<PAGE> 1
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON FEBRUARY 4, 1997
REGISTRATION NO.
- --------------------------------------------------------------------------------
- --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
------------------------------
FORM S-4
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
------------------------------
OMEGA HEALTHCARE INVESTORS, INC.
(Exact name of registrant as specified in its charter)
MARYLAND
(State or other jurisdiction
of incorporation or organization)
(Primary Standard Industrial
Classification Code Number)
38-3041398
(I.R.S. Employer
Identification No.)
905 West Eisenhower Circle, Suite 110
Ann Arbor, Michigan 48103
(313) 747-9790
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
------------------------------
ESSEL W. BAILEY, JR.
905 West Eisenhower Circle, Suite 110
Ann Arbor, Michigan 48103
(313) 747-9790
(Name, address, including zip code, and telephone number, including area code,
of agent for service)
------------------------------
Copies of communications to:
DON M. PEARSON, ESQ.
WILLIAM A. JONES, ESQ.
Argue Pearson Harbison & Myers, LLP
801 South Flower Street
Los Angeles, California 90017
(213) 622-3100
------------------------------
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: From time to
time after the effective date of this Registration Statement.
------------------------------
If the securities being registered on this Form are to be offered in
connection with the formation of a holding company and there is compliance with
General Instruction G, check the following box. [ ]
If any of the securities being registered on this Form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or interest
reinvestment plans, check the following box. [X]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this Form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [ ]
THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT SHALL
FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS REGISTRATION
STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH SECTION 8(A) OF
THE SECURITIES ACT OF 1933 OR UNTIL THIS REGISTRATION STATEMENT SHALL BECOME
EFFECTIVE ON SUCH DATE AS THE COMMISSION, ACTING PURSUANT TO SAID SECTION 8(A),
MAY DETERMINE.
CALCULATION OF REGISTRATION FEES
<TABLE>
<CAPTION>
=========================================================================================================
PROPOSED MAXIMUM
TITLE OF EACH CLASS OF AGGREGATE AMOUNT OF
SECURITIES TO BE REGISTERED OFFERING PRICE(2) REGISTRATION FEE
- ---------------------------------------------------------------------------------------------------------
<S> <C> <C>
Common Stock (par value $0.10 per share)............. $100,000,000 $30,152(1)
- ---------------------------------------------------------------------------------------------------------
(1) Calculated pursuant to Rule 457(o) of the rules and regulations under the
Securities Act of 1933, as amended.
=========================================================================================================
</TABLE>
<PAGE> 2
OMEGA HEALTHCARE INVESTORS, INC.
CROSS REFERENCE SHEET
(PURSUANT TO ITEM 501(b) OF REGULATION S-K)
<TABLE>
<CAPTION>
ITEMS OF FORM S-4 PROSPECTUS CAPTION OR LOCATION
----------------- ------------------------------
<S> <C>
A. INFORMATION ABOUT THE TRANSACTION
1 Forepart of Registration Statement and Outside Front
Cover Page of Prospectus............................. Facing Page of Registration Statement;
Outside Front Cover Page of Prospectus
2 Inside Front and Outside Back Cover Pages of
Prospectus........................................... Inside Front Cover Page of Prospectus
3 Risk Factors, Ratio of Earnings to Fixed Charges and
Other Information.................................... The Company
4 Terms of Transaction................................. Not Applicable
5 Pro Forma Financial Information...................... Not Applicable
6 Material Contracts with the Company Being Acquired... Not Applicable
7 Additional Information Required for Reoffering by
Persons and Parties Deemed to be Underwriters........ Selling Stockholders
8 Interests of Named Experts and Counsel............... Not Applicable
9 Disclosure of Commission Position on Indemnification
for Securities Act Liabilities....................... Not Applicable
B. INFORMATION ABOUT THE REGISTRANT
10 Information with Respect to S-3 Registrants.......... Incorporation of Certain Information by
Reference; The Company
11 Incorporation of Certain Information by Reference.... Incorporation of Certain Information by
Reference
12 Information with Respect to S-2 or S-3 Registrants... Not Applicable
13 Incorporation of Certain Information by Reference.... Not Applicable
14 Information with Respect to Registrants Other than
S-3 or S-2 Registrants............................... Not Applicable
C. INFORMATION ABOUT THE COMPANY BEING ACQUIRED
15 Information with Respect to S-3 Company.............. Not Applicable
16 Information with Respect to S-2 or S-3 Companies..... Not Applicable
17 Information with Respect to Companies Other than S-3
or S-2 Companies..................................... Not Applicable
D. VOTING AND MANAGEMENT INFORMATION
18 Information if Proxies, Consents or Authorization are
to be Solicited...................................... Not Applicable
19 Information if Proxies, Consents or Authorizations
are not to be Solicited in an Exchange Offer......... Not Applicable
</TABLE>
<PAGE> 3
PROSPECTUS
$100,000,000
OMEGA HEALTHCARE INVESTORS, INC.
SHARES OF COMMON STOCK
This Prospectus relates to the issuance from time to time by Omega
Healthcare Investors, Inc., a Maryland corporation (the "Company"), of shares of
the Company's common stock, par value $.10 per share (the "Common Stock"), in an
aggregate amount of up to $100,000,000, upon terms to be determined at the time
of such offering. The Common Stock may be offered in such amounts, at such
prices and on such terms as set forth in a prospectus supplement to the
Prospectus (a "Prospectus Supplement").
The Common Stock is to be offered directly by the Company in connection
with the acquisition of the assets of, or ownership interest in, certain
healthcare related properties, as determined pursuant to arms-length
negotiations between the Company and the sellers of the properties. The specific
terms under which the Common Stock is being offered in connection with the
delivery of this Prospectus will be set forth in the applicable Prospectus
Supplement and will include the specific number of shares of Common Stock and
the issuance price per share. In addition, such specific terms may include
limitations on direct or beneficial ownership and restrictions on transfer of
the Common Stock, in each case as may be appropriate to preserve the status of
the Company as a real estate investment trust ("REIT") for federal income tax
purposes. The Common Stock may not be offered through this Prospectus without
delivery of the applicable Prospectus Supplement.
The applicable Prospectus Supplement will also contain information, where
applicable, about certain federal income tax considerations relating to, and any
listing on a securities exchange of, the shares of Common Stock covered by such
Prospectus Supplement.
-------------------------
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE COMMISSION OR
ANY STATE SECURITIES COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
-------------------------
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED THE
MERITS OF THIS OFFERING. ANY REPRESENTATION
TO THE CONTRARY IS UNLAWFUL.
-------------------------
THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
-------------------------
The date of this Prospectus is January 31, 1997
<PAGE> 4
AVAILABLE INFORMATION
The Company is subject to the informational requirements of the Securities
Exchange Act of 1934 and in accordance therewith, files reports, proxy
statements and other information with the Securities and Exchange Commission
(the "Commission"). Such reports, proxy statements and other information can be
inspected and copied at the public reference facilities maintained by the
Commission in Washington, D.C. (Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549), and at the Commission's Regional Offices in Chicago
(500 West Madison Street, Suite 1400, Chicago, Illinois 60665) and New York City
(7 World Trade Center, 13th Floor, New York, New York 10048). Copies of such
material can be obtained from the Commission's Public Reference Section, 450
Fifth Street, N.W., Washington, D.C. 20549 at prescribed rates. The common stock
of the Company is listed on the New York Stock Exchange and reports, proxy
statements and other information concerning Omega Healthcare Investors, Inc. can
be inspected at 20 Broad Street, New York, New York. The Company has filed with
the Commission a Registration Statement on Form S-4 with respect to the
securities offered hereby. This Prospectus and any accompanying Prospectus
Supplement do not contain all information set forth in the Registration
Statement, in accordance with the rules and regulations of the Commission, and
exhibits thereto which the Company has filed with the Commission under the
Securities Act of 1933 and to which reference is hereto made.
-------------------------
DOCUMENTS INCORPORATED BY REFERENCE
The following documents previously filed with the Commission are
incorporated in this Prospectus by reference:
- Annual Report of the Company on Form 10-K for the year ended December 31,
1995;
- Quarterly Reports of the Company on Form 10-Q for the quarters ended
March 31, 1996, June 30, 1996, and September 30, 1996;
- Current Reports of the Company on Form 8-K dated June 10, 1996, and
January 19, 1996;
- Proxy Statement dated March 13, 1996, in connection with the Company's
Annual Meeting of Stockholders held on April 16, 1996; and
- The description of the Company'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, and declared effective by the Commission on
August 7, 1992.
All documents filed by Omega Healthcare Investors, Inc. pursuant to Section
13(a), 13(c), 14 or 15(d) of the Securities Exchange Act of 1934 subsequent to
the date hereof and prior to the termination of the offering made hereby shall
be deemed to be incorporated by reference into this Prospectus and to be a part
hereof from the date of filing such documents. All information appearing in this
Prospectus is qualified in its entirety by the detailed information and
financial statements (including the notes thereto) appearing in the documents
incorporated by reference. Any statement contained in a document incorporated or
deemed to be incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in any other subsequently filed document which also is or is
deemed to be incorporated by reference herein modifies or supersedes such
statement. Any statement so modified or superseded shall not be deemed, except
as so modified or superseded, to constitute a part of this Prospectus.
Omega Healthcare Investors, Inc. will provide without charge to each person
to whom this Prospectus is delivered, on written or oral request of such person,
a copy (without exhibits other than exhibits specifically incorporated by
reference therein) of any or all documents incorporated by reference into this
Prospectus within the meaning of Section 10(a) of the Securities Act of 1933.
Requests for such copies should be directed to Essel W. Bailey, Jr., President
and Secretary of the Company, at the Company's principal executive offices at
905 West Eisenhower Circle, Suite 110, Ann Arbor, Michigan 48103, telephone
(313) 747-9790.
2
<PAGE> 5
THE COMPANY
Omega Healthcare Investors, Inc. (the "Company") was incorporated in the
State of Maryland on March 31, 1992. It is a self administered real estate
investment trust ("REIT") which invests in income producing healthcare
facilities, principally long-term care facilities located primarily in the
United States.
As of December 31, 1996, the Company's portfolio of domestic investments
consisted of 214 long-term care facilities, and 3 medical office buildings. The
Company owns and leases 132 long-term care facilities and 3 medical office
buildings, and provides mortgages, including participating and convertible
participating mortgages, on 82 long-term care facilities. The facilities are
located in 24 states and operated by 34 unaffiliated operators. The Company is
also an owner of and provides management/advisory services to Principal
Healthcare Finance Limited which owns and leases 42 nursing homes in the United
Kingdom. The Company's gross investments at December 31, 1996 totaled $643.3
million.
The investment objectives of the Company are to pay regular cash dividends
to shareholders, to provide the opportunity for increased dividends from annual
increases in rental and interest income from revenue participations and from
portfolio growth, to preserve and protect shareholders' capital, and to provide
the opportunity to realize capital growth resulting from appreciation.
The Company intends to make and manage its investments (including the sale
or disposition of property or other investments) in such a manner as to be
consistent with the requirements of the Code (or regulations thereunder) to
qualify as a real estate investment trust ("REIT"), unless, because of changes
in circumstances or changes in the Code (or regulations thereunder), the Board
of Directors determines that it is no longer in the best interests of the
Company to qualify as a REIT.
The executive offices of the Company are located at 905 West Eisenhower
Circle, Suite 110, Ann Arbor, Michigan 48103. Its telephone number is (313)
747-9790.
FEDERAL INCOME TAX AND ERISA CONSIDERATIONS
The following description of certain federal income tax matters and the
Employee Retirement Income Security Act of 1974, as amended ("ERISA") is
qualified in its entirety by reference to the more detailed description thereof
contained in the opinion of Argue Pearson Harbison & Myers, LLP, Los Angeles,
California, regarding such matters, which has been filed as an exhibit to the
Registration Statement of which this Prospectus is a part.
The Company is and intends to remain qualified as a REIT under the Internal
Revenue Code of 1986, as amended (the "Code"). As a REIT, the Company's net
income which is distributed as dividends to shareholders will be exempt from
federal taxation. Distributions to the Company's shareholders generally will be
includable in their income. However, dividends distributed which are in excess
of current or accumulated earnings will be treated for tax purposes as a return
of capital to the extent of a shareholder's basis, and will reduce the basis of
shareholders' shares of Common Stock with respect to which the distribution is
paid or, to the extent that they exceed such basis, will be taxed in the same
manner as gain from the sale of those shares of Common Stock.
The Company intends to conduct its affairs so that the assets of the
Company will not be deemed to be "plan assets" of any individual retirement
account, employee benefit plan subject to Title I or ERISA, or other qualified
retirement plan subject to Section 4975 of the Code which acquires its Common
Stock. The Company believes that under present law, its distributions do not
create so called "unrelated business taxable income" to tax exempt entities such
as pension trusts, subject, however, to certain new rules which after 1993 will
apply to pension trusts holding more than 10% of the Company's Common Stock.
EACH PROSPECTIVE PURCHASER OF THE COMMON STOCK IS ADVISED TO CONSULT HIS OWN
PROFESSIONAL ADVISOR REGARDING THE SPECIFIC FEDERAL, STATE, LOCAL, FOREIGN AND
OTHER TAX AND ERISA CONSEQUENCES TO HIM OF THE PURCHASE, OWNERSHIP AND SALE OF
THE COMMON STOCK.
3
<PAGE> 6
SELLING STOCKHOLDERS
The Company will issue shares of Common Stock in connection with its
acquisition of the assets or stock of healthcare properties. Certain persons who
are deemed affiliates of the Company may determine to reoffer such shares to the
public. The identity of the selling stockholders, the number of shares of Common
Stock to be sold by the selling stockholders and the price per share of Common
Stock will be determined at the time of the consummation of the particular
transaction. Specific information regarding the transaction, the identity of the
selling stockholders and the number of shares of Common Stock to be resold will
be provided at the time of such transaction by means of a Prospectus Supplement
or a Post-Effective Amendment hereto, as applicable.
The sale of such shares of Common Stock by the selling stockholders may be
effected from time to time in transactions on the New York Stock Exchange, in
negotiated transactions, through the writing of options on such shares of Common
Stock, or through a combination of such methods of sale, at prices prevailing at
the time of sale, or at negotiated prices. The selling stockholders may effect
such transactions by selling such shares to or through broker-dealers, and such
broker-dealers may receive compensation in the form of discounts, concessions or
commissions from the selling stockholders and/or the purchasers of such shares
for which such broker-dealers may act as agent or to whom they sell as
principal, or both (which compensation as to a particular broker-dealer may be
in excess of customary commissions).
The selling stockholders and any broker-dealers who act in connection with
the sale of such shares of Common Stock hereunder may be deemed to be
"underwriters" within the meaning of Section 2(11) of the Securities Act, and
any commissions received by them and profit on any resale of such shares of
Common Stock as principal may be deemed to be underwriting discounts and
commissions under the Securities Act.
The Company intends to make available public information concerning itself
in compliance with the Securities Act and the regulations thereunder, and
accordingly, Rule 144 or 145 under the Securities Act may be available for use
by holders of Common Stock to effect transfers of such securities, subject to
compliance with the remaining provisions of such rules.
LEGAL MATTERS
Certain legal matters with respect to the shares of Common Stock offered
hereby will be passed upon for the Company by Argue Pearson Harbison & Myers,
LLP, Los Angeles, California.
EXPERTS
The consolidated financial statements of Omega Healthcare Investors, Inc.
(the Company) incorporated by reference from the Company's Annual Report on Form
10-K for the year ended December 31, 1995, have been audited by Ernst & Young
LLP, independent auditors, as set forth in their report incorporated by
reference therein and incorporated herein by reference. Such consolidated
financial statements are incorporated herein by reference in reliance upon such
report given upon the authority of such firm as experts in accounting and
auditing.
4
<PAGE> 7
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 20. 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 include judgments, penalties,
fines, settlements, and reasonable expenses actually incurred by the director or
officer in connection with the proceedings; provided, however, that if the
proceeding is won 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 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 did not meet the requisite standard of conduct
required for permitted indemnification. The termination of any proceeding by
conviction, or 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.
The Company has entered into indemnity agreements with the officers and
directors of the Company that provide that the Company will, subject to certain
conditions, pay on behalf of the indemnified party any amount which the
indemnified party is or becomes legally obligated to pay because of any act or
omission or neglect or breach of duty, including any actual or alleged error or
misstatement or misleading statement, which the indemnified party commits or
suffers while acting in the capacity as an officer or director of the Company.
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 21. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<C> <S>
3.1 Articles of Incorporation, as amended, of the Registrant,
filed as Exhibit 3.1 to the Registrant's Form 10-Q for the
quarter ended March 31, 1995 and incorporated herein by this
reference.
3.2 Amended and Restated Bylaws of the Registrant, as amended
August 17, 1993 (Incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-4 (#33-70612)
dated October 21, 1993)
5 Opinion of Counsel to the Registrant regarding legality
8 Opinion of Counsel to the Registrant regarding tax
consequences.
10.1 Agreement of Acquisition and Lease by and between the
Registrant and Diversicare Corporation of America dated June
1992 (Incorporated by reference to Exhibit 10.4 to the
Company's Registration Statement (#33-48268) on Form S-11
effective August 7, 1992)
10.2 Form of Master Lease with Diversicare (Incorporated by
reference to Exhibit 10.5 to the Company's Registration
Statement (#33-42868) on Form S-11 effective August 7, 1992)
</TABLE>
II-1
<PAGE> 8
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION
- ----------- -----------
<S> <C>
10.3 Loan Agreement by and between the Registrant, First Property
Management, Inc., Professional Health Care Management, Inc.,
and certain affiliates dated June 1992, Form of Mortgage
Note for Michigan facilities, and Form of First Amendment to
Michigan Loan Agreement (Incorporated by reference to
Exhibit 10.6 to the Company's Registration Statement
(#33-48268) on Form S-11 effective August 7, 1992)
10.4 Form of Participating Mortgage for Michigan facilities
(Incorporated by reference to Exhibit 10.7 to the Company's
Registration Statement (#33-48268) on Form S-11 effective
August 7, 1992)
10.5 First Amendment to Michigan Loan Agreement by and between
the Registrant and Professional Health Care Management,
Inc., dated August 14, 1992 (Incorporated by reference to
Exhibit 10.3 in the Company's Registration Statement on Form
S-11 (#33-51922) effective October 1, 1992)
10.6 Support Agreement dated August 14, 1992, whereby the Parent
of Diversicare agrees to support the financial obligations
of Diversicare under the Amended and Restated Agreement of
Acquisition (Incorporated by reference to Exhibit 10.6 to
the Company's Registration Statement (#33-51922) on Form
S-11 effective October 1, 1992)
10.7 Master Lease, as amended by Amendment Agreement dated
December 22, 1992 (Incorporated by reference to Exhibit 10.2
to the Company's Form 8-K dated December 24, 1992)
10.8 Second Amendment to Master Lease, as amended by Amendment
Agreement dated December 24, 1992 (Incorporated by reference
to Exhibit 10.13 to the Company's Form 10-K for the year
ended December 31, 1992)
10.9 1993 Retirement Plan for Directors, effective March 2, 1993
(Incorporated by reference to Exhibit 10.15 to the Company's
Form 10-K for the year ended December 31, 1992)
10.10 1993 Deferred Compensation Plan, effective March 2, 1993
(Incorporated by reference to Exhibit 10.16 to the Company's
Form 10-K for the year ended December 31, 1992)
10.11 Form of Note Exchange Agreement -- 10% Senior Notes due July
15, 2000 (Incorporated by reference to Exhibit 10.1 to the
Company's Form 10-Q for the quarterly period ended September
30, 1995)
10.12 Form of Note Exchange Agreement -- 7.4% Senior Notes due
July 15, 2000 (Incorporated by reference to Exhibit 10.2 to
the Company's Form 10-Q for the quarterly period ended
September 30, 1995)
10.13 Form of Note Purchase Agreement -- 7.4% Senior Notes due
July 15, 2000 (Incorporated by reference to Exhibit 10.25 to
the Company's Form 10-K for the year ended December 31,
1995)
10.14 Amended and Restated Loan Agreement with Fleet Bank, N.A.,
et al. (Incorporated by reference to the Company's Form 10-Q
for the quarterly period ended June 30, 1996)
11 Statement re Computation of Per Share Earnings (Incorporated
by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995)
12 Statement re Computation of Ratio of Earnings to Fixed
Charges
13 Annual Report to Shareholders for the year ended December
31, 1995 (Incorporated by reference to the Company's Annual
Report on Form 10-K for the for the year ended December 31,
1995)
21 Subsidiaries of the Registrant
23.1 Consent of Counsel to the Registrant (included in Exhibit 5
and Exhibit 8)
23.2 Consent of Ernst & Young LLP
24 Form of Power of Attorney included on Signature Page
</TABLE>
II-2
<PAGE> 9
ITEM 22. 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 of 1933, as amended (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 dollar value of
securities offered would not exceed that which was registered and any
deviation from the low or high and 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 20 percent 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 or Form F-3, and the information
required to be included in a post-effective amendment by those paragraphs is
contained in periodic reports filed with or furnished to the Commission by the
Registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange
Act of 1934, as amended (the "Exchange Act"), that are incorporated by reference
in the Registration Statement.
(2) For the purpose of determining any liability under the Securities Act
of 1933, each post-effective amendment that contains a form of prospectus 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 of 1933, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities Exchange Act of 1934) that is incorporated by reference in this
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
of 1933 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 Securities and Exchange Commission
such indemnification is against public policy as expressed in the 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 Act and will be governed by the final adjudication of
such issue.
II-3
<PAGE> 10
(d) The undersigned registrant hereby undertakes to respond to requests for
information that is incorporated by reference into the Prospectus pursuant to
Items 4, 10(b), 11, or 13 of this Form, within one business day of receipt of
such request, and to send the incorporated documents by first class mail or
other equally prompt means. This includes information contained in documents
filed subsequent to the effective date of the registration statement through the
date of responding to the request.
(e) The undersigned registrant hereby undertakes to supply by means of a
post-effective amendment all information concerning a transaction, and the
company being acquired involved therein, that was not the subject of and
included in the registration statement when it became effective.
II-4
<PAGE> 11
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
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 the 31st day of January, 1997.
OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ ESSEL W. BAILEY, JR.
------------------------------------
Essel W. Bailey, Jr.
Chairman, President and Chief
Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears
below constitutes and appoints Essel W. Bailey, Jr. and David A. Stover, and
each or any of them, 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 attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and 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 attorneys-in-fact and
agents or any of them, or their or his substitutes or substitute, may lawfully
do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Exchange Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
<TABLE>
<CAPTION>
SIGNATURES TITLE DATE
---------- ----- ----
<C> <S> <C>
/s/ ESSEL W. BAILEY, JR. Chairman, President, Chief Executive January 31, 1997
- ------------------------------------ Officer, Secretary and Director (principal
Essel W. Bailey, Jr. executive officer)
/s/ DAVID A. STOVER Vice President and Chief Financial Officer January 31, 1997
- ------------------------------------ (principal financial and principal
David A. Stover accounting officer)
/s/ JAMES E. EDEN Director January 31, 1997
- ------------------------------------
James E. Eden
/s/ THOMAS F. FRANKE Director January 31, 1997
- ------------------------------------
Thomas F. Franke
/s/ HAROLD J. KLOOSTERMAN Director January 31, 1997
- ------------------------------------
Harold J. Kloosterman
/s/ BERNARD J. KORMAN Director January 31, 1997
- ------------------------------------
Bernard J. Korman
/s/ EDWARD LOWENTHAL Director January 31, 1997
- ------------------------------------
Edward Lowenthal
/s/ ROBERT L. PARKER Director January 31, 1997
- ------------------------------------
Robert L. Parker
</TABLE>
<PAGE> 12
EXHIBIT INDEX
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ------------
<S> <C> <C>
3.1 Articles of Incorporation, as amended, of the Registrant,
filed as Exhibit 3.1 to the Registrant's Form 10-Q for the
quarter ended March 31, 1995 and incorporated herein by this
reference.
3.2 Amended and Restated Bylaws of the Registrant, as amended
August 17, 1993 (Incorporated by reference to Exhibit 3.2 to
the Company's Registration Statement on Form S-4 (#33-70612)
dated October 21, 1993)
5 Opinion of Counsel to the Registrant regarding legality
8 Opinion of Counsel to the Registrant regarding tax
consequences.
10.1 Agreement of Acquisition and Lease by and between the
Registrant and Diversicare Corporation of America dated June
1992 (Incorporated by reference to Exhibit 10.4 to the
Company's Registration Statement (#33-48268) on Form S-11
effective August 7, 1992)
10.2 Form of Master Lease with Diversicare (Incorporated by
reference to Exhibit 10.5 to the Company's Registration
Statement (#33-42868) on Form S-11 effective August 7, 1992)
10.3 Loan Agreement by and between the Registrant, First Property
Management, Inc., Professional Health Care Management, Inc.,
and certain affiliates dated June 1992, Form of Mortgage
Note for Michigan facilities, and Form of First Amendment to
Michigan Loan Agreement (Incorporated by reference to
Exhibit 10.6 to the Company's Registration Statement
(#33-48268) on Form S-11 effective August 7, 1992)
10.4 Form of Participating Mortgage for Michigan facilities
(Incorporated by reference to Exhibit 10.7 to the Company's
Registration Statement (#33-48268) on Form S-11 effective
August 7, 1992)
10.5 First Amendment to Michigan Loan Agreement by and between
the Registrant and Professional Health Care Management,
Inc., dated August 14, 1992 (Incorporated by reference to
Exhibit 10.3 in the Company's Registration Statement on Form
S-11 (#33-51922) effective October 1, 1992)
10.6 Support Agreement dated August 14, 1992, whereby the Parent
of Diversicare agrees to support the financial obligations
of Diversicare under the Amended and Restated Agreement of
Acquisition (Incorporated by reference to Exhibit 10.6 to
the Company's Registration Statement (#33-51922) on Form
S-11 effective October 1, 1992)
10.7 Master Lease, as amended by Amendment Agreement dated
December 22, 1992 (Incorporated by reference to Exhibit 10.2
to the Company's Form 8-K dated December 24, 1992)
10.8 Second Amendment to Master Lease, as amended by Amendment
Agreement dated December 24, 1992 (Incorporated by reference
to Exhibit 10.13 to the Company's Form 10-K for the year
ended December 31, 1992)
10.9 1993 Retirement Plan for Directors, effective March 2, 1993
(Incorporated by reference to Exhibit 10.15 to the Company's
Form 10-K for the year ended December 31, 1992)
10.10 1993 Deferred Compensation Plan, effective March 2, 1993
(Incorporated by reference to Exhibit 10.16 to the Company's
Form 10-K for the year ended December 31, 1992)
10.11 Form of Note Exchange Agreement -- 10% Senior Notes due July
15, 2000 (Incorporated by reference to Exhibit 10.1 to the
Company's Form 10-Q for the quarterly period ended September
30, 1995)
</TABLE>
<PAGE> 13
<TABLE>
<CAPTION>
SEQUENTIALLY
NUMBERED
EXHIBIT NO. DESCRIPTION PAGE
- ----------- ----------- ------------
<S> <C> <C>
10.12 Form of Note Exchange Agreement -- 7.4% Senior Notes due
July 15, 2000 (Incorporated by reference to Exhibit 10.2 to
the Company's Form 10-Q for the quarterly period ended
September 30, 1995)
10.13 Form of Note Purchase Agreement -- 7.4% Senior Notes due
July 15, 2000 (Incorporated by reference to Exhibit 10.25 to
the Company's Form 10-K for the year ended December 31,
1995)
10.14 Amended and Restated Loan Agreement with Fleet Bank, N.A.,
et al. (Incorporated by reference to the Company's Form 10-Q
for the quarterly period ended June 30, 1996)
11 Statement re Computation of Per Share Earnings (Incorporated
by reference to the Company's Annual Report on Form 10-K for
the year ended December 31, 1995)
12 Statement re Computation of Ratio of Earnings to Fixed
Charges
13 Annual Report to Shareholders for the year ended December
31, 1995 (Incorporated by reference to the Company's Annual
Report on Form 10-K for the for the year ended December 31,
1995)
21 Subsidiaries of the Registrant
23.1 Consent of Counsel to the Registrant (included in Exhibit 5
and Exhibit 8)
23.2 Consent of Ernst & Young LLP
24 Form of Power of Attorney included on Signature Page
</TABLE>
<PAGE> 1
EXHIBIT 5
January 31, 1997
Omega Healthcare Investors, Inc.
905 West Eisenhower Circle, Suite 110
Ann Arbor, Michigan 48103
Re: $100,000,000 Aggregate Offering Price of Common Stock of
Omega Healthcare Investors, Inc./Form S-4
Gentlemen:
At your request, we have examined the Registration Statement to be filed
by Omega Healthcare Investors, Inc. with the Securities and Exchange Commission
in connection with the registration under the Securities Act of 1933, as
amended, of an aggregate amount of up to $100,000,000 of shares of common
stock, par value $.10 (the "Common Stock"), all of which Common Stock may be
offered and sold from time to time as set forth in the prospectus which forms a
part of the Registration Statement and as to be set forth in one or more
supplements to the prospectus.
In connection with this opinion, we have examined and relied upon such
records, documents and other instruments as in our judgment are necessary or
appropriate in order to express the opinions hereinafter set forth and have
assumed the genuineness of all signatures, the authenticity of all documents
submitted to us as originals, and the conformity to original documents of all
documents submitted to us as certified or photocopies. Moreover, we have
assumed that the issuance, sale, amount and terms of the Common Stock to be
offered from time to time will be duly authorized and determined by proper
action of the Board of Directors of the Company and in accordance with the
Company's Articles of Incorporation, as amended, and applicable Maryland law.
It is our opinion that, subject to completion of the additional
proceedings referred to above, the Common Stock will, upon sale and issuance
thereof in the manner described in the Registration Statement, be legally
issued, fully paid and nonassessable.
We assume no obligation to advise you of any changes in the foregoing
subsequent to the delivery of this opinion letter. This opinion letter has
been prepared solely for your use in connection with the transmitting for
filing of the Registration Statement and should not be quoted in whole or in
part or otherwise be referred to, nor filed with or furnished to any person or
entity, without the prior written consent of this firm.
<PAGE> 2
Omega Healthcare Investors, Inc.
January 31, 1997
Page 2
We consent to the use of this opinion as an exhibit to said Registration
Statement, and we further consent to the reference to our firm under the
caption "Legal Matters" in the prospectus which is a part thereof.
Very truly yours,
/s/ Argue Pearson Harbison & Myers, LLP
<PAGE> 1
EXHIBIT 8
January 31, 1997
Omega Healthcare Investors, Inc.
905 West Eisenhower Circle, Suite 110
Ann Arbor, Michigan 48103
RE: $100,000,000 AGGREGATE OFFERING PRICE OF SECURITIES OF
OMEGA HEALTHCARE INVESTORS, INC./FORM S-4
Gentlemen:
In connection with the registration statement on Form S-4 (the
"Registration Statement") being filed by Omega Healthcare Investors, Inc. with
the Securities and Exchange Commission, regarding the registration of the
Securities under the Securities Act of 1933, as amended, you have requested our
opinion concerning whether the Company has been organized in conformity with
the requirements for qualification as a real estate investment trust, and
whether its proposed method of operation will enable it to meet the
requirements for qualification and taxation as a real estate investment trust
under the Internal Revenue Code of 1986, as amended (the "Code").
The opinion is based on various facts and assumptions. We have also been
furnished with, and have relied upon , representations made by the Company with
respect to certain factual matters through a certificate of an officer of the
Company.
Based on such facts, assumptions and representations, it is our opinion
that commencing with the Company's taxable year ending December 31, 1993, the
Company has been organized in conformity with the requirements for
qualification as a real estate investment trust under the Code, and its
proposed method of operation will enable it to meet the requirements for
qualification and taxation as a real estate investment trust under the Code.
No opinion is expressed as to any matter not expressly addressed herein.
This opinion is based on various statutory provisions, regulations
promulgated thereunder and interpretations thereof by the Internal Revenue
Service and courts having
<PAGE> 2
Omega Healthcare Investors, Inc.
January 31, 1997
Page 2
jurisdiction over such matters, all of which are subject to change either
prospectively or retroactively. Also, any variation or difference in the facts
from those set forth in the officer's certificate furnished to us may affect
the conclusions stated herein. Moreover, the Company's qualification and
taxation as a real estate investment trust depends upon the Company's
ability to meet, through actual annual operating results, distribution levels
and diversity of stock ownership, the various qualification tests imposed under
the Code, the results of which have not and will not be reviewed by Argue
Pearson Harbison & Myers. Accordingly, no assurance can be given that the
actual results of the Company's operation for any one taxable year will satisfy
such requirements.
This opinion is furnished to you solely for your use in connection with
the Registration Statement. We hereby consent to the filing of this opinion as
an exhibit to the Registration Statement and to the use of our name under the
caption "Legal Matters" in the Registration Statement.
Very truly yours,
/s/ Argue Pearson Harbison & Myers, LLP
<PAGE> 1
EXHIBIT 12
RATIO OF EARNINGS TO FIXED CHARGES
OMEGA HEALTHCARE INVESTORS, INC.
<TABLE>
<CAPTION>
AUGUST 14, 1992 YEAR ENDED DECEMBER 31
(INCEPTION) TO ----------------------------------------
DECEMBER 31, 1992(1) 1993 1994 1995 1996E
-------------------- ---- ---- ---- -----
(IN $1,000, EXCEPT RATIO)
<S> <C> <C> <C> <C> <C>
Earnings before extraordinary item.... $4,424 $11,573 $17,777 $29,490 $34,590
Fixed Charges:
Interest............................ 266 4,317 9,520 14,262 20,247
Amortization of debt issue costs.... 40 288 1,029 1,063 524
------- ------- ------- ------- -------
Total fixed charges................... 306 4,605 10,549 15,325 20,771
------- ------- ------- ------- -------
Earnings before Fixed Charges......... $4,730 $16,178 $28,326 $44,815 $55,361
======= ======= ======= ======= =======
Ratio................................. 15.45X 3.51X 2.69X 2.92X 2.67X
</TABLE>
- -------------------------
(1) Operations Commenced on August 14th, 1992
<PAGE> 1
EXHIBIT 21
LIST OF SUBSIDIARIES
OMEGA HEALTHCARE INVESTORS, INC.
<TABLE>
<CAPTION>
STATE OF
NAMES INCORPORATION
----- -------------
<S> <C>
OHI (Kansas), Inc. ......................................... Kansas
OHI (Illinois), Inc. ....................................... Illinois
OHI (Florida), Inc. ........................................ Florida
OHI (Clemmons), Inc. ....................................... North Carolina
OHI (Greensboro), Inc. ..................................... North Carolina
Sterling Acquisition Corp. ................................. Kentucky
Sterling Acquisition Corp. II............................... Kentucky
OS Leasing.................................................. Kentucky
</TABLE>
<PAGE> 1
EXHIBIT 23.2
We consent to the reference to our firm under the caption "Experts" in the
Registration Statement Form S-4 and related Prospectus of Omega Healthcare
Investors, Inc. for the registration of $100,000,000 Shares of Common Stock and
to the incorporation by reference therein of our reports dated March 25, 1996,
with respect to the consolidated financial statements of Omega Healthcare
Investors, Inc. incorporated by reference in its Annual Report (Form 10-K) for
the year ended December 31, 1995 and the related financial statement schedules
included therein, filed with the Securities and Exchange Commission.
/s/ Ernst & Young LLP
--------------------------------------
Ernst & Young LLP
Detroit, Michigan
January 27, 1997
