8-K: Current report filing
Published on May 29, 2008
FIRST
AMENDMENT TO THE
OMEGA
HEALTHCARE INVESTORS, INC.
2004
STOCK INCENTIVE PLAN
This FIRST AMENDMENT is made as of this
22nd
day of May, 2008, by Omega Healthcare Investors, Inc. (the
“Company”).
WITNESSETH:
WHEREAS, the Company maintains the
Omega Healthcare Investors, Inc. 2004 Stock Incentive Plan (the “Plan”),
effective as of April 20, 2004; and
WHEREAS, the Company now wishes to
amend the Plan primarily to allow the Compensation Committee of the Board of
Directors of the Company (the “Committee”) to grant qualified performance-based
cash bonus awards under the Plan; to expand the available performance goals for
purposes of Section 162(m) of the Internal Revenue Code; to provide for a cap on
the maximum number of shares or the dollar amount that can be paid to an
employee during a calendar year in the case of certain qualified
performance-based awards; and to revise the anti-dilution provision requiring
adjustments to outstanding awards after certain equity restructuring events to
avoid incurring a
compensation cost under FAS 123-R in connection with an award's modification
following such equity restructuring.
NOW, THEREFORE, the Company does hereby
amend the Plan as follows:
1. By
adding the following Subsections after Section 1.1(a):
“(a-1) ‘Award’ means,
individually and collectively, Dividend Equivalent Rights, Incentive Stock
Options, Non-Qualified Stock Options, Phantom Shares, Stock Appreciation Rights
and Stock Awards, Performance Awards and Restricted Stock Units.
(a-2) ‘Award Agreement’
means an agreement between the Company and a Participant or other documentation
evidencing any Award granted under the Plan.
(a-3) ‘Award Program’ means
a written program established by the Committee, pursuant to which Awards are
granted under the Plan under uniform terms, conditions and restrictions set
forth in such written program.”
2. By
adding the following Subsection after Section 1.1(o):
“(o-1) ‘Performance Award’
refers to a performance award as described in Section 3.6.”
3. By
deleting Section 1.1(p) in its entirety and by substituting therefor the
following:
“(p) “Performance Goals”
means any one or more of the following performance goals, intended by the
Committee to constitute objective goals for purposes of Code Section 162(m),
either individually, alternatively or in any combination, applied to either the
Company as a whole or to a business unit or Affiliate, either individually,
alternatively or in combination, and measured either quarterly, annually or
cumulatively over a period of quarters or years, on an absolute basis or
relative to a pre-established target, to previous quarters’ or years’ results or
to a designated comparison group, in each case as specified by the Committee in
the Award:
(i)
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earnings
per share;
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(ii)
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operating
cash flow;
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(iii)
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cash
available;
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(iv)
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net
income;
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(v)
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revenue;
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(vi)
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total
shareholder return;
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(vii)
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return
on invested capital;
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(viii)
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return
on shareholder equity;
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(ix)
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return
on assets;
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(x)
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return
on common book equity;
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(xi)
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market
share;
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(xii)
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economic
value added;
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(xiii)
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operating
margin
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(xiv)
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stock
price;
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(xv)
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operating
income;
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(xvi)
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EBIT
or EBITDA;
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(xvii)
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funds
from operations or adjusted funds from
operations;
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(xviii)
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expenses
or operating expenses;
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(xix)
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productivity
of employees as measured by revenues, costs, or earnings per
employee;
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(xx)
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cost
reduction goals; or
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(xxi)
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any
combination of the foregoing.
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The
Committee may appropriately adjust any evaluation of performance under a
Performance Goal to remove the effect of equity compensation expense under FAS
123R, amortization of acquired technology and intangibles, asset write-downs;
litigation or claim judgments or settlements; the effect of changes in or
provisions under tax law, accounting principles or other such laws or provisions
affecting reported results; accruals for reorganization and restructuring
programs; discontinued operations; and any items that are extraordinary, unusual
in nature, non-recurring or infrequent in occurrence, except where such action
would result in the loss of the otherwise available exemption of the Award under
Section 162(m) of the Code, if applicable.”
4. By
deleting Section 1.1(r) in its entirety and by substituting therefor the
following:
“(r) Reserved.”
5. By
deleting “2000” in Section 1.1(t) and by substituting therefor
“2004”.
6. By
deleting Section 1.1(y) in its entirety and substituting therefor the
following:
“(y) Reserved.”
7. By
deleting Section 1.1(z) in its entirety and substituting therefor the
following:
“(z) Reserved.”
8. By
deleting Section 1.1(aa) in its entirety and substituting therefor the
following:
“(aa) Reserved.”
9. By
replacing the phrase “Stock Incentive” with the word “Award” in each place it
appears in the Plan except in the title of the Plan.
10. By
replacing the phrase “Performance Unit Award” with the phrase “Performance
Award” in each place it appears in the Plan.
11. By
adding the following to the end of Section 3.1(a):
“The
maximum number of shares of Stock with respect to which Awards (other than
Options, Stock Appreciation Rights, or Performance Awards that are payable in
cash) may be granted during any calendar year to any employee may not exceed One
Million One Hundred Thousand (1,100,000), to the extent they are granted with
the intent that they qualify as qualified performance-based compensation under
Section 162(m) of the Code. To the extent required under Section
162(m) of the Code and the regulations thereunder for compensation to be treated
as qualified performance-based compensation, the maximum aggregate dollar amount
that may be paid in any calendar year to an employee with respect to Performance
Awards that are payable in cash may not exceed Two Million Dollars
($2,000,000).
12. By
deleting Section 3.1(b) in its entirety and substituting therefor the
following:
“(b)
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Each
Award will either be evidenced by an Award Agreement in such form and
containing such terms, conditions and restrictions as the Committee may
determine to be appropriate, including without limitation, Performance
Goals or other performance criteria, if any, that must be achieved as a
condition to vesting or settlement of the Award, or be made subject to the
terms of an Award Program, containing such terms, conditions and
restrictions as the Committee may determine to be appropriate, including
without limitation, Performance Goals or other performance criteria, if
any, that must be achieved as a condition to vesting or settlement of the
Award. Performance Goals, if any, shall be established before
twenty-five percent (25%) of the Performance Period has elapsed, but in no
event later than within ninety (90) days after the first day of a
Performance Period. At the time any Performance Goals are established, the
outcome as to whether the Performance Goals will be met must be
substantially uncertain. If any Performance Goals are established as a
condition to vesting or settlement of an Award and such Performance Goals
are not based solely on the increase in the Fair Market Value of the
Stock, the Committee shall certify in writing that the applicable
Performance Goals were in fact satisfied before such Award is vested or
settled, as applicable. Each Award Agreement or Award Program is subject
to the terms of the Plan and any provisions contained in the Award
Agreement or Award Program that are inconsistent with the Plan are null
and void. To the extent an Award is subject to Performance
Goals with the intent that the Award constitute performance-based
compensation under Code Section 162(m), the Committee shall comply with
all applicable requirements under Code Section 162(m) and the rules and
regulations promulgated thereunder in granting, modifying, and settling
such Award. The Committee may, but is not required to,
structure any Award so as to qualify as performance-based compensation
under Code Section 162(m).”
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13. By
deleting Section 3.6 in its entirety and substituting therefor the
following:
“3.6 Terms and Conditions of
Performance Awards. A Performance Award shall entitle the
Participant to receive, at a specified future date, payment of an amount equal
to all or a portion of either (i) the value of a specified or determinable
number of units (stated in terms of a designated or determinable dollar amount
per unit) granted by the Committee, or (ii) a percentage or multiple of a
specified amount determined by the Committee. At the time of the
grant, the Committee must determine the base value of each unit; the number of
units subject to a Performance Award, the specified amount and the percentage or
multiple of the specified amount, as may be applicable; and the Performance
Goals applicable to the determination of the ultimate payment value of the
Performance Award. The Committee may provide for an alternate base value for
each unit or an alternate percentage or multiple under certain specified
conditions.
(a) Payment. Payment
in respect of Performance Awards may be made by the Company in cash or shares of
Stock (valued at Fair Market Value as of the date payment is owed) as provided
in the applicable Award Agreement or Award Program or, in the absence of such
provision, as the Committee may determine.
(b) Conditions to
Payment. Each Performance Award granted under the Plan shall
be payable at such time or times, or upon the occurrence of such event or
events, and in such amounts, as the Committee may specify in the applicable
Award Agreement or Award Program; provided, however, that subsequent to the
grant of a Performance Award, the Committee, at any time before complete
termination of such Performance Award, may accelerate the time or times at which
such Performance Award may be paid in whole or in part.”
14. By
deleting Section 5.2(a) in its entirety and substituting therefor the
following:
“(a)
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The
number of shares of Stock reserved for the grant of Options, Dividend
Equivalent Rights, Performance Awards, Phantom Shares, Restricted Stock
Units, Stock Appreciation Rights and Stock Awards; the number of shares of
Stock reserved for issuance upon the exercise, settlement, or payment, as
applicable, of each outstanding Option, Dividend Equivalent Right,
Performance Award, Phantom Share, Restricted Stock Unit and Stock
Appreciation Right and upon vesting, settlement, or grant, as applicable,
of each Stock Award; the Exercise Price of each outstanding Option, the
threshold price of each outstanding Stock Appreciation Right, the
specified number of shares of Stock to which each outstanding Option,
Dividend Equivalent Right, Performance Award, Phantom Share, Restricted
Stock Unit, Stock Appreciation Right, and Stock Award pertains, and the
maximum number of shares as to which Options, Stock Appreciation Rights,
and other Awards may be granted to an employee during any calendar year,
shall be proportionately adjusted for any nonreciprocal transaction
between the Company and the holders of capital stock of the Company that
causes the per share value of the shares of Stock underlying a Stock Award
to change, such as a stock dividend, stock split, spinoff, rights
offering, or recapitalization through a large, nonrecurring cash dividend
(each, an “Equity Restructuring”); provided, however, that in the case of
a Nonqualified Stock Option or a Stock Appreciation Right, the Committee
shall consider any provisions of Code Section 409A and the regulations
thereunder that are required to be followed as a condition of the
Nonqualified Stock Option and the Stock Appreciation Right not being
treated as the grant of a new Option or Stock Appreciation Right or a
change in the form of payment. Any adjustment described in the
preceding sentence may include a substitution in whole or in part of other
equity securities of the issuer and the class involved in such Equity
Restructuring in lieu of the shares of Stock that are subject to the
Award.”
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15. By
inserting the phrase “, that in each case does not constitute an Equity
Restructuring,” before the phrase “the Committee may make” in the first sentence
of Section 5.2(b).
IN
WITNESS WHEREOF, the Company has caused this First Amendment to be executed as
of the day and year first above written.
OMEGA
HEALTHCARE INVESTORS, INC.
By: /s/ C. Taylor
Pickett
Name: C. Taylor
Pickett
Title: President & Chief
Executive Officer