RESTRICTED STOCK AWARD PURSUANT TO THE OMEGA HEALTHCARE INVESTORS, INC.
RESTRICTED
STOCK AWARD
PURSUANT
TO THE OMEGA HEALTHCARE INVESTORS, INC.
2004
STOCK INCENTIVE PLAN
THIS
AGREEMENT (sometimes referred to as this “Award”) is made as of the Grant Date,
by Omega Healthcare Investors, Inc. (the “Company”) to ________________________
(the “Recipient”) subject to acceptance by the Recipient.
Upon
and
subject to the Terms and Conditions attached hereto and incorporated herein
by
reference as part of this Agreement, the Company hereby awards as of the Grant
Date to the Recipient the Restricted Shares (the “Restricted Stock Grant”).
Underlined and capitalized terms in items A through D below shall have the
meanings there ascribed to them.
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X.
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Xxxxx
Date:
May 7, 2007.
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B.
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Plan
(under which Restricted Stock Grant is granted):
Omega Healthcare Investors, Inc. 2004 Stock Incentive
Plan.
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C.
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Restricted
Shares:
______________ shares of the Company’s common stock (“Common Stock”),
subject to adjustment as provided in the attached Terms and
Conditions.
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D.
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Vesting
Schedule:
The Restricted Shares shall vest in accordance with Exhibit
1
hereto. The Restricted Shares which have become vested pursuant to
the
Vesting Schedule are herein referred to as the “Vested Shares.”
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IN
WITNESS WHEREOF, the Company and the Recipient have executed this Agreement
as
of the Grant Date set forth above.
RECIPIENT OMEGA
HEALTHCARE INVESTORS, INC.
By:
[Signature] Title:
TERMS
AND CONDITIONS TO THE
RESTRICTED
STOCK AGREEMENT
PURSUANT
TO THE OMEGA HEALTHCARE INVESTORS, INC.
2004
STOCK INCENTIVE PLAN
1. Restricted
Shares Held by the Share Custodian.
The
Recipient hereby authorizes and directs the Company to deliver any share
certificate issued by the Company to evidence Restricted Shares to the Secretary
of the Company or such other officer of the Company as may be designated by
the
Committee (the “Share Custodian”) to be held by the Share Custodian until the
Restricted Shares become Vested Shares in accordance with the Vesting Schedule.
When the Restricted Shares become Vested Shares, the Share Custodian shall
deliver the Restricted Shares to the Recipient. In the event that the Recipient
forfeits any of the Restricted Shares, and the number of Vested Shares includes
a fraction of a share, the Share Custodian shall not be required to deliver
the
fractional share, and the Company may pay the Recipient the amount determined
by
the Company to be the estimated fair market value therefor. The Recipient hereby
irrevocably appoints the Share Custodian, and any successor thereto, as the
true
and lawful attorney-in-fact of the Recipient with full power and authority
to
execute any stock transfer power or other instrument necessary to transfer
the
Restricted Shares to the Company in accordance with this Award, in the name,
place, and stead of the Recipient. The term of such appointment shall commence
on the date of the Restricted Stock Grant and shall continue until the
Restricted Shares are delivered to the Recipient as provided above. In the
event
the number of shares of Common Stock is increased or reduced by a change in
the
par value, split-up, stock split, reverse stock split, reclassification, merger,
reorganization, consolidation, or otherwise, the Recipient agrees that any
certificate representing shares of Common Stock or other securities of the
Company issued as a result of any of the foregoing shall be delivered to the
Share Custodian and shall be subject to all of the provisions of this Award
as
if initially granted thereunder. To effect the provisions of this Section,
the
Recipient shall complete an irrevocable stock power in favor of the Share
Custodian in the form attached hereto as Exhibit
2.
2. Rights
of a Shareholder.
During
the period that the Share Custodian holds the shares of Common Stock subject
to
Section 1, the Recipient shall be entitled to all rights applicable to shares
of
Common Stock not so held, except as otherwise provided in this award, including
the right to receive dividends paid on Common Stock notwithstanding that all
or
some of the Restricted Shares may not be Vested Shares.
3. Tax
Withholding.
(a) The
Recipient must deliver to the Company, within ten (10) days after written
notification from the Company as to the amount of the tax withholding that
is
due, either (i) cash, or (ii) a certified check payable to the Company, in
the
amount of all tax withholding obligations imposed on the Company by reason
of
the vesting of the Restricted Shares, or the making of an election pursuant
to
Code Section 83(b), as applicable, except as provided in Section 3(b), or (iii)
by tendering a number of whole shares of Common Stock which, when multiplied
by
the Fair Market Value of the Common Stock on the vesting date, is sufficient
to
satisfy the minimum amount of the required tax withholding obligations imposed
on the Company (the “Stock Tendering Election”); provided, however, the
Committee may in its sole discretion, disapprove and give no effect to the
Stock
Tendering Election by giving written notice to the Recipient within ten (10)
days after receipt of the Stock Tendering Election, in which event the Recipient
must deliver, within ten (10) days after receiving such notice, the tax
withholding in the manner provided in clause (i) or (ii). If the Recipient
does
not timely satisfy payment of the tax withholding obligation, the Recipient
will
forfeit the Restricted Shares.
(b) If
the
Recipient does not make an election pursuant to Code Section 83(b), in lieu
of
paying the tax withholding obligation as described in Section 3(a), Recipient
may elect to have the actual number of Vested Shares reduced by the number
of
whole shares of Common Stock which, when multiplied by the Fair Market Value
of
the Common Stock on the vesting date, is sufficient to satisfy the minimum
amount of the required tax obligations imposed on the Company by reason of
the
vesting of the Restricted Shares (the “Withholding Election”). Recipient may
make a Withholding Election only if all of the following conditions are
met:
(i) the
Withholding Election must be made within ten (10) days after the Recipient
receives written notification from the Company as to the amount of the tax
withholding that is due (the “Tax Notice Date”), by executing and delivering to
the Company a properly completed Notice of Withholding Election, in
substantially the form of Exhibit
3
attached
hereto; and
(ii) any
Withholding Election made will be irrevocable; however, the Committee may,
in
its sole discretion, disapprove and give no effect to any Withholding Election,
by giving written notice to the Recipient no later than ten (10) days after
the
Company’s receipt of the Notice of Withholding Election, in which event the
Recipient must deliver to the Company, within ten (10) days after receiving
such
notice, the amount of the tax withholding pursuant to Section 3(a).
4. Restrictions
on Transfer of Restricted Shares.
Except
for the transfer of any
Restricted
Shares by bequest or inheritance, the Recipient shall not have the right to
make
or permit to exist any transfer or hypothecation, whether outright or as
security, with or without consideration, voluntary or involuntary, of all or
any
part of any right, title or interest in or to any unvested Restricted Shares.
Any such disposition not made in accordance with this Award shall be deemed
null
and void. Any permitted transferee under this Section shall be bound by the
terms of this Award.
5. Additional
Restrictions on Transfer.
Certificates evidencing the Restricted Shares shall have noted conspicuously
on
the certificate a legend required under applicable securities laws or otherwise
determined by the Company to be appropriate, such as:
Transfer
is restricted
The
securities evidenced by this certificate are subject to restrictions on transfer
and forfeiture provisions which also apply to the transferee as set forth in
a
restricted stock agreement
dated MAY
7,
2007,
a copy
of which is available from the company. The
securities evidenced by this certificate may not be sold, transferred, assigned,
or hypothecated unless (1) there is an effective registration under such act
covering such securities, (2) the transfer is made in compliance with rule
144
promulgated under such act, or (3) the issuer receives an opinion of counsel,
reasonably satisfactory to the company, stating that such sale, transfer,
assignment or hypothecation is exempt from the registration requirements of
such
act.
6. Change
in Capitalization.
(a) The
number and kind of unvested Restricted Shares shall be proportionately adjusted
for any increase or decrease in the number of issued shares of Common Stock
resulting from a subdivision or combination of shares or the payment of a stock
dividend in shares of Common Stock to holders of outstanding shares of Common
Stock or any other increase or decrease in the number of shares of Common Stock
outstanding is effected without receipt of consideration by the Company. No
fractional shares shall be issued in making such adjustment.
(b) In
the
event of a merger, consolidation, extraordinary dividend, spin-off, sale of
substantially all of the Company’s assets or other material change in the
capital structure of the Company, or a tender offer for shares of Common Stock,
or other reorganization of the Company or upon a Change in Control, the
Committee shall take such action to make such adjustments with respect to the
unvested Restricted Shares, in its sole discretion, determines in good faith
is
necessary or appropriate, including, without limitation, adjusting the number
and class of securities subject to the unvested portion of the Award,
substituting cash, other securities, or other property to replace the unvested
portion of the Award, or removing of restrictions on unvested Restricted Shares.
If the Committee substitutes cash, the unvested portion of the Award shall
be
adjusted through the vesting date by the annualized dividend yield of the
Company for the four (4) most recently completed calendar quarters as of the
date of the transaction and, at the vesting date, payment shall be released
from
escrow and made to the Recipient.
(c) All
determinations and adjustments made by the Committee pursuant to this Section
will be final and binding on the Recipient. Any action taken by the Committee
need not treat all recipients of awards under the Plan equally.
(d) The
existence of the Plan and the Restricted Stock Grant shall not affect the right
or power of the Company to make or authorize any adjustment, reclassification,
reorganization or other change in its capital or business structure, any merger
or consolidation of the Company, any issue of debt or equity securities having
preferences or priorities as to the Common Stock or the rights thereof, the
dissolution or liquidation of the Company, any sale or transfer of all or part
of its business or assets, or any other corporate act or
proceeding.
7. Governing
Laws.
This
Award shall be construed, administered and enforced according to the laws of
the
State of Maryland; provided, however, no Restricted Shares shall be issued
except, in the reasonable judgment of the Committee, in compliance with
exemptions under applicable state securities laws of the state in which
Recipient resides, and/or any other applicable securities laws.
8. Successors.
This
Award shall be binding upon and inure to the benefit of the heirs, legal
representatives, successors, and permitted assigns of the parties.
9. Notice.
Except
as otherwise specified herein, all notices and other communications under this
Award shall be in writing and shall be deemed to have been given if personally
delivered or if sent by registered or certified United States mail, return
receipt requested, postage prepaid, addressed to the proposed recipient at
the
last known address of the recipient. Any party may designate any other address
to which notices shall be sent by giving notice of the address to the other
parties in the same manner as provided herein.
10. Severability.
In the
event that any one or more of the provisions or portion thereof contained in
this Award shall for any reason be held to be invalid, illegal, or unenforceable
in any respect, the same shall not invalidate or otherwise affect any other
provisions of this Award, and this Award shall be construed as if the invalid,
illegal or unenforceable provision or portion thereof had never been contained
herein.
11. Entire
Agreement.
Subject
to the terms and conditions of the Plan, this Award expresses the entire
understanding and agreement of the parties with respect to the subject
matter.
12. Headings
and Capitalized Terms.
Paragraph headings used herein are for convenience of reference only and shall
not be considered in construing this Award. Capitalized
terms used, but not defined, in this Award shall be given the meaning ascribed
to them in the Plan.
13. Specific
Performance.
In the
event of any actual or threatened default in, or breach of, any of the terms,
conditions and provisions of this Award, the party or parties who are thereby
aggrieved shall have the right to specific performance and injunction in
addition to any and all other rights and remedies at law or in equity, and
all
such rights and remedies shall be cumulative.
14. No
Right to Continued Retention.
Neither
the establishment of the Plan nor the award of Restricted Shares hereunder
shall
be construed as giving Recipient the right to continued employment with the
Company or an Affiliate.
15. Definitions.
As used
in these Terms and Conditions and this Award:
“Cause”
shall
have the meaning set forth in the employment agreement then in effect between
the Recipient and the Company, 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 the person to whom
the
Recipient reports or the Board of Directors of the Company (the “Board”),
provided the direction is not materially inconsistent with the duties or
responsibilities of the Recipient’s position with the Company, which refusal
continues after the Board has again given the direction in writing;
(b) willful
misconduct or reckless disregard by the Recipient of his duties or of the
interest or property of the Company;
(c) intentional
disclosure by the Recipient to an unauthorized person of Confidential
Information or Trade Secrets, which causes material harm to the Company;
(d) any
act
by the Recipient of fraud against material misappropriation from, 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 (excluding the Recipient), such fraud, material
misappropriation, or significant dishonesty could reasonably be expected to
have
a material adverse impact on the Company or its Affiliates; or
(e) commission
by the Recipient of a felony as reasonably determined by at least two-thirds
of
the members of the Board (excluding the Recipient).
“Change
in Control”
means
any one of the following events which occurs following the Grant
Date:
(a) 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;
(b) individuals
who as of the date hereof, constitute the Board (the “Incumbent Board”) cease
for any reason to constitute at least a majority of the Board; 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;
(c) 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
(d) 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 Award 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.
“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 Recipient or of which the Recipient 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 Recipient 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.
“Good
Reason”
shall
have the meaning set forth in the employment agreement then in effect between
the Recipient and the Company, or, if there is none, then Good Reason shall
mean
the occurrence of all of the events listed in either (a) or (b)
below:
(a) (i)
the
Recipient experiences a material diminution of the Recipient’s responsibilities
of his position, as reasonably modified by the person to whom the Recipient
reports or the Board from time to time, such that the Recipient would no longer
have responsibilities substantially equivalent to those of other executives
holding equivalent positions at companies with similar revenues and market
capitalization;
(ii) the
Recipient gives written notice to the Company of the facts and circumstances
constituting the material diminution in responsibilities within ten (10) days
following the occurrence of such material diminution;
(iii) the
Company fails to remedy the material diminution in responsibilities within
ten
(10) days following the Recipient’s written notice of the material diminution in
responsibilities; and
(iv) the
Recipient terminates his employment and this Agreement within ten (10) days
following the Company’s failure to remedy the material diminution in
responsibilities.
(b) (i)
the
Company 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;
(ii) the
Recipient gives written notice to the Company within ten (10) days following
receipt of notice of relocation of his objection to the relocation;
(iii) the
Company fails to rescind the notice of relocation within ten (10) days following
the Recipient’s written notice; and
(iv) the
Recipient terminates his employment within ten (10) days following the Company’s
failure to rescind the notice.
“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
o
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.
EXHIBIT
1
VESTING
SCHEDULE
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A.
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The
Restricted Shares shall become Vested Shares in accordance with the
schedule below:
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Date
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Fraction
of Restricted
Shares
which are Vested Shares
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December
31, 2007
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1/7
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December
31, 2008
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2/7
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December
31, 2009
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2/7
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December
31, 2010
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2/7
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;provided
the Recipient must remain an employee, director or consultant of the Company
or
an Affiliate through the indicated date set forth above to vest in accordance
with the schedule above.
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B.
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Notwithstanding
the foregoing, all Restricted Shares shall become Vested Shares if
they
have not been previously forfeited at the earliest to occur of the
following:
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1.
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the
Recipient’s cessation of services as an employee, director or consultant
of the Company or an Affiliate due to the Recipient’s death or
Disability;
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2.
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the
Recipient’s resignation from the Company for Good Reason;
or
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3.
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the
Recipient’s termination of employment by the Company without
Cause.
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C.
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Restricted
Shares which have not become Vested Shares as of the Recipient’s cessation
of services as an employee, director, or consultant of the Company
or an
Affiliate shall be forfeited.
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EXHIBIT
2
IRREVOCABLE
STOCK POWER
The
undersigned hereby assigns and transfers to Omega Healthcare Investors, Inc.
(the “Company”), ________ shares of the Common Stock of the Company registered
in the name of the undersigned on the stock transfer records of the Company
and
represented by Stock Certificate No. ____________________ of the Company; and
the undersigned does hereby irrevocably constitute and appoint
________________________________, his attorney-in-fact, to transfer the
aforesaid shares on the books of the Company, with full power of substitution;
and the undersigned does hereby ratify and confirm all that said
attorney-in-fact lawfully shall do by virtue hereof.
Date: Signed:
Print
Name:
IN
THE
PRESENCE OF:
(Print
Name)
(Signature)
EXHIBIT
3
NOTICE
OF WITHHOLDING ELECTION
PURSUANT
TO OMEGA HEALTHCARE INVESTORS, INC.
2004
STOCK INCENTIVE PLAN
TO: Omega
Healthcare Investors, Inc.
Attention:
Chief Financial Officer
FROM:
RE: Withholding
Election
This
election relates to the Restricted Stock Xxxxx identified in Paragraph 3 below.
I hereby certify that:
(1) My
correct name and social security number and my current address are set forth
at
the end of this document.
(2) I
am
(check one, whichever is applicable).
[
] the
original recipient of the Restricted Stock Grant.
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[
]
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the
legal representative of the estate of the original recipient of the
Restricted Stock Grant.
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[
]
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a
legatee of the original recipient of the Restricted Stock
Grant.
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[
]
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the
legal guardian of the original recipient of the Restricted Stock
Grant.
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(3) The
Restricted Stock Grant pursuant to which this election relates was issued with
a
Grant Date of __________________ under the Omega Healthcare Investors, Inc.
2004
Stock Incentive Plan (the “Plan”) in the name of _________________ for a total
of ______________ shares of Common Stock. This election relates to ______ shares
of Common Stock issued upon the vesting of the Restricted Shares, provided
that
the numbers set forth above shall be deemed changed as appropriate to reflect
stock splits and other adjustments contemplated by the applicable Plan
provisions.
(4) I
hereby
elect to have certain of the shares withheld by the Company for the purpose
of
having the value of the shares applied to pay federal, state and local, if
any,
taxes arising from the exercise.
The
fair
market value of the shares to be withheld in addition to $_________ in cash
to
be tendered to the Company by the recipient of the Restricted Stock Grant shall
be equal to the minimum statutory tax withholding requirement under federal,
state and local law in connection with the exercise.
(5) This
Withholding Election is made no later than ten (10) days after the Tax Notice
Date and is otherwise timely made pursuant to the Plan.
(6) I
further
understand that, if this Withholding Election is not disapproved by the
Committee, the Company shall withhold from the Common Stock a whole number
of
shares of Common Stock having the value specified in Paragraph 4
above.
(7) The
Plan
has been made available to me by the Company, I have read and understand the
Plan and I have no reason to believe that any of the conditions therein to
the
making of this Withholding Election have not been met. Capitalized terms used
in
this Notice of Withholding Election without definition shall have the meanings
given to them in the Plan.
Dated:
Signature:
Name
(Printed)
______________________________
Street
Address
______________________________
City,
State, Zip Code
