EXHIBIT 4.16
REGISTRATION RIGHTS AGREEMENT
This Registration Rights Agreement (the "Agreement") is entered into
effective this 29th day of September, 2003 by and among Health Care REIT, Inc.,
a Delaware corporation ("HCN" or the "Company"), Southern Assisted Living, Inc.,
a North Carolina corporation ("SALI"), and the holders of debt or equity
securities of SALI identified on the signature page hereof (the "Investor Group"
and, together with SALI, the "Stockholders").
WHEREAS, the Company has, as of the date hereof, purchased certain
assets of certain subsidiaries of SALI under an Asset Purchase Agreement dated
as of September 29, 2003 (the "Acquisition Agreement") and, in connection
therewith, has issued 1,060,000 shares of its 6% Series E Cumulative Convertible
and Redeemable Preferred Stock (the "Series E Preferred Stock") to SALI, a
portion of which Series E Preferred Stock has been transferred by SALI to the
Investor Group;
WHEREAS, the Series E Preferred Stock is convertible into common stock
of the Company, par value $1.00 per share (the "Common Stock");
WHEREAS, the Series E Preferred Stock was issued to SALI in a private
offering, was transferred to the Investor Group in a private resale supported by
an Investment Intent Agreement signed by the Investment Group (the "Investment
Intent Agreement"), and accordingly has not been registered under the Securities
Act of 1933, as amended (the "Securities Act");
WHEREAS, the Common Stock, when issued on conversion of the Series E
Preferred Stock, will be issued as part of the same private offering pursuant to
exemptions from registration under the Securities Act and, accordingly, will not
be registered under the Securities Act at the time of issuance thereof ; and
WHEREAS, the Company has agreed to provide SALI and the Stockholders
with the right to obtain registration under the Securities Act of the shares of
Common Stock issuable upon conversion of shares of Series E Preferred Stock so
that such Common Stock may be resold by them in public resale transactions;
NOW, THEREFORE, in consideration of the premises, the performance by
SALI under the Acquisition Agreement and other good and valuable consideration
the receipt and sufficiency of which is hereby acknowledged, the parties hereby
agree as follows:
1. CERTAIN DEFINITIONS
In addition to the definitions set forth above, the following
capitalized terms shall have the following meanings for purposes of this
Agreement:
Effective Date: The date the Shelf Registration is declared effective
by the SEC.
Holder: SALI, each Stockholder and any transferee as permitted under
Section 7 hereof, holding Registrable Securities or securities convertible into
Registrable Securities.
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Exchange Act: The Securities Exchange Act of 1934, as amended from
time to time.
Indemnified Holder: See Section 6 (a).
NASD: National Association of Securities Dealers, Inc.
Person: An individual, partnership, corporation, trust or
unincorporated organization, or a government or agency or political subdivision
thereof.
Prospectus: The prospectus included in any Registration Statement, as
amended or supplemented by any prospectus supplement, with respect to the terms
of the offering of any portion of the Registrable Securities, including
post-effective amendments and all documents incorporated by reference in such
prospectus.
Registrable Securities: (i) Common Stock issued or issuable upon
conversion of the Series E Preferred Stock, held by SALI, any Stockholder or any
transferee as permitted by Section 7 hereof; and (ii) Common Stock issued as a
dividend or other distribution with respect to, or in exchange or in replacement
of, such Registrable Securities; provided that Common Stock shall cease to be
Registrable Securities when the holder thereof may resell such Common Stock and
any other Registrable Securities held by such holder to the public pursuant to
Rule 144 of the SEC (or any similar provisions then in force) without volume
restriction within a single 90-day period or when the certificate therefor
ceases to contain the restricted stock legend specified in the Investment Intent
Agreement or equivalent thereof and is freely tradable.
Registration Expenses: See Section 5.
Registration Statement: Any registration statement of the Company under
the Securities Act that covers any of the Registrable Securities pursuant to the
provisions of this Agreement, including (i) the Prospectus, (ii) any amendments
and supplements to such Registration Statement, including post-effective
amendments, and (iii) all exhibits and all documents incorporated by reference
in such Registration Statement.
SEC: The Securities and Exchange Commission.
Shelf Registration: See Section 3.
2. SECURITIES SUBJECT TO THIS AGREEMENT
The benefits of this Agreement are limited to Registrable Securities as
held by SALI, any of the Stockholders and any transferees as permitted by
Section 7 hereof.
3. SHELF REGISTRATION: TIMING OF FILING, EFFECTIVENESS AND PERIOD OF
USABILITY
Subject to the provisions of Section 4 hereof, the Company shall, as
soon as practicable, but in any event within forty-five (45) days after the date
of closing under the Acquisition Agreement (the "Closing Date"), file and shall
thereafter use its commercially reasonable best efforts to cause to be declared
effective, as soon as reasonably practicable following the filing
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thereof, a Registration Statement on Form S-3 for an offering to be made on a
continuous basis pursuant to Rule 415 (or similar rule that may be adopted by
the SEC) under the Securities Act (a "Shelf Registration") covering all the
Registrable Securities, which form shall be available for the sale of the
Registrable Securities by the Holders for cash in market transactions or in
accordance with such other intended method or methods of distribution thereof as
identified by them to the Company in writing prior to the time of filing of the
Registration Statement.
The Company agrees to use its commercially reasonable best efforts to
keep the Registration Statement continuously effective and usable for resale of
Registrable Securities until 730 days (the "Effectiveness Period") from the
Closing Date or such shorter period that will terminate when all the Registrable
Securities covered by such Registration Statement have been sold pursuant to
such Registration Statement, may be sold pursuant to Rule 144 by the Holders
thereof without volume restriction within a single 90-day period, or are freely
tradeable.
Notwithstanding the foregoing, the Company shall have the right (i) to
defer for a period of up to 90 days the filing of or the request for
acceleration of effectiveness of the Registration Statement or, after
effectiveness, to suspend effectiveness of the Registration Statement for a
period of up to 90 days if, in the good faith judgment of the Board of Directors
of the Company or upon the advice of counsel to the Company, such delay in
filing or requesting acceleration of effectiveness or such suspension of
effectiveness would be in the best interests of the Company at such time due to
a pending material transaction or other material development that has not been
publicly disclosed and the disclosure of which would not be in the best
interests of the Company at such time (a "Material Transaction"), (ii) in the
event that audited financial information for an entity that the Company has
acquired or is proposing to acquire in whole or in part must be included in the
Registration Statement but is not available, to defer the request for
acceleration of effectiveness or, after effectiveness, to suspend effectiveness
of the Registration Statement for a period of up to ten (10) days after the
necessary audited financial information is available to the Company, (iii) to
suspend sales under the Registration Statement in the event that the Company
undertakes a public offering of Common Stock in an amount greater than $10
million for a period commencing five (5) days prior to the closing of the sale
in the public offering until thirty (30) days after the closing of the sale to
the public in the offering, unless the Company or, in the case of an
underwritten offering, the lead underwriter for the offering, consents to a
waiver of such suspension or to an earlier resumption of sales under the
Registration Statement, or (iv) as required by law or rules and regulations of
the SEC. Notwithstanding any provision herein to the contrary, the aggregate
number of days during any given twelve month period in which the filing or the
request for acceleration of effectiveness of the Registration Statement may be
deferred, or the effectiveness of the Registration Statement, once effective,
may be suspended at the request of the Company under sub-item (i) above shall
not exceed ninety (90) days, and the Effectiveness Period shall be extended by
the total number of days during which the filing or the request for acceleration
of effectiveness of the Registration Statement has been deferred or the
effectiveness of the Registration Statement has been suspended or sales under
the Registration Statement have been suspended under sub-items (i) through (iii)
above (such Effectiveness Period, including any such extensions, shall
hereinafter be referred to as the "Effectiveness Period"). The Company will give
each of the Holders prompt written notice of any decision to defer or suspend
effectiveness of the Registration Statement and will use its best efforts to
ensure that the filing, request for acceleration or use of the Registration
Statement may be completed or resumed, as the case may be, as soon as, in the
good faith judgment of the Board of Directors of the Company, is practicable.
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In connection with the registration of Registrable Securities as
provided in this Agreement, the Company shall be entitled to include in the
Registration Statement any other securities of the Company (whether to be
offered by the Company or other security holders of the Company and regardless
of the proposed terms of transfer or sale of such other securities), provided
that the inclusion of such securities shall not limit or reduce the number of
Registrable Securities of the Holders included in such registration.
4. REGISTRATION PROCEDURES
In connection with the Company's obligation to file and maintain
effectiveness of the Registration Statement as provided in Section 3 hereof, but
subject to the terms, conditions and limitations thereof, the Company will, as
soon as practicable, but in any event within forty-five (45) days after the
Closing Date:
(a) prepare and file with the SEC the Registration Statement and such
amendments and post-effective amendments to the Registration Statement,
and such supplements to the Prospectus, as may be required by the
rules, regulations or instructions applicable to the registration form
utilized by the Company or by the Securities Act or rules and
regulations thereunder for a shelf registration or otherwise necessary
to achieve effectiveness of the Registration Statement and to keep the
Registration Statement effective for the applicable period under the
requirements of Section 3 hereof and cause the Prospectus as so
supplemented to be filed pursuant to Rule 424 under the Securities Act;
and comply with the provisions of the Securities Act with respect to
the disposition of all securities covered by such Registration
Statement during the applicable period in accordance with the intended
methods of disposition by the sellers thereof set forth in such
Registration Statement or supplement(s) to the Prospectus;
(b) notify the Holders promptly, and confirm such advice in
writing,
(1) when the Registration Statement or any Prospectus
supplement or post-effective amendment has been filed and,
with respect to the Registration Statement or any
post-effective amendment, when the same has become effective;
(2) of the issuance by the SEC of any stop order suspending
the effectiveness of the Registration Statement or the
initiation of any proceedings for that purpose; and
(3) of the receipt by the Company of any notification with
respect to the suspension of the qualification of the
Registrable Securities for sale in any jurisdiction or the
initiation or threatening of any proceeding for such purpose.
(c) make every commercially reasonable effort to avoid the issuance of,
or if issued, obtain the withdrawal of any stop order or order
suspending the use or effectiveness of the Registration Statement at
the earliest possible date;
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(d) furnish, without charge, to the Holders at least one conformed copy
of the Registration Statement and any post-effective amendment thereto,
including financial statements and schedules and all exhibits (but
excluding documents and exhibits incorporated therein by reference) ;
(e) deliver to the Holders without charge as many copies of the
Prospectus (including each preliminary prospectus) and any amendment or
supplement thereto as such persons may reasonably request for use by
each Holder in connection with the offering and sale of the Registrable
Securities covered by the Prospectus or any amendment or supplement
thereto;
(f) cooperate with the Holders to facilitate the timely preparation and
delivery of certificates representing Registrable Securities to be sold
and not bearing any restricted stock legends;
(g) use its commercially reasonable best efforts to cause the
Registrable Securities covered by the Registration Statement to be
registered with or approved by such governmental agencies or
authorities within the United States as may be necessary to enable the
seller or sellers thereof to consummate the disposition of such
Registrable Securities in such jurisdiction as the sellers may specify
in response to inquiries to be made by the Company, provided that the
Company will not be required to qualify generally to do business in any
jurisdiction where it is not then so qualified or to take any action
that would subject it to general service of process or taxation in any
such jurisdiction where it is not then so subject;
(h) if any event shall occur as a result of which it is necessary, in
the opinion of the Company, to amend or supplement the Prospectus in
order to make the Prospectus not misleading in the light of the
circumstances existing at the time it is delivered to a purchaser,
prepare a supplement or post-effective amendment to the Registration
Statement or the related Prospectus or any document incorporated
therein by reference or file any other required document so that, as
thereafter delivered to the purchasers of the Registrable Securities,
the Prospectus will not contain an untrue statement of a material fact
or omit to state any material fact necessary to make the statements
therein not misleading;
(i) otherwise use its best efforts to comply with all applicable rules
and regulations of the SEC and make generally available to its security
holders an earnings statement satisfying the provisions of Section
11(a) of the Securities Act (in accordance with Rule 158 thereunder or
otherwise) no later than 45 days after the end of the 12-month period
(or 90 days, if such period is a fiscal year) beginning with the first
month of the Company's first fiscal quarter commencing after the
Effective Date, which statements shall cover said 12-month period;
(j) if at any time an event of the kind described in Section 4 (h)
shall occur, promptly notify the Holders that the use of the Prospectus
must be discontinued;
(k) cause the Common Stock issued to the Holders to be listed on the
New York Stock Exchange.
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Each selling holder of Registrable Securities as to which any
registration is being effected agrees, as a condition to the registration
obligations with respect to such holder provided herein, to (i) furnish to the
Company such information regarding the distribution of such securities as the
Company may from time to time reasonably request in writing, and (ii) give the
Company at least TWO (2) FULL BUSINESS DAYS PRIOR WRITTEN NOTICE OF ANY SALE of
the Registrable Securities pursuant to the Registration Statement, WHICH NOTICE
SHALL COMPLY WITH ALL REQUIREMENTS UNDER SECTION 9(B) HEREOF.
Each Holder agrees by acquisition of such Registrable Securities that,
upon receipt of any notice from the Company described in paragraph 4(j), such
Holder will forthwith discontinue disposition of Registrable Securities until
such Holder's receipt of the copies of the supplemented or amended Prospectus
contemplated by Section 4(h) hereof, or until it is advised in writing by the
Company (which notice the Company shall give as promptly as possible), that the
use of the Prospectus may be resumed, and has received copies of any additional
or supplemental filings that are incorporated by reference in the Prospectus;
and, if so directed by the Company, such Holder will deliver to the Company (at
the Company's expense) all copies, other than permanent file copies then in such
Holder's possession, of the Prospectus covering such Registrable Securities
current at the time of receipt of such notice.
5. REGISTRATION EXPENSES
(a) All expenses incident to the Company's performance of or compliance
with this Agreement (the "Registration Expenses"), including without
limitation:
(1) all registration, filing and listing fees;
(2) fees and expenses of compliance with securities or blue
sky laws (including reasonable fees and disbursements of
counsel in connection with blue sky qualifications of the
Registrable Securities under the laws of such jurisdictions as
the holders of a majority in principal amount of the
Registrable Securities being sold may reasonably designate) ;
(3) printing, messenger, telephone and delivery expenses;
(4) fees and disbursements of counsel for the Company;
(5) fees and disbursements of all independent certified public
accountants of the Company (including the expenses of any
special audit necessary to satisfy the requirements of the
Securities Act and any "cold comfort" letters required by or
incident to such performance) ;
(6) securities acts liability insurance if the Company so
desires;
(7) fees and expenses of other Persons retained by the
Company; and
(8) fees and expenses associated with any NASD filing required
to be made in connection with the Registration Statement.
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will be borne by the Company, regardless of whether the Registration Statement
becomes effective.
The Company will, in any event, pay its internal expenses (including,
without limitation, all salaries and expenses of its officers and employees
performing legal or accounting duties), the expense of any annual audit, the
fees and expenses incurred in connection with the listing of the securities to
be registered on the New York Stock Exchange, rating agency fees and the fees
and expenses of any Person, including special experts, retained by the Company.
6. INDEMNIFICATION AND CONTRIBUTION
(a) Indemnification by the Company. The Company agrees to indemnify and
hold harmless each Holder, its officers, directors, employees and agents and
each Person who controls such holder within the meaning of either Section 15 of
the Securities Act or Section 20 of the Exchange Act (each such person being
sometimes hereinafter referred to as an "Indemnified Holder") from and against
all losses, claims, damages, liabilities and expenses (including reasonable
costs of investigation and legal expenses) arising out of or based upon (i) any
violation or alleged violation by the Company of any federal, state or common
law rule or regulation applicable to the Company in connection with any
registration or qualification effected hereunder, or (ii) any untrue statement
or alleged untrue statement of a material fact contained in any Registration
Statement or Prospectus or in any amendment or supplement thereto or in any
preliminary prospectus, 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 such untrue statement or omission or allegation thereof based upon
information furnished in writing to the Company by such holder expressly for use
therein; provided, however, that the Company shall not be liable in any such
case to the extent that any such loss, claim, damage, liability or expense
arises out of or is based upon an untrue statement or alleged untrue statement
or omission or alleged omission made in any preliminary prospectus if (i) such
holder failed to send or deliver a copy of the Prospectus with or prior to the
delivery of written confirmation of the sale of Registrable Securities, and (ii)
the Prospectus would have corrected such untrue statement or omission; and
provided further that the Company shall not be liable in any such case to the
extent that any such loss, claim, damage, liability or expense arises out of or
is based upon an untrue statement or alleged untrue statement or omission or
alleged omission in the Prospectus, if such untrue statement or alleged untrue
statement, omission or alleged omission is corrected in an amendment or
supplement to the Prospectus and if, having previously been furnished by or on
behalf of the Company with copies of the Prospectus as so amended or
supplemented, such holder thereafter fails to deliver such Prospectus as so
amended or supplemented prior to or concurrently with the sale of a Registrable
Security to the person asserting such loss, claim, damage, liability or expense
who purchased such Registrable Security from such holder. The Company will also
indemnify underwriters, selling brokers, dealer managers and similar securities
industry professionals participating in the distribution, their officers and
directors and each Person who controls such Persons (within the meaning of
Section 15 of the Securities Act or Section 20 of the Exchange Act) to the same
extent as provided above with respect to the indemnification of the Holders.
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If any action or proceeding (including any governmental investigation
or inquiry) shall be brought or asserted against any Indemnified Holder in
respect of which indemnity may be sought from the Company, such Indemnified
Holder shall promptly notify the Company in writing, and the Company shall
assume the defense thereof, including the employment of counsel reasonably
satisfactory to such Indemnified Holder and the payment of all expenses.
Indemnified Holders shall have the right, collectively, to employ their own
counsel in any such action and to participate in the defense thereof, but the
fees and expenses of such counsel shall be the expense of the Indemnified
Holders unless (i) the Company has agreed to pay such fees and expenses or (ii)
the Company shall have failed to assume the defense of such action or proceeding
and employ counsel reasonably satisfactory to the Indemnified Holders in any
such action or proceeding or (iii) the named parties to any such action or
proceeding (including any impleaded parties) include the Indemnified Holders and
the Company, and the Indemnified Holders shall have been advised by counsel that
there may be one or more legal defenses available to the Indemnified Holders
that are different from or additional to those available to the Company (in
which case, if the Indemnified Holders notify the Company in writing that they
elect to employ their own counsel at the expense of the Company, the Company
shall not have the right to assume the defense of such action or proceeding on
behalf of the Indemnified Holders, it being understood, however, that the
Company shall not, in connection with any one such action or proceeding or
separate but substantially similar or related actions or proceedings in the same
jurisdiction arising out of the same general allegations or circumstances, be
liable for the reasonable fees and expenses of more than one separate firm of
attorneys (together with appropriate local counsel) at any time for the
Indemnified Holders, which firm shall be designated in writing by the
Indemnified Holders representing at least a majority of the aggregate principal
amount of the Registrable Securities). Any such fees and expenses payable by the
Company shall be paid to the Indemnified Holders entitled thereto as incurred by
the Indemnified Holders. The Company shall not be liable for any settlement of
any such action or proceeding effected without its written consent, but if
settled with its written consent, or if there be a final judgment for the
plaintiff in any such action or proceeding, the Company agrees, subject to the
terms and conditions hereof, to indemnify and hold harmless the Indemnified
Holders from and against any loss or liability by reason of such settlement or
judgment.
(b) Indemnification bv the Holders. Each Holder agrees,
severally and not jointly, to indemnify and hold harmless the Company, its
respective directors and officers and each Person, if any, who controls the
Company within the meaning of either Section 15 of the Securities Act or Section
20 of the Exchange Act (i) to the same extent as the foregoing indemnity from
the Company to such Holder in connection with any Registration Statement
pursuant to which any Holder sold or offered for resale any Registrable
Securities, but only with respect to information relating to such Holder
furnished in writing by such Holder expressly for use in any Registration
Statement or Prospectus, or any amendment or supplement thereto, or any
preliminary prospectus, and made in such Registration Statement or Prospectus or
any amendment or supplement thereto in conformity with such writing, and (ii)
from and against all losses, claims, damages, liabilities and expenses
(including reasonable costs of investigation and legal expenses) arising out of
or based upon any violation or alleged violation by such Holder of any federal,
state or common law rule or regulation applicable to the sale of the Registrable
Securities under the Registration Statement; provided that the liability of all
such Holders hereunder in aggregate (unless a Holder's liability hereunder is
based upon such Holder's willful misconduct) shall not exceed the net proceeds
received by all Holders in aggregate from the sale of Registrable Securities
under such Registration Statement. In case any action or proceeding
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shall be brought against the Company or its respective directors or officers or
any such controlling person in respect of which indemnity may be sought against
a Holder, such Holder shall have the rights and duties given the Company, and
the Company or its respective directors or officers or such controlling person
shall have the rights and duties given to each Holder by the preceding
paragraph. Each such Holder will also indemnify underwriters, selling brokers,
dealer managers and similar securities industry professionals participating in
the distribution, their officers and directors and each Person who controls such
Persons (within the meaning of Section 15 of the Securities Act or Section 20 of
the Exchange Act) to the same extent as provided above with respect to the
indemnification of the Company. The Company and each Holder shall be entitled to
receive indemnities from underwriters, selling brokers, dealer managers and
similar securities industry professionals participating in the distribution to
the same extent as provided above with respect to information so furnished in
writing by such Persons specifically for inclusion in any Prospectus or
Registration Statement.
(c) Contribution. If the indemnification provided for in this Section 6
is unavailable to an indemnified party under Section 6 (a) or Section 6(b)
hereof (other than by reason of exceptions provided in those Sections) in
respect of any losses, claims, damages, liabilities or expenses referred to
therein, then each applicable 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 from the issuance of the Series E Preferred
Stock pursuant to the Acquisition Agreement that were converted to Common Stock
and sold pursuant to the Registration Statement on the one hand and each Holder
of Registrable Securities from the offering of the Registrable Securities by
such holder, on the other hand, 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 each Holder on the
other in connection with the actions, statements or omissions that resulted in
such losses, claims, damages, or liabilities, as well as the other relevant
equitable considerations. The relative fault 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 or the particular Holder and the
parties' relative intent, knowledge, access to information and opportunity to
correct or prevent such untrue statement or omission. The Company and the
Holders agree that it would not be just and equitable if contributions pursuant
to this subsection (c) were to be determined by pro rata allocation or by any
other method of allocation that does not take account of the equitable
considerations referred to in the first sentence of this subsection (c). The
amount paid by an indemnified party as a result of the losses, claims, damages
or liabilities referred to in the first sentence of this subsection (c) shall be
deemed to include any legal or other expenses reasonably incurred by such
indemnified party in connection with investigation or defending against any
action or claim that is the subject of this subsection (c). Notwithstanding the
provision of this subsection (c), the Holders in aggregate shall not be required
to contribute any amount in excess of the net proceeds received by all Holders
in aggregate from the sale of the Registrable Securities under the Registration
Statement. No person guilty of fraudulent misrepresentation (within the meaning
of Section 11 (f) of the Securities Act), shall be entitled to contribution from
any person who was not guilty of such fraudulent misrepresentation.
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7. TRANSFER OF RIGHTS. The rights contained herein may be assigned or otherwise
conveyed to transferees or assignees of Registrable Securities or of Series E
Preferred Stock that is then convertible into Registrable Securities, who shall
be considered a "Holder" for purposes hereof, provided that (i) such transfer is
a "Permitted Transfer" as defined herein, and (ii) such transfer takes place at
least forty-eight (48) hours prior to the initial filing of the Registration
Statement by the Company pursuant to the terms and conditions hereof unless the
proposed transferee agrees in writing to reimburse the Company for all fees and
expenses of preparing and filing any post-effective amendment to the
Registration Statement that is necessary to include information on the
transferee as a potential seller of the Registrable Securities. Any Holder that
desires to assign or otherwise convey rights hereunder shall provide the Company
with at least forty-eight (48) hours prior written notice of the proposed
assignment.
For purposes of this Agreement, a "Permitted Transfer" shall mean: (i)
a transaction not involving a change in beneficial ownership; (ii) transactions
involving distributions or transfers by a stockholder that is a partnership,
limited liability company or corporation to (A) any of its partners, members or
stockholders (as the case may be), (B) any of its retired partners, members or
stockholders, (C) any of its affiliates, or (D) the estate of any of its
partners, members or stockholders; (iii) transfers by any stockholder who is an
individual to a trust for the benefit of such stockholder or his family; (iv)
transfers by gift, will or intestate succession to the spouse, lineal
descendants, whether by blood or by adoption, spouses of such descendants,
ancestors, siblings, or direct lineal descendants, whether by blood or by
adoption, of such siblings, of any stockholder or spouse of a stockholder or a
trust or family limited partnership for the sole benefit of such persons; or (v)
transfers to an "accredited investor", as defined in Rule 501 of the SEC under
the Securities Act.
8. SEC RULE 144
The Company shall make and keep current public information available,
within the meaning of SEC Rule 144, and file the reports required to be filed by
it under the Securities Act and the Exchange Act in a timely manner and, if at
any time it is not required to file such reports but in the past had been
required to or did file such reports, it will, upon the request of any Holder,
make available other information as required by, and so long as necessary to
permit sales of Registrable Securities pursuant to, SEC Rule 144.
9. MISCELLANEOUS.
(a) Amendments and Waivers. The provisions of this Agreement, including
the provisions of this sentence, may not be amended, modified or supplemented,
and waivers or consents to departures from the provisions hereof may not be
given, unless the Company has obtained the written consent of holders of a
majority of the Registrable Securities. Notwithstanding the foregoing, a waiver
or consent to departure from the provisions hereof that relates exclusively to
the rights of Holders of Registrable Securities whose securities are being sold
pursuant to a Registration Statement and that does not directly or indirectly
affect the rights of other Holders may be given by the holders of a majority of
the Registrable Securities being sold.
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(b) Notices. All notices, requests, consents and other communications
hereunder shall be in writing, shall be sent by e-mail, telecopy, a nationally
recognized overnight express courier service, or first-class registered or
certified mail, all expenses prepaid, and shall be deemed given (i) when receipt
is acknowledged if given by e-mail or telecopy, (ii) the next business day if
sent by nationally recognized overnight express courier, or (iii) five (5)
business days later if sent by first class registered or certified mail, and
shall be addressed or directed as follows:
(1) if to a Holder, in accordance with the information set
forth on the signature page hereof as updated from time to
time by the Holder in accordance with the provisions of this
Section 9(b), or as otherwise provided to the company in
writing by a transferee of a Holder; and
(2) if to the Company, initially as set forth below and
thereafter as updated from time to time in accordance with the
provisions of this Section 9(b):
To: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
President and Chief Financial Officer
Health Care REIT, Inc.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
With A Copy To: ▇▇▇▇ ▇. ▇▇▇▇▇
Vice President and Corporate Secretary
Health Care REIT, Inc.
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇. ▇. ▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇@▇▇▇▇▇▇.▇▇▇
and
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, Esq.
▇▇▇▇▇▇▇▇, Loop & ▇▇▇▇▇▇▇▇, LLP
▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
E-mail: ▇▇▇▇▇▇▇▇▇▇@▇▇▇-▇▇▇.▇▇▇
11
(c) Successors and Assigns. This Agreement shall inure to the benefit
of and be binding upon the successors and permitted assigns of each of the
parties and shall inure to the benefit of each existing and future Holder. The
Company may not assign its rights or obligations hereunder without the prior
written consent of the Holders of a majority of the Registrable Securities,
other than by operation of law pursuant to a merger or consolidation to which
the Company is a party.
(d) Headings. The headings in this Agreement are for convenience of
reference only and shall not limit or otherwise affect the meaning hereof.
(e) Severability. In the event that any one or more of the provisions
contained herein, or the application thereof in any circumstance, is held
invalid, illegal or unenforceable, the validity, legality and enforceability of
any such provision in every other respect and of the remaining provisions
contained herein shall not be affected or impaired thereby.
(f) Counterparts. This Agreement may be executed in any number of
counterparts by the parties hereto, each of which when so executed shall be
deemed to be an original and all of which taken together shall constitute one
and the same instrument.
(g) GOVERNING LAW. THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED
IN ACCORDANCE WITH, THE LAWS OF THE STATE OF OHIO, AS APPLIED TO CONTRACTS MADE
AND PERFORMED WITHIN THE STATE OF OHIO, WITHOUT REGARD TO PRINCIPLES OF
CONFLICTS OF LAW.
12
IN WITNESS WHEREOF, the undersigned have caused this Agreement to be
executed as of the date first above written.
HEALTH CARE REIT, INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇
--------------------------------
Print Name: ▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President and Corporate Secretary
SOUTHERN ASSISTED LIVING, INC,
By: /s/ ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
--------------------------------
Print Name: ▇▇▇▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
INVESTOR GROUP:
KITTY HAWK CAPITAL LIMITED PARTNERSHIP, III
By: Kitty Hawk Partners Limited Partnership, III, General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
-------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. General Partner
KITTY HAWK CAPITAL LIMITED PARTNERSHIP, IV
By: Kitty Hawk Partners Limited Liability Company, IV, General Partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇.
--------------------------------------------------
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇, ▇▇. Managing Member
13
THE NORTH CAROLINA ENTERPRISE FUND, LIMITED PARTNERSHIP
By: The North Carolina Enterprise Corporation, General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
-------------------------------------------------
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President and CEO
PRIMUS CAPITAL FUND III LIMITED PARTNERSHIP
By: Primus Venture Partners III Limited Partnership, General Partner
By: Primus Venture Partners, Inc., General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary and Treasurer
PRIMUS CAPITAL FUND IV LIMITED PARTNERSHIP
By: Primus Venture Partners IV Limited Partnership, General Partner
By: Primus Venture Partners IV, Inc., General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary and Treasurer
PRIMUS EXECUTIVE FUND LIMITED PARTNERSHIP
By: Primus Venture Partners IV Limited Partnership, General Partner
By: Primus Venture Partners IV, Inc., General Partner
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Name: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Secretary and Treasurer
PNC VENTURE CORPORATION
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------------------
▇▇▇▇ ▇. ▇▇▇▇▇▇▇, President
14
CHARTWELL CAPITAL INVESTORS II, L.P.
By: Chartwell Capital Management Company II, Investment Manager for Chartwell
Capital Investors II, L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇
-----------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇
Title: VP & CFO
Record
----------------------------------------------
Address:
---------------------------------------------
Fax:
-------------------------------------------------
E-mail:
----------------------------------------------
▇▇▇▇▇▇ ▇▇▇▇▇▇ VENTURE FUND II, LIMITED PARTNERSHIP
By: ▇▇▇▇▇▇ ▇▇▇▇▇▇ Venture Partners II, L.L.C., Its General Partner
By: /s/ W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
-------------------------------------------------
Name: W. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇
Title: Managing Director
▇▇▇▇▇▇▇ ▇▇▇▇▇ CAPITAL PARTNERS, L.P.
By: RJC PARTNERS, L.P., Its General Partner
By: RJC PARTNERS, INC., Its General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
----------------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇.
Title: President
/s/ Pier ▇. ▇▇▇▇▇
-----------------------------------------------------
Pier ▇. ▇▇▇▇▇
15