RESTATED AMENDMENT TO EMPLOYMENT AGREEMENT
RESTATED
AMENDMENT
THIS
RESTATED AMENDMENT is made
effective as of May 7, 2007 (the “Restated Amendment Effective Date”), by and
among Omega Healthcare Investors, Inc., a Maryland corporation (the “Company”)
and Xxxxxx Xxxxx (the “Executive”).
RECITALS:
The
Company and the Executive are
parties to an employment agreement effective as of September 1, 2004 (the
“Employment Agreement”);
The
parties amended the Employment
Agreement, effective May 7, 2007, to extend the term of the Employment
Agreement, update the base salary payable to the Executive, and remove the
gross-up feature for payments made to the Executive that result in an excise
tax
in connection with a change in control (the “Original Amendment”).
The
Original Amendment contained a
drafter’s error which reduced the time period over which severance will be paid
to the Executive if he terminates employment for Good Reason or the Company
terminates his employment without Cause. The parties intended for the
period over which severance will be paid under the aforementioned conditions
to
remain as first expressed in the Employment Agreement.
In
consideration of the mutual promises
herein contained and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, the parties hereto agree to rescind
the Original Amendment and replace it with this Restated Amendment to the
Employment Agreement, effective as of the date first set forth above, as
follows:
1. By
deleting the first sentence of Section 2(a) and substituting therefor the
following:
“The
Company shall pay the Executive base salary of $326,510 per annum, which base
salary will be subject to review effective as of January 1, 2008, and at least
annually thereafter by the Company for possible increases.”
2. By
deleting the first sentence of Section 2(b) and substituting therefor the
following:
“The
Executive shall be eligible for an
annual bonus of up to 50% of the Executive’s annual base salary (“Bonus”), which
Bonus, if any, shall be payable (i) promptly following the availability to
the Company of the required data to calculate the Bonus for the year for which
the Bonus is earned (which data may in the Company’s discretion include audited
financial statements), and (ii) by no later than March 15 of the year
following the year for which the Bonus is earned.”
3. By
deleting the year “2007” where it appears in Section 2(b) and substituting
therefor the year “2010.”
4. By
deleting in its entirety Section 2(e) and substituting therefor the
following:
“(e) Paid
Time Off. The Executive shall be entitled to paid time off in
accordance with the terms of Company policy in effect at the Restated Amendment
Effective Date.”
5. By
deleting in its entirety Section 3(a) and substituting therefor the
following:
“(a) Term. The
term of this Agreement shall begin as of the Restated Amendment Effective
Date. It shall continue through December 31, 2010, unless sooner
terminated pursuant to Section 3(b) hereof (the ‘Term’).”
6. By
deleting the last three sentences of Section 3(c)(i) and replacing therefor
the
following:
“Such
amount shall be paid in
substantially equal annual installments not less frequently than twice per
month
over the twenty-four (24) month period commencing as of the date of termination
of employment; provided, however, if the Executive is a "specified employee"
within the meaning of Section 409A of the Internal Revenue Code, as amended
(the
“Code”), at the date of his termination of employment then, to the extent
required to avoid a tax under Code Section 409A, payments which would otherwise
have been made during the first six (6) months after termination of employment
shall be withheld and paid to the Executive during the seventh month following
the date of his termination of employment. Notwithstanding the
foregoing, if the total payments to be paid to the Executive hereunder, along
with any other payments to the Executive, would result in the Executive being
subject to the excise tax imposed by Code Section 4999, the Company shall reduce
the aggregate payments to the largest amount which can be paid to the Executive
without triggering the excise tax, but only if and to the extent that such
reduction would result in the Executive retaining larger aggregate after-tax
payments. The determination of the excise tax and the aggregate
after-tax payments to be received by the Executive will be made by the
Company. If payments are to be reduced, the payments made latest in
time will be reduced first.”
7. By
deleting the first sentence of Section 5(a) and substituting therefor the
following:
“The
Executive agrees that during the
Applicable Period, the Executive will not (except on behalf of or with the
prior
written consent of the Company, which consent may be withheld in Company’s sole
discretion), within the Area either directly or indirectly, on his own behalf,
or in the service of or on behalf of others, provide managerial services or
management consulting services substantially similar to those Executive provides
for the Company to any Competing Business.”
8. By
deleting in its entirety Section 5(b) and substituting therefor the
following:
“(b) The
Executive agrees that during the Applicable Period, he will not, either directly
or indirectly, on his own behalf or in the service of or on behalf of others
solicit any individual or entity which is an actual or, to his knowledge,
actively sought prospective client of the Company or any of its Affiliates
(determined as of date of termination of employment) with whom he had material
contact while he was an Executive of the Company, for the purpose of offering
services substantially similar to those offered by the Company.”
9. By
deleting the first sentence of Section 5(c) and substituting therefor the
following:
“The
Executive agrees that during the
Applicable Period, he will not, either directly or indirectly, on his own behalf
or in the service of or on behalf of others, solicit for employment with a
Competing Business any person who is a management level employee of the Company
or an Affiliate with whom Executive had contact during the last year of
Executive’s employment with the Company.”
10. By
deleting the year “2007” where it appears in Section 5(f) and substituting
therefor the year “2010.”
11. By
deleting in its entirety Section 9(c) and substituting therefor the
following:
“(c) ‘Area’
means Alabama, Arizona, Arkansas, California, Colorado, Connecticut, Florida,
Georgia, Idaho, Illinois, Indiana, Iowa, Kentucky, Louisiana, Massachusetts,
Missouri, New Hampshire, North Carolina, Ohio, Pennsylvania, Rhode Island,
Tennessee, Texas, Utah, Vermont, Washington, and West Virginia.”
In
all remaining respects, the terms of
the Employment Agreement shall remain in full force and effect as prior to
this
Restated Amendment.
IN
WITNESS WHEREOF, the parties have
caused this Restated Amendment to be executed this 24th day of
July.
2007.
OMEGA
HEALTHCARE INVESTORS, INC.:
By:
_______________________________________
Print
Name:
________________________________
Title:
_____________________________________
XXXXXX
XXXXX:
__________________________________________
