter, the Company, its directors or officers, or any person
controlling the Company, (ii) acceptance of any Securities and payment therefor
hereunder, and (iii) any termination of this Agreement. A successor to any
Underwriter or any person controlling any Underwriter, or to the Company, its
directors or officers, or any person controlling the Company, shall be entitled
to the benefits of the indemnity, contribution and reimbursement agreements
contained in this Section 7.
8. Conditions of Underwriter's Obligations. The several obligations of the
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Underwriters to purchase the Securities hereunder are subject to the following
conditions:
(a) At the Closing Date, all filings, if any, required by Rules 424 and
430A under the Act shall have been timely made and any request of the Commission
for additional information (to be included in the registration statement or the
prospectus or otherwise) shall have been complied with.
(b) Subsequent to the effective date of this Agreement, there shall not
have occurred any event or development relating to or involving the Company or
any officer or director of the Company which makes any statement made in the
Prospectus untrue in any material respect or which, in the opinion of the
Company and its counsel or the Underwriters and their counsel, requires the
making of any addition to or change in the Prospectus in order to state a
material fact required by the Act or any other law to be stated therein or
necessary in order to make the statements therein not misleading, if amending or
supplementing the Prospectus to reflect such event or development would, in your
opinion, have a material adverse effect on the market for the Securities.
(c) You shall have received on the Closing Date, an opinion of O'Melveny &
Xxxxx LLP, counsel for the Company, dated the Closing Date and addressed to you
substantially in the form of Annex A hereto.
(d) You shall have received on the Closing Date, an opinion of
________________________, counsel for the Underwriter, dated the Closing Date
and addressed to you with respect to the matters
15
referred to in clauses (v), (vi) (with respect to the third sentence only),
(viii), (ix) and (xvii) (excluding Incorporated Documents) of Annex A hereto and
such other related matters as you may request.
(e) You shall have received letters addressed to you and dated the Closing
Date from Xxxxxx Xxxxxxxx LLP, independent certified public accountants,
substantially in the form heretofore approved by you.
(f) (i) No stop order suspending the effectiveness of the Registration
Statement shall have been issued and no proceedings for that purpose shall have
been taken or, to the knowledge of the Company, shall be contemplated by the
Commission at or prior to the Closing Date; (ii) there shall not have been any
change in the capital stock of the Company nor any material increase in the
short-term or long-term debt of the Company (other than in the ordinary course
of business) from that set forth or contemplated in the Registration Statement
or the Prospectus (or any amendment or supplement thereto); (iii) there shall
not have been, since the respective dates as of which information is given in
the Registration Statement and the Prospectus (or any amendment supplement
thereto), except as may otherwise be stated in the Registration Statement and
Prospectus (or any amendment or supplement thereto), any material adverse change
in the condition, financial or other, business, prospects, properties, net worth
or results of operations of the Company and the Subsidiaries taken as a whole;
(iv) the Company and the Subsidiaries shall not have any liabilities or
obligations, direct or contingent (whether or not in the ordinary course of
business), that are material to the Company and the Subsidiaries, taken as a
whole, other than those reflected or incorporated by reference in the
Registration Statement or the Prospectus (or any amendment or supplement
thereto); and (v) all the representations and warranties of the Company
contained in this Agreement shall be true and correct on and as of the date
hereof and on and as of the Closing Date as if made on and as of the Closing
Date, and you shall have received a certificate, dated the Closing Date and
signed on behalf of the Company by the President or a Vice President and the
chief financial officer of the Company (or such other officers as are acceptable
to you), to the effect set forth in this Section 8(f) and in Section 8(g)
hereof.
(g) The Company shall not have failed at or prior to the Closing Date to
have performed or complied with any of its agreements herein contained and
required to be performed or complied with by it hereunder at or prior to the
Closing Date.
(h) The Company shall have furnished or caused to be furnished to you such
further certificates and documents as you shall have reasonably requested.
All such opinions, certificates, letters and other documents will be in
compliance with the provisions hereof only if they are satisfactory in form and
substance to you and your counsel.
Any certificate or document signed by any officer of the Company and
delivered to you or to your counsel shall be deemed a representation and
warranty by the Company to each Underwriter as to the statements made therein.
9. Expenses. The Company agrees to pay the following costs and expenses and
--------
all other costs and expenses incident to the performance by it of its
obligations hereunder: (i) the preparation, printing or reproduction, and filing
with the Commission of the Registration Statement (including financial
statements and exhibits thereto), the Prospectus, the Prospectus Supplement and
each amendment or supplement to any of them; (ii) the printing (or reproduction)
and delivery (including postage, air freight charges and charges for counting
and packaging) of such copies of the Registration Statement, the Prospectus, the
Incorporated Documents, and all amendments or supplements to any of them, as may
be reasonably requested for use in connection with the offering and sale of the
Securities; (iii) the preparation, printing, authentication, issuance and
delivery of certificates for the Securities, including any stamp taxes in
connection with the original issuance and sale of the Securities; (iv) the
printing (or reproduction) and delivery of this Agreement, the Blue Sky
Memorandum and all other agreements or documents printed (or reproduced) and
delivered in connection with the offering of the Securities; (v) the
registration of the Securities under the Exchange Act if required by the
Exchange Act; (vi) the registration or qualification of the Securities for offer
and sale under the securities or Blue Sky laws of the several states as provided
in Section 5(g) hereof (including the reasonable fees, expenses and
disbursements of counsel for the Underwriters relating to the preparation,
16
printing or reproduction, and delivery of the Blue Sky Memorandum and such
registration and qualification); (vii) the filing fees in connection with any
filings required to be made with the National Association of Securities Dealers,
Inc.; (viii) the transportation and other expenses incurred by or on behalf of
Company representatives in connection with presentations to prospective
purchasers of the Securities; (ix) the fees and expenses associated with
obtaining ratings for the Securities from nationally recognized statistical
rating organizations; and (x) the fees and expenses of the Company's accountants
and the fees and expenses of counsel (including local and special counsel) for
the Company.
10. Effective Date of Agreement. This Agreement shall become effective: (i)
---------------------------
upon the execution and delivery hereof by the parties hereto; or (ii) if, at the
time this Agreement is executed and delivered, it is necessary for a post-
effective amendment to the Registration Statement to be declared effective
before the offering of the Securities may commence, when notification of the
effectiveness of such post-effective amendment has been released by the
Commission. Until such time as this Agreement shall have become effective, it
may be terminated by the Company, by notifying you, or by you by notifying the
Company.
11. Termination of Agreement. This Agreement shall be subject to
------------------------
termination, without liability on the part of any Underwriter to the Company by
notice to the Company, if prior to the Closing Date: (i) trading in securities
generally on the New York Stock Exchange, the American Stock Exchange or the
Nasdaq National Market shall have been suspended or materially limited, (ii) a
general moratorium on commercial banking activities in the State of New York or
the State of California shall have been declared by either federal or state
authorities, or (iii) there shall have occurred any outbreak or escalation of
hostilities or other international or domestic calamity or crisis, the effect of
which on the financial markets of the United States is such as to make it, in
your judgment, impracticable or inadvisable to commence or continue the offering
of the Securities at the offering price to the public set forth on the cover
page of the Prospectus or to enforce contracts for the resale of the Securities
by the Underwriter. Notice of such termination may be given to the Company by
telegram, telecopy or telephone and shall be subsequently confirmed by letter.
12. Miscellaneous. Except as otherwise provided in Sections 5, 10 and 11
-------------
hereof, notice given pursuant to any provision of this Agreement shall be in
writing and shall be delivered (i) if to the Company, at the offices of the
Company at 000 Xxxxxxx Xxxxxx Xxxxx, Xxxxx 0000, Xxxxxxx Xxxxx, Xxxxxxxxxx
00000, Attention: President; or (ii) if to the Underwriters, care of [name and
address of underwriter], Attention: __________________________.
This Agreement has been and is made solely for the benefit of the several
Underwriters, the Company, its directors and officers, and the other controlling
persons referred to in Section 7 hereof and their respective successors and
assigns, to the extent provided herein, and no other person shall acquire or
have any right under or by virtue of this Agreement. Neither the term
"successor" nor the term "successors and assigns" as used in this Agreement
shall include a purchaser from any Underwriter of any of the Securities in his
status as such purchaser.
13. Applicable Law; Counterparts. This Agreement shall be governed by and
----------------------------
construed in accordance with the laws of the State of California applicable to
contracts made and to be performed within the State of California.
This Agreement may be signed in various counterparts which together
constitute one and the same instrument. If signed in counterparts, this
Agreement shall not become effective unless at least one counterpart hereof
shall have been executed and delivered on behalf of each party hereto.
17
Please confirm that the foregoing correctly sets forth the agreement
between the Company and the several Underwriters.
Very truly yours,
NATIONWIDE HEALTH PROPERTIES, INC.
By:
-------------------------------------
[Name]
[Title]
Confirmed as of the date first above mentioned.
[name all underwriters]
By: [name of underwriter]
By:
---------------------------------------------
Name:
-------------------------------------------
Title:
------------------------------------------
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SCHEDULE I
----------
Significant Subsidiaries of the Company
---------------------------------------
(as such term is defined in Rule 405
of Regulation C under the Act)
19
SCHEDULE II
-----------
NATIONWIDE HEALTH PROPERTIES, INC.
Number of
Underwriter ________
-----------
------------
_______________.......................................... ________
_______________.......................................... ________
------------
Total.............................................. ________
============
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