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8-K - FORM 8-K - Ventas, Inc. | c11798e8vk.htm |
EX-5.1 - EXHIBIT 5.1 - Ventas, Inc. | c11798exv5w1.htm |
Exhibit 1.1
VENTAS, INC.
5,563,000 Shares of Common Stock
UNDERWRITING AGREEMENT
Dated January 31, 2011
Dated January 31, 2011
UBS Securities LLC
UNDERWRITING AGREEMENT
January 31, 2011
UBS Securities LLC
299 Park Avenue
New York, NY 10171
299 Park Avenue
New York, NY 10171
Ladies and Gentlemen:
Ventas, Inc., a Delaware corporation (Ventas or the Issuer) and Ventas
Realty, Limited Partnership, a Delaware limited partnership (the Operating Partnership),
agree with UBS Securities LLC (the Underwriter) as set forth in this underwriting
agreement (this Agreement). Each of Ventas and the Operating Partnership are referred to
herein sometimes individually as a Ventas Entity and together as the Ventas
Entities.
The Issuer proposes to issue and sell to the Underwriter 5,563,000 shares of the Issuers
common stock, par value $0.25 per share (the Securities). Securities issued in book-entry
form will be issued in the name of Cede & Co., as nominee of The Depository Trust Company
(DTC).
SECTION 1. Representations and Warranties.
(a) Representations and Warranties by the Ventas Entities. The Ventas Entities, jointly and
severally, represent and warrant to the Underwriter as of the date hereof, as of the Applicable
Time referred to in Section 1(a)(iv) and as of the Closing Time referred to in Section 2(c), and
agree with the Underwriter, as follows:
(i) Registration Statement. The Issuer has prepared and filed with the U.S.
Securities and Exchange Commission (the Commission) a registration statement on
Form S-3 (File No. 333-158424), which contains a base prospectus (the Base
Prospectus), to be used in connection with the public offering and sale of the
Securities. Such registration statement, as amended, including the financial statements,
exhibits and schedules thereto, at each time of effectiveness under the Securities Act of
1933, as amended (the 1933 Act), and the rules and regulations promulgated
thereunder (the 1933 Act Regulations), including any required information deemed
to be a part thereof at the time of effectiveness pursuant to Rule 430B under the 1933 Act,
is called the Registration Statement. Any preliminary prospectus supplement that
describes the Securities and the offering thereof and is used prior to the filing of the
Prospectus is hereafter called, together with the Base Prospectus, a preliminary
prospectus. The term Prospectus shall mean the final prospectus supplement
relating to the Securities that is first filed pursuant to Rule 424(b) after the date and
time that this Agreement is executed and delivered by the parties hereto (the Execution
Time), together with the Base Prospectus. Any reference herein to the Registration
Statement, the Base Prospectus, any preliminary 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
1933 Act; any reference to any amendment or supplement to the Registration Statement, the
Base Prospectus, any preliminary prospectus or the Prospectus shall be deemed to refer to
and include any documents filed after the date of such Registration Statement, such Base
Prospectus, any preliminary prospectus or Prospectus, as the case may be, under the
Securities Exchange Act of 1934, as amended (the 1934 Act), and the rules and
regulations promulgated thereunder (the 1934 Act Regulations), and incorporated by
reference in such Registration Statement, such Base Prospectus, any preliminary prospectus
or Prospectus, as the case may be.
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(ii) Compliance with Registration Requirements. The Registration Statement has
become effective upon filing with the Commission under the 1933 Act. No stop order
suspending the effectiveness of the Registration Statement is in effect, the Commission has
not issued any order or notice preventing or suspending the use of the Registration
Statement, any preliminary prospectus or the Prospectus and no proceedings for such purpose
have been instituted or are pending or, to the knowledge of the Ventas Entities, are
contemplated or threatened by the Commission.
Each of the preliminary prospectus, if any, and the Prospectus when filed complied in
all material respects with the 1933 Act and the 1933 Act Regulations. Each of the
Registration Statement and any post-effective amendment thereto, at each time of
effectiveness and at the date hereof, complied and will comply in all material respects with
the 1933 Act and 1933 Act Regulations and did not and will 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 not misleading. The Prospectus, as amended
or supplemented, as of its date, at the date hereof, at the time of any filing pursuant to
Rule 424(b) and at the Closing Time, did not and will not include any untrue statement of a
material fact or omit to state a material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
representations and warranties set forth in the two immediately preceding sentences do not
apply to statements in or omissions from the Registration Statement or any post-effective
amendment thereto, or the Prospectus, or any amendments or supplements thereto, made in
reliance upon and in conformity with information relating to the Underwriter furnished to
Ventas in writing by the Underwriter expressly for use therein, it being understood and
agreed that the only such information furnished by the Underwriter consists of the
Underwriter Information described as such in Section 6(b) hereof. There is no contract or
other document required to be described in the Prospectus or to be filed as an exhibit to
the Registration Statement that has not been described or filed as required.
The documents incorporated by reference in the Prospectus, when they became effective
or were filed with the Commission, as the case may be, conformed in all material respects to
the requirements of the 1933 Act or the 1934 Act, as applicable. Any further documents so
filed and incorporated by reference in the Prospectus or any further amendment or supplement
thereto, when such documents become effective or are filed
with the Commission, as the case may be, will conform in all material respects to the
requirements of the 1933 Act or the 1934 Act, as applicable.
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(iii) Well-Known Seasoned Issuer. (i) At the time of filing the Registration
Statement, (ii) at the time of the most recent amendment thereto, if applicable, for the
purposes of complying with Section 10(a)(3) of the 1934 Act (whether such amendment was by
post-effective amendment, incorporated report filed pursuant to Section 13 or 15(d) of the
1934 Act or form of prospectus) or determining compliance under Rule 405 of the 1933 Act,
and (iii) at the time the Issuer or any person acting on its behalf (within the meaning, for
this clause only, of Rule 163(c) under the 1933 Act) made any offer relating to the
Securities in reliance on the exemption of Rule 163 of the 1933 Act, the Issuer was and is a
well-known seasoned issuer as defined in Rule 405 of the 1933 Act. The
Registration Statement is an automatic shelf registration statement, as defined in
Rule 405 of the 1933 Act, and Ventas has not received from the Commission any notice
pursuant to Rule 401(g)(2) of the 1933 Act objecting to use of the automatic shelf
registration statement form.
(iv) Disclosure Package. The term Disclosure Package shall mean (i)
the Base Prospectus and the preliminary prospectus, if any, as amended or supplemented, (ii)
the pricing information orally conveyed to prospective investors set forth on Annex A
attached hereto (the Pricing Information) and (iii) any free writing prospectus
that the parties hereto shall hereafter expressly agree in writing to treat as part of the
Disclosure Package. As of the date and time of execution of this Agreement (the
Applicable Time), the Disclosure Package did not include any untrue statement of a
material fact or omit to state any material fact necessary in order to make the statements
therein, in the light of the circumstances under which they were made, not misleading. The
preceding sentence does not apply to statements in or omissions from the Disclosure Package
made in reliance upon and in conformity with information relating to the Underwriter
furnished to Ventas in writing by the Underwriter expressly for use therein, it being
understood and agreed that the only such information furnished by the Underwriter consists
of the Underwriter Information described as such in Section 6(b) hereof.
(v) Issuer Not Ineligible Issuer. (i) At the earliest time after the filing of
the Registration Statement relating to the Securities that the Issuer or another offering
participant made a bona fide offer (within the meaning of Rule 164(h)(2) of the 1933 Act)
and (ii) at the time of the most recent amendment thereto, if applicable, for the purposes
of (whether such amendment was by post-effective amendment, incorporated report filed
pursuant to Section 13 or 15(d) of the 1934 Act or form of prospectus) determining
compliance under Rule 405 of the 1933 Act, the Issuer was not and is not an Ineligible
Issuer (as defined in Rule 405 of the 1933 Act), without taking account of any determination
by the Commission pursuant to Rule 405 of the 1933 Act that it is not necessary that the
Issuer be considered an Ineligible Issuer.
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(vi) Issuer Free Writing Prospectuses. Each issuer free writing prospectus as
defined in Rule 433 of the 1933 Act (each, an Issuer Free Writing Prospectus), as
of its issue date and at all subsequent times through the completion of
the offering of Securities under this Agreement or until any earlier date that the
Issuer notified or notifies the Underwriter as described in the next sentence, did not, does
not and will not include any information that conflicted, conflicts or will conflict with
the information contained in the Registration Statement. If at any time following issuance
of an Issuer Free Writing Prospectus there occurred or occurs an event or development as a
result of which such Issuer Free Writing Prospectus conflicted or would conflict with the
information contained in the Registration Statement, the Issuer has promptly notified and
shall promptly notify the Underwriter and has promptly amended or supplemented or shall
promptly amend or supplement, at its own expense, such Issuer Free Writing Prospectus to
eliminate or correct such conflict. The foregoing two sentences do not apply to statements
in or omissions from any Issuer Free Writing Prospectus made in reliance upon and in
conformity with information relating to the Underwriter furnished in writing to the Issuer
by the Underwriter expressly for use therein, it being understood and agreed that the only
such information furnished by the Underwriter consists of the Underwriter Information
described as such in Section 6(b) hereof.
(vii) Distribution of Offering Material by the Issuer. The Issuer has not
distributed and will not distribute, prior to the later of the Closing Time and the
completion of the Underwriters distribution of the Securities, any offering material in
connection with the offering and sale of the Securities other than a preliminary prospectus
(if any), the Prospectus, the Disclosure Package, and any Issuer Free Writing Prospectus
reviewed and consented to by the Underwriter or included in the Registration Statement.
(viii) No Applicable Registration or Other Similar Rights. There are no
persons with registration or other similar rights to have any equity or debt securities
registered for sale under the Registration Statement or included in the offering
contemplated by this Agreement, except for such rights as have been duly waived.
(ix) Capitalization. Ventas has an authorized capitalization of 300,000,000
shares of common stock, $0.25 par value (the Common Stock), and 10,000,000 shares
of preferred stock, $1.00 par value. All of the issued and outstanding shares of capital
stock or other equity interests of Ventas have been duly authorized and validly issued, are
fully paid and nonassessable and were not issued in violation of any preemptive or similar
right. All of the issued and outstanding shares of capital stock or other equity interests
of each Subsidiary of Ventas have been duly and validly authorized and issued, are fully
paid and (except in the case of general partnership interests) nonassessable, were not
issued in violation of any preemptive or similar right and, except as set forth in each of
the Disclosure Package and the Prospectus, are owned by Ventas, directly or indirectly
through one or more Subsidiaries, free and clear of all Liens other than Liens (i) that will
be discharged at or prior to the Closing Time or (ii) that are described in each of the
Disclosure Package and the Prospectus and secure indebtedness described in each of the
Disclosure Package and the Prospectus. There are no outstanding options, warrants or other
rights to acquire or purchase, or instruments convertible into or exchangeable for, any
shares of capital stock of any of the Significant
Subsidiaries. For purposes of this Agreement, Significant Subsidiary means
any Subsidiary whose total assets or annualized revenues (when aggregated with those of its
Subsidiaries) as of the date of this Agreement exceed 10% of the consolidated total assets
or consolidated annualized revenues of Ventas and the Subsidiaries as of the date of this
Agreement. Lien means, with respect to any asset, any mortgage, lien, pledge,
charge, security interest or encumbrance of any kind in respect of such asset, whether or
not filed, recorded or otherwise perfected under applicable law, including any conditional
sale or other title retention agreement, any lease in the nature thereof, any option or
other agreement to sell or give a security interest in and any filing of or agreement to
give any financing statement under the Uniform Commercial Code (or equivalent statutes) of
any jurisdiction.
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(x) [Reserved].
(xi) Authorization and Description of the Securities. The Securities to be
purchased by the Underwriter from the Issuer have been duly authorized by the Issuer for
issuance and sale pursuant to this Agreement, and at the Closing Time, when issued and
delivered by the Issuer against payment by the Underwriter in accordance with the terms of
this Agreement, will have been validly issued, fully paid and nonassessable and conform to
the description thereof contained or incorporated by reference in the Prospectus and the
Disclosure Package; and the stockholders of the Issuer will have no preemptive or similar
rights with respect to the Securities.
(xii) Good Standing of Ventas and Its Subsidiaries; Power and Authority. Each
of Ventas and its (a) Significant Subsidiaries is a corporation, partnership, limited
liability company or real estate investment trust duly organized and validly existing under
the laws of the jurisdiction of its organization, (b) Subsidiaries has all requisite
corporate, partnership, limited liability company or trust power and authority, and has all
governmental licenses, authorizations, consents and approvals, necessary to own its property
and carry on its business as now being conducted, except where the failure to obtain any
such license, authorization, consent and approval is not reasonably likely, individually or
in the aggregate, to have a Material Adverse Effect (as defined below), and (c) Subsidiaries
is qualified to do business and is in good standing in all jurisdictions in which the nature
of the business conducted by it makes such qualification necessary except where failure to
be so qualified and in good standing is not reasonably likely, individually or in the
aggregate, to have a Material Adverse Effect (as defined below). Each of the Ventas
Entities has all requisite corporate, partnership, limited liability company or trust power
and authority to execute, deliver and perform all of its obligations under this Agreement
and to consummate the transactions contemplated hereby to be consummated on its part,
including, without limitation, in the case of Ventas, the authority to issue, sell and
deliver the Securities. A Material Adverse Effect means any material adverse
effect on the business, condition (financial or otherwise), results of operations,
performance or properties of Ventas and the Subsidiaries, taken as a whole.
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(xiii) Authorization of this Agreement. This Agreement has been duly and
validly authorized, executed and delivered by each of the Ventas Entities.
(xiv) Absence of Defaults and Conflicts. Neither Ventas nor any Subsidiary is
in violation of its charter, bylaws or other constitutive documents. Except as described in
the Prospectus and the Disclosure Package, none of Ventas or any Subsidiary is (A) in
default (or, with notice or lapse of time or both, would be in default) in the performance
or observance of any obligation, agreement, covenant or condition contained in any bond,
debenture, note, indenture, mortgage, deed of trust, loan or credit agreement, lease,
license, franchise agreement, authorization, permit, certificate or other agreement or
instrument to which any of them is a party or by which any of them is bound or to which any
of their assets or properties is subject (collectively, Agreements and
Instruments) or (B) in violation of any law, statute, rule, regulation, judgment, order
or decree of any domestic or foreign court with jurisdiction over any of them or any of
their assets or properties or other governmental or regulatory authority, agency or other
body, which, in the case of clauses (A) and (B), individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect. There exists no condition that, with
notice, the passage of time or otherwise, would constitute a default by Ventas or any
Subsidiary under any such document or instrument or result in the imposition of any penalty
or the acceleration of any indebtedness, other than penalties, defaults or conditions that,
individually or in the aggregate, are not reasonably likely to have a Material Adverse
Effect.
(xv) Absence of Defaults and Conflicts upon Consummation of Offering. None of
the issuance, offer and sale of the Securities by the Issuer, the execution, delivery and
performance of this Agreement by each of the Ventas Entities, or the consummation by the
Ventas Entities of the transactions contemplated by this Agreement and described in the
Prospectus and the Disclosure Package violate or will violate, conflict with or constitute a
breach of any of the terms or provisions of or a default under (or an event that with notice
or the lapse of time, or both, would constitute a default), or results in the creation or
imposition of a lien, charge, or encumbrance on any property or assets of Ventas or any
Subsidiary pursuant to, (i) the charter, bylaws or other constitutive documents of Ventas or
any Subsidiary, (ii) any law, statute, rule or regulation applicable to Ventas or any
Subsidiary or their respective assets or properties, (iii) any judgment, order or decree of
any domestic or foreign court or governmental agency or authority having jurisdiction over
Ventas or any Subsidiary or their respective assets or properties or (iv) any Agreements and
Instruments, except in the case of clauses (ii) and (iv), for such violations, conflicts,
breaches, defaults, liens, charges or encumbrances that, individually or in the aggregate,
are not reasonably likely to have a Material Adverse Effect. No consent, approval,
authorization or order of, or filing, registration, qualification, license or permit of or
with, any court or governmental agency, body or administrative agency, domestic or foreign,
is required to be obtained or made by the Issuer or any Subsidiary for the execution,
delivery and performance by the Ventas Entities of this Agreement, including the
consummation of any of the transactions contemplated hereby, except such as have been or
will be obtained or made at or prior to
the Closing Time, including, without limitation, such as may be required by the 1933
Act, state securities laws, blue sky laws and the Financial Industry Regulatory Authority,
Inc. (FINRA).
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(xvi) Absence of Proceedings. Except as set forth in each of the Disclosure
Package and the Prospectus, there is no action, suit or proceeding before or by any court,
arbitrator or governmental agency, body or official, domestic or foreign, now pending or, to
the knowledge of any of the Ventas Entities, threatened or contemplated, to which any of
Ventas or any Subsidiary is or may be a party or to which the business, assets or property
of such person is or may be subject that is, individually or in the aggregate, reasonably
likely (i) to have a Material Adverse Effect, or (ii) to interfere with or adversely affect
the issuance of the Securities in any jurisdiction or adversely affect the consummation of
the transactions contemplated by this Agreement and described in each of the Disclosure
Package and the Prospectus. Except as set forth in each of the Disclosure Package and the
Prospectus, there is (A) no statute, rule, regulation or order that has been enacted,
adopted or issued or, to the knowledge of any of the Ventas Entities, that has been proposed
by any governmental body or agency, domestic or foreign, and (B) no injunction, restraining
order or order of any nature by a federal or state court or foreign court of competent
jurisdiction to which Ventas or any Subsidiary is or may be subject that in the case of
clauses (A) and (B) is, individually or in the aggregate, (x) reasonably likely to have a
Material Adverse Effect, or (y) reasonably likely to interfere with or adversely affect the
issuance of the Securities in any jurisdiction or adversely affect the consummation of the
transactions contemplated by this Agreement. Every request of any securities authority or
agency of any jurisdiction for additional information with respect to the Securities that
has been received by Ventas or any Subsidiary or their counsel prior to the date hereof has
been, or will prior to the Closing Time be, complied with in all material respects.
(xvii) 1934 Act Compliance. Ventas is subject to and in compliance in all
material respects with the reporting requirements of Section 13 or 15(d) of the 1934 Act.
(xviii) Absence of Labor Dispute. Except as is not reasonably likely to have a
Material Adverse Effect, no labor disturbance by the employees of Ventas or any Subsidiary
exists or, to the knowledge of any of the Ventas Entities, is imminent. None of the Ventas
Entities is aware of any existing or imminent labor disturbance by the employees of Kindred
Healthcare, Inc. which may reasonably be expected to result in a Material Adverse Effect.
(xix) Environmental Laws. Except as described in each of the Disclosure
Package and the Prospectus, Ventas and each Subsidiary (A) is in compliance with, or not
subject to costs or liabilities under, laws, regulations, rules of common law, orders and
decrees, as in effect as of the date hereof, and any present judgments and injunctions
issued or promulgated thereunder relating to pollution or protection of public and employee
health and safety, the environment or hazardous or toxic substances or wastes, pollutants or
contaminants applicable to it or its business or operations or
ownership or use of its property (Environmental Laws), other than
noncompliance or such costs or liabilities that are not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect, and (B) possesses all permits, licenses
or other approvals required under applicable Environmental Laws, except where the failure to
possess any such permit, license or other approval is not, individually or in the aggregate,
reasonably likely to have a Material Adverse Effect. All currently pending and, to the
knowledge of any of the Ventas Entities, threatened proceedings, notices of violation,
demands, notices of potential responsibility or liability, suits and existing environmental
conditions by any governmental authority to which any of the Ventas Entities is subject that
are reasonably likely to result in a Material Adverse Effect are fully and accurately
described in all material respects in each of the Disclosure Package and the Prospectus.
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(xx) Possession of Licenses and Permits. Ventas and each Subsidiary has (A)
all licenses, certificates, permits, authorizations, approvals, franchises and other rights
from, and has made all declarations and filings with, all applicable authorities, all
self-regulatory authorities and all courts and other tribunals (each, an
Authorization) necessary to engage in the business conducted by it in the manner
described in each of the Disclosure Package and the Prospectus, except where the failure to
hold such Authorizations is not, individually or in the aggregate, reasonably likely to have
a Material Adverse Effect, and (B) no knowledge that any governmental body or agency,
domestic or foreign, is considering limiting, suspending or revoking any such Authorization,
except where any such limitations, suspensions or revocations are not, individually or in
the aggregate, reasonably likely to have a Material Adverse Effect. All such Authorizations
are valid and in full force and effect, and Ventas and each Subsidiary is in compliance with
the terms and conditions of all such Authorizations and with the rules and regulations of
the regulatory authorities having jurisdiction with respect to such Authorizations, except
for any invalidity, failure to be in full force and effect or noncompliance with any
Authorization that is not, individually or in the aggregate, reasonably likely to have a
Material Adverse Effect.
(xxi) Title to Property. Ventas and each Subsidiary has good and marketable
title in fee simple or a ground leasehold interest in all items of real property and good
and marketable title to all personal property owned by each of them, in each case free and
clear of all Liens, except (i) for Liens described in each of the Disclosure Package and the
Prospectus and (ii) to the extent that the failure to have such title or the presence of
such Liens is not, individually or in the aggregate, reasonably likely to result in a
Material Adverse Effect. Any real property and buildings held under lease by Ventas or any
Subsidiary are held under valid, subsisting and enforceable leases, except to the extent
that the failure to so hold such real property and buildings is not, individually or in the
aggregate, reasonably likely to result in a Material Adverse Effect.
(xxii) Authorization, etc. of Leases. Each of Ventas and the Subsidiaries
leases, including the Master Leases (as defined below), has been duly authorized by one or
more of Ventas and its Subsidiaries, as applicable, and is a valid and binding agreement of
Ventas and/or any such Subsidiary, and, to the knowledge of
Ventas and/or any such Subsidiary, each other party thereto, enforceable in accordance
with its terms, except as enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, fraudulent conveyance, moratorium or similar laws affecting the enforcement
of creditors rights generally and by general principles of equity and the discretion of the
court before which any proceedings therefor may be brought and except, with respect to
Ventas and the Subsidiaries leases (other than the Master Leases), as would not
individually or in the aggregate, be reasonably likely to have a Material Adverse Effect.
To the knowledge of any of the Ventas Entities, no lessee or sublessee of any portion of any
of the properties owned or leased by Ventas and/or any Subsidiary is in default under its
respective lease and there is no event which, but for the passage of time or the giving of
notice or both, would constitute a default under any such lease, except as described in each
of the Disclosure Package and the Prospectus and except for such defaults that are not,
individually or in the aggregate, reasonably likely to have a Material Adverse Effect. The
term Master Leases refers to the four second amended and restated master lease
agreements, dated as of April 27, 2007, by and among the Operating Partnership and Kindred
Healthcare, Inc. and Kindred Healthcare Operating, Inc.
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(xxiii) Qualification as a REIT. Commencing with Ventas taxable year ended
December 31, 1999, Ventas has been organized and has operated in conformity with the
requirements for qualification and taxation as a real estate investment trust
(REIT) under the Internal Revenue Code of 1986, as amended (the Code),
and the Issuers current and proposed method of operation will enable the Issuer to continue
to meet the requirements for qualification and taxation as a REIT under the Code.
(xxiv) Possession of Intellectual Property. Each of Ventas and each
Significant Subsidiary owns, possesses or has the right to employ all patents, patent
rights, licenses, inventions, copyrights, know-how, trademarks, service marks, trade names
and other intellectual property (collectively, the Intellectual Property)
necessary to conduct the businesses operated by it as described in each of the Disclosure
Package and the Prospectus, except where the failure to own, possess or have the right to
employ such Intellectual Property is not reasonably likely to have a Material Adverse
Effect. None of Ventas or any Subsidiary has received any notice of infringement of or
conflict with (and neither knows of any such infringement or a conflict with) asserted
rights of others with respect to any of the foregoing that, if such assertion of
infringement or conflict were sustained, is reasonably likely to have a Material Adverse
Effect. To the knowledge of each of the Ventas Entities, the use of the Intellectual
Property in connection with the business and operations of Ventas and the Subsidiaries does
not infringe on the rights of any person, except for such infringement as is not reasonably
likely to have a Material Adverse Effect, and neither Ventas nor any Subsidiary has received
any notice of, and otherwise has no knowledge of, any threatened or existing action, suit,
proceeding or claim by any person challenging use of the Intellectual Property by Ventas and
the Subsidiaries.
(xxv) Tax Returns and Payment of Taxes. (A) All tax returns required to be
filed by Ventas and each Subsidiary have been timely filed in all jurisdictions where such
returns are required to be filed; (B) Ventas and each Subsidiary have paid all taxes,
including, but not limited to, income, value added, property and franchise taxes, penalties
and interest, assessments, fees and other charges due or claimed to be due from such
entities or that are due and payable, other than those being contested in good faith and for
which reserves have been provided in accordance with generally accepted accounting
principles (GAAP) or those currently payable without penalty or interest; and (C)
Ventas and each Subsidiary has complied with all withholding tax obligations except, in the
case of any of clause (A), (B) or (C), where the failure to make such required filings,
payments or withholdings is not, individually or in the aggregate, reasonably likely to have
a Material Adverse Effect. Except as described in each of the Disclosure Package and the
Prospectus, none of Ventas or any Subsidiary has knowledge of any material proposed
additional tax assessments against Ventas or any of the Subsidiaries or their assets or
property.
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(xxvi) Certain ERISA Matters. None of Ventas or any of the Subsidiaries has
any liability for any prohibited transaction or accumulated funding deficiency (within the
meaning of Section 412 of the Code) or any complete or partial withdrawal liability with
respect to any pension, profit sharing or other plan which is subject to the Employee
Retirement Income Security Act of 1974, as amended (ERISA), to which Ventas or any
Subsidiary makes or ever has made a contribution and in which any employee of Ventas or any
Subsidiary is or has ever been a participant. With respect to such plans, Ventas and each
Subsidiary is in compliance in all material respects with all applicable provisions of
ERISA.
(xxvii) Investment Company Act. None of the Ventas Entities is, or upon the
issuance and sale of the Securities as herein contemplated and any application of the net
proceeds therefrom as described in each of the Disclosure Package and the Prospectus will
be, an investment company or a company controlled by an investment
company as such terms are defined in the Investment Company Act of 1940, as amended
(the 1940 Act).
(xxviii) Insurance for Properties. Each of Ventas and each Subsidiary
maintains or causes to be maintained by the lessee under the leases for its properties or by
the manager of its properties insurance covering its properties (including title to its
properties), assets, operations, personnel and businesses, and such insurance is of such
type and in such amounts in accordance with customary industry practice and in Ventas
reasonable judgment sufficient to protect Ventas and the Subsidiaries and their businesses.
(xxix) Accounting and Other Controls. Ventas maintains effective internal
control over financial reporting as defined in the 1934 Act. Each of Ventas and each
Subsidiary maintains a system of internal accounting controls sufficient to provide
reasonable assurance that: (A) transactions are executed in accordance with managements
general or specific authorizations; (B) transactions are recorded as
necessary to permit preparation of its financial statements in conformity with GAAP and
to maintain accountability for assets; (C) access to assets is permitted only in accordance
with managements general or specific authorization; and (D) the recorded accountability for
assets is compared with the existing assets at reasonable intervals and appropriate action
is taken with respect to any differences.
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(xxx) No Material Weakness in Internal Controls. Except as disclosed in each
of the Disclosure Package and the Prospectus or any document incorporated by reference
therein, since the end of Ventas most recent audited fiscal year, there has been (i) no
material weakness in Ventas internal control over financial reporting (whether or not
remediated) and (ii) no change in Ventas internal control over financial reporting that has
materially affected, or is reasonably likely to materially affect, Ventas internal control
over financial reporting.
(xxxi) No Material Adverse Change in Business. As of September 30, 2010,
neither Ventas nor any Subsidiary had incurred any material liabilities or obligations,
direct or contingent, that were not set forth in Ventas consolidated balance sheet as of
September 30, 2010, or in the notes thereto, incorporated by reference in each of the
Disclosure Package and the Prospectus, or otherwise described therein, other than the
performance by Ventas and each Subsidiary of their respective obligations under ordinary
course executory contracts that are not in default, that would not reasonably be expected to
have a Material Adverse Effect and that are not required by GAAP, as modified by the 1933
Act and the 1933 Act Regulations, the 1934 Act and the 1934 Act Regulations, to be disclosed
on a regularly prepared balance sheet or in the notes thereto. Since the respective dates
as of which information is given in each of the Registration Statement, the Disclosure
Package and the Prospectus, except as otherwise stated therein, (a) none of Ventas or any
Subsidiary has (1) incurred any liability or obligation, direct or contingent, that is,
individually or in the aggregate, reasonably likely to have a Material Adverse Effect, or
(2) entered into any material transaction not in the ordinary course of business, (b) there
has not been any event or development in respect of the business or condition (financial or
otherwise) of Ventas and the Subsidiaries that, individually or in the aggregate, is
reasonably likely to have a Material Adverse Effect and (c) there has not been any change in
the long-term debt of Ventas or any of the Subsidiaries or in the authorized capitalization
of Ventas.
(xxxii) Section 7 of the 1934 Act and Regulations T, U, X. Neither Ventas nor
any Subsidiary (or any agent thereof acting on its behalf other than the Underwriter, as to
whom Ventas makes no representation or warranty) has taken, and none of them will take, any
action that would cause this Agreement or the issuance or sale of the Securities to violate
Section 7 of the 1934 Act or Regulations T, U or X of the Board of Governors of the Federal
Reserve System, as in effect, or as the same may hereafter be in effect, at the Closing
Time.
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(xxxiii) Independent Accountants and Financial Statements. Ernst & Young LLP
is an independent registered public accounting firm with respect to Ventas, as required by
the 1933 Act, the 1933 Act Regulations and the 1934 Act. The historical
financial statements, together with the related financial schedules and notes thereto,
included or incorporated by reference in each of the Disclosure Package and the Prospectus
that relate to Ventas and the Subsidiaries present fairly in all material respects the
consolidated financial position and results of operations of Ventas and the Subsidiaries at
the respective dates and for the respective periods indicated. Such historical financial
statements have been prepared in accordance with GAAP applied on a consistent basis
throughout the periods presented (except as disclosed in each of the Disclosure Package and
the Prospectus). The supporting schedules of Ventas and the Subsidiaries, if any, included
or incorporated by reference in each of the Disclosure Package and the Prospectus that
relate to Ventas and the Subsidiaries present fairly in all material respects in accordance
with GAAP the information required to be stated therein and comply as to form in all
material respects with the applicable accounting requirements of the 1933 Act. The pro
forma financial statements and the related notes thereto included in the Disclosure Package
and the Prospectus have been prepared on a basis consistent with such historical financial
statements, and the assumptions used in the preparation thereof are reasonable and the
adjustments used therein are appropriate to give effect to the transactions and
circumstances referred to therein. All disclosures contained in the Disclosure Package and
the Prospectus regarding non-GAAP financial measures (as such term is defined by the rules
and regulations of the Commission) comply in all material respects with Regulation G under
the 1934 Act and Item 10 of Regulation S-K under the 1933 Act, to the extent applicable. The
other financial and statistical information and data included or incorporated by reference
in each of the Disclosure Package and the Prospectus relating to Ventas and the Subsidiaries
are accurately presented in all material respects and prepared on a basis consistent with
the financial statements and the books and records of Ventas and the Subsidiaries. Other
than the financial statements or supporting schedules included or incorporated by reference
in the Disclosure Package and the Prospectus, no other financial statements or supporting
schedules are required to be included or incorporated by reference in the Disclosure Package
and the Prospectus.
(xxxiv) Solvency. Each of the Ventas Entities, is and will be, immediately
following the issuance of the Securities at the Closing Time, Solvent (as defined below).
None of the Ventas Entities is contemplating either the filing of a petition by it under any
bankruptcy or insolvency laws or the liquidating of all or a substantial portion of its
property, and none of the Ventas Entities has knowledge of any person contemplating the
filing of any such petition against any of the Ventas Entities. As used herein,
Solvent shall mean, for any person on a particular date, that on such date (a) the
fair value of the property of such person is greater than the total amount of liabilities,
including, without limitation, contingent liabilities, of such person, (b) the present fair
salable value of the assets of such person is not less than the amount that will be required
to pay the probable liability of such person on its debts as they become absolute and
matured, (c) such person does not intend to, and does not believe that it will, incur debts
and liabilities beyond such persons ability to pay as such debts and liabilities mature,
(d) such person is not engaged in a business or a transaction, and is not about to engage in
a business or a
transaction, for which such persons property would constitute an unreasonably small
capital and (e) such person is able to pay its debts as they become due and payable.
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(xxxv) Incorporated Documents. The documents incorporated or deemed to be
incorporated by reference in the Registration Statement, the Disclosure Package and the
Prospectus, including, but not limited to, the most recent Annual Report of Ventas on Form
10-K filed with the Commission, as amended by the Current Report on Form 8-K filed on
November 8, 2010 (the Annual Report), and each quarterly report of Ventas on Form
10-Q and each other Current Report of Ventas on Form 8-K, in each case filed with the
Commission since the end of the fiscal year to which the Annual Report relates, and Ventas
Proxy Statement for the 2010 Annual Meeting of Stockholders, prior to the Execution Time,
when they became effective or at the time they were or hereafter are filed with the
Commission (the Incorporated Documents), complied or will comply in all material
respects with the requirements of the 1933 Act and the 1933 Act Regulations or the 1934 Act
and 1934 Act Regulations, as applicable, and, when read together with the other information
in each of the Disclosure Package and the Prospectus, at the Applicable Time and at the
Closing Time, do not and will not contain an untrue statement of a material fact or omit to
state a material fact necessary to make the statements therein not misleading.
(xxxvi) No Stabilization or Manipulation. None of Ventas or any Subsidiary or,
to the best of its knowledge, any of their directors, officers or affiliates has taken or
will take, directly or indirectly, any action designed to, or that would reasonably be
expected to, cause or result in stabilization or manipulation of the price of the Securities
to facilitate the sale or resale of the Securities.
(xxxvii) Distribution. Except as described in the section of the preliminary
prospectus and Prospectus entitled Underwriting, there are no contracts, agreements or
understandings between Ventas or any Significant Subsidiary and any other person that would
give rise to a valid claim against Ventas, any Significant Subsidiary or the Underwriter for
a brokerage commission, finders fee or like payment in connection with the issuance,
purchase and sale of the Securities.
(xxxviii) Statistical and Other Data. All (A) statistical and market-related
data and (B) data (including financial information) with respect to Kindred Healthcare Inc.,
Brookdale Senior Living Inc., Sunrise Senior Living, Inc. or Atria Senior Living Group, Inc.
and One Lantern Senior Living Inc. (together, Atria) included in each of the
Disclosure Package and the Prospectus are based on or derived from sources that the Ventas
Entities reasonably believe to be accurate in all material respects or represent the Ventas
Entities good faith estimates that are made on the basis of data derived from sources the
Ventas Entities reasonably believe to be reliable and accurate in all material respects.
(xxxix) Sarbanes-Oxley Compliance. Ventas is in compliance in all material
respects with the applicable provisions of the Sarbanes-Oxley Act of 2002.
(xl) Atria Representations and Warranties. To the knowledge of the Ventas
Entities, all of the representations and warranties made by Atria in Section 4(a) of the
Merger Agreement dated as of October 21, 2010 by and among Ventas, Atria and the other
parties thereto (the Merger Agreement), are true and correct (without giving
effect to any limitation as to materiality or Material Adverse Effect set forth
therein), except that any representations and warranties that expressly speak as of a
particular date, were true and correct (without giving effect to any limitation as to
materiality or Material Adverse Effect set forth therein) as of such particular date,
except, in each case, where the failure to be so true and correct would not, individually or
in the aggregate, reasonably be expected to result in a Material Adverse Effect assuming the
consummation of the transactions contemplated by the Merger Agreement.
13
(xli) No Unlawful Payments. None of the Ventas Entities nor, to the knowledge
of the Ventas Entities, any director, officer, agent or employee of the Ventas Entities is
aware of or has taken any action, directly or indirectly, that would result in a violation
by such persons of the FCPA, including, without limitation, making use of the mails or any
means or instrumentality of interstate commerce corruptly in furtherance of an offer,
payment, promise to pay or authorization of the payment of any money, or other property,
gift, promise to give or authorization of the giving of anything of value to any foreign
official (as such term is defined in the FCPA) or any foreign political party or official
thereof or any candidate for foreign political office, in contravention of the FCPA, and the
Ventas Entities and, to the knowledge of the Ventas Entities, their affiliates have
conducted their business in compliance in all material respects with the FCPA.
FCPA means the Foreign Corrupt Practices Act of 1977, as amended, and the rules
and regulations thereunder.
(xlii) No Conflict with Money Laundering Laws. The operations of the Ventas
Entities and their Subsidiaries are in compliance in all material respects with applicable
financial recordkeeping and reporting requirements of the Currency and Foreign Transactions
Reporting Act of 1970, as amended, the money laundering statutes of all applicable
jurisdictions, the rules and regulations thereunder and any related or similar rules,
regulations or guidelines issued, administered or enforced by any governmental agency
(collectively, the Money Laundering Laws) and no action, suit or proceeding by or
before any court or governmental agency, authority or body or any arbitrator involving the
Ventas Entities and their Subsidiaries with respect to the Money Laundering Laws is pending
or, to the best knowledge of the Ventas Entities, threatened.
(xliii) No Conflict with OFAC Laws. None of Ventas Entities or their
Subsidiaries nor, to the knowledge of the Ventas Entities, any director, officer, agent,
employee or affiliate of the Ventas Entities or any of their Subsidiaries is currently
subject to any U.S. sanctions administered by the Office of Foreign Assets Control of the
U.S. Treasury Department (OFAC); and the Ventas Entities will not directly or
indirectly use the proceeds of the offering, or lend, contribute or otherwise make available
such proceeds to any subsidiary, joint venture partner or other person or entity,
for the purpose of financing the activities of any person currently subject to any U.S.
sanctions administered by OFAC.
14
(b) Officers Certificates. Any certificate signed by any officer of any of the Ventas
Entities addressed and delivered to the Underwriter or to counsel for the Underwriter shall be
deemed a representation and warranty by the Ventas Entities to the Underwriter as to the matters
covered thereby. The Ventas Entities acknowledge that the Underwriter and, for purposes of the
opinions to be delivered to the Underwriter pursuant to Section 5 of this Agreement, counsel to the
Ventas Entities and counsel to the Underwriter will rely upon the accuracy of the foregoing
representations, and the Ventas Entities hereby consent to such reliance.
SECTION 2. Sale and Delivery to the Underwriter; Closing.
(a) Securities. On the basis of the representations and warranties herein contained and
subject to the terms and conditions herein set forth, the Issuer agrees to sell to the
Underwriter, and the Underwriter, agrees to purchase from the Issuer, at a purchase price of $53.93
per share, the Securities.
(b) [Reserved.]
(c) Payment. Payment of the purchase price for, and delivery of, the Securities shall be made
at the offices of Cahill Gordon & Reindel llp, 80 Pine Street, New York, New York 10005,
or at such other place as shall be agreed upon by the Underwriter and the Issuer at 9:00 A.M.
(Eastern time) on the third (fourth, if the Applicable Time occurs after 4:30 P.M. (Eastern time)
on any given day) business day after the date hereof, or such other time not later than seven
business days after such date as shall be agreed upon by the Underwriter and the Issuer (such time
and date of payment and delivery being herein called the Closing Time).
Payment shall be made to the Issuer by wire transfer of immediately available funds to a bank
account or accounts designated by the Issuer against delivery to the Underwriter of the Securities
to be purchased by it.
(d) Denominations; Registration. One or more of the Securities in global form shall be in
such denominations as specified by the Underwriter and registered in the name of Cede & Co., as
nominee of DTC. The Securities will be made available for examination by the Underwriter in The
City of New York not later than 1:00 P.M. (Eastern time) on the business day prior to the Closing
Time or the Additional Closing Time, as the case may be.
(e) Delivery of Prospectus to the Underwriter. Not later than 10:00 a.m. on the second
business day following the date the Securities are first released by the Underwriter for sale to
the public, to the extent required, Ventas shall deliver or cause to be delivered, copies of the
Prospectus in such quantities and at such places as the Underwriter shall reasonably request.
SECTION 3. Covenants of the Ventas Entities and the Underwriter. The Ventas Entities,
jointly and severally, covenant with the Underwriter and, as applicable, the Underwriter covenants
with the Ventas Entities as follows:
(a) Underwriters Review of Proposed Amendments and Supplements. During the period beginning
on the Applicable Time and ending on the later of the Closing Time or such date, as in the opinion
of counsel for the Underwriter, the Prospectus is no longer required by law to be delivered in
connection with sales by the Underwriter or dealer, including in circumstances where such
requirement may be satisfied pursuant to Rule 172 (the Prospectus Delivery Period), prior
to amending or supplementing the Registration Statement, the Disclosure Package or the Prospectus,
Ventas shall furnish to the Underwriter for review a copy of each such proposed amendment or
supplement, and Ventas shall not file or use any such proposed amendment or supplement to which the
Underwriter reasonably objects within a reasonable time.
15
(b) 1933 Act Compliance. After the date of this Agreement, the Ventas Entities shall promptly
advise the Underwriter in writing (i) when the Registration Statement, if not effective at the
Execution Time, shall have become effective, (ii) of the receipt of any comments of, or requests
for additional or supplemental information from, the Commission, (iii) of the time and date of any
filing of any post-effective amendment to the Registration Statement or any amendment or supplement
to any preliminary prospectus or the Prospectus, (iv) of the time and date that any post-effective
amendment to the Registration Statement becomes effective, and (v) of the issuance by the
Commission of any stop order suspending the effectiveness of the Registration Statement or of any
order or notice preventing or suspending the use of the Registration Statement, any preliminary
prospectus or the Prospectus, or of any receipt by the Ventas Entities of any notification with
respect to the suspension of the qualification of the Securities for sale in any jurisdiction or of
the threatening or initiation of any proceedings for any of such purposes. The Ventas Entities
shall use commercially reasonable efforts to prevent the issuance of any such stop order or notice
of prevention or suspension of such use. If the Commission shall enter any such stop order or
issue any such notice at any time, the Ventas Entities will use commercially reasonable efforts to
obtain the lifting or reversal of such order or notice at the earliest practicable moment, or,
subject to Section 3(a) hereof, will file an amendment to the Registration Statement or will file a
new registration statement and use its reasonable best efforts to have such amendment or new
registration statement declared effective as soon as practicable. Additionally, the Ventas
Entities agree that they shall comply with the provisions of Rules 424(b) and 430B, as applicable,
under the 1933 Act, including with respect to the timely filing of documents thereunder.
(c) 1934 Act Compliance. During the Prospectus Delivery Period, the Ventas Entities will file
all documents required to be filed with the Commission pursuant to Section 13, 14 or 15 of the 1934
Act in the manner and within the time periods required by the 1934 Act.
(d) [Reserved].
(e) Permitted Free Writing Prospectuses. The Ventas Entities represent, jointly and
severally, that they have not made, and agree that, unless they obtain the prior written consent of
the Underwriter, they will not make, any offer relating to the Securities that constitutes or would
constitute an Issuer Free Writing Prospectus or that otherwise constitutes or would constitute a
free writing prospectus (as defined in Rule 405 of the 1933 Act) or a portion thereof
required to be filed by the Ventas Entities with the Commission or retained by the Ventas Entities
under
Rule 433 of the 1933 Act; provided that the prior written consent of the Underwriter
hereto shall be deemed to have been given in respect of the Issuer Free Writing Prospectuses
included in Annex A hereto and any electronic road show. Any such free writing prospectus
consented to by the Underwriter is hereinafter referred to as a Permitted Free Writing
Prospectus. The Ventas Entities agree that (i) they have treated and will treat, as the case
may be, each Permitted Free Writing Prospectus as an Issuer Free Writing Prospectus, and (ii) they
have complied and will comply, as the case may be, with the requirements of Rules 164 and 433 of
the 1933 Act applicable to any Permitted Free Writing Prospectus, including in respect of timely
filing with the Commission, legending and record keeping. The Ventas Entities consent to the use
by any Underwriter of a free writing prospectus that (a) is not an issuer free writing
prospectus as defined in Rule 433, and (b) contains only (i) information describing the
preliminary terms of the Securities or their offering or (ii) information permitted under Rule 134
under the 1933 Act; provided that each Underwriter severally covenants with the Ventas
Entities not to take any action without the Ventas Entities consent (which consent shall be
confirmed in writing) that would result in the Ventas Entities being required to file with the
Commission under Rule 433(d) under the 1933 Act a free writing prospectus prepared by or on behalf
of such Underwriter that otherwise would not be required to be filed by the Ventas Entities
thereunder, but for the action of the Underwriter.
16
(f) Amendments and Supplements to the Registration Statement, Disclosure Package and
Prospectus and Other 1933 Act Matters. If, during the Prospectus Delivery Period, any event or
development shall occur or condition exist as a result of which the Disclosure Package or the
Prospectus as then amended or supplemented would include any untrue statement of a material fact or
omit to state any material fact necessary in order to make the statements therein, in the light of
the circumstances under which they were made or then prevailing, as the case may be, not
misleading, or if it shall be necessary to amend or supplement the Disclosure Package or the
Prospectus, or to file under the 1934 Act any document incorporated by reference in the Disclosure
Package or the Prospectus, in order to make the statements therein, in the light of the
circumstances under which they were made or then prevailing, as the case may be, not misleading, or
if in the reasonable judgment of the Ventas Entities or their counsel it is otherwise necessary to
amend or supplement the Registration Statement, the Disclosure Package or the Prospectus, or to
file under the 1934 Act any document incorporated by reference in the Disclosure Package or the
Prospectus, or to file a new registration statement containing the Prospectus, in order to comply
with applicable law, including in connection with the delivery of the Prospectus, the Ventas
Entities agree to (i) notify the Underwriter of any such event or condition and (ii) upon
reasonable notice to the Underwriter, promptly prepare (subject to Section 3(a) and 3(e) hereof),
file with the Commission (and use their reasonable best efforts to have any amendment to the
Registration Statement or any new registration statement to be declared effective) and furnish at
their own expense to the Underwriter and to dealers, amendments or supplements to the Registration
Statement, the Disclosure Package or the Prospectus, or any new registration statement, necessary
in order to make the statements in the Disclosure Package or the Prospectus as so amended or
supplemented, in the light of the circumstances under which they were made or then prevailing, as
the case may be, not misleading or so that the Registration Statement, the Disclosure Package or
the Prospectus, as amended or supplemented, will comply with applicable law.
(g) Copies of the Registration Statements and the Prospectus. The Ventas Entities will
furnish to the Underwriter and counsel for the Underwriter signed copies of the Registration
Statement (including exhibits thereto) and, so long as delivery of a prospectus by the Underwriter
or dealer may be required by the 1933 Act, as many copies of each preliminary prospectus, if any,
the Prospectus and any amendments and supplements thereto (including any documents incorporated or
deemed incorporated by reference therein) and the Disclosure Package as the Underwriter may
reasonably request.
17
(h) Blue Sky Qualifications. Each Ventas Entity agrees to use its reasonable best efforts, in
cooperation with the Underwriter, to qualify the Securities for offering and sale under the
applicable securities laws of such states and other jurisdictions (domestic or foreign) as the
Underwriter may designate and to maintain such qualifications in effect so long as required for the
distribution of the Securities; provided, however, that the Ventas Entities shall
not be obligated to file any general consent to service of process or to qualify as a foreign
corporation or as a dealer in securities in any jurisdiction in which they are not so qualified or
to subject themselves to taxation in respect of doing business in any jurisdiction in which they
are not otherwise so subject. In each jurisdiction in which the Securities have been so qualified,
the Ventas Entities will file such statements and reports as may be required by the laws of such
jurisdiction to continue such qualification in effect so long as required for the distribution of
the Securities.
(i) Clear Market. Without the prior written consent of the Underwriter, Ventas will not,
during the period ending 60 days after the date of the Prospectus, (i) offer, pledge, sell,
contract to sell, sell any option or contract to purchase, purchase any option or contract to sell,
grant any option, right or warrant to purchase, lend, or otherwise transfer or dispose of, directly
or indirectly, any shares of its Common Stock or any securities convertible into or exercisable or
exchangeable for Common Stock, (ii) enter into any swap or other arrangement that transfers to
another, in whole or in part, any of the economic consequences of ownership of the Common Stock, or
(iii) file with the Commission a registration statement under the 1933 Act relating to any
additional shares of its Common Stock or securities convertible into, or exchangeable for, any
shares of its Common Stock, or publicly disclose the intention to effect any transaction described
in clause (i), (ii) or (iii), whether any such transaction described in clause (i) or (ii) above is
to be settled by delivery of Common Stock or such other securities, in cash or otherwise;
provided that the foregoing shall not apply to (A) the sale of the Securities under this
Agreement, (B) the grant by the Ventas Entities of employee or director stock options, shares of
restricted stock or restricted stock units in the ordinary course of business or the issuance by
the Ventas Entities of any shares of Common Stock upon the exercise of an option or warrant, the
settlement of any stock unit account or the conversion of a security outstanding on the date
hereof, (C) the filing and effectiveness of any amendment to Ventas existing shelf registration
statements (Registration No. 333-141605 and 333-158424, respectively) relating to the resale by the
holders of the Issuers 3 7/8% Convertible Senior Notes due 2011 or the addition of any subsidiary
guarantor registrants, as applicable, (D) the issuance and sale of shares of Common Stock pursuant
to, or the filing of a new shelf registration statement relating to, the Ventas Employee and
Director Stock Purchase Plan or the Ventas Distribution Reinvestment and Stock Purchase Plan, (E)
the filing of a new universal shelf registration statement to replace the
Registration Statement, provided that the securities registered under such new
universal shelf registration statement shall remain subject to the restrictions above, (F) any
shares issued to consummate the Atria acquisition pursuant to the Merger Agreement and the filing
with the Commission of any registration statements under the 1933 Act relating thereto and (G) the
issuance of shares to sellers in connection with acquisitions or business combinations, the
execution of any agreement to effect any such issuance and the filing with the Commission of any
registration statements under the 1933 Act relating thereto, provided such shares shall be subject
to the restrictions set forth in this section for the remaining time period, if any.
18
(j) Use of Proceeds. To use the net proceeds from the sale of the Securities in the manner
described in Annex A.
(k) Periodic Reporting Obligations. During the Prospectus Delivery Period, the Ventas
Entities shall file, on a timely basis, with the Commission and the New York Stock Exchange all
reports and documents required to be filed under the 1934 Act.
(l) Filing Fees. The Ventas Entities agree to pay the required Commission filing fees
relating to the Securities within the time required by Rule 456(b)(1) of the 1933 Act without
regard to the proviso therein and otherwise in accordance with Rules 456(b) and 457(r) of the 1933
Act.
(m) DTC. The Ventas Entities will use their reasonable best efforts to obtain the approval of
the Securities by DTC for book-entry transfer and agree to comply with all of its agreements set
forth in its representation letters relating to the approval of the Securities by DTC for
book-entry transfer.
(n) Listing. The Issuer will use its reasonable best efforts to effect the listing of the
Securities on the New York Stock Exchange subject to official notice of issuance.
SECTION 4. Payment of Expenses.
(a) Expenses. The Ventas Entities, jointly and severally, will pay all costs, fees and
expenses incident to the performance of their obligations under this Agreement, including (i) the
preparation, notarization (if necessary), and delivery to the Underwriter of this Agreement, and
such other documents as may be reasonably required in connection with the offering, purchase, sale,
issuance or delivery of the Securities, (ii) the issuance, transfer and delivery of the Securities
to the Underwriter, including any transfer taxes and any stamp or other duties payable upon the
sale, issuance or delivery of the Securities to the Underwriter, (iii) the fees and disbursements
of the Ventas Entities counsel, accountants and other advisors, (iv) the qualification of the
Securities under securities laws in accordance with the provisions of Section 3(h) hereof,
including filing fees and the reasonable fees and disbursements of counsel for the Underwriter in
connection therewith and in connection with the preparation of the Blue Sky Survey and any
supplements thereto (provided that the Ventas Entities will only be responsible for paying
costs, fees and expenses incurred under this clause (iv) in an aggregate amount not to exceed
$5,000), (v) the preparation, printing and delivery to the Underwriter of such copies of the
Disclosure Package and Prospectus (including financial statements and exhibits) and any
amendments or supplements thereto, as may be reasonably requested for use in connection with
the offering, (vi) the preparation, printing and delivery to the Underwriter of a reasonable number
of copies of the Blue Sky Survey and any supplement thereto (not to exceed $10,000), (vii) the fees
and expenses of any transfer agent or registrar for the Common Stock, (viii) the approval of the
Securities by DTC for book-entry transfer, (ix) the fees and expenses incurred in connection with
the listing of the Securities on the New York Stock Exchange, (x) the performance by the Ventas
Entities of their other obligations under this Agreement and (xi) all other fees, costs and
expenses referred to in Item 14 of Part II of the Registration Statement.
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(b) If (i) this Agreement is terminated pursuant to Section 8, or (ii) the Underwriter
declines to purchase the Securities for any reason permitted under this Agreement, the Ventas
Entities agree to reimburse the Underwriter for all out-of-pocket costs and expenses (including the
fees and expenses of its counsel) reasonably incurred by the Underwriter in connection with this
Agreement and the offering contemplated hereby.
SECTION 5. Conditions of the Underwriters Obligations. The obligations of the
Underwriter hereunder are subject to the accuracy of the representations and warranties of the
Ventas Entities contained in Section 1 hereof and in certificates of any officer of any Ventas
Entity delivered pursuant to the provisions hereof, to the performance by the Ventas Entities of
their covenants and other obligations hereunder, and to the following further conditions:
(a) Compliance with Registration Requirements; No Stop Order; No Objection from FINRA. For
the period from and after the Execution Time and prior to the Closing Time and, with respect to the
Securities:
(i) Ventas shall have filed the Prospectus with the Commission (including the
information required by Rule 430A under the 1933 Act) in the manner and within the time
period required by Rule 424(b) under the 1933 Act;
(ii) Any material required to be filed by Ventas pursuant to Rule 433(d) under the 1933
Act, shall have been filed with the Commission within the applicable time periods prescribed
for such filings under such Rule 433 by Rule 164(b);
(iii) No stop order suspending the effectiveness of the Registration Statement, or any
post-effective amendment to the Registration Statement, shall be in effect and no
proceedings for such purpose shall have been instituted or threatened by the Commission; and
Ventas shall not have received from the Commission any notice pursuant to Rule 401(g)(2) of
the 1933 Act objecting to use of the automatic shelf registration statement form; and
(iv) FINRA shall have raised no objections to the fairness and reasonableness of the
underwriting terms and arrangements.
(b) No Proceedings. No action shall have been taken and no statute, rule, regulation or order
shall have been enacted, adopted or issued by any governmental agency or authority that would, as
of the Closing Time, prevent the issuance of the Securities; except as disclosed in each
of the Disclosure Package and Prospectus, no action, suit or proceeding shall have been
commenced and be pending against or affecting or, to the knowledge of the Ventas Entities,
threatened against any Ventas Entity before any court or arbitrator or any governmental body,
agency or official that is reasonably likely to have a Material Adverse Effect or to interfere with
or adversely affect the issuance of the Securities in any jurisdiction or adversely affect the
consummation of the transactions contemplated by this Agreement; and no stop order preventing the
use of the Registration Statement, the Disclosure Package, the Prospectus, or any amendment or
supplement thereto shall be in effect.
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(c) No Material Liabilities, Events. Since September 30, 2010, none of Ventas or any
Subsidiary shall have had any material liabilities or obligations, direct or, contingent, that were
not set forth in Ventas consolidated balance sheet as of September 30, 2010 or in the notes
thereto, incorporated by reference in the Base Prospectus, the preliminary prospectus and the
Prospectus or otherwise described in the Disclosure Package and the Prospectus, other than the
performance by Ventas of its obligations under ordinary course executory contracts that are not in
default, that could not reasonably be expected to have a Material Adverse Effect and that are not
required by GAAP, as modified by the 1933 Act, the 1933 Act Regulations, the 1934 Act and the 1934
Act Regulations, to be disclosed on a regularly prepared balance sheet or in the notes thereto.
Since the respective dates as of which information is given in each of the Disclosure Package and
the Prospectus, except as otherwise stated therein, (a) none of Ventas or any Subsidiary shall have
(1) incurred any liability or obligation, direct or contingent, that is, individually or in the
aggregate, reasonably likely to have a Material Adverse Effect, or (2) entered into any material
transaction not in the ordinary course of business, (b) there shall not been any event or
development in respect of the business or condition (financial or otherwise) of Ventas and the
Subsidiaries that, individually or in the aggregate, is reasonably likely to have a Material
Adverse Effect and (c) there shall not have been any change in the long-term debt of Ventas or any
of the Subsidiaries or in the authorized capitalization of Ventas.
(d) Opinion of Counsel for the Ventas Entities. At the Closing Time, the Underwriter shall
have received the favorable opinion, dated as of the Closing Time, of:
(i) T. Richard Riney, general counsel for the Ventas Entities, in form and substance
reasonably satisfactory to counsel for the Underwriter to the effect set forth in Exhibit
A-1 hereto and to such further effect as counsel to the Underwriter may reasonably request;
(ii) Willkie Farr & Gallagher LLP, as counsel for the Ventas Entities, in form and
substance reasonably satisfactory to counsel for the Underwriter to the effect set forth in
Exhibits A-2 and A-3 hereto and to such further effect as counsel to the Underwriter may
reasonably request; and
(iii) Greenberg Traurig, LLP, as regulatory counsel for the Ventas Entities, in form
and substance reasonably satisfactory to counsel for the Underwriter to the effect set forth
in Exhibit A-4 hereto and to such further effect as counsel to the Underwriter may
reasonably request.
(e) Opinion of Counsel for the Underwriter. At the Closing Time, the Underwriter shall have
received the favorable opinion, dated as of the Closing Time, and a negative assurance letter,
dated as of the Closing Time, of Cahill Gordon & Reindel LLP, counsel for the Underwriter, in form
and substance reasonably satisfactory to the Underwriter.
21
(f) Officers Certificate. The Underwriter shall have received a certificate of the Chief
Executive Officer and President of Ventas and the Chief Financial Officer or Chief Accounting
Officer of Ventas, dated as of the Closing Time, to the effect that (i) the representations and
warranties of the Ventas Entities in Section 1(a) hereof and the provisions in Sections
5(a)(i)-(iii) are true and correct with the same force and effect as though expressly made at and
as of Closing Time, and (ii) the Ventas Entities have complied with all agreements and satisfied
all conditions on their part to be performed or satisfied at or prior to Closing Time.
(g) Accountants Comfort Letter. At the Execution Time, the Underwriter shall have received
from Ernst & Young LLP, a letter, dated such date, in form and substance reasonably satisfactory to
the Underwriter containing statements and information of the type ordinarily included in
accountants comfort letters to underwriters with respect to the financial statements of Ventas
and the Subsidiaries and certain financial information contained in the Disclosure Package.
(h) Bring-down Comfort Letter. At the Closing Time, the Underwriter shall have received from
Ernst & Young LLP a letter, dated as of Closing Time, to the effect that they reaffirm the
statements made in the letter furnished pursuant to Section 5(g) hereof, except that (i) it shall
cover the financial information (including any pro forma presentation) relating to Ventas and its
Subsidiaries in the Prospectus and any amendment or supplement to the Disclosure Package or the
Prospectus and (ii) the specified date referred to shall be a date not more than three business
days prior to Closing Time,.
(i) Good Standing. The Underwriter shall have received on and as of the Closing Time
satisfactory evidence of the good standing of Ventas and its Significant Subsidiaries in their
respective jurisdictions of organization and in such other jurisdictions as set forth in Schedule B
hereto, in each case in writing or any standard form of telecommunication, from the appropriate
governmental authorities of such jurisdictions.
(j) Chief Financial Officer Certificate. The Underwriter shall have received a certificate of
the Companys Chief Financial Officer, dated as of the date of the Closing Time, to the effect set
forth in Exhibit C hereto.
(k) Lock-up Agreements. The lock-up agreements, each substantially in the form of Exhibit
B-1 hereto, of the officers of Ventas identified on Exhibit B-2 relating to sales and certain other
dispositions of shares of Common Stock or certain other securities, shall have been delivered to
the Underwriter on or before the Closing Time and shall be in full force and effect at the Closing
Time.
(l) [Reserved].
(m) Approval of Listing. At the Closing Time, the Securities shall have been approved for
listing on the New York Stock Exchange, subject only to official notice of issuance.
22
(n) Additional Documents. At the Closing Time, counsel for the Underwriter shall have been
furnished with such documents and opinions as they may reasonably require for the purpose of
enabling them to pass upon the issuance and sale of the Securities as herein contemplated, or in
order to evidence the accuracy of any of the representations or warranties, or the fulfillment of
any of the conditions, herein contained; and all proceedings taken by the Ventas Entities in
connection with the issuance and sale of the Securities as herein contemplated shall be reasonably
satisfactory in form and substance to the Underwriter and counsel for the Underwriter.
(i) [Reserved.].
(o) Termination of Agreement. If any condition specified in this Section shall not have been
fulfilled when and as required to be fulfilled, this Agreement may be terminated by the Underwriter
by notice to Ventas at any time at or prior to Closing Time, and such termination shall be without
liability of any party to any other party except as provided in Section 4 and except that Sections
1, 6, 7 and 8 shall survive any such termination and remain in full force and effect.
SECTION 6. Indemnification and Contribution.
(a) Indemnification of the Underwriter by the Ventas Entities. Each of the Ventas Entities,
jointly and severally, agrees to indemnify and hold harmless the Underwriter and each person, if
any, who controls the Underwriter within the meaning of Section 15 of the 1933 Act or Section 20(a)
of the 1934 Act, the agents, employees, officers and directors of the Underwriter and the agents,
employees, officers and directors of any such controlling person as follows:
(i) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, arising out of (a) any untrue statement or alleged untrue statement of a material
fact contained in the Registration Statement, or any amendment thereto, including any
information deemed to be a part thereof pursuant to Rule 430B or 430C under the 1933 Act, or
the omission or alleged omission therefrom of a material fact required to be stated therein
or necessary to make the statements therein not misleading; or (b) any untrue statement or
alleged untrue statement of a material fact contained in the Disclosure Package, any Issuer
Free Writing Prospectus, any preliminary prospectus or the Prospectus (or any amendment or
supplement thereto), or the omission or alleged omission therefrom of a material fact, in
each case, necessary in order to make the statements therein, in the light of the
circumstances under which they were made, not misleading;
(ii) against any and all loss, liability, claim, damage and expense whatsoever, as
incurred, to the extent of the aggregate amount paid in settlement of any litigation, or any
investigation or proceeding by any governmental agency or body, commenced or threatened, or
of any claim whatsoever based upon any such untrue
statement or omission, or any such alleged untrue statement or omission;
provided that (subject to Section 6(c) below) any such settlement is effected with
the written consent of Ventas; and
23
(iii) against any and all expense whatsoever, as incurred (including the fees and
disbursements of counsel chosen by the Underwriter), reasonably incurred in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any
such untrue statement or omission, or any such alleged untrue statement or omission, to the
extent that any such expense is not paid under (i) or (ii) above;
provided, however, that this indemnity agreement shall not apply to any loss,
liability, claim, damage or expense to the extent arising out of any untrue statement or omission
or alleged untrue statement or omission made therein in reliance upon and in conformity with the
Underwriter Information. This indemnity agreement will be in addition to any liability that the
Ventas Entities may otherwise have, including, but not limited to, liability under this Agreement.
(b) Indemnification of Ventas Entities, Directors and Officers. The Underwriter agrees to
indemnify and hold harmless the Ventas Entities, each person, if any, who controls any Ventas
Entity within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act and each
of their respective agents, employees, officers and directors and the agents, employees, officers
and directors of any such controlling person against any and all loss, liability, claim, damage and
expense described in the indemnity contained in Section 6(a) hereof, as incurred, but only with
respect to untrue statements or omissions, or alleged untrue statements or omissions relating to
the Underwriter, made in the Registration Statement, any Issuer Free Writing Prospectus, any
preliminary prospectus or the Prospectus (or any amendment or supplement thereto) in reliance upon
and in conformity with the information furnished by the Underwriter expressly for use in the
Registration Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or the
Prospectus; provided that, with respect to the preceding sentence, the Ventas Entities
acknowledge that the only information furnished in writing by the Underwriter expressly for use in
the Registration Statement, any Issuer Free Writing Prospectus, any preliminary prospectus or the
Prospectus is the statements contained in the selected paragraphs attached hereto in Annex B that
will be included in the Underwriting section of the Prospectus (the Underwriter
Information).
(c) Actions Against Parties; Notification. Each indemnified party shall give notice as
promptly as reasonably practicable to each indemnifying party of any action commenced against it in
respect of which indemnity may be sought hereunder, but failure to so notify an indemnifying party
shall not relieve such indemnifying party from any liability hereunder, except to the extent it is
materially prejudiced as a result thereof and in any event shall not relieve it from any liability
which it may have otherwise than on account of this indemnity agreement. In the case of parties
indemnified pursuant to Section 6(a) hereof, counsel to the indemnified parties shall be selected
by the Underwriter, subject to the reasonable approval of the indemnifying party, and, in the case
of parties indemnified pursuant to Section 6(b) hereof, counsel to the indemnified parties shall be
selected by Ventas, subject to the reasonable
24
approval of the indemnifying party. An indemnifying party may participate at its own expense in the defense
of any such action; provided, however, that counsel to the indemnifying party shall
not (except with the consent of the indemnified party) also be counsel to the indemnified party;
provided further, if the defendants in any such action include both the indemnified
party and the indemnifying party and the indemnified party shall have reasonably concluded that a
conflict may arise between the positions of the indemnifying party and the indemnified party in
conducting the defense of any such action or that there may be legal defenses available to it
and/or other indemnified parties that are different from or additional to those available to the
indemnifying party, the indemnified party or parties shall have the right to select separate
counsel to assume such legal defenses and to otherwise participate in the defense of such action on
behalf of such indemnified party or parties. Upon receipt of notice from the indemnifying party to
such indemnified party of such indemnifying partys election so to assume the defense of such
action and approval by the indemnified party of counsel, the indemnifying party will not be liable
to such indemnified party under this Section 6 for any legal or other expenses subsequently
incurred by such indemnified party in connection with the defense thereof unless (i) the
indemnified party shall have employed separate counsel in accordance with the proviso to the
preceding sentence (it being understood, however, that the indemnifying party shall not be liable
for the expenses of more than one separate counsel (other than local counsel), reasonably approved
by the indemnifying party (or by the Underwriter in the case of Section 6(f)), representing the
indemnified parties who are parties to such action) or (ii) the indemnifying party shall not have
employed counsel reasonably satisfactory to the indemnified party to represent the indemnified
party within a reasonable time after notice of commencement of the action, in each of which cases
the fees and expenses of counsel shall be at the expense of the indemnifying party. In no event
shall the indemnifying parties be liable for fees and expenses of more than one counsel (in
addition to any local counsel) separate from their own counsel for all indemnified parties in
connection with any one action or separate but similar or related actions in the same jurisdiction
arising out of the same general allegations or circumstances. No indemnifying party shall, without
the prior written consent of the indemnified parties, settle or compromise or consent to the entry
of any judgment with respect to any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever in respect of which
indemnification or contribution could reasonably be sought under this Section 6 (whether or not the
indemnified parties are actual or potential parties thereto), unless such settlement, compromise or
consent (i) includes an unconditional release of each indemnified party from all liability arising
out of such litigation, investigation, proceeding or claim and (ii) does not include a statement as
to or an admission of fault, culpability or a failure to act by or on behalf of any indemnified
party.
(d) Settlement Without Consent if Failure to Reimburse. If at any time an indemnified party
shall have requested an indemnifying party to reimburse the indemnified party for fees and expenses
of counsel, such indemnifying party agrees that it shall be liable for any settlement of the nature
contemplated by Section 6(a)(ii) effected without its written consent if (i) such settlement is
entered into more than 45 days after receipt by such indemnifying party of the aforesaid request,
(ii) such indemnifying party shall have received notice of the terms of such settlement at least 30
days prior to such settlement being entered into and (iii) such indemnifying party shall not have
reimbursed such indemnified party in accordance with such request prior to
the date of such settlement; provided that an indemnifying party shall not be liable
for any such settlement effected without its consent if such indemnifying party (1) reimburses such
indemnified party in accordance with such request to the extent it considers such request to be
reasonable and (2) provides written notice to the indemnified party substantiating the unpaid
balance as unreasonable, in each case prior to the date of such settlement.
25
(e) Other Agreements with Respect to Indemnification. The provisions of this Section shall
not affect any agreement between the Ventas Entities with respect to indemnification.
(f) Contribution. If the indemnification provided for in Section 6 hereof is for any reason
unavailable to or insufficient to hold harmless an indemnified party in respect of any losses,
liabilities, claims, damages or expenses referred to therein, then each indemnifying party shall
contribute to the aggregate amount of such losses, liabilities, claims, damages and expenses
incurred by such indemnified party, as incurred, (i) in such proportion as is appropriate to
reflect the relative benefits received by the Ventas Entities on the one hand and the Underwriter
on the other hand from the offering of the Securities pursuant to this Agreement or (ii) if the
allocation provided by clause (i) 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 Ventas Entities on the one hand and of the Underwriter on the other hand in
connection with the statements or omissions which resulted in such losses, liabilities, claims,
damages or expenses, as well as any other relevant equitable considerations.
The relative benefits received by the Ventas Entities on the one hand and the Underwriter on
the other hand in connection with the offering of the Securities pursuant to this Agreement shall
be deemed to be in the same respective proportions as the total net proceeds from the offering of
the Securities pursuant to this Agreement (before deducting expenses) received by the Issuer and
the total discount received by the Underwriter, in each case as set forth in this Agreement, bear
to the aggregate initial offering price of the Securities as set forth on the cover of the
Prospectus.
The relative fault of the Ventas Entities, on the one hand and the Underwriter on the other
hand shall be determined by reference to, among other things, whether any such untrue or alleged
untrue statement of a material fact or omission or alleged omission to state a material fact
relates to information supplied by the Ventas Entities or by the Underwriter and the parties
relative intent, knowledge, access to information and opportunity to correct or prevent such
statement or omission.
The Ventas Entities and the Underwriter agree that it would not be just and equitable if
contribution pursuant to this Section 6(f) were determined by pro rata allocation or by any other
method of allocation which does not take account of the equitable considerations referred to above
in this Section 6(f). The aggregate amount of losses, liabilities, claims, damages and expenses
incurred by an indemnified party and referred to above in this Section 6(f) shall be deemed to
include any legal or other expenses reasonably incurred by such indemnified party in investigating,
preparing or defending against any litigation, or any investigation or proceeding by any
governmental agency or body, commenced or threatened, or any claim whatsoever based upon any such
untrue or alleged untrue statement or omission or alleged omission.
26
Notwithstanding the provisions of this Section 6(f), the Underwriter shall not be required to
contribute any amount in excess of the amount by which the total price at which the Securities
purchased by it and distributed to the public were offered to the public exceeds the amount of any
damages which the Underwriter has otherwise been required to pay by reason of any 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
1933 Act) shall be entitled to contribution from any person who was not guilty of such fraudulent
misrepresentation.
For purposes of this Section 6(f), each officer and director of the Underwriter, and each
person, if any, who controls the Underwriter within the meaning of Section 15 of the 1933 Act or
Section 20(a) of the 1934 Act shall have the same rights to contribution as the Underwriter, and
each officer and director of any Ventas Entity, and each person, if any, who controls any Ventas
Entity within the meaning of Section 15 of the 1933 Act or Section 20(a) of the 1934 Act shall have
the same rights to contribution as such Ventas Entity.
The provisions of this Section 6(f) shall not affect any agreement among the Ventas Entities
with respect to contribution.
SECTION 7. Representations, Warranties and Agreements to Survive Delivery. All
representations, warranties and agreements contained in this Agreement, or in certificates of
officers of the Ventas Entities submitted pursuant hereto, shall remain operative and in full force
and effect, regardless of any investigation made by or on behalf of the Underwriter or controlling
person, or by or on behalf of Ventas, and shall survive delivery of the Securities to the
Underwriter.
SECTION 8. Termination of Agreement.
(a) Termination; General. The Underwriter may terminate this Agreement, by notice to Ventas,
at any time at or prior to the Closing Time (i) if there has been, since the Execution Time or
since the respective dates as of which information is given in the Registration Statement, any
Issuer Free Writing Prospectus, any preliminary prospectus or Prospectus (exclusive of any
amendment or supplement thereto), any material adverse change in the business, condition, financial
or otherwise, results of operations, performance, properties or business prospects of Ventas and
the Subsidiaries considered as one enterprise, whether or not arising in the ordinary course of
business, or (ii) if there has occurred any material adverse change in the financial markets in the
United States or in the international financial markets, any outbreak of hostilities or escalation
thereof or other calamity or crisis or any change or development involving a prospective change in
national or international political, financial or economic conditions, in each case the effect of
which is such as to make it, in the judgment of the Underwriter, impracticable or inadvisable to
market the Securities in the manner and on the terms described in the Prospectus or to enforce
contracts for the sale of the Securities, or (iii) if trading in any securities of the Ventas
Entities has been suspended or materially limited by the Commission or the New York Stock Exchange,
or if trading generally on the American Stock Exchange or the New York Stock Exchange or in the
Nasdaq National Market has been
suspended or materially limited, or minimum or maximum prices for trading have been fixed, or
maximum ranges for prices have been required, by any of said exchanges or by such system or by
order of the Commission or any other governmental authority, or a material disruption has occurred
in commercial banking or securities settlement or clearance services in the United States, or (iv)
if a banking moratorium has been declared by either Federal or New York authorities.
27
(b) Liabilities. If this Agreement is terminated pursuant to this Section, such termination
shall be without liability of any party to any other party except as provided in Section 4 hereof,
and provided further that Sections 1, 6 and 7 shall survive such termination and remain in full
force and effect.
SECTION 9. Default by the Issuer. If the Issuer shall fail at the Closing Time to
sell the number of Securities that it is obligated to sell hereunder, then this Agreement shall
terminate without any liability on the part of any non-defaulting party; provided,
however, that the provisions of Sections 1, 4, 6 and 7 hereof shall remain in full force
and effect. No action taken pursuant to this Section 9 shall relieve the Issuer from liability, if
any, in respect of such default.
SECTION 10. No Advisory or Fiduciary Responsibility. Each of the Ventas Entities
acknowledges and agrees that: (i) the purchase and sale of the Securities pursuant to this
Agreement, including the determination of the offering price of the Securities and any related
discounts and commissions, is an arms-length commercial transaction between the Ventas Entities on
the one hand, and the Underwriter, on the other hand, and the Ventas Entities are capable of
evaluating and understanding and understand and accept the terms, risks and conditions of the
transactions contemplated by this Agreement; (ii) in connection with each transaction contemplated
hereby the Underwriter is and has been acting solely as principal and is not the agent or fiduciary
of the Ventas Entities or their respective affiliates, stockholders, creditors or employees or any
other party; (iii) the Underwriter has not assumed and will not assume an advisory or fiduciary
responsibility in favor of the Ventas Entities with respect to any of the transactions contemplated
hereby (irrespective of whether the Underwriter has advised or is currently advising the Ventas
Entities on other matters) or any other obligation to the Ventas Entities with respect to such
transactions except the obligations expressly set forth in this Agreement; (iv) the Underwriter and
its respective affiliates may be engaged in a broad range of transactions that involve interests
that differ from those of the Ventas Entities; and (v) the Underwriter has not provided any legal,
accounting, regulatory or tax advice with respect to the offering contemplated hereby and the
Ventas Entities have consulted their own legal, accounting, regulatory and tax advisors to the
extent they deemed appropriate.
This Agreement supersedes all prior agreements and understandings (whether written or oral)
between the Ventas Entities and the Underwriter with respect to the subject matter hereof. The
Ventas Entities hereby waive and release, to the fullest extent permitted by law, any claims that
the Ventas Entities may have against the Underwriter with respect to any breach or alleged breach
of fiduciary duty in connection with the transactions contemplated hereby.
28
SECTION 11. Notices. All notices and other communications hereunder shall be in
writing and shall be deemed to have been duly given if mailed or transmitted by any standard
form of telecommunication. Notices to the Underwriter shall be directed to UBS Investment
Bank, 299 Park Avenue, New York, NY 10171, attention: General Counsel, with a copy to Cahill Gordon
& Reindel llp, 80 Pine St., New York, New York 10005, attention of William M. Hartnett and Ann
Makich and notices to the Ventas Entities shall be directed to Ventas at 10350 Ormsby Park Place,
Suite 300, Louisville, Kentucky 40223, attention of T. Richard Riney, General Counsel, with a copy
to Willkie Farr & Gallagher LLP, 787 Seventh Avenue, New York, NY 10019, attention of David Boston.
SECTION 12. Parties. This Agreement shall each inure to the benefit of and be binding
upon the Underwriter and the Ventas Entities and their respective successors. Nothing expressed or
mentioned in this Agreement is intended or shall be construed to give any person, firm or
corporation, other than the Underwriter and the Ventas Entities and their respective successors and
the controlling persons and officers and directors referred to in Section 6 and their heirs and
legal representatives, any legal or equitable right, remedy or claim under or in respect of this
Agreement or any provision herein contained. This Agreement and all conditions and provisions
hereof are intended to be for the sole and exclusive benefit of the Underwriter and the Ventas
Entities and their respective successors, and said controlling persons and officers and directors
and their heirs and legal representatives, and for the benefit of no other person, firm or
corporation. No purchaser of Securities from the Underwriter shall be deemed to be a successor by
reason merely of such purchase.
SECTION 13. GOVERNING LAW AND TIME. THIS AGREEMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK APPLICABLE TO AGREEMENTS MADE AND TO
BE PERFORMED IN SUCH STATE. EXCEPT AS OTHERWISE SET FORTH HEREIN, SPECIFIED TIMES OF DAY REFER TO
NEW YORK CITY TIME.
SECTION 14. Submission to Jurisdiction. Any legal suit, action or proceeding arising
out of or based upon this Agreement or the transactions contemplated hereby (Related
Proceedings) may be instituted in the federal courts of the United States of America located
in the City and County of New York or the courts of the State of New York in each case located in
the City and County of New York (collectively, the Specified Courts), and each party
irrevocably submits to the jurisdiction of such courts in any such suit, action or proceeding.
Service of any process, summons, notice or document by mail to such partys address set forth above
shall be effective service of process for any suit, action or other proceeding brought in any such
court. The parties irrevocably and unconditionally waive any objection to the laying of venue of
any suit, action or other proceeding in the Specified Courts and irrevocably and unconditionally
waive and agree not to plead or claim in any such court that any such suit, action or other
proceeding brought in any such court has been brought in an inconvenient forum. The Ventas
Entities hereby irrevocably waive, to the fullest extent permitted by applicable law, any and all
right to trial by jury in any legal proceeding arising out of or relating to this Agreement or the
transactions contemplated hereby.
SECTION 15. Effect of Headings. The Article and Section headings herein are for
convenience only and shall not affect the construction hereof.
29
SECTION 16. Certain Defined Terms. For purposes of this Agreement, (a) except where
otherwise expressly provided, the term affiliate has the meaning set forth in Rule 405
under the 1933 Act; (b) the term business day means any day other than a day on which
banks are permitted or required to be closed in New York City; and (c) the term
Subsidiary has the meaning set forth in Rule 405 under the 1933 Act.
SECTION 17. Counterparts. This Agreement may be signed in counterparts (which may
include counterparts delivered by any standard form of telecommunication), each of which shall be
an original and all of which together shall constitute one and the same instrument.
SECTION 18. Amendments or Waivers. No amendment or waiver of any provision of this
Agreement, nor any consent or approval to any departure therefrom, shall in any event be effective
unless the same shall be in writing and signed by the parties hereto.
30
If the foregoing is in accordance with your understanding of our agreement, please sign and
return to Ventas a counterpart hereof, whereupon this instrument, along with all counterparts
(including via facsimile), will become a binding agreement between the Underwriter and the Ventas
Entities in accordance with its terms.
Very truly yours, VENTAS, INC. |
||||
By: | /s/ T. Richard Riney | |||
Name: | T. Richard Riney | |||
Title: | EVP | |||
VENTAS REALTY, LIMITED PARTNERSHIP |
||||
By: | Ventas, Inc., its General Partner | |||
By: | /s/ T. Richard Riney | |||
Name: | T. Richard Riney | |||
Title: | EVP |
31
CONFIRMED AND ACCEPTED, as of the date first above written: |
||||||
UBS SECURITIES LLC | ||||||
By: | /s/ Anthony Rokovich | |||||
Name: | Anthony Rokovich | |||||
Title: | Managing Director | |||||
By: | /s/ Mohammad Tabibian | |||||
Name: | Mohammad Tabibian | |||||
Title: | Associate Director |
32
Exhibit 1
FORM OF OPINION OF THE VENTAS ENTITIES GENERAL COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(i)1
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(i)1
1 | To be substantially consistent with the opinion
delivered on April 13, 2009 and incorporating any applicable changes thereto
contained in the opinion delivered on November 16, 2010. |
Exhibit 2
FORM OF OPINION OF THE VENTAS ENTITIES COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)2
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)2
2 | To be substantially consistent with the opinion
delivered on April 13, 2009 and incorporating any applicable changes thereto
contained in the opinion delivered on November 16, 2010. |
Exhibit 3
FORM OF TAX OPINION OF THE VENTAS ENTITIES COUNSEL
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)3
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(ii)3
3 | To be substantially consistent with the opinion
delivered on April 13, 2009 and incorporating any applicable changes thereto
contained in the opinion delivered on November 16, 2010. |
Exhibit 4
FORM OF OPINION OF GREENBERG TRAURIG
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(iii)4
TO BE DELIVERED PURSUANT TO
SECTION 5(d)(iii)4
4 | To be substantially consistent with the opinion
delivered on April 13, 2009 and incorporating any applicable changes thereto
contained in the opinion delivered on November 16, 2010. |
Exhibit B-1
FORM OF LOCK-UP LETTER
January 31, 2011
UBS Securities LLC
299 Park Avenue
New York, NY 10171
299 Park Avenue
New York, NY 10171
Dear Ladies and Gentlemen:
The undersigned understands that UBS Securities LLC (the Underwriter) entered into
an Underwriting Agreement (Underwriting Agreement) with Ventas, Inc., (the
Issuer) and the other Ventas Entities (as defined in the Underwriting Agreement)
providing for the offering (the Offering) by the Underwriter, of [ ] shares of the
Issuers common stock, par value $0.25 per share (the Securities). Terms used herein and
not otherwise defined shall have the meaning assigned to such terms in the Underwriting Agreement.
To induce the Underwriter to continue its efforts in connection with the Offering, the
undersigned hereby agrees that, without the prior written consent of the Underwriter, it will not,
during the period commencing on the date hereof and ending 60 days after the date of the
Prospectus, (1) offer, pledge, sell, contract to sell, sell any option or contract to purchase,
purchase any option or contract to sell, grant any option, right or warrant to purchase, lend, or
otherwise transfer or dispose of, directly or indirectly, any shares of Common Stock or any
securities convertible into or exercisable or exchangeable for Common Stock or (2) enter into any
swap or other arrangement that transfers to another, in whole or in part, any of the economic
consequences of ownership of the Common Stock, whether any such transaction described in clause (1)
or (2) above is to be settled by delivery of Common Stock or such other securities, in cash or
otherwise. The foregoing sentence shall not apply to (a) transfers of Common Stock by gift, will
or intestacy, including without limitation transfers by gift, will or intestacy to family members
of the undersigned or to a settlement or trust established under the laws of any country, (b)
transfers or sales of Common Stock pursuant to any contract, instruction or plan, including a
contract, instruction or plan complying with Rule 10b5-1 of the Regulations of the Securities
Exchange Act of 1934, as amended, that has been entered into by the undersigned prior to the date
of this Letter Agreement, or any amendment or replacement of any such contract, instruction or plan
with the same or a different firm on or after the date hereof, so long as the aggregate number of
shares of Common Stock subject to such amended or replacement contract, instruction or plan does
not exceed the maximum amount of Common Stock under the original contract, instrument or plan, and
the exercise of options in connection therewith or (c) the withholding of shares of Common Stock to
pay taxes upon the vesting of restricted stock outstanding on the date hereof, provided that in the
event of exception (a) above, (i) the transferee or donee executes and delivers to the Underwriter
a lock-up
agreement in form and substance reasonably satisfactory to the Underwriter, (ii) no
filing by any party (transferor, transferee, donor or donee) under the Securities Exchange Act of 1934 shall be required or
shall be voluntarily made in connection with such transfer or distribution (other than a filing on
a Form 4, Form 5, Schedule 13D or Schedule 13G (or 13D-A or 13G-A)), (iii) each party (transferor,
transferee, donor or donee) shall not be required by law (including without limitation the
disclosure requirements of the Securities Act of 1933, as amended, and the Securities Exchange Act
of 1934) to make, and shall agree to not voluntarily make, any public announcement of the transfer
or disposition (other than a filing on a Form 4, Form 5, Schedule 13D or Schedule 13G (or 13D-A or
13G-A)) and (iv) the undersigned notifies the Underwriter at least three business days prior to the
proposed transfer or disposition. In addition, the undersigned agrees that, without the prior
written consent of the Underwriter, it will not, during the period commencing on the date hereof
and ending 60 days after the date of the Prospectus, make any demand for or exercise any right with
respect to, the registration of any shares of Common Stock or any security convertible into or
exercisable or exchangeable for Common Stock. The undersigned also agrees and consents to the
entry of stop transfer instructions with the Issuers transfer agent and registrar against the
transfer of the undersigneds shares of Common Stock except in compliance with the foregoing
restrictions.
The undersigned understands that the Issuer and the Underwriter are relying upon this Letter
Agreement in proceeding toward consummation of the Offering. The undersigned further understands
that this Letter Agreement is irrevocable and shall be binding upon the undersigneds heirs, legal
representatives, successors and assigns.
Whether or not the Offering actually occurs depends on a number of factors, including market
conditions. Any offering will only be made pursuant to an Underwriting Agreement, the terms of
which are subject to negotiation between the Issuer and the Underwriter.
This Lock-Up Agreement shall lapse and become null and void on the date (the Agreement
Expiration Date) that is the first to occur of: (i) the date on which the Issuer notifies the
Underwriter in writing that it does not intend to proceed with the Offering, (ii) the date on which
the Underwriting Agreement shall terminate or be terminated (excluding any provisions thereof
related to expense reimbursement, contribution or indemnity that shall survive such termination),
and (iii) the first day after the last day of the 60-day restricted period as extended in
accordance herewith.
Very truly yours, |
||||
List of Individuals Subject to Lock-Up Agreements
Debra A. Cafaro
Raymond J. Lewis
T. Richard Riney
Richard A. Schweinhart
Robert J. Brehl
Todd W. Lillibridge
Raymond J. Lewis
T. Richard Riney
Richard A. Schweinhart
Robert J. Brehl
Todd W. Lillibridge
Exhibit C
Form of Chief Financial Officer
VENTAS INC.
CHIEF FINANCIAL OFFICERS CERTIFICATE
February 4, 2011
I, Richard A. Schweinhart, do hereby certify that I am Executive Vice President and Chief
Financial Officer of Ventas Inc., a Delaware corporation (the Company), and, in my capacity as
such, do hereby certify on behalf of the Company and not in my individual capacity that, as of the
date hereof:
1. | References are made to the unaudited condensed consolidated balance sheet as of
September 30, 2010, and the unaudited condensed consolidated statements of operations and
cash flow for the nine-month periods ended September 30, 2010 and 2009 (the Unaudited
Financial Statements) of each of Atria Senior Living Group, Inc. and subsidiaries and One
Lantern Senior Living Inc. and subsidiaries (collectively, the Acquired Entities), each
of which is included in Ventas, Inc.s Current Report on Form 8-K dated November 8, 2010
and incorporated by reference in the registration statement (No. 333-158424) on Form S-3,
as amended, filed by Ventas, Inc. under the Securities Act of 1933, the related prospectus
dated April 9, 2009 and the prospectus supplement dated January 31, 2011 (the Registration
Statement). |
2. | Nothing has come to my attention that causes me to believe that any material
modifications should be made to the Unaudited Financial Statements for them to be in
conformity with accounting principles generally accepted in the United States of America. |
3. | Nothing has come to my attention that causes me to believe that (i) as of the date
hereof there was any material change in the capital stock, material increase in long-term
debt, or any material decreases in consolidated net current assets or stockholders equity
of the Acquired Entities as compared with amounts shown on the September 30, 2010 unaudited
condensed consolidated balance sheet incorporated by reference in the Registration
Statement or (ii) for the period from October 1, 2010 to the date hereof, there were any
material decreases, as compared with the corresponding period in the preceding year, in
consolidated total operating revenue or in net income of the Acquired Entities. |
[Signature Page Follows]
IN WITNESS WHEREOF, the undersigned has executed and delivered this Officers Certificate on behalf
of the Company as of the date first written above.
VENTAS INC.
By: |
||||||
Name: | Richard A. Schweinhart | |||||
Title: | Executive Vice President and Chief Financial Officer |
-1-
Annex A
VERBAL INFORMATION
INCLUDED IN THE
DISCLOSURE PACKAGE PROVIDED
ORALLY BY THE UNDERWRITER
INCLUDED IN THE
DISCLOSURE PACKAGE PROVIDED
ORALLY BY THE UNDERWRITER
1. | Number of shares: 5,563,000 |
Price: $53.93 per share.
Use of proceeds: To repay existing mortgage debt and for working capital and other
general corporate purposes, including to fund future acquisitions or investments, if any.
Annex B
SELECTED PARAGRAPHS OF THE UNDERWRITING SECTION OF THE PROSPECTUS
1. | The underwriter has advised us that it proposes initially to offer the shares to the
public at the public offering price appearing on the cover page of this prospectus
supplement. After this offering, the public offering price may be changed. |
2. | If the underwriter creates a short position in the common stock in connection with the
offering, i.e., if it sells more shares than are listed on the cover of this prospectus
supplement, the underwriter may reduce that short position by purchasing shares in the open
market. Purchases of the common stock to stabilize its price or to reduce a short position
may cause the price of the common stock to be higher than it might be in the absence of
those purchases. |
3. | In connection with the offering, the underwriter or securities dealers may distribute
this prospectus supplement and the accompanying prospectus by electronic means, such as
e-mail. |
4. | An affiliate of the underwriter currently acts as a lender and agent under our
unsecured revolving credit facility. |
SCHEDULE B
Good Standing Jurisdictions
Ventas Realty, Limited Partnership
|
Delaware | |
Ventas Provident, LLC
|
Delaware | |
PSLT OP, L.P.
|
Delaware | |
Ventas SSL, Inc.
|
Delaware | |
SZR US Investments, LLC
|
Delaware | |
Ventas SSL Holdings, Inc.
|
Delaware | |
PSLT-BLC Properties Holdings, LLC
|
Delaware |