10-K: Annual report pursuant to Section 13 and 15(d)
Published on February 23, 2007
FIRST
AMENDMENT TO THE
OMEGA
HEALTHCARE INVESTORS, INC.
1993
STOCK OPTION AND RESTRICTED STOCK PLAN
AS
AMENDED AND RESTATED DECEMBER 19,1997
THIS
FIRST AMENDMENT is made as of March 22, 2000, by Omega Healthcare Investors,
Inc., a Maryland corporation (the “Corporation”).
WHEREAS,
the Corporation maintains the Omega Healthcare Investors, Inc. 1993 Stock Option
and Restricted Stock Plan As Amended and Restated December 19, 1997 (the
“Plan”); and
WHEREAS,
the Corporation desires to amend the Plan to modify the definition of “change of
control” and the vesting provisions for stock options and restricted stock
awards.
NOW,
THEREFORE, BE IT RESOLVED, that the Corporation does hereby amend the Plan
as
follows:
1. By
adding
the following new subsection (o) to Section 2 of the Plan:
(o) “Performance-Based
Restricted Stock.
This
term
shall mean those shares of Restricted Stock granted to executive officers of
the
Company on February 10, 2000.”
2. By
deleting the existing Section 8(a) of the Plan and substituting therefor the
following new Section 8(a):
“(a) Certain
Terms.
Subject
to Section 19 hereof, the shares of Restricted Stock granted to a Grantee shall
be released to him in accordance with such schedule as the Plan Committee,
in
its sole discretion, shall determine at the time of grant. All shares of
Restricted Stock shall be fully released not later than ten (10) years from
the
date of grant. Except for normal retirement, or pursuant to the terms of the
written agreement with a non-employee director, the Grantee shall have no vested
interest in the unreleased stock of any grant in the event of his termination
with the Corporation for any reason (unless the Plan Committee, in its sole
discretion, decides to terminate the forfeiture restriction following the
termination of employment of such Grantee and accelerate the release of the
shares of Restricted Stock in accordance with Section 19 of the Plan) and the
unreleased stock certificates shall be canceled. During the Grantee’s continued
employment or affiliation, however, he shall have the right to vote all shares
and to receive all dividends as though all shares granted were his without
restrictions.”
3. By
deleting the third paragraph of Section 19 of the Plan and substituting therefor
the following new third paragraph:
“Notwithstanding
the preceding two paragraphs or any other provision of this Plan, in the event
of a Change of Control, as hereinafter defined, all Restricted Stock granted
under the Plan (other than Performance-Based Restricted Stock) which has not
previously been forfeited shall immediately vest as of the effective date of
the
Change of Control and all Stock Options granted under the Plan which have not
previously been forfeited shall be immediately vested and exercisable in full
as
of the effective date of the Change of Control, For purposes of this Plan,
‘Change of Control’ shall mean the occurrence of any of the following
events:
(a) a
change
in control of the Corporation of a nature that would be required to be reported
in response to Item 6(e) of Schedule 14A, Regulation 240, 14a-101, promulgated
under the Securities Exchange Act of 1934 (the “Exchange Act”) as in effect on
the date hereof, or, if Item 6(e) is no longer in effect, any regulation issued
by the Securities Exchange Commission pursuant to the Exchange Act which serves
similar purposes;
(b) any
“Person” (as defined in Section 3(a)(9) of the Exchange Act as modified and used
in Sections 13(d) and 14(d) of the Exchange Act), is or becomes the “beneficial
owner” (as defined in Rule 13d-3 of the Exchange Act), directly or indirectly,
of equity securities of the Corporation representing more than fifty percent
(50%) of the combined voting power or value of the surviving entity’s then
outstanding voting equity securities;
(c) during
any period of not more than two (2) consecutive years, not including any period
prior to the Effective Date, individuals who at the beginning of such period
constitute the Board (the “Incumbent Directors”), cease for any reason to
constitute at least a majority thereof; provided,
however,
that
any director who was not a director as of the Effective Date shall be deemed
to
be Incumbent Director if that director was elected to such board of directors
on
the recommendation of or with the approval of, at least two-thirds (2/3) of
the
directors who then qualified as Incumbent Directors; and provided
further that
no
director whose initial assumption of office is in connection with an actual
or
threatened election contest relating to the election of directors shall be
deemed to be an Incumbent Director;
(d) the
approval by the shareholders of the Corporation of a merger, consolidation,
share exchange or other reorganization in which the shareholders of the
Corporation immediately prior to the transaction do not own equity securities
of
the surviving entity representing at least fifty percent (50%) of the combined
voting power or value of the surviving entity’s then outstanding voting
securities immediately after the transaction;
(e) the
sale
or transfer of more than fifty percent (50%) of the value of the assets of
the
Corporation, in a single transaction, in a series of related transactions,
or in
a series of transactions over any one year period; or
(f) a
dissolution or liquidation of the Corporation.
Notwithstanding
any other provision of the Plan or any applicable agreement documenting an
award
under the Plan, in the event of a termination of a Grantee’s or Optionee’s
employment, other than a termination for cause (as defined in Section 15 of
the
Plan), the Plan Committee may accelerate the vesting of any shares of Restricted
Stock or Stock Option granted under the Plan.”
4. By
deleting the existing second paragraph of Section 20 of the Plan in its
entirety.
Except
as
specifically amended hereby, the remaining provisions of the Plan shall remain
in full force and effect as prior to the adoption of this First
Amendment.
IN
WITNESS WHEREOF,
the
Corporation has caused this First Amendment to be executed, effective as of
the
date first above written.
ATTEST:OMEGA
HEALTHCARE INVESTORS, INC.
By:
By:
Title: Title:
OMEGA
HEALTHCARE INVESTORS, INC.
1993
STOCK OPTION AND RESTRICTED STOCK PLAN
AS
AMENDED AND RESTATED DECEMBER 19, 1997
1. |
Purpose
|
The
purpose of the Omega Healthcare Investors, Inc. 1993 Stock Option and Restricted
Stock Plan, as amended (the “Plan”), is to strengthen Omega Healthcare
Investors, Inc. (the “Corporation”) and those corporations which are or
hereafter become subsidiary corporations (the “Subsidiary” or “Subsidiaries”) by
providing additional means of attracting and retaining competent managerial
personnel and by providing to participating directors, officers, employees
and
certain consultants added incentive for high levels of performance and for
unusual efforts to increase the earnings, value and distributions of the
Corporation and any Subsidiaries. The Plan seeks to accomplish these purposes
and achieve these results by providing a means whereby such directors, officers
and employees may receive Stock Options and/or shares of Restricted Stock in
accordance with this Plan.
Stock
Options granted pursuant to this Plan are intended to be Incentive Stock Options
or Non-Qualified Stock Options, as shall be determined and designated by the
Plan Committee upon the grant of each Stock Option hereunder.
2. |
Definitions
|
For
purposes of this Plan, the following terms shall have the following
meanings:
(a)
Common Stock. This
term
shall mean shares of the Corporations common stock, $.10 par value, subject
to
adjustment pursuant to Section 18 (Adjustment Upon Changes in Capitalization)
thereunder.
(b) Corporation.
This
term
shall mean Omega Healthcare Investors, Inc., a Maryland
corporation.
(c) Eligible
Participants.
This
term shall mean all directors of the Corporation or any Subsidiary, all officers
or employees (whether or not they are also directors) of the Corporation or
any
Subsidiary and certain consultants to the Corporation or any Subsidiary, as
determined by the Plan Committee.
(d) Fair
Market Value. This
term
shall mean the fair market value of the Common Stock as determined in accordance
with any reasonable valuation method selected by the Plan Committee, including
the valuation methods described in Treasury Regulations Section 20.2031-2.
Unless determined otherwise by the Plan Committee, “fair market value” shall be
as applied to any date specified in the Plan, the closing price of a share
of
Common Stock on the New York Stock Exchanges composite tape on such date, or,
if
no such sales were made on such date, the closing price of such share on the
New
York Stock Exchange’s composite tape on the next preceding date on which there
were such sales.
(e) Grantee.
This
term
shall mean any Eligible Participant to whom Restricted Stock has been granted
pursuant to this Plan.
(f) Incentive
Stock Option. This
term
shall mean a Stock Option which is an “incentive stock option” within the
meaning of Section 422 of the Internal Revenue Code of 1986, as
amended.
(g) Non-Quaked
Stock Option.
This
term shall mean a Stock Option which is not an Incentive Stock
Option.
(h) Option
Shares. This
term
shall mean Common Stock covered by and subject to any outstanding unexercised
Stock Option granted pursuant to this Plan.
(i) Optionee.
This
term
shall mean any Eligible Participant to whom a Stock Option has been granted
pursuant to this Plan, provided that at least part of the Stock Option is
outstanding and unexercised.
(j) Plan.
This
term
shall mean the Omega Healthcare Investors, Inc. 1993 Stock Option and Restricted
Stock Plan, as amended and restated, as embodied herein and as may be amended
from time to time in accordance with the terms hereof and applicable
law.
(k) Plan
Committee.
The
Compensation Committee of the Board of Directors of the Corporation shall
constitute the Plan Committee and have full authority to act in the matter.
The
Plan Committee shall consist at all times of a committee of two or more
non-employee directors. All references in the Plan to the “Plan Committee” shall
be deemed to refer to the Compensation Committee of the Board of Directors.
The
Board of Directors of the Corporation shall have the right, in its sole and
absolute discretion, to remove or replace any person from or on the Compensation
Committee at any time for any reason whatsoever.
(l) Restricted
Stock. This
term
shall mean shares of Common Stock of the Company granted without cost to the
Participant pursuant to Section 7, and. subject to the terms of Section
8.
(m) Stock
Option. This
term
shall mean the right to purchase Common Stock under this Plan in a specified
number of shares, at a price and upon the terms and conditions as specified
in
this Plan or as determined by the Plan Committee.
(n) Subsidiary.
This
term
shall mean each “subsidiary corporation” (treating the Corporation as the
employer corporation) as defined in Section 425(f) of the Internal Revenue
Code
of 1986, as amended.
3. |
Administration
|
(a) Administration
of the Plan. This
Plan
shall be administered by the Plan Committee. Any action of the Plan Committee
with respect to the administration of the Plan shall be taken pursuant to a
majority vote, or pursuant to the unanimous written consent, of its members.
Any
such action taken by the Plan Committee in the administration of this Plan
shall
be valid and binding, so long as the same is not inconsistent with the terms
and
conditions of this Plan. To the extent consistent with the availability to
the
Plan of Rule 16b-3 under the Securities Exchange Act of 1934 as amended, and
subject to compliance with the terms, conditions and restrictions set forth
in
this Plan, the Plan Committee shall have the exclusive right, in its sole and
absolute discretion, to establish the terms and conditions of all Stock Options
and Restricted Stock granted under the Plan, including, without limitation,
the
power to determine the duration and purposes, if any, of leaves of absence
which
may be permitted to holders of unexercised, unexpired Stock Options without
such
constituting a termination under the Plan, and to prescribe and amend the terms,
provisions and form of each instrument and agreement setting forth the terms
and
conditions of Stock Options and Restricted Stock granted hereunder.
(b) Decisions
and Determinations.
Subject
to the express provisions of this Plan, the Plan Committee shall have the
authority to construe and interpret this Plan, to define the terms used herein,
to prescribe, amend, and rescind rules and regulations relating to the
administration of the Plan, and to make all other determinations necessary
or
advisable for administration of the Plan. Determinations of the Plan Committee
on matters referred to in this Section 3 shall be final and conclusive so long
as the same are not inconsistent with the terms of this Plan.
4. |
Shares
Subject to the Plan.
|
Subject
to adjustments as provided in Section 18 hereof, the maximum number of shares
of
Common Stock which may be issued as Restricted Stock or upon exercise of all
Stock Options granted under this Plan is limited to one million one hundred
thousand (1,100,000 shares in the aggregate.
If
for
any reason, unreleased shares of Restricted Stock do not vest, said shares
shall
again be available for grants of Restricted Stock or Stock Options under this
Plan. If any Stock Option shall be canceled, surrendered, or expire for any
reason without having been exercised in full, the Shares represented thereby
shall again be available for grants of Restricted Stock or Stock Options under
this Plan.
5. |
Eligibility
|
Only
Eligible
Participants shall be eligible to receive grants of Restricted Stock or Stock
Options under this Plan.
6. |
Formula
Awards of Stock Options to Non-employee
Directors
|
Initial
Stock Option grants with respect to
10,000
shares shall be made to each non-employee director. Additional Stock Option
grants with respect to 1,000 shares shall be made to each non-employee director
on or after each anniversary of the initial grant.
Non-employee
directors are not eligible for further grants of Stock Options.
7. |
Discretionary
Awards of Restricted Stock and Stock
Options
|
The
Plan
Committee, in its sole and absolute discretion, subject to the provisions of
the
Plan, may grant Restricted Stock to any Eligible Participant including a
non-employee director. The Plan Committee, in its sole and absolute discretion,
subject to the provisions
of the Plan, may grant Stock Options to any Eligible Participant other than
a
non-employee director (whose Stock Option Awards are specifically provided
in
Section 6 hereof), at such time and in such amounts and on such terms and
conditions as it deems advisable and specifies in the respective
grants.
8. |
Restricted
Stock and Forfeiture
Restrictions
|
(a) Certain
Terms.
The
shares of Restricted Stock granted to a Participant shall be released to him
in
accordance with such schedule as the Plan
Committee,
in its sole discretion shall determine at the time of grant but in
no
event
less than six
(6)
months
from the date of the grant. All shares of Restricted Stock shall be fully
released not later than ten years from the date of grant. Except for normal
retirement, or pursuant to the terms of the written agreement with a
non-employee director, the Grantee shall have no vested interest in the
unreleased stock of any grant in the event of his termination with the
Corporation for any reason (unless the Plan Committee in its sole discretion
decides to terminate the forfeiture restrictions following the termination
of
such Grantee) and the unreleased stock certificates shall
be
canceled. During the Grantees continued employment or affiliation, however,
he
shall have the right to vote all shares and to receive all dividends as though
all shares granted were his without restrictions.
(b) Written
Agreement.
The
details of each grant regarding shares of Restricted Stock shall be evidenced
by
a written agreement covering terms and conditions, not inconsistent with the
Plan, as the Plan Committee shall approve. Such agreement shall be promptly
delivered by Management of the Corporation to each Grantee.
9. |
Stock
Options
|
(a) Designation
as Incentive or Nonqualified Options.
The
Plan Committee shall designate in each grant of a Stock Option whether the
Stock
Option is an Incentive Stock Option or a Non-Qualified Stock Option. The terms
upon which and the times at which, or the periods within which, the Option
Shares subject to such Stock Options may become acquired or such Stock Options
may be acquired and exercised shall be as set forth in the Plan and the related
Stock Option Agreements.
(b) Date
of Grant and Rights of Optionees.
The
determination of the Plan Committee to grant a Stock Option shall not in any
way
constitute or be deemed to constitute an obligation of the Corporation, or a
right of the Eligible Participant who is the proposed subject of the grant,
and
shall not constitute or be deemed to constitute the grant of a Stock Option
hereunder unless and until both the Corporation and the Eligible Participant
have executed and delivered to the other a Stock Option Agreement in the form
then required by the Plan Committee as evidencing the grant of the Stock Option,
together with such other instrument or instruments as may be required by the
Plan Committee pursuant to this Plan; provided,
however,
that
the Plan Committee may fix the date of grant as any date on or after the date
of
its final determination to grant the Stock Option (or if no such date is fixed,
then the date of grant shall be the date on which the determination was finally
made by the Plan Committee to grant the Stock Option); and such date shall
be
set forth in the Stock Option Agreement. The date of grant as so determined
shall be deemed the date of grant of the Stock Option for purposes of this
Plan.
(c) 10%
Shareholder.
A Stock
Option granted hereunder to an Eligible Participant who owns, directly or
indirectly, at the date of the grant of the Stock Option, more than ten percent
(10%) of the total combined voting power of all classes of capital stock of
the
Corporation or a Subsidiary shall not qualify as
an
Incentive Stock Option unless: (i) the purchase price of the Option Shares
subject to said Stock Option is at least one hundred and ten percent (110%)
of
the Fair Market Value of the Option Shares, determined as of the date said
Stock
Option is granted; and (ii) the Stock Option by its terms is not exercisable
after five (5) years from the date that it is granted. The attribution rules
of
Section 425(d) of the Internal Revenue Code of 1986, as amended, shall apply
in
the determination of indirect ownership of stock.
(d) Maximum
Value of Stock Options.
No
grant of Incentive Stock Options hereunder may be made when the aggregate fair
market value of Option Shares with respect to which Incentive Stock Options
(pursuant to this Plan or any other Incentive Stock Option Plan of the
Corporation or any Subsidiary), are exercisable for the first time by the
Eligible Participant during any calendar year exceeds $100,000.
(e) Non-Qualified
Stock Options.
Stock
Options granted by the Plan Committee shall be deemed Non-Qualified Stock
Options under this Plan if they: (i) are designated at the time of grant as
Incentive Stock Options but do not so qualify under the provisions of Section
422 of the Code or any regulations or rulings issued by the Internal Revenue
Service for any reason; (ii) are not granted in accordance with the provisions
of Section 9(c); (iii) are in excess of the fair market value limitations set
forth in Section 9(d); (iv) are granted to an Eligible Participant who is not
an
employee of the Corporation or any Subsidiary, or (v) are designated at the
time
of grant as Non-Qualified Stock Options. Non-Qualified Stock Options granted
hereunder shall be so designated in
the
Stock
Option Agreement entered into between the Corporation and the
Optionee.
10. |
Stock
Option Exercise Price
|
The
exercise price of Option Shares shall be determined by the Committee at the
date
of grant, except that the exercise price of any Option Shares designated as
Incentive Stock Options shall be one hundred percent (100%) of the Fair Market
Value of the Common Stock represented by the Option Shares on the date of
grant.
The
exercise price of Option Shares granted to non-employee directors shall in
all
cases be one hundred percent (100%) of the Fair Market Value of the Common
Stock
represented by the Option Shares on the date of grant.
11. |
Exercise
of Stock Options
|
(a) Exercise.
Except
as otherwise provided elsewhere herein, if an Optionee shall not in any given
period exercise any part of a Stock Option which has become exercisable during
that period, the Optionees right to exercise such part of the Stock Option
shall
continue until expiration of the Stock Option or any part thereof as may be
provided in the related Stock Option Agreement. No Stock Option shall, except
as
provided in Section 19 hereof, become exercisable until one (1) year following
the date of grant, and (i) as to non-employee directors, a Stock Option first
becomes exercisable as to one third (1/3) of the Option Shares called for
thereby during the second year following the date of the grant, as to an
additional one-third (1/3) during the third year and as to the remaining one
third (1/3) during the fourth year, and (ii) as to all other Eligible
Participants, Stock Options shall be exercisable as set forth by the Committee.
No Stock Option or part thereof shall be exercisable except with respect to
whole shares of Common Stock, and fractional share interests shall be
disregarded except that they may be accumulated.
(b) Prior
Outstanding Incentive Stock Options.
Incentive Stock Options granted to an Optionee under the Plan shall be
exercisable even while such Optionee has outstanding and unexercised any
Incentive Stock Option previously granted to him or her pursuant to this Plan
or
any other Incentive Stock Option Plan of the Corporation or any Subsidiary.
An
Incentive Stock Option shall be treated as
outstanding
until it is exercised in full or expires by reason of lapse of time, or is
otherwise canceled by mutual action of the
Optionee
and the Corporation.
(c) Notice
and Payment.
Stock
Options granted hereunder shall be exercised by written notice delivered to
the
Corporation specifying the number of Option Shares with respect to which the
Stock Option is being exercised, together with concurrent payment in full of
the
exercise price as hereinafter provided. If the Stock Option is being exercised
by any person or persons other than the Optionees, said notice shall be
accompanied by proof, satisfactory to the counsel for the Corporation, of the
right of such person or persons to exercise the Stock Option.
(d) Payment
of Exercise Price.
The
exercise price of any Option Shares purchased upon the proper exercise of a
Stock Option shall be paid in full at the time of each exercise of a Stock
Option in cash or check and/or in Common Stock of the Corporation which, when
added to the cash payment, if any, has an aggregate Fair Market Value equal
to
the full amount of the exercise price of the Stock Option, or part thereof,
then
being exercised. Payment by an Optionee as provided herein shall be made in
full
concurrently with the Optionees notification to the Corporation of his intention
to exercise all or part of a Stock Option. If all or any part of a payment
is
made in shares of Common Stock as heretofore provided, such payment shall be
deemed to have been made only upon receipt by the corporation of all required
share certificates and all stock power and all other required transfer documents
necessary to transfer the shares of Common Stock to the Corporation. In
addition, Options may be exercised and payment made by delivering a properly
executed exercise notice together with irrevocable instructions to a broker
or
bank to promptly deliver to the Corporation the amount of sale proceeds
necessary to pay the exercise price and any applicable tax withholding. The
date
of exercise shall be deemed to be the date the Corporation receives the
notice.
12. |
[Reserved]
|
13. |
Nontransferability.
|
Except
as
otherwise provided herein each Stock Option and all unreleased shares of
Restricted Stock shall, be their terms, be nontransferable by the Optionee
other
than by will or the laws of descent and distribution, or pursuant to a qualified
domestic relations order as defined by the Internal Revenue Code of 1986, as
amended, or Title I of the Employee Retirement Income Security Act, or the
rules
thereunder. Incentive Stock Options shall be exercisable during the lifetime
of
the Optionee only by the Optionee. Notwithstanding the above, a Non-Qualified
Stock Option may be transferred to an inter vivos trust, provided the transferor
of the Non-Qualified Stock Option is both a trustor and a trustee of the
trust.
14. |
Affiliation
|
Nothing
contained in this Plan (or in any Stock Option or Restricted Stock Agreement)
shall obligate the Corporation or any Subsidiary to employ or continue to employ
or remain affiliated with any Participant for any period of time or interfere
in
any way with the right of the Corporation or a Subsidiary to reduce or increase
the Participants compensation.
Except
as
provided in Section 15 hereof, if, for any reason other than disability or
death, an Optionee ceases to be affiliated with the Corporation or a Subsidiary,
the Stock Options granted to such Optionee shall expire on the expiration dates
specified for said Stock Options at the time of their grant, or three (3) months
after the Optionee ceases to be so affiliated, whichever is earlier. During
such
period after cessation of affiliation, such Stock Options shall be exercisable
only as to those increments, if any, which had become exercisable as of the
date
on which such Optionee ceased to be affiliated with the Corporation or the
Subsidiary, and any Stock Options or increments which had not become exercisable
as of such date shall expire automatically on such date.
15. |
Termination
for Cause
|
If
the
Stock Option Agreement so provides and if an Optionees employment by or
affiliation with the Corporation or a Subsidiary is
terminated
for
cause,
the Stock Options granted to such Optionee shall automatically expire and
terminate in their entirety immediately upon such termination; provided,
however,
that
the Plan Committee may, in its sole discretion, within thirty (30) days of
such
termination, reinstate such Stock Options by giving written notice of such
reinstatement to the Optionee. In the event of such reinstatement, the Optionee
may exercise the Stock Options only to such extent, for such time, and upon
such
terms and conditions as if the Optionee had ceased to be employed by or
affiliated with the Corporation or a Subsidiary upon the date of such
termination for a reason other than cause, disability or death. Termination
for
cause shall include, but shall not be limited to termination for malfeasance
or
gross misfeasance in the performance of duties or conviction of illegal activity
in connection therewith and, in any event, the determination of the Plan
Committee with respect thereto shall be final and conclusive.
16. |
Death
of Optionee
|
If
an
Optionee dies while employed by or affiliated with the Corporation or a
Subsidiary, or during the three-month period referred to in Section 14, hereof,
the Stock Options granted to such Optionee shall expire on the expiration dates
specified for said Stock Options at the time of their grant, or one (1) year
after the date of such death, whichever is earlier. After such death, but before
such expiration, subject to the terms and provisions of the Plan and the related
Stock Option Agreement, the person or persons to whom such Optionees rights
under the Stock Options shall have passed by will or by the applicable laws
of
descent and distribution, or the executor or administrator of the Optionee’s
estate, shall have the right to exercise such Stock Options to the extent that
increments, if any, had become exercisable as of the date on which the Optionee
died.
17. |
Disability
of Optionee
|
If
an
Optionee is disabled while employed by or affiliated with the Corporation or
a
Subsidiary or during the three-month period referred to in Section 14 hereof,
the Stock Options granted to such Optionee shall expire on the expiration dates
specified for said Stock Options at the time of their grant, or one (1) year
after the date such disability occurred, whichever is earlier. After such
disability occurs, but before such expiration, the Optionee or the guardian
or
conservator of the Optionees estate, as duly appointed by a court of competent
jurisdiction, shall have the right to exercise such Stock Options to the extent
that increments, if any, had become exercisable as of the date on which the
Optionee became disabled or ceased to be employed by or affiliated with the
Corporation or a Subsidiary as a result of the disability. An Optionee shall
be
deemed to be “disabled” if it shall appear to the Plan Committee, upon written
certification delivered to the Corporation of a qualified licensed physician,
that the Optionee has become permanently and totally unable to engage in any
substantial gainful activity by reason of a medically determinable physical
or
mental impairment which can be expected to result in the Optionees death, or
which has lasted or can be expected to last for a continuous period of not
less
than 12 months.
18. |
Adjustment
Upon Changes in
Capitalization
|
If
the
outstanding shares of Common Stock of the Corporation are increased, decreased,
or changed into or exchanged for a different number of or kind of shares or
securities of the Corporation, through a reorganization, merger,
recapitalization, reclassification, stock split, stock dividend, stock
consolidation, or otherwise, without consideration to the Corporation, or if
there is a spin-off or other distribution of stock or property with respect
to
the holders of the Common Stock other than normal cash dividends, an appropriate
and proportionate adjustment shall be made in the number and kind of shares
as
to which Stock Options may be granted. A corresponding adjustment changing
the
number or kind of Option Shares and the exercise prices per share allocated
to
unexercised Stock Options, or portions thereof, which shall have been granted
prior to any such change, shall likewise be made. Such adjustments shall be
made
without change in the total price applicable to the unexercised portion of
the
Stock Option, but with a corresponding adjustment in the price of each share
subject to the Stock Option. Adjustments under this Section shall be made by
the
Plan Committee, whose determination as to what adjustments shall be made, and
the extent thereof, shall be final and conclusive. No fractional shares of
stock
shall be issued or made available under the Plan on account of such
adjustments,
and fractional share interests shall be disregarded, except that they may be
accumulated.
19. |
Terminating
Events
|
Upon
consummation
of a plan of dissolution or liquidation of the Corporation, or upon consummation
of a plan or
reorganization,
merger or consolidation of the Corporation with one or more corporations, as
a
result of which the Corporation is not the surviving entity or upon the sale
of
all or substantially all the assets of the Corporation to another corporation,
the Plan shall automatically terminate and all unreleased shares of Restricted
Stock shall be released (but in no event during the first six months after
the
date of grant of such shares of Restricted Stock if Rule 16b-3, or any successor
thereto, so provides) under such circumstances, and all Stock Options
theretofore granted shall be terminated, subject to provisions of the
immediately following paragraph in this Section 19, unless provision is made
in
connection with such transaction for assumption of Stock Options theretofore
granted, or substitution for such Stock Options with new options covering stock
of a successor employer corporation, or a parent subsidiary corporation thereof,
solely at the discretion of such successor corporation, or parent or subsidiary,
corporation, with appropriate adjustments as to number and kind of shares and
prices.
Notwithstanding
the immediately preceding paragraph and/or any provision in any Stock Option
pertaining to the time of exercise of a Stock Option, or part thereof upon
adoption by the requisite holders of the outstanding shares of Common Stock
of
any plan of dissolution, liquidation, reorganization, merger consolidation
or
sale of all or substantially all of the assets of the Corporation to another
corporation which would, upon consummation, result in termination of a Stock
Option, all Stock Options previously granted shall become immediately
exercisable (but in no event shall be exercisable during the first six months
after they are granted if Rule 16b-3, or any successor thereto, so provides)
as
to all unexercised Shares for such period of time as may be determined by the
Plan Committee, but in any event not less than 30 days, on the conditions that
the terminating event is consummated. If such terminating event is not
consummated, Stock Options granted pursuant to the Plan shall be exercisable
in
accordance with the terms of their respective Stock Option
Agreement.
Notwithstanding
any other provision of this Plan, in the event of a Change of Control as
hereinafter defined, all shares of Restricted Stock shall immediately vest
but
not prior to six months after the date of grant, and all outstanding options
shall be immediately exercisable in full but not prior to one year after the
date of grant with respect to Incentive Stock Options, and not prior to six
months after the date of grant with respect to nonqualified options. Change
of
Control shall mean a change in control of the Company of a nature that would
be
required to be reported in response to Item 6(e) of Schedule 14A, Regulation
240, 14a-101, promulgated under the Securities Exchange Act of 1934, or, if
Item
6(e) is no longer in effect, any regulation issued by the Securities and
Exchange Commission pursuant to the Securities Exchange Act of 1934 which serves
similar purposes; provided that, without limitation, a Change of Control shall
be deemed to have occurred if and when (a) any “person” (as such term is used in
Sections 13(d) and 14(d)(2) of the Securities Exchange Act of 1934) is or
becomes a beneficial owner, directly or indirectly, of securities of the Company
representing fifty percent (50%) or more of the combined voting power of the
Companys then outstanding securities, (b) individuals who are members of the
Board immediately prior to a meeting of the shareholders of the Company
involving a contest for the election of directors shall not constitute a
majority of the Board following such election, or (c) a merger in which the
Company is not the surviving corporation, and the shareholders of the Company
immediately prior to the merger do not own at least a majority of the
outstanding shares of the surviving corporation.
20. |
Amendment
and Termination
|
The
Board
of Directors of the Corporation may at any time and from time to time suspend,
amend, or terminate the Plan. However, except as permitted under the provisions
of Section 18 hereof, to the extent then required by Rule 16b-3 to secure
benefits thereunder or to avoid liability under Section 16 of the Exchange
Act
(the Rules thereunder) or required under the provisions of the Internal Revenue
Code for qualification of Incentive Stock Options, or as required by any
applicable law, or deemed necessary or advisable by the Board, such amendment
shall be subject to shareholder approval.
The
provisions of this Plan shall not be amended more than once every six months,
other than to comport with changes in the Internal Revenue Code, the Employee
Retirement income Security Act, or the rules thereunder.
No
Stock
Option and no shares of Restricted Stock may be granted during any suspension
of
the Plan or after termination of the Plan. Amendment, suspension, or termination
of the Plan shall not (except as otherwise provided in Section 19 hereof),
without the consent of the Participant, alter or impair any rights or
obligations theretofore granted.
21. |
Rights
of Eligible Participants
|
No
Eligible Participant or other person shall have any claim or right to be granted
Restricted Stock or Stock Options under this Plan, and neither this Plan nor
any
action taken hereunder shall be deemed to give or be construed as giving any
Eligible Participant or other person any right to be retained in the employ
of
the Corporation or any subsidiary. Without limiting the generality of the
foregoing, no person shall have any rights as a result of his or her
classification as an Eligible Participant, such classification being made solely
to describe, define and limit those persons who are eligible for consideration
for privileges under the Plan.
22. |
Privileges
of Stock Ownership; Regulatory Law Compliance; Notice of
Sale
|
No
Optionee shall be entitled to the privileges of stock ownership as to any shares
not actually issued and delivered. No shares may be purchased upon the exercise
of a Stock Option unless and until all then applicable requirements of all
regulatory agencies having jurisdiction and all applicable requirements of
the
securities exchanges upon which securities of the Corporation are listed (if
any) shall have been fully complied with.
23. |
Effective
Date of the Plan
|
The
Plan
was adopted by the Board of Directors on March 2, 1993 and effective
as of
that
date subject to the approval within twelve (12) months thereof, by the holders
of at least a majority of the Corporation’s outstanding shares of Common
Stock.
24. |
Termination
|
Unless
previously terminated as aforesaid, the Plan shall terminate on the date which
is ten (10) years from the date of adoption of the Plan by the Board of
Directors. No Stock Options or shares of Restricted Stock shall be granted
under
the Plan thereafter, but such termination shall not affect any Stock Option
or
grant of Restricted Stock theretofore granted.
25. |
Stock
Option Period
|
Each
Stock Option and all rights and obligations thereunder shall expire on such
date
as the Plan Committee may determine, but not later than ten (10) years from
the
date such Stock Option is granted in the case of Incentive Stock Options and
eleven (11) years from the date of grant in the case of Non-Qualified Stock
Options, and each Stock Option shall be subject to earlier termination as
provided elsewhere in this Plan.
26. |
Exculpation
and Indemnification of Plan
Committee
|
The
present, former and future members of the Plan Committee, and each of them,
who
is or was a director, officer or employee of the Corporation shall be
indemnified by the Corporation to the extent authorized in and permitted by
the
Corporation’s Certificate of Incorporation, and/or Bylaws in connection with all
actions, suits and proceedings to which they or any of them may be a party
by
reason of any act or omission of any member of the Plan Committee under or
in
connection with the Plan or any Stock Option granted thereunder.
27. |
Compliance
With Law and Representations of
Participant
|
No
shares
of Common Stock shall be issued upon exercise of any Stock Option, and an
Optionee shall have no right or claim to such shares, unless and until: (i)
payment in full has been received by the Corporation with respect to the
exercise of any Stock Option; (ii) in the opinion of the counsel for the
Corporation, all applicable requirements of law and of regulatory bodies having
jurisdiction over such issuance and delivery have been fully complied with;
and
(iii) if required by federal or state law or regulation, the Optionee shall
have
paid to the Corporation the amount, if any, required to be withheld on the
amount deemed to be compensation to the Optionee as a result of the exercise
of
his or her Stock Option, or made other arrangement satisfactory to the
Corporation, in its sole discretion, to satisfy applicable income tax
withholding requirements.
Unless
the shares of Common Stock covered by this Plan have been registered with the
Securities and Exchange Commission pursuant to the registration requirements
under the Securities Act of 1933, each Participant shall: (i) by and upon
accepting shares of Restricted Stock or a Stock Option, represent and agree
in
writing, that the Stock will be acquired for investment purposes and not for
resale or distribution; and (ii) by and upon the exercise of a Stock Option,
or
a part thereof, furnish evidence satisfactory to counsel for the Corporation,
including written and signed representations to the effect that the Shares
are
being acquired for investment purposes and not for resale or distribution,
and
that the Shares being acquired shall not be sold or otherwise transferred by
the
Participant except in compliance with the registration provisions under the
Securities Act of 1933, as amended, or an applicable exemption therefrom.
Furthermore, the Corporation, at its sole discretion, to assure itself that
any
sale or distribution by the Participant complies with this Plan and any
applicable federal or state securities laws, may take all reasonable steps,
including placing stop transfer instructions with the Corporation’s transfer
agent prohibiting transfers in violation of the Plan and affixing the following
legend (and/or such other legend or legends as the Plan Committee shall require)
on certificates evidencing the shares:
“THE
SHARES REPRESENTED BY THIS CERTIFICATE HAVE NOT BEEN REGISTERED UNDER THE
SECURITIES ACT OF 1933, AS AMENDED, AND MAY NOT BE SOLD, PLEDGED, HYPOTHECATED
OR OTHERWISE TRANSFERRED OR OFFERED FOR SALE IN THE ABSENCE OF AN EFFECTIVE
REGISTRATION STATEMENT WITH RESPECT TO THEM UNDER THE ACT OR A WRITTEN OPINION
OF COUNSEL FOR THE HOLDER THEREOF, WHICH OPINION SHALL BE ACCEPTABLE TO OMEGA
HEALTHCARE IN-VESTORS, INC., THAT REGISTRATION IS NOT REQUIRED.”
28. |
Notices
|
All
notices and demands of any kind which the Plan Committee, or any Participant,
or
other person may be required or desires to give under the terms of this Plan
shall be in writing and shall be delivered in hand to the person or persons
to
whom addressed (in the case of the Plan Committee, with the Chairman, Chief
Executive Officer, Chief Financial Officer, Treasurer, any Vice President or
Secretary or any Assistant Secretary of the Corporation), by leaving a copy
of
such notice or demand at the address of such person or persons as may be
reflected in the records of the Corporation, or by mailing a copy thereof,
properly addressed as above, by certified or registered mail, postage prepaid,
with return receipt requested. Delivery by mail shall be
deemed
made upon receipt by the notifying party of the return receipt acknowledging
receipt of the notice or demand.
29. |
Limitation
on Obligations of the
Corporation
|
All
obligations of the Corporation arising under or as a result of this Plan or
Stock Options or Restricted Stock granted hereunder shall constitute the general
unsecured obligations of the Corporation, and neither the Plan Committee, nor
any member thereof, nor any officer of the Corporation, nor any other person
or
any Subsidiary, shall be liable for any debt, obligation, cost or expense
hereunder.
30. |
Limitation
of Rights
|
Except
as
otherwise provided by the terms of the Plan, the Plan Committee, in its sole
and
absolute discretion, is entitled to determine who, if anyone, is an Eligible
Participant under this Plan, and which, if any, Eligible Participant shall
receive any grant. No oral or written agreement by any other person not acting
on behalf of the Plan Committee relating to this Plan is authorized, and such
may not bind the Corporation or the Plan Committee to make any grant to any
person.
31. |
Severability
|
If
any
provision of this Plan as applied to any person or to any circumstance shall
be
adjudged by a court of competent jurisdiction to be void, invalid, or
unenforceable, the same shall in no way affect any other provision hereof,
the
application of any such provision in any other circumstances, or the validity
or
enforceability hereof.
32. |
Construction
|
Where
the
context or construction requires, all words applied in the plural herein shall
be deemed to have been used in the singular and vice versa, and the masculine
gender shall include the feminine and the neuter and vice versa. It is the
policy of the Company that directors and executive officers do not sell Company
securities without in advance having discussed the sale with the office of
the
Company’s General Counsel.
33. |
Headings
|
The
headings of the several paragraphs herein are inserted solely for convenience
of
reference and are not intended to form a part of and are not intended to govern,
limit or aid in the construction of any term or provision hereof.
34. |
Successors
|
This
Plan
shall be binding upon the respective successors, assigns, heirs, executors,
administrators, guardians and personal representatives of the Corporation and
Participants.