AMENDMENT TO EMPLOYMENT AGREEMENT
AMENDMENT
THIS
AMENDMENT is made effective as of May 7, 2007 (the “Amendment Effective Date”),
by and among Omega Healthcare Investors, Inc., a Maryland corporation (the
“Company”) and Xxxxxx X. Xxxxxxxxxx (the “Executive”).
RECITALS:
The
Company and the Executive are parties to an employment agreement effective
as of
September 1, 2004 (the “Employment Agreement”); and
The
parties wish to amend the Employment Agreement 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.
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 amend 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 $262,700 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 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 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 a twelve (12) month period; 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.”
12. By
adding
the word “Amendment” immediately preceding the term “Effective Date” where it
appears in the head language of Section 9(f).
In
all
remaining respects, the terms of the Employment Agreement shall remain in full
force and effect as prior to this Amendment.
IN
WITNESS WHEREOF, the parties have caused this Amendment to be executed as of
the
day and year first above written.
OMEGA
HEALTHCARE INVESTORS, INC.:
By:
_______________________________________
Print
Name: ________________________________
Title:
_____________________________________
XXXXXX
X.
XXXXXXXXXX:
__________________________________________
