As filed with the Securities and Exchange Commission on May 21, 2001
Registration No. 333-
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER
THE SECURITIES ACT OF 1933
OMEGA HEALTHCARE INVESTORS, INC.
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(Exact name of Registrant as specified in its charter)
Maryland 38-3041398
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(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
900 Victors Way, Suite 350, Ann Arbor, Michigan 48108
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(Address of principal executive offices and zip code)
OMEGA HEALTHCARE INVESTORS, INC.
2000 STOCK INCENTIVE PLAN
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(Full Title of the Plan)
Thomas W. Erickson
Interim President and Chief Executive Officer
Omega Healthcare Investors, Inc.
900 Victors Way, Suite 350
Arbor, Michigan 48108
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(Name and address of agent for service)
(734) 887-0200
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(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
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Common
Stock, $0.10 3,500,000 $1.545(2) $5,407,500(3) $1,351.88
par value shares(1)
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(1) Representing shares to be issued and sold by the Registrant under the Omega
Healthcare Investors, Inc. 2000 Stock Incentive Plan (the "Plan"). This
Registration Statement also covers such indeterminable number of additional
shares as may become issuable to prevent dilution in the event of a stock split,
stock dividend, reclassification or other similar transaction pursuant to the
terms of the Plan.
(2) The average of the high and low prices of the Registrant's Common Stock as
reported on the New York Stock Exchange for May 14, 2001.
(3) The aggregate offering price is calculated solely for the purpose of
determining the registration fee pursuant to Rule 457(h)(1) under the Securities
Act of 1933, as amended.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in Part I of the
Instructions to the Registration Statement on Form S-8 will be sent or given to
employees of the Registrant as required by Rule 428(b)(1) promulgated under the
Securities Act of 1933, as amended (the "Securities Act").
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents filed with the Securities and Exchange
Commission (the "Commission") are incorporated herein by reference:
(1) The Registrant's Annual Report on Form 10-K for the fiscal year
ended December 31, 2000 (File No. 1-11316);
(2) The Registrant's Quarterly Report on Form 10-Q for the quarter ended
March 31, 2001 (File No. 1-11316);
(3) The Registrant's Proxy Statement for its Annual Meeting of
Stockholders to be held on May 22, 2001 (File No. 1-11316); and
(4) The description of the Registrant's Common Stock, $.10 par value,
contained in its Initial Registration Statement on Form 8-A, filed under Section
12 of the Securities Exchange Act of 1934 (the "Exchange Act") declared
effective by the Commission on August 7, 1992, together with any amendment or
report filed subsequent to the date hereof for the purpose of updating such
description (File No. 1-11316).
All documents subsequently filed by the Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment that indicates that all securities offered hereby have
been sold or that deregisters all such securities then remaining unsold, shall
be deemed to be incorporated by reference in this Registration Statement and to
be a part hereof from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers.
The Articles of Incorporation and Bylaws of the Registrant provide for
indemnification of directors and officers to the full extent permitted by
Maryland law.
Section 2-418 of the General Corporation Law of the State of Maryland
generally permits indemnification of any director or officer with respect to any
proceedings unless it is established that (a) the act or omission of the
director or officer was material to the matter giving rise to the proceeding and
was either committed in bad faith or the result of active or deliberate
dishonesty; (b) the director or officer actually received an improper personal
benefit in money, property or services; or (c) in the case of criminal
proceedings, the director or officer had reasonable cause to believe that the
act or omission was unlawful. The indemnity may be against judgments, penalties,
fines, settlements, and reasonable expenses actually incurred by the director or
officer in connection with the proceeding; provided, however, that if the
proceeding is one by, or in the right of, the corporation, indemnity is
permitted only for reasonable expenses and not with respect to any proceeding in
which the director or officer shall have been adjudged to be liable to the
corporation. The termination of any proceeding by judgment, order or settlement
does not create a presumption that the director or officer did not meet the
requisite standard of conduct required for permitted indemnification. The
termination of any proceeding by conviction, or a plea of nolo contendere or its
equivalent, or an entry of an order of probation prior to judgment, creates a
rebuttable presumption that the director or officer did not meet that standard
of conduct. A corporation is entitled to advance reasonable expenses incurred by
directors or officers prior to the disposition of a proceeding.
Insofar as indemnification for liabilities arising under the Securities
Act is permitted to directors and officers of the Registrant pursuant to the
above-described provisions, the Registrant understands that the Commission is of
the opinion that such indemnification contravenes federal public policy as
expressed in said act and therefore is unenforceable.
Item 8. Exhibits.
The following exhibits are filed with or incorporated by reference into
this Registration Statement pursuant to Item 601 of Regulation S-K:
Exhibit
No. Description
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5 Opinion of counsel with respect to the securities being registered.*
10 Omega Healthcare Investors, Inc. 2000 Stock Incentive Plan.*
23(a) Consent of counsel (included in Exhibit 5).*
23(b) Consent of Ernst & Young, LLP.*
24 Power of Attorney (see signature pages to this Registration Statement).*
* Filed herewith.
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section
10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental
change in the information set forth in the Registration
Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total value of
securities offered would not exceed that which was registered)
and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of
prospectus filed with the Commission pursuant to Rule 424(b)
if, in the aggregate, the changes in volume and price represent
no more than a 20% change in the maximum aggregate offering
price set forth in the "Calculation of Registration Fee" table
in the effective Registration Statement.
(iii) To include any material information with respect
to the plan of distribution not previously disclosed in the
Registration Statement or any material change to such
information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
registration statement is on Form S-3, Form S-8 and the information required to
be included in a post-effective amendment by those paragraphs is contained in
periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d)
of the Exchange Act that are incorporated by reference in the Registration
Statement.
(2) That, for the purpose of determining any liability under
the Securities Act, each such post-effective amendment shall be deemed
to be a new registration statement relating to the securities offered
therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
(b) The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit plan's
annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to be a
new registration statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the initial bona
fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the
Securities Act may be permitted to directors, officers and controlling persons
of the Registrant pursuant to the foregoing provisions or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act and
is, therefore, unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Registrant of expenses
incurred or paid by a director, officer or controlling person of the Registrant
in the successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the Securities Act and will be governed by the final
adjudication of such issue.
SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-8 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ann Arbor, State of Michigan, on this the 21st day of
May, 2001.
OMEGA HEALTHCARE INVESTORS, INC.
By:/s/ THOMAS W. ERICKSON
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Thomas W. Erickson
Interim President and
Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Thomas W. Erickson as his true and lawful
attorney-in-fact and agent, with full power of substitution and resubstitution,
for him and in his name, place and stead, in any and all capacities, to sign any
and all amendments (including post-effective amendments) to this Registration
Statement, and to file the same, with all exhibits thereto and other documents
in connection therewith, with the Securities and Exchange Commission, granting
unto said attorney-in-fact and agent, full power and authority to do and perform
each and every act and thing required or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorney-in-fact and
agent, or his substitute, could lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act, this Registration
Statement has been signed below on May 21, 2001 by the following persons in the
capacities indicated.
/s/ THOMAS W. ERICKSON Interim President and Chief Executive
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Thomas W. Erickson (Principal Executive Officer)
/s/ RICHARD M. FITZPATRICK Acting Chief Financial Officer
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Richard M. FitzPatrick (Principal Financial and Accounting
Officer)
/s/ DANIEL A. DECKER Chairman, Director
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Daniel A. Decker
/s/ BERNARD J. KORMAN Director
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Bernard J. Korman
/s/ EDWARD LOWENTHAL Director
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Edward Lowenthal
/s/ HAROLD J. KLOOSTERMAN Director
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Harold J. Kloosterman
/s/ THOMAS F. FRANKE Director
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Thomas F. Franke
/s/ CHRISTOPHER W. MAHOWALD Director
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Christopher W. Mahowald
/s/ STEVEN D. PLAVIN Director
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Stephen D. Plavin
Director
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Donald J. McNamara
EXHIBIT INDEX
Exhibit
No. Description
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5 Opinion of counsel with respect to the securities being registered.*
10 Omega Healthcare Investors, Inc. 2000 Stock Incentive Plan.*
23(a) Consent of counsel (included in Exhibit 5).*
23(b) Consent of Ernst & Young, LLP.*
24 Power of Attorney (see signature pages to this Registration Statement).*
* Filed herewith.