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As Of Filer Filing For·On·As Docs:Size 2/17/22 Omega Healthcare Investors Inc. 10-K 12/31/21 155:28M |
Document/Exhibit Description Pages Size
1: 10-K Annual Report HTML 3.43M
8: EX-10.10 Material Contract HTML 47K
2: EX-10.6M Material Contract HTML 100K
3: EX-10.6N Material Contract HTML 116K
4: EX-10.6O Material Contract HTML 108K
5: EX-10.6P Material Contract HTML 125K
6: EX-10.6Q Material Contract HTML 108K
7: EX-10.6R Material Contract HTML 124K
9: EX-21.1 Subsidiaries List HTML 199K
10: EX-22.1 Published Report re: Matters Submitted to a Vote HTML 41K
of Security Holders
11: EX-23.1 Consent of Expert or Counsel HTML 41K
12: EX-31.1 Certification -- §302 - SOA'02 HTML 45K
13: EX-31.2 Certification -- §302 - SOA'02 HTML 45K
14: EX-32.1 Certification -- §906 - SOA'02 HTML 42K
15: EX-32.2 Certification -- §906 - SOA'02 HTML 41K
21: R1 Document and Entity Information HTML 107K
22: R2 Consolidated Balance Sheets HTML 162K
23: R3 Consolidated Balance Sheets (Parentheticals) HTML 57K
24: R4 Consolidated Statements of Operations HTML 141K
25: R5 Consolidated Statements of Comprehensive Income HTML 72K
(Loss)
26: R6 Consolidated Statements of Changes in Equity HTML 117K
27: R7 Consolidated Statements of Changes in Equity HTML 42K
(Parentheticals)
28: R8 Consolidated Statements of Cash Flows HTML 158K
29: R9 Organization HTML 45K
30: R10 Summary of Significant Accounting Policies HTML 131K
31: R11 Real Estate Acquisitions HTML 179K
32: R12 Assets Held for Sale, Dispositions and Impairments HTML 55K
33: R13 Contractual Receivables and Other Receivables and HTML 79K
Lease Inducements
34: R14 Leases HTML 106K
35: R15 Mortgage Notes Receivable HTML 84K
36: R16 Other Investments HTML 83K
37: R17 Allowance for Credit Losses HTML 332K
38: R18 Variable Interest Entities HTML 114K
39: R19 Investment in Joint Ventures HTML 125K
40: R20 Goodwill and Other Intangibles HTML 73K
41: R21 Concentration of Risk HTML 44K
42: R22 Borrowing Arrangements HTML 193K
43: R23 Derivatives and Hedging HTML 60K
44: R24 Financial Instruments HTML 134K
45: R25 Taxes HTML 82K
46: R26 Stockholders Equity HTML 154K
47: R27 Stock-Based Compensation HTML 147K
48: R28 Commitments and Contingencies HTML 67K
49: R29 Supplemental Disclosure to Consolidated Statements HTML 116K
of Cash Flows
50: R30 Earnings Per Share HTML 87K
51: R31 Subsequent Events HTML 47K
52: R32 Schedule Ii - Valuation and Qualifying Accounts HTML 75K
53: R33 Schedule Iii - Real Estate and Accumulated HTML 461K
Depreciation
54: R34 Schedule Iv - Mortgage Loans on Real Estate HTML 292K
55: R35 Summary of Significant Accounting Policies HTML 197K
(Policies)
56: R36 Summary of Significant Accounting Policies HTML 55K
(Tables)
57: R37 Real Estate Acquisitions (Tables) HTML 180K
58: R38 Assets Held for Sale, Dispositions and Impairments HTML 49K
(Tables)
59: R39 Contractual Receivables and Other Receivables and HTML 60K
Lease Inducements (Tables)
60: R40 Leases (Tables) HTML 108K
61: R41 Mortgage Notes Receivable (Tables) HTML 65K
62: R42 Other Investments (Tables) HTML 68K
63: R43 Allowance for Credit Losses (Tables) HTML 419K
64: R44 Variable Interest Entities (Tables) HTML 118K
65: R45 Investment in Joint Ventures (Tables) HTML 123K
66: R46 Goodwill and Other Intangibles (Tables) HTML 74K
67: R47 Borrowing Arrangements (Tables) HTML 179K
68: R48 Derivatives and Hedging (Tables) HTML 53K
69: R49 Financial Instruments (Tables) HTML 126K
70: R50 Taxes (Tables) HTML 79K
71: R51 Stockholders Equity (Tables) HTML 151K
72: R52 Stock-Based Compensation (Tables) HTML 139K
73: R53 Commitments and Contingencies (Tables) HTML 51K
74: R54 Supplemental Disclosure to Consolidated Statements HTML 115K
of Cash Flows (Tables)
75: R55 Earnings Per Share (Tables) HTML 86K
76: R56 Organization and Basis of Presentation (Details) HTML 45K
77: R57 Summary of Significant Accounting Policies HTML 229K
(Narrative) (Detail)
78: R58 Summary of Significant Accounting Policies HTML 54K
(Schedule of credit losses impact) (Detail)
79: R59 Real Estate Acquisitions (Narrative) (Details) HTML 87K
80: R60 Real Estate Acquisitions (Schedule of Significant HTML 147K
Acquisitions) (Detail)
81: R61 Real Estate Acquisitions (Encore Portfolio) HTML 52K
(Narrative) (Detail)
82: R62 Real Estate Acquisitions (MedEquities Merger) HTML 86K
(Narrative) (Detail)
83: R63 Real Estate Acquisitions (Pro Forma Acquisition HTML 57K
Results) (Detail)
84: R64 Real Estate Acquisitions (Fair Value of Assets HTML 87K
Acquired and Liabilities Assumed) (Detail)
85: R65 Assets Held for Sale, Dispositions and Impairments HTML 99K
(Narrative) (Details)
86: R66 Assets Held for Sale, Dispositions and Impairments HTML 43K
(Schedule of Properties Held-for-Sale) (Details)
87: R67 Contractual Receivables and Other Receivables and HTML 290K
Lease Inducements (Narrative) (Details)
88: R68 Contractual Receivables and Other Receivables and HTML 51K
Lease Inducements (Schedule of Net Accounts
Receivable) (Detail)
89: R69 Leases (Narrative) (Detail) HTML 109K
90: R70 Leases (Schedule of operating lease income) HTML 47K
(Details)
91: R71 Leases (Schedule of estimated contractual rents HTML 54K
due under operating leases) (Details)
92: R72 Leases - Balance sheet information (Details) HTML 48K
93: R73 Leases (Schedule of Components of Investment in HTML 58K
Direct Financing Leases) (Detail)
94: R74 Mortgage Notes Receivable (Narrative) (Detail) HTML 58K
95: R75 Mortgage Notes Receivable (Schedule of HTML 93K
Receivables) (Detail)
96: R76 Mortgage Notes Receivable (Notes Due 2027 HTML 115K
Narrative) (Detail)
97: R77 Mortgage Notes Receivable (Notes Due 2029 HTML 172K
Narrative) (Detail)
98: R78 Mortgage Notes Receivable (Other Mortgage Notes HTML 88K
Outstanding) (Narrative) (Details)
99: R79 Other Investments (Schedule of Receivables) HTML 103K
(Details)
100: R80 Other Investments (Notes Due 2024 Narrative) HTML 71K
(Detail)
101: R81 Other Investments (Other investments notes due HTML 77K
2024-2025) (Narrative) (Details)
102: R82 Other Investments (Notes Due 2023 Narrative) HTML 57K
(Detail)
103: R83 Other Investments (Notes Due 2030 Narrative) HTML 61K
(Detail)
104: R84 Other Investments (Other Investment Note HTML 126K
Narrative) (Detail)
105: R85 Allowance for Credit Losses (Narrative) (Detail) HTML 63K
106: R86 Allowance for Credit Losses (Schedule of expected HTML 185K
credit loss per segment) (Detail)
107: R87 Allowance for Credit Losses (Schedule by segment HTML 96K
balance by vintage and credit quality indicator)
(Detail)
108: R88 Variable Interest Entities (Schedule of Variable HTML 138K
Interest Entities) (Detail)
109: R89 Investment in Joint Ventures (Narrative) (Details) HTML 47K
110: R90 Investment in Joint Ventures (Schedule of equity HTML 171K
method investments) (Details)
111: R91 Goodwill and Other Intangibles (Narrative) HTML 56K
(Details)
112: R92 Goodwill and Other Intangibles (Schedule of HTML 45K
Reconciliation of Goodwill) (Detail)
113: R93 Goodwill and Other Intangibles (Schedule of HTML 53K
Intangibles) (Detail)
114: R94 Concentration of Risk (Narrative) (Detail) HTML 101K
115: R95 Borrowing Arrangements (Schedule of Borrowings) HTML 223K
(Details)
116: R96 Borrowing Arrangements (HUD Mortgage) (Details) HTML 81K
117: R97 Borrowing Arrangements (Revolving Credit Facility) HTML 62K
(Details)
118: R98 Borrowing Arrangements (OP Term Loan) (Details) HTML 64K
119: R99 Borrowing Arrangements (Omega Credit Facilities, HTML 131K
OP Term Loan, Amended 2015 Term Loan Facilities
and General) (Detail)
120: R100 Borrowing Arrangements (Subordinated Debt) HTML 59K
(Narrative) (Detail)
121: R101 Borrowing Arrangements (Schedule of principal HTML 58K
payments, excluding the premium or discount and
the aggregate due thereafter) (Detail)
122: R102 Derivatives and Hedging (Narrative) (Details) HTML 128K
123: R103 Derivatives and Hedging (Location and the fair HTML 50K
value of derivative instruments designated as
hedges) (Details)
124: R104 Financial Instruments (Schedule of Financial HTML 124K
Instruments) (Details)
125: R105 Taxes (Narrative) (Detail) HTML 51K
126: R106 Taxes (Schedule of components of income tax HTML 46K
expense) (Details)
127: R107 Taxes (Schedule of deferred tax assets and HTML 49K
liabilities) (Detail)
128: R108 Stockholders Equity (Forward Equity Offering) HTML 54K
(Narrative) (Detail)
129: R109 Stockholders Equity (Common Stock Repurchase) HTML 44K
(Narrative) (Detail)
130: R110 Stockholders Equity (At The Market Program HTML 60K
Schedule and Narrative) (Detail)
131: R111 Stockholders Equity (Schedule of dividend HTML 43K
reinvestment and common stock purchase plan)
(Detail)
132: R112 Stockholders Equity (Schedule of Common Stock HTML 46K
Dividends) (Details)
133: R113 Stockholders Equity (Per Share Distributions) HTML 48K
(Detail)
134: R114 Stockholders Equity (Schedule of Accumulated Other HTML 105K
Comprehensive Income (Loss)) (Details)
135: R115 Stock-Based Compensation (Narrative) (Detail) HTML 81K
136: R116 Stock-Based Compensation (Schedule of assumptions HTML 54K
used for estimating fair value of stock awards
using Monte-Carlo model) (Detail)
137: R117 Stock-Based Compensation (Schedule of activity in HTML 81K
restricted stock and RSUs) (Detail)
138: R118 Commitments and Contingencies (Narrative) HTML 59K
(Details)
139: R119 Commitments and Contingencies (Schedule of HTML 47K
remaining commitments) (Detail)
140: R120 Supplemental Disclosure to Consolidated Statements HTML 93K
of Cash Flows (Detail)
141: R121 Earnings Per Share (Schedule of Computation of HTML 91K
Basic and Diluted Earnings per Share) (Detail)
142: R122 Earnings Per Share (Narrative) (Detail) HTML 54K
143: R123 Subsequent Event (Narrative) (Details) HTML 109K
144: R124 Schedule Ii - Valuation and Qualifying Accounts HTML 54K
(Detail)
145: R125 Schedule Iii - Real Estate and Accumulated HTML 417K
Depreciation (Detail)
146: R126 Schedule Iii - Real Estate and Accumulated HTML 62K
Depreciation (Narrative) (Detail)
147: R127 Schedule Iii - Real Estate and Accumulated HTML 51K
Depreciation (Narrative 1) (Detail)
148: R128 Schedule Iv - Mortgage Loans on Real Estate HTML 197K
(Detail)
149: R129 Schedule Iv - Mortgage Loans on Real Estate HTML 56K
(Narrative 1) (Detail)
150: R130 Schedule Iv - Mortgage Loans on Real Estate HTML 44K
(Narrative 2) (Detail)
153: XML IDEA XML File -- Filing Summary XML 297K
151: XML XBRL Instance -- ohi-20211231x10k_htm XML 8.35M
152: EXCEL IDEA Workbook of Financial Reports XLSX 262K
17: EX-101.CAL XBRL Calculations -- ohi-20211231_cal XML 310K
18: EX-101.DEF XBRL Definitions -- ohi-20211231_def XML 2.14M
19: EX-101.LAB XBRL Labels -- ohi-20211231_lab XML 2.42M
20: EX-101.PRE XBRL Presentations -- ohi-20211231_pre XML 2.82M
16: EX-101.SCH XBRL Schema -- ohi-20211231 XSD 468K
154: JSON XBRL Instance as JSON Data -- MetaLinks 761± 1.18M
155: ZIP XBRL Zipped Folder -- 0000888491-22-000007-xbrl Zip 856K
2022 FORM OF
TSR-BASED PERFORMANCE RESTRICTED STOCK UNITS AGREEMENT
PURSUANT TO
THE OMEGA HEALTHCARE INVESTORS, INC. 2018 STOCK INCENTIVE PLAN
THIS AGREEMENT (this “Agreement”) is made as of the Grant Date, by and between Omega Healthcare Investors, Inc. (the “Company”) and ___________________ (the “Recipient”).
Upon and subject to this Agreement (including the Terms and Conditions and the Exhibit which are attached hereto and incorporated herein as part of this Agreement) the Company hereby awards as of the Grant Date to the Recipient the opportunity to earn and vest in Restricted Stock Units (the “Restricted Stock Units Grant” or the “Award”). Underlined and capitalized captions in Items A through I below shall have the meanings therein ascribed to them. Other capitalized terms used in this Agreement are defined in Section 15 of the Terms and Conditions. Capitalized terms that are used but not defined in this Agreement shall have the meaning ascribed to them in the “Plan” (as defined below).
| A. | Grant Date: [GRANT DATE]. |
| B. | Plan (under which Restricted Stock Units Grant is granted): Omega Healthcare Investors, Inc. 2018 Stock Incentive Plan. |
| C. | Restricted Stock Units: The Recipient shall have an opportunity to earn and vest in a maximum of _____ Restricted Stock Units, each of which represents the contingent right of the Recipient to earn and vest in up to the same number of shares of the Company’s common stock (“Common Stock”), subject to adjustment as provided in the Terms and Conditions. |
| D. | Vesting Schedule: The Restricted Stock Units shall be earned and vest according to Exhibit 1 (the “Vesting Schedule”). The Restricted Stock Units which have become vested pursuant to the Vesting Schedule are herein referred to as the “Vested Stock Units.” Each Vested Stock Unit represents the Company’s unsecured obligation to issue one share of Common Stock. |
| E. | Distribution Date of Vested Shares. Shares of Common Stock attributable to Vested Stock Units (“Vested Shares”) shall be issued and distributed within (10) business days following each vesting event or upon the date of a Change in Control, whichever is earlier, subject in either case to receipt from the Recipient of the required tax withholding and Section 13 of the Terms and Conditions. Notwithstanding the foregoing, (a) distribution shall be deferred to the extent provided in any deferral agreement between the Recipient and the Company as a result of the Recipient’s valid deferral election, and (b) in the case of a Recipient who incurs a separation from service (other than due to death) before one of the Applicable Vesting Dates (or a Change in Control if applicable), distribution will be delayed until within (90) days following separation from service (subject to Section 13 of the Terms and Conditions) if the last day of such ninety (90) day period is later than the Applicable Vesting Date (or the Change in Control if applicable), provided, that if the Recipient has incurred a Qualifying Termination and additional vesting will occur in one |
| calendar year or the following calendar year dependent upon when the Recipient executes the Release, payment will be delayed until the earliest possible date in such following calendar year. |
| F. | Dividend Equivalents. Each Restricted Stock Unit shall accrue Dividend Equivalents, an amount equal to the dividends paid on one share of Common Stock to a shareholder of record on or after [GRANT DATE] and until the date that the shares of Common Stock attributable to the Vested Stock Units are issued or the Restricted Stock Units are forfeited. |
| G. | Distribution Dates of Dividend Equivalents. Subject to tax withholding up to the maximum statutory rates, accrued Dividend Equivalents attributable to Restricted Stock Units which become Earned Unvested Restricted Units (as defined in Exhibit 1) shall be distributed to the Recipient within twenty (20) business days following the last day of the Performance Period, and thereafter, future Dividend Equivalents on Earned Unvested Restricted Units and Vested Stock Units shall be distributed to Recipient on the same date on the same date that the related dividends are paid to shareholders of record. Notwithstanding the foregoing or any other provision hereof, distribution of Dividend Equivalents shall be deferred to the extent provided in any deferral agreement between the Recipient and the Company as a result of the Recipient’s valid deferral election and shall be paid in the form provided in such agreement. Dividend Equivalents on Restricted Stock Units which do not become Earned Unvested Restricted Units are forfeited. |
| H. | Non-Competition Provisions: The Recipient acknowledges that if the Recipient is subject to any provisions then in effect in the employment agreement between the Recipient and the Company or an Affiliate that limit the ability of the Recipient to enter into competition with the Company or its Affiliates or to work for a business which is in a similar business to that of the Company or of an Affiliate, the Recipient will abide by such provisions. Further, the Recipient agrees that if there is no such employment agreement or there are no such provisions in the employment agreement, during the Applicable Period, the Recipient 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, on the Recipient‘s own behalf, or in the service of or on behalf of others, and whether as an employee, a consultant or otherwise, provide managerial services or management consulting services substantially similar to those the Recipient provides for the Company or an Affiliate to any Competing Business. As of the Grant Date, the Recipient acknowledges and agrees that the Recipient provides services to the Company throughout the Area. |
| I. | Non-Solicitation Provisions: The Recipient acknowledges that if the Recipient is subject to any provisions then in effect in the employment agreement between the Recipient and the Company or an Affiliate that limit the ability of the Recipient to solicit clients or employees of the Company or its Affiliates, the Recipient will abide by such provisions. Further, the Recipient agrees that if there is no such employment agreement or there are no such provisions in the employment agreement, during the Applicable Period, the Recipient will not, on the Recipient’s own behalf or in the service of or on behalf of others: |
(i) solicit any individual or entity which is an actual client of the Company or any of its Affiliates as of the Determination Date with whom the Recipient had direct material contact while the Recipient was an employee of the Company or an Affiliate, for the purpose of offering services substantially similar to those offered by the Company or an Affiliate, or
(ii) solicit for employment with a Competing Business any person who is a management level employee of the Company or an Affiliate with whom the Recipient had contact during the then most recent year of the Recipient’s employment with the Company or an Affiliate.
The Recipient shall not be deemed to be in breach of Item I(ii) solely because an employer for whom the Recipient performs services solicits, diverts, or hires a management level employee of the Company or an Affiliate, provided that the Recipient does not engage in the activity proscribed by Item I(ii).
J. | Acknowledgement: The Recipient acknowledges and agrees that the Recipient’s agreement to and compliance with the provisions of this Agreement, including without limitation Item H and Item I above, are conditions to the effectiveness of the grant of the Award, and further acknowledges and agrees that the Recipient’s noncompliance with Item H or Item I above can result in a forfeiture and/or recovery of all or part of the Award to the extent provided in the Vesting Schedule. The Recipient also acknowledges and agrees that the forfeitures and compensation recoveries provided for in this Agreement in connection with any breach during the Applicable Period by the Recipient of the Restrictive Provisions or the Intellectual Property Agreement shall not be the Company’s sole remedy, and nothing in this Agreement limits the Company’s right to seek damages, injunctive relief or other legal or equitable relief in case of any breach during the Applicable Period by the Recipient of the Restrictive Provisions or the Intellectual Property Agreement, except to the extent provided otherwise in the last paragraph of the Vesting Schedule. In the event that any provision of this Agreement 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 or sever any unenforceable provision, or any part thereof or to revise any provision to the minimum extent necessary to render the provision reasonable and then to enforce the provision to the maximum extent permitted by law. |
IN WITNESS WHEREOF, the Company and the Recipient have executed and agree to be bound by this Agreement as of the Grant Date set forth above.
OMEGA HEALTHCARE INVESTORS, INC.
By:
Title:
THE RECIPIENT
By:
Name:
TERMS AND CONDITIONS TO THE
TSR-BASED PERFORMANCE RESTRICTED STOCK UNITS AGREEMENT
PURSUANT TO
THE OMEGA HEALTHCARE INVESTORS, INC. 2018 STOCK INCENTIVE PLAN
(a)The minimum required amount of the tax withholding obligations imposed on the Company, or at the Company’s discretion if tax withholding is required, tax withholding up to the maximum statutory rates, by reason of the issuance of the Vested Shares shall be satisfied by reducing the actual number of Vested Shares by the number of whole shares of Common Stock which, when multiplied by the Fair Market Value of the Common Stock on the Distribution Date of Vested Shares, is sufficient, together with cash in lieu of any fractional share, to satisfy such tax withholding, assuming that (i) the Recipient does not make a valid election to satisfy tax withholding in cash pursuant to Subsection (b), and (ii) the Committee does not determine that tax withholding will be required to be satisfied in another manner.
(b)However, the Recipient may elect in writing by notice to the Company received at least ten (10) days before the earliest Distribution Date of Vested Shares to satisfy such tax withholding obligation in cash by the earliest Distribution Date of Vested Shares, as provided in Subsection (a)(i). If the Recipient fails to timely satisfy payment of the cash amount, then Subsection (a) shall apply.
(c) To the extent that the Recipient is required to satisfy the tax withholding obligation in this Section in cash, the Company shall withhold the cash from any cash payments then owed to the Recipient, or if none, the Recipient shall timely remit the cash amount.
(d)If the Recipient does not timely satisfy payment of the tax withholding obligation, the Recipient will forfeit the Vested Shares.
“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.
“Applicable Period” means:
| (a) | as to the Restrictive Provisions, |
(b) as to the Intellectual Property Agreement, the period of time that any breach of such agreement would be actionable by the Company or an Affiliate pursuant to the terms of such agreement.
“Area” means the states, areas and countries in which the Company or any of its Affiliates owns, acquires, develops, invests in, leases, finances the ownership of, or finances the operation of any skilled nursing facilities, senior housing, long-term care facilities, assisted living facilities, or other residential healthcare-related real estate.
“Beginning Stock Price” means the average closing price per share of Common Stock for the months of November and December [YEAR] on the exchange on which Common Stock is traded, which is $__.__.
“Below Threshold TSR” means the Company has achieved Total Shareholder Return of less than [THRESHOLD] for the Performance Period.
“Board” means the Board of Directors of the Company.
“Business of the Company” means any business with the primary purpose of leasing assets to healthcare operators, or financing the ownership of or financing the operation of skilled nursing facilities, senior housing, long-term care facilities, assisted living facilities, or other residential healthcare-related real estate.
“Cause” shall have the meaning set forth in the employment agreement then in effect between the Recipient and the Company or an Affiliate, or, if there is none, then Cause shall mean the occurrence of any of the following events:
(a)willful refusal by the Recipient to follow a lawful direction of any person to whom the Recipient reports or the Chief Executive Officer of the Company, provided the direction is not materially inconsistent with the duties or responsibilities of the Recipient’s
position with the Company or an Affiliate, which refusal continues after such person or the Chief Executive Officer of the Company has again given the direction in writing;
(b)willful misconduct or reckless disregard by the Recipient of the Recipient’s duties or with respect to the interest or material property of the Company or an Affiliate;
(c)material breach by the Recipient of any of the Restrictive Provisions;
(d)material breach by the Recipient of any provision of the Intellectual Property Agreement;
(e)any act by the Recipient 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 the Chief Executive Officer 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; or
(f)commission by the Recipient of a felony as reasonably determined by the Chief Executive Officer of the Company.
“Change in Control” means any one of the following events which occurs following the Grant Date:
Notwithstanding the foregoing, no Change in Control shall be deemed to have occurred for purposes of this Agreement (i) unless the event also constitutes a “change in the ownership or effective control of the corporation or in the ownership of a substantial portion of the assets of the corporation” within the meaning of Code Section 409A(a)(2)(v), or (ii) by reason of any actions or events in which the Recipient participates in a capacity other than in his capacity as an officer, employee, or director of the Company or an Affiliate.
“Competing Business” means any person, firm, corporation, joint venture, or other business that is engaged in the Business of the Company.
“Determination Date” means with respect to determining compliance with a covenant of this Agreement (a) while the Recipient remains employed by the Company or an Affiliate, the date as of which compliance is being determined, and (b) after the Recipient’s termination of employment, the date of the Recipient’s termination of employment.
“Ending Stock Price” means the average closing price per share of Common Stock for the months of November and December [YEAR] on the exchange on which Common Stock is traded, unless a Change in Control occurs on or before December 31, [YEAR], in which case the term means the value per share determined as of the date of the Change in Control, such value to be determined by the Committee in its reasonable discretion based on the actual or implied price per share paid in the Change in Control transaction.
“Ending Value of Reinvested Dividends” means the dollar amount equal to the Ending Stock Price multiplied by the total number of shares hypothetically purchased with the dividends declared to a shareholder of record during the Performance Period, assuming that each dividend is re-invested in Common Stock at the closing price per share on the last business day before the ex-dividend date. For purposes of this calculation, the dividends declared to a shareholder of record during the Performance Period will initially be calculated on one share of Common Stock beginning as of the first dividend declaration date during the Performance Period, and as of each
dividend declaration date during the Performance Period thereafter, the dividends will be calculated with respect to the sum of one share of Common Stock plus the cumulative number of shares of Common Stock hypothetically purchased prior to such dividend declaration date. The “Ending Value of Reinvested Dividends” can also be expressed as the following formula:
Ending Value of Reinvested Dividends = (Ending Stock Price x Total Number of Shares Hypothetically Purchased with Reinvested Dividends)
Total Number of Shares Hypothetically Purchased with Reinvested Dividends = Number of Shares Hypothetically Purchased with First Reinvested Dividend + the sum of the Number of Shares Hypothetically Purchased with each Subsequent Reinvested Dividend
Number of Shares Hypothetically Purchased with First Reinvested Dividend = (dividend declared to a shareholder of record during the Performance Period calculated on one share of Common Stock as of the first dividend declaration date during such period)/closing price per share of Common Stock on the last business day before the ex-dividend date)
Number of Shares Hypothetically Purchased with each Subsequent Reinvested Dividend = (each dividend declared to a shareholder of record after the first dividend declaration date during the Performance Period calculated on the sum of the one share of Common Stock beginning as of the first dividend declaration date + the number of shares hypothetically purchased with reinvested dividends before such subsequent dividend declaration date)/closing price per share of Common Stock on the last business day before the related ex-dividend date)
“Good Reason” shall have the meaning set forth in the employment agreement then in effect between the Recipient and the Company or an Affiliate, or, if there is none, then Good Reason shall mean the occurrence of an event listed in (a) through (c) below:
(a)the Recipient experiences a material diminution of the Recipient’s responsibilities of the Recipient’s position, as reasonably modified by any person to whom the Recipient reports or the Chief Executive Officer of the Company from time to time, such that the Recipient would no longer have responsibilities substantially equivalent to those of other employees holding equivalent positions at companies with similar revenues and market capitalization;
(b)the Company or the Affiliate which employs the Recipient reduces the Recipient’s annual base salary or annual bonus opportunity at high, target or threshold performance as a percentage of annual base salary; or
(c)the Company or the Affiliate which employs the Recipient requires the Recipient to relocate the Recipient’s primary place of employment to a new location that is more than fifty (50) miles from its current location (determined using the most direct driving route), without the Recipient’s consent;
provided however, as to each event in Subsection (a) through (c),
(i)the Recipient gives written notice to the Company within ten (10) days following the event or receipt of notice of the event of the Recipient’s objection to the event;
(ii)the Company or the Affiliate which employs the Recipient fails to remedy the event within ten (10) days following the Recipient’s written notice; and
(iii)the Recipient terminates his employment within thirty (30) days following the Company’s and the Affiliate’s failure to remedy the event.
“High TSR” means the Company has achieved Total Shareholder Return of at least [HIGH] for the Performance Period.
“Intellectual Property Agreement” means that certain agreement entitled “Intellectual Property Agreement” previously entered into between the Company and the Recipient.
“Non-Competition Provisions” means the provisions under the title “Non-Competition Provisions” heading in Item H above of this Agreement.
“Non-Solicitation Provisions” means the provisions under the title “Non-Solicitation Provisions” heading in Item I above of this Agreement.
“Performance Period” means the period from and including January 1, [YEAR] through the earlier of December 31, [YEAR] or the date of a Change in Control.
“Release” means a comprehensive release, covenant not to sue, and non-disparagement agreement from the Recipient in favor of the Company, its executives, officers, directors, Affiliates, and all related parties, in the form provided by the Company (which, if the Recipient is a party to an employment agreement with the Company or an Affiliate and the Recipient’s right to receive severance pay in connection with a qualifying termination of employment thereunder is contingent on the execution and non-revocation of a release agreement in substantially the form attached to the employment agreement, will be substantially the same form of release agreement attached to the employment agreement); provided, however, the Company may make any changes to the Release as it determines to be necessary only to ensure that the Release is enforceable under applicable law.
“Restrictive Provisions” means the Non-Competition Provisions and the Non-Solicitation Provisions.
“Retirement” means voluntary resignation by a Recipient after having reached at least age sixty-two (62) and having performed at least ten (10) years of service with the Company, any subsidiary and/or any company that is acquired directly or indirectly by the Company. In addition, a Recipient must give at least six (6) months prior written notice of resignation for such voluntary resignation to qualify as “Retirement.” The Recipient may give the required notice before satisfying the age and service requirements for Retirement, provided the Recipient satisfies the age and service requirements as of the effective date of Retirement.
“Target TSR” means the Company has achieved Total Shareholder Return of [TARGET] for the Performance Period.
“Threshold TSR” means that the Company has achieved Total Shareholder Return of [THRESHOLD] for the Performance Period.
“Total Shareholder Return” means the compound annual growth rate (also known as “CAGR”), expressed as a percentage, of an investment in one share of Common Stock over the Performance Period, based on the Ending Stock Price plus the Ending Value of Reinvested Dividends, as compared to the Beginning Stock Price, and using the following formula:
(((Ending Stock Price + Ending Value of Reinvested Dividends)/Beginning Stock Price)^(1/3)) – 1
“Vesting Period” means the period beginning on the day after the last day of the Performance Period and ending December 31, [YEAR]; provided however, that if a Change in Control occurs during or before such period, the last day of the Vesting Period same be deemed to be the date of the Change in Control.
EXHIBIT 1
VESTING SCHEDULE
A. | Active Employee: The number of Restricted Stock Units is set forth under the heading “High TSR” in the TSR Chart below and represents the maximum potential number of units that can be earned. Except as provided in the remainder of this Vesting Schedule, the number of Restricted Stock Units that is earned (the “Earned Unvested Restricted Units”) is determined as of the last day of the Performance Period based on the level of Total Shareholder Return attained for the Performance Period as shown in TSR Chart set forth below and the Recipient shall vest in twenty-five percent (25%) of the Earned Unvested Restricted Units, which shall then become Vested Stock Units, as of the last day of each calendar quarter during the Vesting Period only if the Recipient remains an employee, director or consultant of the Company or an Affiliate during the entire Performance Period and through the last day of such calendar quarter. |
“TSR Chart”
Below Threshold TSR | *Threshold TSR | *Target TSR | *High TSR |
Zero Earned Unvested Restricted Units | | | |
* | If Total Shareholder Return falls between Threshold TSR and Target TSR or between Target TSR and High TSR, the number of Earned Unvested Restricted Units under the TSR Chart shall be determined by linear interpolation. |
Notwithstanding the forgoing, if during the Applicable Period and while the Recipient remains an employee, director or consultant of the Company or an Affiliate, the Recipient breaches the Restrictive Provisions or the Intellectual Property Agreement, the Board is permitted to require the Recipient to return to the Company any Common Stock issued within one year before the breach that was attributable to Vested Stock Units, or if such Common Stock had been sold in an arm’s length transaction by the Recipient, the proceeds of such sale as determined by the Board. The amount of the recovery shall be determined without regard to any taxes paid by or withheld from the wages of the Recipient unless the Board shall determine otherwise. Any subsequent provision of this Vesting Schedule providing for vesting in the specified circumstances shall not override the compensation recovery provisions of this Item A.
B. | Disability, Good Reason or without Cause Termination or Retirement. Except as provided in Item E below, if, the Recipient ceases services as an employee, director or consultant of the Company and all Affiliates due to the Recipient’s Disability, the Recipient’s resignation from the Company and all Affiliates for Good Reason, or the termination of the Recipient’s employment by the Company and its Affiliates without Cause or the Recipient ceases services as an employee of the Company and all Affiliates due to Retirement (each such event referred to as a “Qualifying Termination”): |
(i) | during the Performance Period, the Recipient shall vest on the same dates as if the Recipient were to remain an employee of the Company or an Affiliate through the last day of the Vesting Period (the “Applicable Vesting Dates”), subject to the Release requirement below, in the same number of Earned Unvested Restricted Units as if the Recipient were to remain an employee of the Company or an Affiliate through the last day of the Vesting Period, but multiplied by a fraction, the numerator of which is the number of days elapsed in the Performance Period through the date of such event and the denominator of which is 1,095 (i.e., 365 x 3), or |
(ii) | during the Vesting Period, the Recipient shall vest on each Applicable Vesting Date in the same number of Earned Unvested Restricted Units as if the Recipient were to remain an employee of the Company or an Affiliate through the last day of the Vesting Period, subject to the Release requirement below. |
; provided however, that as a condition to the vesting provided in clauses (i) and (ii) above, the Recipient shall be required to execute within the twenty-one (21) day period provided therein (forty-five (45) days in the case of a group termination) and not revoke with the seven (7) day revocation period provided therein, the Release, which the Company shall provide to the Recipient as soon as feasible but not later than thirty (30) days following the Qualifying Termination, and provided further, the vesting provided in clause (i) or (ii) above shall not occur if before the earlier of the Applicable Vesting Date or the end of the Applicable Period, the Recipient breaches any of the Restrictive Provisions or the Intellectual Property Agreement, and in such event, all Earned Unvested Restricted Units that have not previously vested and been paid in Vested Shares shall be immediately forfeited as of the date of such breach.
C. | Death after Qualifying Termination. Except as provided in Item E below, if Item B of this Vesting Schedule applies and the Recipient thereafter dies before the date that all vesting occurs that is provided for pursuant to Item B, then the vesting there provided shall be accelerated to the later of the date of the Recipient’s death or the last day of the Performance Period; provided however, that such vesting shall not occur if during the Applicable Period and before the date of death, the Recipient breached any of the Restrictive Provisions or the Intellectual Property Agreement, and in such event, all Earned Unvested Restricted Units that have not previously vested and been paid in Vested Shares shall be immediately forfeited as of the date of such breach. |
D. | Death while Employed. Except as provided in Item E below, if the Recipient ceases services as an employee, director or consultant of the Company and all Affiliates due to the Recipient’s death during the Performance Period or the Vesting Period, the Recipient shall vest in the same number of Earned Unvested Restricted Units as if the Recipient’s death were a Qualifying Termination pursuant to Item B of this Vesting Schedule, except that the vesting there provided shall be accelerated to the later of the date of the Recipient’s death or the last day of the Performance Period; provided however, that such vesting shall not occur if during the Applicable Period and before the date of death, the Recipient breached any of the Restrictive Provisions or the Intellectual Property Agreement, and in |
such event, all Earned Unvested Restricted Units that have not previously vested and been paid in Vested Shares shall be immediately forfeited as of the date of such breach.
E. | Change in Control. Notwithstanding Items A through D of this Vesting Schedule, if a Change in Control occurs on or after the Grant Date and on or before December 31, [YEAR], and (i) the Recipient remains an employee, director or consultant of the Company or an Affiliate during the entire Performance Period until the date of the Change in Control, or (ii) within sixty (60) days before the Change in Control, the Recipient incurs a Qualifying Termination (subject, in the case of such Qualifying Termination, to the requirement that the Recipient shall be required to execute within the twenty-one (21) day period provided therein (forty-five (45) days in the case of a group termination) and not revoke with the seven (7) day revocation period provided therein, the Release, which the Company shall provide to the Recipient as soon as feasible but not later than thirty (30) days following the Qualifying Termination) or ceases services as an employee, director or consultant of the Company and all Affiliates due to the Recipient’s death, the Recipient shall be 100% vested in, as of the date of the Change in Control, subject to the foregoing Release requirement if applicable: |
1. | if the Change in Control occurs on or before December 31, [YEAR], the number of Earned Unvested Restricted Units determined: |
a. | in the TSR Chart if the applicable level of Total Shareholder Return for the full three year Performance Period (determined without regard to the shortening of the period as a result of the Change in Control) is achieved, or |
b. | in the TSR Chart multiplied by a fraction, the numerator of which is the number of days elapsed in the Performance Period through the date of the Change in Control and the denominator of which is 1,095 (i.e., 365 x 3), if the applicable level of Total Shareholder Return has been achieved based on annualized performance to the date of the Change in Control but not for the full three year Performance Period (determined without regard to the shortening of the period as a result of the Change in Control), or |
c. | by interpolation between the numbers in clause (a) and (b) above if the applicable level of Total Shareholder Return has been exceeded based on performance to the date of the Change in Control but is less than the applicable level for the full three year Performance Period (determined without regard to the shortening of the period as a result of the Change in Control), or |
2. | if the Change in Control occurs after December 31, [YEAR], the number of Earned Unvested Restricted Units determined in the TSR Chart that were actually earned for the Performance Period which have not previously become Vested Stock Units. |
F. | Voluntary Resignation or Cause Termination. Restricted Stock Units which have not become Vested Stock Units as of the Recipient’s cessation of services as an employee, |
director, or consultant of the Company and all Affiliates, except as provided in Items B through E of this Vesting Schedule, shall be forfeited. Further, if (a) before a Change in Control, the Recipient ceases services as an employee, director or consultant of the Company and all Affiliates due to (I) the Recipient’s voluntary resignation without Good Reason (and not due to Disability or Retirement) or (II) the termination of the Recipient’s employment by the Company and its Affiliates for Cause, and (b) during the Applicable Period, the Recipient breaches the Restrictive Provisions or the Intellectual Property Agreement, the Board is permitted to require the Recipient to return to the Company any Common Stock issued within one year before the Recipient’s cessation of services that was attributable to Vested Stock Units, or if such Common Stock had been sold in an arm’s length transaction by the Recipient, the proceeds of such sale as determined by the Board. The amount of the recovery shall be determined without regard to any taxes paid by or withheld from the wages of the Recipient unless the Board shall determine otherwise.
G. | General Forfeiture Provisions. Restricted Stock Units which have not become Earned Unvested Restricted Units as of the last day of the Performance Period shall be forfeited. Restricted Stock Units which have not become Vested Stock Units as of the earliest of (i) December 31, [YEAR], (ii) except as provided in Items B through E of this Vesting Schedule, as of the Recipient’s cessation of services as an employee, director, or consultant of the Company and all Affiliates, or (iii) the date provided in Item E, shall be forfeited, and once a forfeiture occurs no provision of this Vesting Schedule shall be construed to reinstate the forfeiture. The forfeitures and compensation recoveries provided for in this Agreement in connection with any breach during the Applicable Period by a Recipient of the Restrictive Provisions or the Intellectual Property Agreement shall not be the Company’s sole remedy, and nothing in this Agreement limits the Company’s right to seek damages, injunctive relief or other legal or equitable relief in case of any such breach; provided, however, if the Recipient is not a party to an employment agreement with the Company or an Affiliate as of the date of termination of employment and the Recipient ceases services as an employee, director or consultant of the Company and all Affiliates due to a Qualifying Termination, the Company’s sole remedy with respect to a breach by the Recipient during the Applicable Period of the Non-Competition Provisions will be the forfeiture provided in Item B of this Vesting Schedule; provided further, such limitation to the Company’s remedies shall not apply to the Recipient’s breach during the Applicable Period of the Non-Solicitation Provisions or the Intellectual Property Agreement. |
H. | Fractional Units. If any calculation in this Vesting Schedule results in a fractional number of Vested Stock Units, the number of Vested Stock Units shall be rounded to the closest whole number. |
As Of Filer Filing For·On·As Docs:Size Issuer Filing Agent 2/12/24 Omega Healthcare Investors Inc. 10-K 12/31/23 156:32M 2/14/23 Omega Healthcare Investors Inc. 10-K 12/31/22 150:30M 11/03/22 Omega Healthcare Investors Inc. 10-Q 9/30/22 112:16M 8/02/22 Omega Healthcare Investors Inc. 10-Q 6/30/22 110:16M 5/03/22 Omega Healthcare Investors Inc. 10-Q 3/31/22 103:13M |