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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON JULY 31, 1997
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
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FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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OMEGA HEALTHCARE INVESTORS, INC.
(Exact name of registrant as specified in its charter)
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<TABLE>
<S> <C>
MARYLAND 38-3041398
(State or other jurisdiction of incorporation or (I.R.S. Employer Identification No.)
organization)
</TABLE>
905 WEST EISENHOWER CIRCLE, SUITE 110
ANN ARBOR, MICHIGAN 48103
(313) 747-9791
(Address, including zip code, and telephone number, including area code, of
registrant's principal executive offices)
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ESSEL W. BAILEY, JR.
CHAIRMAN, CHIEF EXECUTIVE OFFICER, PRESIDENT AND SECRETARY
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)
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COPIES OF COMMUNICATIONS TO:
DON M. PEARSON, ESQ.
WILLIAM A. JONES, ESQ.
ARGUE PEARSON HARBISON & MYERS, LLP
801 S. FLOWER STREET, SUITE 500
LOS ANGELES, CALIFORNIA 90017
(213) 622-3100
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APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO PUBLIC: As soon as
practicable after this Registration Statement becomes effective.
If the only securities being registered on this Form are being offered
pursuant to dividend or interest reinvestment plans, please 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. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 426(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. [X] No. 333-20967
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. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [ ]
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CALCULATION OF REGISTRATION FEE
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PROPOSED PROPOSED
AMOUNT MAXIMUM MAXIMUM AMOUNT OF
TITLE OF EACH CLASS TO BE OFFERING PRICE AGGREGATE REGISTRATION
OF SECURITIES TO BE REGISTERED REGISTERED PER UNIT OFFERING PRICE FEE
- ---------------------------------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
(par value $0.10 per share)............
- ------------------------------------------------------------------------------------------------------------------
Preferred Stock
(par value $1.00 per share)............
- ------------------------------------------------------------------------------------------------------------------
Debt Securities
6.95% Notes due 2007................... $5,750,000 $5,750,000 $1,743(1)
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Securities Warrants......................
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Total.................................... $5,750,000 $5,750,000 $1,743(1)
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(1) Calculated solely for the purpose of determining the registration fee
pursuant to Rule 457(o) of the rules and regulations under the Securities
Act of 1933, as amended.
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EXPLANATORY NOTE AND INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
This registration statement is being filed with respect to the registration
of additional Debt Securities of Omega Healthcare Investors, Inc., a company
organized under the laws of the state of Maryland (the "Company"), pursuant to
Rule 462(b) under the Securities Act of 1933, as amended ("Rule 462(b)").
Pursuant to Rule 462(b), the contents of the registration statement of the
Company (File No. 333-20967) as amended, which was declared effective on
February 14, 1997, including the exhibits thereto, are incorporated by reference
into this registration statement.
The Company certifies that (i) it gave instructions to a bank to transmit a
wire transfer to the Commission of the requisite amount of the registration fee
set forth on the cover page of this Registration Statement as soon as
practicable (but in any event no later than the close of the next business day
following the date this registration statement is transmitted to the
Commission), (ii) that it will not revoke such instructions, (iii) that it has
sufficient funds in the relevant account to cover the amount of such
registration fee, and (iv) that it will confirm receipt of such instructions by
the bank during regular business hours on the next business day following the
date this registration statement is transmitted to the Commission.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Ann Arbor, Michigan, on the 31st day of July, 1997.
OMEGA HEALTHCARE INVESTORS, INC.
By: /s/ ESSEL W. BAILEY, JR.
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Essel W. Bailey, Jr.
Chairman, President & 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.
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Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and on the dates indicated.
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<CAPTION>
SIGNATURE TITLE DATE
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<C> <S> <C>
/s/ ESSEL W. BAILEY, JR. Chairman, President, Chief July 31, 1997
- ----------------------------------------------------- Executive Officer, Secretary
Essel W. Bailey, Jr. and Director (principal
executive officer)
/s/ DAVID A. STOVER Vice President and Chief July 31, 1997
- ----------------------------------------------------- Financial Officer (principal
David A. Stover financial and principal
accounting officer)
/s/ JAMES E. EDEN Director July 31, 1997
- -----------------------------------------------------
James E. Eden
/s/ THOMAS F. FRANKE Director July 31, 1997
- -----------------------------------------------------
Thomas F. Franke
/s/ HAROLD J. KLOOSTERMAN Director July 31, 1997
- -----------------------------------------------------
Harold J. Kloosterman
/s/ BERNARD J. KORMAN Director July 31, 1997
- -----------------------------------------------------
Bernard J. Korman
/s/ EDWARD LOWENTHAL Director July 31, 1997
- -----------------------------------------------------
Edward Lowenthal
/s/ ROBERT L. PARKER Director July 31, 1997
- -----------------------------------------------------
Robert L. Parker
</TABLE>
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EXHIBIT INDEX
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<CAPTION>
EXHIBIT NO. DESCRIPTION
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<C> <C> <S>
5.1 -- Opinion of Argue Pearson Harbison & Myers, LLP as to the
legality of the Securities being registered.
8.1 -- Opinion of Argue Pearson Harbison & Myers, LLP as to certain
tax matters.
23.1 -- Consent of Ernst & Young LLP, Independent Accountants.
23.2 -- Consent of Argue Pearson Harbison & Myers, LLP (included in
Exhibit 5.1 hereto).
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5
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EXHIBIT 5.1
ARGUE PEARSON HARBISON & MYERS, LLP
July 31, 1997
Omega Healthcare Investors, Inc.
905 West Eisenhower Circle, Suite 110,
Ann Arbor, Michigan 48103
RE: $5,750,000 AGGREGATE OFFERING PRICE OF SECURITIES OF OMEGA
HEALTHCARE INVESTORS, INC.
Gentlemen:
At your request, we have examined the Registration Statement on Form S-3
(the "Registration Statement") to be filed by Omega Healthcare Investors, Inc.
(the "Company") with the Securities and Exchange Commission pursuant to Rule
462(b) in connection with the registration of $5,750,000 aggregate offering
price of securities (the "Securities"), consisting of 6.95% Notes due 2007 (the
"Notes").
We also have examined the Indenture, dated as of January 28, 1997, and the
form of Supplemental Indenture between the Company and NBD Bank, as Trustee,
relating to the Notes. We are familiar with the proceedings heretofore taken and
proposed to be taken by the Company in connection with the authorization,
registration, issuance and sale of the Securities.
Subject to the (i) proposed additional proceedings being taken as now
contemplated by us as your counsel prior to the issuance and sale of the
Securities; (ii) the effectiveness of the Registration Statement under the
Securities Act of 1933, as amended; (iii) the establishment of the terms of
Securities in accordance with the terms of the Indenture and Supplemental
Indenture; and (iv) the execution, delivery and authentication of and payment
for the Securities, it is our opinion that the Securities will, upon the
issuance and sale thereof in the manner referred to in the Registration
Statement, constitute legally valid and binding obligations of the Company,
enforceable against the Company in accordance with their terms, except as
limited by bankruptcy, insolvency, reorganization, moratorium or similar laws
effecting creditors' rights generally, and except that we advise you that the
enforceability of the Securities is subject to the effect of general principles
of equity including, without limitations, concepts of materiality,
reasonableness, good faith and fair dealing and the possible unavailability of
specific performance or injunctive relief regardless of whether considered in a
proceeding in equity or at law.
We consent to the filing of this opinion as an exhibit to the Registration
Statement.
Very truly yours,
/s/ ARGUE PEARSON HARBISON & MYERS, LLP
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Argue Pearson Harbison & Myers, LLP
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EXHIBIT 8.1
July 31, 1997
Omega Healthcare Investors, Inc.
905 West Eisenhower Circle, Suite 110
Ann Arbor, Michigan 48103
Re: $5,750,000 aggregate Offering Price of Securities of
Omega Healthcare Investors, Inc.
Gentlemen:
In connection with the registration statement on Form S-3, pursuant to Rule
462(b) (the "Registration Statement") filed by Omega Healthcare Investors, Inc.
with the Securities and Exchange Commission on or about July 31, 1997, 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 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 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, LLP. 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
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Argue Pearson Harbison & Myers, LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-3 No. 333- ) and related Prospectus of Omega Healthcare Investors, Inc.
for the registration of $5,750,000 6.95% Notes Due 2007 of our reports dated
March 28, 1997, 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, 1996 and the related financial statement
schedules included therein, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
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Detroit, Michigan
July 28, 1997
