10-Q: Quarterly report pursuant to Section 13 or 15(d)
Published on May 8, 2007
EMPLOYMENT
AGREEMENT
THIS
AGREEMENT (the “Agreement”) to be effective as of May 7, 2007 (the “Effective
Date”), between Omega Healthcare Investors, Inc. (the “Company”), and Michael
Ritz (the “Executive”).
INTRODUCTION
The
Company and the Executive desire to enter into this Agreement confirming
the
terms of the Executive’s employment.
NOW,
THEREFORE,
the
parties agree as follows:
1. Terms
and Conditions of Employment.
(a) Employment.
During
the Term, Company will employ the Executive, and the Executive will serve
on a
full-time basis as the Chief Accounting Officer of the Company until a Change
in
Control, and upon and following a Change in Control will have such job position
as may be assigned by the Company and will have such responsibilities and
authority as may from time to time be assigned to the Executive by the Company.
In this capacity, Executive will provide unique services to the Company and
be
privy to the Company’s Confidential Information and Trade Secrets. The Executive
will report to the Chief Financial Officer of the Company until the occurrence
of a Change in Control and upon and following a Change in Control will report
for such position as may be established by the Company. The Executive’s primary
office will be at the Company’s headquarters in such geographic location within
the United States as may be determined by the Company.
(b) Exclusivity.
Throughout the Executive’s employment hereunder, the Executive shall devote
substantially all of the Executive’s time, energy and skill during regular
business hours to the performance of the duties of the Executive’s employment,
shall faithfully and industriously perform such duties, and shall diligently
follow and implement all management policies and decisions of the Company;
provided, however, that this provision is not intended to prevent the Executive
from managing his investments, so long as he gives his duties to the Company
first priority and such investment activities do not interfere with his
performance of duties for the Company. Notwithstanding the foregoing, other
than
with regard to the Executive’s duties to the Company, the Executive will not
accept any other employment during the Term, perform any consulting services
during the Term, or serve on the board of directors or governing body of
any
other business, except with the prior written consent of the Chief Executive
Officer. Further, the Executive has disclosed on Exhibit
A
hereto,
all of his nonpublic company healthcare related investments, and agrees during
the Term not to make any investments during the term hereof except as a passive
investor. The Executive agrees during the Term not to own directly or indirectly
equity securities of any public healthcare related company (excluding the
Company) that represents five percent (5%) or more of the value of voting
power
of the equity securities of such company.
2. Compensation.
(a) Base
Salary.
Beginning as of the Effective Date, the Company shall pay the Executive base
salary of $175,000 per annum, which base salary will be subject to review
effective as of January 1, 2008, and at least annually thereafter, by the
Company for possible increases. The base salary shall be payable in equal
installments, no less frequently than twice per month, in accordance with
the
Company’s regular payroll practices.
(b) Bonus.
The
Executive shall be eligible for an annual bonus of up to 35% of the Executive’s
annual base salary (“Bonus”), which Bonus, if any, shall be payable
(i) promptly following the availability to the Company of the required data
to calculate the Bonus for the year for which the Bonus is earned (which
data
may in the Company’s discretion include audited financial statements), and
(ii) by no later than March 15 of the year following the year for which the
Bonus is earned. Notwithstanding the foregoing, for the calendar year ending
December 31, 2007, the Executive shall be entitled to an additional guaranteed
Bonus of $40,000, provided the Executive remains employed by the Company
on the
date the Bonus is paid. The Bonus criteria shall be determined in the discretion
of the Compensation Committee of the Board of Directors of the Company and
shall
consist of such objective, subjective and personal performance goals as the
Compensation Committee shall determine appropriate. The Executive will be
eligible for a prorated Bonus, prorated in accordance with procedures
established in the Company’s discretion, if the Executive terminates employment
during a calendar year due to death. In addition, if the Term is not extended
beyond December 31, 2010, the Executive will be eligible for a Bonus for
2010 if
he remains employed through December 31, 2010. Otherwise, the Executive will
be
eligible for a Bonus for any calendar year only if the Executive remains
employed by the Company on the date the Bonus is paid, unless otherwise provided
by the terms of the applicable bonus plan or the Compensation
Committee.
(c) Equity
Compensation.
The
Executive shall be entitled to equity compensation from the Company to the
extent provided by, and subject to the terms of, any plan, program, or agreement
applicable to the Executive. Nothing herein shall supersede the terms and
conditions of any previously granted equity incentives, including without
limitation, stock options granted to the Executive.
(d) Expenses.
The
Executive shall be entitled to be reimbursed in accordance with Company policy
for reasonable and necessary expenses incurred by the Executive in connection
with the performance of the Executive’s duties of employment hereunder;
provided, however, the Executive shall, as a condition of such reimbursement,
submit verification of the nature and amount of such expenses in accordance
with
the reasonable reimbursement policies from time to time adopted by the
Company.
(e) Paid
Time Off.
The
Executive shall be entitled to paid time off in accordance with the terms
of
Company policy in effect at the Effective Date.
(f) Benefits.
In
addition to the benefits payable to the Executive specifically described
herein,
the Executive shall be entitled to such benefits as generally may be made
available to all other Executives of the Company from time to time; provided,
however, that nothing contained herein shall require the establishment or
continuation of any particular plan or program.
(g) Withholding.
All
payments pursuant to this Agreement shall be reduced for any applicable state,
local, or federal tax withholding obligations.
(h) Insurance
and Indemnification.
The
Executive shall be entitled to indemnification, including advancement of
expenses (if applicable), in accordance with and to the extent provided by
the
Company’s bylaws and articles of incorporation, and any separate indemnification
agreement, if any.
3. Term,
Termination and Termination Payments.
(a) Term.
The
term of this Agreement shall begin as of the Effective Date. It shall continue
through December 31, 2010, unless sooner terminated pursuant to Section 3(b)
hereof (the “Term”).
(b) Termination.
This
Agreement and the employment of the Executive by the Company hereunder shall
only be terminated: (i) by expiration of the Term; (ii) by the Company
without Cause; (iii) by the Executive for Good Reason; (iv) by the
Company or the Executive due to the Disability of the Executive; (v) by the
Company for Cause; (vi) by the Executive for other than Good Reason or
Disability, upon at least sixty (60) days prior written notice to the Company,
or (vii) upon the death of the Executive. Notice of termination by any party
shall be given prior to termination in writing and shall specify the basis
for
termination and the effective date of termination. Further, notice of
termination for Cause by the Company or Good Reason by the Executive shall
specify the facts alleged to constitute termination for Cause or Good Reason,
as
applicable. Except as provided in Section 3(c), the Executive shall not be
entitled to any payments or benefits after the effective date of the termination
of this Agreement, except for base salary pursuant to Section 2(a) accrued
up to
the effective date of termination, any unpaid earned and accrued Bonus, if
any,
pursuant to Section 2(b), pay for accrued but unused vacation that the Employer
is legally obligated to pay Employee, if any, and only if the Employer is
so
obligated, as provided under the terms of any other employee benefit and
compensation agreements or plans applicable to the Executive, expenses required
to be reimbursed pursuant to Section 2(d), and any rights to payment the
Executive has under Section 2(h).
(c) Termination
by the Company without Cause or by the Executive for Good Reason.
(i) If
the
employment of the Executive is terminated by the Company without Cause or
by the
Executive for Good Reason, the Company will pay the Executive one times the
sum
of (A) his base salary pursuant to Section 2(a) hereof, plus (B) an amount
equal to the average annual Bonus paid to the Executive for the three most
recently completed calendar years prior to termination of employment; provided,
however, that if the Executive’s termination of employment occurs before the
Bonus, if any, for the most recently completed calendar year is payable,
then
the averaging will be determined by reference to the three most recently
completed calendar years (or such lesser number of completed calendar years
during which the Executive was employed by the Company) before that calendar
year; provided, further, that if the Executive’s termination of employment
occurs in 2007, $40,000 will be paid in lieu of such average annual Bonus.
Such
amount shall be paid in substantially equal annual installments not less
frequently than twice per month over a twelve (12) month period; provided,
however, if the Executive is a "specified employee" within the meaning of
Section 409A of the Internal Revenue Code, as amended (the “Code”), at the date
of his termination of employment then, to the extent required to avoid a
tax
under Code Section 409A, payments which would otherwise have been made during
the first six (6) months after termination of employment shall be withheld
and
paid to the Executive during the seventh month following the date of his
termination of employment. If the total payments to be paid to the Executive
hereunder, along with any other payments to the Executive, would result in
the
Executive being subject to the excise tax imposed by Code Section 4999, the
Company shall reduce the aggregate payments to the largest amount which can
be
paid to the Executive without triggering the excise tax, but only if and
to the
extent that such reduction would result in the Executive retaining larger
aggregate after-tax payments. The determination of the excise tax and the
aggregate after-tax payments to be received by the Executive will be made
by the
Company. If payments are to be reduced, the payments made latest in time
will be
reduced first.
(ii) If
the
Term is not extended or the Term is not extended and the Company or the
Executive terminates the Executive’s employment upon or following expiration of
the Term, such termination shall not be deemed to be a termination of the
Executive’s employment by the Company without Cause or a resignation by
Executive for Good Reason.
(iii) Notwithstanding
any other provision hereof, as a condition to the payment of the amounts
in this
Section, the Executive shall be required to execute and not revoke within
the
revocation period provided therein, the Release.
(d) Survival.
The
covenants in Section 3 shall survive the termination of this Agreement and
shall
not be extinguished thereby.
4. Ownership
and Protection of Proprietary Information.
(a) Confidentiality.
All
Confidential Information and Trade Secrets and all physical embodiments thereof
received or developed by the Executive while employed by the Company are
confidential to and are and will remain the sole and exclusive property of
the
Company. Except to the extent necessary to perform the duties assigned by
the
Company hereunder, the Executive will hold such Confidential Information
and
Trade Secrets in trust and strictest confidence, and will not use, reproduce,
distribute, disclose or otherwise disseminate the Confidential Information
and
Trade Secrets or any physical embodiments thereof and may in no event take
any
action causing or fail to take the action necessary in order to prevent,
any
Confidential Information and Trade Secrets disclosed to or developed by the
Executive to lose its character or cease to qualify as Confidential Information
or Trade Secrets.
(b) Return
of Company Property.
Upon
request by the Company, and in any event upon termination of this Agreement
for
any reason, as a prior condition to receiving any final compensation hereunder
(including any payments pursuant to Section 3 hereof), the Executive will
promptly deliver to the Company all property belonging to the Company,
including, without limitation, all Confidential Information and Trade Secrets
(and all embodiments thereof) then in the Executive’s custody, control or
possession.
(c) Survival.
The
covenants of confidentiality set forth herein will apply on and after the
date
hereof to any Confidential Information and Trade Secrets disclosed by the
Company or developed by the Executive while employed or engaged by the Company
prior to or after the date hereof. The covenants restricting the use of
Confidential Information will continue and be maintained by the Executive
for a
period of two years following the termination of this Agreement. The covenants
restricting the use of Trade Secrets will continue and be maintained by the
Executive following termination of this Agreement for so long as permitted
by
the governing law.
5. Non-Competition
and Non-Solicitation Provisions.
(a) The
Executive agrees that during the Applicable Period, the Executive will not
(except on behalf of or with the prior written consent of the Company, which
consent may be withheld in Company’s sole discretion), within the Area either
directly or indirectly, on his own behalf, or in the service of or on behalf
of
others, provide managerial services or management consulting services
substantially similar to those Executive provides for the Company to any
Competing Business. The Executive acknowledges and agrees that the Business
of
the Company is conducted in the Area.
(b) The
Executive agrees that during the Applicable Period, he will not, either directly
or indirectly, on his own behalf or in the service of or on behalf of others
solicit any individual or entity which is an actual or, to his knowledge,
actively sought prospective client of the Company or any of its Affiliates
(determined as of date of termination of employment), with whom he had material
contact while he was an Executive of the Company, for the purpose of offering
services substantially similar to those offered by the Company.
(c) The
Executive agrees that during the Applicable Period, he will not, either directly
or indirectly, on his own behalf or in the service of or on behalf of others,
solicit for employment with a Competing Business any person who is a management
level employee of the Company or an Affiliate with whom Executive had contact
during the last year of Executive’s employment with the Company. The Executive
shall not be deemed to be in breach of this covenant solely because an employer
for whom he may perform services may solicit, divert, or hire a management
level
employee of the Company or an Affiliate provided that Executive does not
engage
in the activity proscribed by the preceding sentence.
(d) The
Executive agrees that during the Applicable Period, he will not make any
statement (written or oral) that could reasonably be perceived as disparaging
to
the Company or any person or entity that he reasonably should know is an
Affiliate of the Company.
(e) In
the
event that this Section 5 is determined by a court which has jurisdiction
to be
unenforceable in part or in whole, the court shall be deemed to have the
authority to strike any unenforceable provision, or any part thereof or to
revise any provision the minimum extent necessary to be enforceable to the
maximum extent permitted by law.
(f) The
provisions of this Section 5 shall survive termination of this Agreement,
except
that if the Executive remains employed by the Company through December 31,
2010
and the Term expires at December 31, 2010, and as a result no severance is
payable pursuant to Section 3 of this Agreement, then the provisions of this
Section 5 shall also expire at December 31, 2010.
6. Remedies
and Enforceability.
The
Executive agrees that the covenants, agreements, and representations contained
in Sections 4 and 5 hereof are of the essence of this Agreement; that each
of
such covenants are reasonable and necessary to protect and preserve the
interests and properties of the Company; that irreparable loss and damage
will
be suffered by the Company should the Executive breach any of such covenants
and
agreements; that each of such covenants and agreements is separate, distinct
and
severable not only from the other of such covenants and agreements but also
from
the other and remaining provisions of this Agreement; that the unenforceability
of any such covenant or agreement shall not affect the validity or
enforceability of any other such covenant or agreements or any other provision
or provisions of this Agreement; and that, in addition to other remedies
available to it, including, without limitation, termination of the Executive’s
employment for Cause, the Company shall be entitled to seek both temporary
and
permanent injunctions to prevent a breach or contemplated breach by the
Executive of any of such covenants or agreements.
7. Notice.
All
notices, requests, demands and other communications required hereunder shall
be
in writing and shall be deemed to have been duly given if delivered or if
mailed, by United States certified or registered mail, prepaid to the party
to
which the same is directed at the following addresses (or at such other
addresses as shall be given in writing by the parties to one
another):
If
to the
Company: Omega
Healthcare Investors, Inc.
Suite
100
9690
Deereco Road
Timonium,
Maryland 21093
Attn:
Chairman
If
to the
Executive: Michael
Ritz, at his address most recently provided to the Company.
Notices
delivered in person shall be effective on the date of delivery. Notices
delivered by mail as aforesaid shall be effective upon the fourth calendar
day
subsequent to the postmark date thereof.
8. Miscellaneous.
(a) Assignment.
The
rights and obligations of the Company under this Agreement shall inure to
the
benefit of the Company’s successors and assigns. This Agreement may be assigned
by the Company to any legal successor to the Company’s business or to an entity
that purchases all or substantially all of the assets of the Company, but
not
otherwise without the prior written consent of the Executive. In the event
the
Company assigns this Agreement as permitted by this Agreement and the Executive
remains employed by the assignee, the “Company” as defined herein will refer to
the assignee and the Executive will not be deemed to have terminated his
employment hereunder until the Executive terminates his employment with the
assignee. The Executive may not assign this Agreement.
(b) Waiver.
The
waiver of any breach of this Agreement by any party shall not be effective
unless in writing, and no such waiver shall constitute the waiver of the
same or
another breach on a subsequent occasion.
(c) Governing
Law.
This
Agreement shall be governed by and construed in accordance with the internal
laws of the State of Maryland. The parties agree that any appropriate state
or
federal court located in Baltimore, Maryland shall have jurisdiction of any
case
or controversy arising under or in connection with this Agreement and shall
be a
proper forum in which to adjudicate such case or controversy. The parties
consent to the jurisdiction of such courts.
(d) Entire
Agreement.
This
Agreement embodies the entire agreement of the parties hereto relating to
the
subject matter hereof and supersedes all oral agreements, and to the extent
inconsistent with the terms hereof, all other written agreements.
(e) Amendment.
This
Agreement may not be modified, amended, supplemented or terminated except
by a
written instrument executed by the parties hereto.
(f) Severability.
Each of
the covenants and agreements hereinabove contained shall be deemed separate,
severable and independent covenants, and in the event that any covenant shall
be
declared invalid by any court of competent jurisdiction, such invalidity
shall
not in any manner affect or impair the validity or enforceability of any
other
part or provision of such covenant or of any other covenant contained
herein.
(g) Captions
and Section Headings.
Except
as set forth in Section 9 hereof, captions and section headings used herein
are for convenience only and are not a part of this Agreement and shall not
be
used in construing it.
9. Definitions.
(a) “Affiliate”
means
any person, firm, corporation, partnership, association or entity that, directly
or indirectly or through one or more intermediaries, controls, is controlled
by
or is under common control with the Company.
(b) “Applicable
Period”
means
the period commencing as of the date of this Agreement and ending twelve
months
after the termination of the Executive’s employment with the Company or any of
its Affiliates.
(c) “Area”
means
Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida, Georgia,
Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts, Missouri,
New Hampshire, North Carolina, Ohio, Pennsylvania, Rhode Island, Tennessee,
Texas, Utah, Vermont, Washington, and West Virginia.
(d) “Business
of the Company”
means
any business with the primary purpose of leasing assets to healthcare operators,
or financing the ownership or operation of, senior housing, long-term care
facilities, assisted living facilities, retirement housing facilities, or
other
healthcare related real estate, and ancillary financing businesses the primary
focus of which relates to any of the foregoing.
(e) “Cause”
the
occurrence of any of the following events:
(i) willful
refusal by the Executive to follow a lawful direction of the Chief Financial
Officer or
the
Board of Directors of the Company, provided the direction is not materially
inconsistent with the duties or responsibilities of the Executive’s position as
Chief Accounting Officer of the Company, which refusal continues after the
Chief
Financial Officer or the Board of Directors has again given the direction
in
writing;
(ii) willful
misconduct or reckless disregard by the Executive of his duties or of the
interest or property of the Company;
(iii) intentional
disclosure by the Executive to an unauthorized person of Confidential
Information or Trade Secrets, which causes material harm to the
Company;
(iv) any
act
by the Executive of fraud against, material misappropriation from, or
significant dishonesty to either the Company or an Affiliate, or any other
party, but in the latter case only if in the reasonable opinion of at least
two-thirds of the members of the Board of Directors of the Company, such
fraud,
material misappropriation, or significant dishonesty could reasonably be
expected to have a material adverse impact on the Company or its
Affiliates;
(v) commission
by the Executive of a felony as reasonably determined by at least two-thirds
of
the members of the Board of Directors of the Company; or
(vi) a
material breach of this Agreement by the Executive, provided that the nature
of
such breach shall be set forth with reasonable particularity in a written
notice
to the Executive who shall have ten (10) days following delivery of such
notice
to cure such alleged breach, provided that such breach is, in the reasonable
discretion of the Board of Directors, susceptible to a cure.
(f) “Change
in Control”
means
any one of the following events which occurs following the Effective
Date:
(i) the
acquisition, directly or indirectly, by any “person” or “persons” (as such terms
are used in Sections 13(d) and 14(d) of the Securities Exchange Act of 1934,
as
amended), other than the Company or any employee benefits plan of the Company
or
an Affiliate, or any corporation pursuant to a reorganization, merger or
consolidation, of equity securities of the Company, resulting in such person
or
persons holding equity securities of the Company that in the aggregate represent
thirty percent (30%) or more of the combined ordinary voting power of the
Company’s then outstanding equity securities;
(ii) individuals
who as of the date hereof, constitute the Board of Directors of the Company
(the
“Incumbent Board”) cease for any reason to constitute at least a majority of the
Board of Directors of the Company; provided, however, that any individual
becoming a director subsequent to the date hereof whose election, or nomination
for election by the Company’s shareholders, was approved by a vote of at least
two-thirds of the directors then comprising the Incumbent Board shall be
considered as though such individual were a member of the Incumbent Board,
but
excluding, for this purpose, any such individual whose initial assumption
of
office occurs as a result of an actual or threatened election contest with
respect to the election or removal of directors or other actual or threatened
solicitation of proxies or consents by or on behalf of a person other than
the
Board of Directors of the Company;
(iii) a
reorganization, merger or consolidation, with respect to which persons who
were
the holders of equity securities of the Company immediately prior to such
reorganization, merger or consolidation do not, immediately thereafter, own
equity securities of the surviving entity representing more than fifty percent
(50%) of the combined ordinary voting power of the then outstanding voting
securities of the surviving entity; or
(iv) a
sale,
or one or more sales occurring in a twelve-month period, of all or substantially
all of the assets of the Company to any third party.
Notwithstanding
the foregoing, no Change in Control shall be deemed to have occurred for
purposes of this Agreement by reason of any actions or events in which the
Executive participates in a capacity other than in his capacity as an officer,
employee, or director of the Company or an Affiliate.
(g) “Competing
Business”
means
the entities listed below and any person, firm, corporation, joint venture,
or
other business that is engaged in the Business of the Company:
(i) Ventas,
Inc.,
(ii) Nationwide
Health Properties,
(iii) Health
Care Property Investors Inc.,
(iv) Healthcare
Realty Trust,
(v) National
Health Investors Inc.,
(vi) National
Health Realty, Inc.,
(vii) Senior
Housing Properties Trust,
(viii) Health
Care REIT Inc., and
(ix) LTC
Properties Inc.
(h) “Confidential
Information”
means
data and information relating to the Business of the Company or an Affiliate
(which does not rise to the status of a Trade Secret) which is or has been
disclosed to the Executive or of which the Executive became aware as a
consequence of or through his relationship to the Company or an Affiliate
and
which has value to the Company or an Affiliate and is not generally known
to its
competitors. Confidential Information shall not include any data or information
that has been voluntarily disclosed to the public by the Company or an Affiliate
(except where such public disclosure has been made by the Executive without
authorization) or that has been independently developed and disclosed by
others,
or that otherwise enters the public domain through lawful means without breach
of any obligations of confidentiality owed to the Company or any of its
Affiliates by the Executive.
(i) “Disability”
means
the inability of the Executive to perform the material duties of his position
hereunder due to a physical, mental, or emotional impairment, for a ninety
(90)
consecutive day period or for aggregate of one hundred eighty (180) days
during
any three hundred sixty-five (365) day period.
(j) “Good
Reason”
means
the occurrence of all of the events listed in either (i) or (ii)
below:
(i) (A)the
Company materially breaches this Agreement, including without limitation,
a
material diminution, but only prior to a Change in Control, of the Executive’s
responsibilities as Chief Accounting Officer of the Company, as reasonably
modified by the Chief Financial Officer of the Company from time to time
hereafter, such that the Executive would no longer have responsibilities
substantially equivalent to those of other chief accounting officers at
companies with similar revenues and market capitalization;
(B) the
Executive gives written notice to the Company of the facts and circumstances
constituting the breach of the Agreement within ten (10) days following the
occurrence of the breach;
(C) the
Company fails to remedy the breach within ten (10) days following the
Executive’s written notice of the breach; and
(D) the
Executive terminates his employment within ten (10) days following the Company’s
failure to remedy the breach; or
(ii) (A)the
Company requires the Executive to relocate the Executive’s primary place of
employment to a new location, that is more than fifty (50) miles (calculated
using the most direct driving route) from its current location, without the
Executive’s consent;
(B) the
Executive gives written notice to the Company within ten (10) days following
receipt of notice of relocation of his objection to the relocation;
(C) the
Company fails to rescind the notice of relocation within ten (10) days following
the Executive’s written notice; and
(D) the
Executive terminates his employment within ten (10) days following the Company’s
failure to rescind the notice.
(k) “Release”
means
a
comprehensive release, covenant not to sue, and non-disparagement agreement
from
the Executive in favor of the Company, its executives, officers, directors,
Affiliates, and all related parties, in the form attached hereto as Exhibit
B.
(l) “Term”
has
the
meaning as set forth in Section 3(a) hereof.
(m) “Trade
Secrets”
means
information including, but not limited to, technical or nontechnical data,
formulae, patterns, compilations, programs, devices, methods, techniques,
drawings, processes, financial data, financial plans, product plans or lists
of
actual or potential customers or suppliers which (i) derives economic
value, actual or potential, from not being generally known to, and not being
readily ascertainable by proper means by, other persons who can obtain economic
value from its disclosure or use, and (ii) is the subject of efforts that
are reasonable under the circumstances to maintain its secrecy.
[SIGNATURES
ON FOLLOWING PAGE]
IN
WITNESS WHEREOF,
the
Company and the Executive have each executed and delivered this Agreement
as of
the date first shown above.
COMPANY:
OMEGA
HEALTHCARE INVESTORS, INC.
By:
C.
Taylor
Pickett, CEO
THE
EXECUTIVE:
Michael
Ritz
EXHIBIT
A
|
Investment
|
Ownership
|
EXHIBIT
B
RELEASE,
AGREEMENT PURSUANT TO
EMPLOYMENT
AGREEMENT
This
Agreement (this “Agreement”) is made this ___ day of _____, 20__, by OMEGA
HEALTHCARE INVESTORS, INC. (the “Employer”) and Michael Ritz (the
“Employee”).
Introduction
Employee
and the Employer entered into an Employment Agreement dated May 7, 2007 (the
“Employment Agreement”).
The
Employment Agreement requires that as a condition to the Employer’s obligation
to pay payments and benefits under Section 3(c) of the Employment Agreement
(the
“Severance Benefits”), Employee must provide a release and agree to certain
other conditions as provided herein.
NOW,
THEREFORE, the parties agree as follows:
| 1. |
[For
Employee under age 40:
The effective date of this Agreement shall be the date on which Employee
signs this Agreement (“the Effective Date”), at which time this Agreement
shall be fully effective and enforceable.]
|
[For
Employee age 40 and over or group termination of Employees age 40 and
over:
Employee has been offered [twenty-one (21) days] [forty-five (45) days if
group
termination] from receipt of this Agreement within which to consider this
Agreement. The effective date of this Agreement shall be the date eight (8)
days after the date on which Employee signs this Agreement (“the Effective
Date”). For a period of seven (7) days following Employee’s execution of this
Agreement, Employee may revoke this Agreement, and this Agreement shall not
become effective or enforceable until such seven (7) day period has expired.
Employee must communicate the desire to revoke this Agreement in writing.
Employee understands that he or she may sign the Agreement at any time before
the expiration of the [twenty-one (21) day] [forty-five (45) day] review
period.
To the degree Employee chooses not to wait [twenty-one (21) days] [forty-five
(45) days] to execute this Agreement, it is because Employee freely and
unilaterally chooses to execute this Agreement before that time. Employee’s
signing of the Agreement triggers the commencement of the seven (7) day
revocation period.]
| 2. |
In
exchange for Employee’s execution of this Agreement and in full and
complete settlement of any claims as specifically provided in this
Agreement, the Employer will provide Employee with the Severance
Benefits.
|
| 3. |
[For
Employee age 40 or over or group termination of Employees age 40
and
over:
Employee acknowledges and agrees that this Agreement is in compliance
with
the Age Discrimination in Employment Act and the Older Workers Benefit
Protection Act and that the releases set forth in this Agreement
shall be
applicable, without limitation, to any claims brought under these
Acts.]
|
The
release given by Employee in this Agreement is given solely in exchange for
the
consideration set forth in Section 2 of this Agreement and such consideration
is
in addition to anything of value that Employee was entitled to receive prior
to
entering into this Agreement.
Employee
has been advised to consult an attorney prior to entering into this Agreement
[For
Employee age 40 or over or group termination of Employees age 40 and
over:
and this provision of the Agreement satisfies the requirement of the Older
Workers Benefit Protection Act that Employee be so advised in
writing].
[For
under age 40:
Employee has been offered an ample opportunity from receipt of this Agreement
within which to consider this Agreement.]
By
entering into this Agreement, Employee does not waive any rights or claims
that
may arise after the date this Agreement is executed.
| 4. |
[For
group termination of Employees age 40 and over:
The Employer has ________________________________________________
[The
Employer to describe class, unit, or group of individuals covered
by
termination program, any eligibility factors, and time limits applicable]
and such employees comprise the “Decisional Unit.” Attached as “Attachment
1” to this Agreement is a list of ages and job titles of persons in
the
Decisional Unit who were and who were not selected for termination
and the
offer of consideration for signing the
Agreement.]
|
| 5. |
This
Agreement shall in no way be construed as an admission by the Employer
that it has acted wrongfully with respect to Employee or any other
person
or that Employee has any rights whatsoever against the Employer.
The
Employer specifically disclaims any liability to or wrongful acts
against
Employee or any other person on the part of itself, its employees
or its
agents.
|
| 6. |
As
a material inducement to the Employer to enter into this Agreement,
Employee hereby irrevocably releases the Employer and each of the
owners,
stockholders, predecessors, successors, directors, officers, employees,
representatives, attorneys, affiliates (and agents, directors, officers,
employees, representatives and attorneys of such affiliates) of the
Employer and all persons acting by, through, under or in concert
with them
(collectively, the “Releasees”), from any and all charges, claims,
liabilities, agreements, damages, causes of action, suits, costs,
losses,
debts and expenses (including attorneys’ fees and costs actually incurred)
of any nature whatsoever, known or unknown, including, but not limited
to,
rights arising out of alleged violations of any contracts, express
or
implied, any covenant of good faith and fair dealing, express or
implied,
or any tort, or any legal restrictions on the Employer’s right to
terminate employees, or any federal, state or other governmental
statute,
regulation, or ordinance, including, without limitation: (1) Title
VII of
the Civil Rights Act of 1964, as amended by the Civil Rights Act
of 1991
(race, color, religion, sex, and national origin discrimination);
(2) the
Employee Retirement Income Security Act (“ERISA”); (3) 42 U.S.C. § 1981
(discrimination); (4) the Americans with Disabilities Act (disability
discrimination); (5) the Equal Pay Act; [For
Employee age 40 or over or group termination of Employees age 40
and
over:
(6) the Age Discrimination in Employment Act; (7) the Older Workers
Benefit Protection Act;] (6) Executive
Order 11246 (race, color, religion, sex, and national origin
discrimination); (7) Executive Order 11141 (age discrimination);
(8)
Section 503 of the Rehabilitation Act of 1973 (disability discrimination);
(9) negligence; (10) negligent hiring and/or negligent retention;
(11) intentional or negligent infliction of emotional distress or
outrage; (12) defamation; (13) interference with employment;
(14) wrongful discharge; (15) invasion of privacy; or
(16) violation of any other legal or contractual duty arising under
the laws of the State of Maryland or the laws of the United States
(“Claim” or “Claims”), which Employee now has, or claims to have, or which
Employee at any time heretofore had, or claimed to have, or which
Employee
at any time hereinafter may have, or claim to have, against each
or any of
the Releasees, in each case as to acts or omissions by each or any
of the
Releasees occurring up to and including the Effective Date.
|
| 7. |
The
release in the preceding paragraph of this Agreement does not apply
to
(a) all benefits and awards (including without limitation cash and
stock components) which pursuant to the terms of any compensation
or
benefit plans, programs, or agreements of the Employer are earned
or
become payable, but which have not yet been paid, and (b) pay for
accrued but unused vacation that the Employer is legally obligated
to pay
Employee, if any, and only if the Employer is so obligated,
(c) unreimbursed business expenses for which Employee is entitled to
reimbursement under the Employer’s policies, and (d) any rights to
indemnification that Employee has under any directors and officers
or
other insurance policy the Employer maintains or the bylaws and articles
of incorporation of the Company, and any indemnification agreement,
if
any.
|
| 8. |
Employee
promises that he will not make statements disparaging to any of the
Releasees. Employee agrees not to make any statements about any of
the
Releasees to the press (including without limitation any newspaper,
magazine, radio station or television station) without the prior
written
consent of the Employer. The obligations set forth in the two immediately
preceding sentences will expire two years after the Effective Date.
Employee will also cooperate with the Employer and its affiliates
if the
Employer requests Employee’s testimony. To the extent practicable and
within the control of the Employer, the Employer will use reasonable
efforts to schedule the timing of Employee’s participation in any such
witness activities in a reasonable manner to take into account Employee’s
then current employment, and will pay the reasonable documented
out-of-pocket expenses that the Employer pre-approves and that Employee
incurs for travel required by the Employer with respect to those
activities.
|
| 9. |
Except
as set forth in this Section, Employee agrees not to disclose the
existence or terms of this Agreement to anyone. However, Employee
may
disclose it to a member of his immediate family or legal or financial
advisors if necessary and on the condition that the family member
or
advisor similarly does not disclose these terms to anyone. Employee
understands that he will be responsible for any disclosure by a family
member or advisor as if he had disclosed it himself. This restriction
does
not prohibit Employee’s disclosure of this Agreement or its terms to the
extent necessary during a legal action to enforce this Agreement or to the
extent Employee is legally compelled to make a disclosure. However,
Employee will notify the Employer promptly upon becoming aware of
that
legal necessity and provide it with reasonable details of that legal
necessity.
|
| 10. |
Employee
has not filed or caused to be filed any lawsuit, complaint or charge
with
respect to any Claim he releases in this Agreement. Employee promises
never to file or pursue a lawsuit , complaint or charge based on
any Claim
released by this Agreement, except that Employee may participate
in an
investigation or proceeding conducted by an agency of the United
States
Government or of any state. Employee also has not assigned or transferred
any claim he is releasing, nor has he purported to do so. [For
group termination of Employees age 40 and over:
Employee covenants and agrees not to institute, or participate in
any way
in anyone else’s actions involved in instituting, any action against any
of the members of the Decisional Unit with respect to any Claim released
herein.]
|
| 11. |
The
Employer and Employee agree that the terms of this Agreement shall
be
final and binding and that this Agreement shall be interpreted, enforced
and governed under the laws of the State of Maryland. The provisions
of
this Agreement can be severed, and if any part of this Agreement
is found
to be unenforceable, the remainder of this Agreement will continue
to be
valid and effective.
|
| 12. |
This
Agreement sets forth the entire agreement between the Employer and
Employee and fully supersedes any and all prior agreements or
understandings, written and/or oral, between the Employer and Employee
pertaining to the subject matter of this
Agreement.
|
| 13. |
Employee
is solely responsible for the payment of any fees incurred as the
result
of an attorney reviewing this agreement on behalf of Employee. In
any
litigation concerning the validity or enforceability of this contract
or
in any litigation to enforce the provisions of this contract, the
prevailing party shall be entitled to recover reasonable attorneys’ fees
and costs, including court costs and expert witness fees and
costs.
|
Employee’s
signature below indicates Employee’s understanding and agreement with all of the
terms in this Agreement.
Employee
should take this Agreement home and carefully consider all of its provisions
before signing it. [For
Employee age 40 or over or group termination of Employees age 40 and
over:
Employee may take up to [twenty-one (21) days] [forty-five (45) days if group
termination] to decide whether Employee wants to accept and sign this Agreement.
Also, if Employee signs this Agreement, Employee will then have an additional
seven (7) days in which to revoke Employee’s acceptance of this Agreement
after
Employee has signed it. This Agreement will not be effective or enforceable,
nor
will any consideration be paid, until after the seven (7) day revocation
period has expired.]
Again,
Employee is free and encouraged to discuss the contents and advisability
of
signing this Agreement with an attorney of Employee’s choosing.
Employee
should read carefully. This agreement includes a release of all known and
unknown claims through the effective date. Employee is strongly advised to
consult with an attorney before executing this document.
IN
WITNESS WHEREOF, Employee and the Employer have executed this agreement
effective as of the date first written above.
EMPLOYEE
Michael
Ritz
Signature
Date
Signed
OMEGA
HEALTHCARE INVESTORS, INC.
By:
Title:
ATTACHMENT
I
[Insert
descriptive name of decisional unit from the Agreement]
Employees
Comprising the “Decisional Unit”
|
Job
Title:
|
Age:
|
Participating:
|
Not
Participating:
|