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As filed with the Securities and Exchange Commission on December 29, 1998
Registration No. 333-_______
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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
----------------------
FORM S-8
REGISTRATION STATEMENT
Under
THE SECURITIES ACT OF 1933
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OMEGA HEALTHCARE INVESTORS, INC.
(Exact name of registrant as specified in charter)
Maryland 38-3041398
(State or other jurisdiction of (I.R.S. Employer
incorporation or organization) Identification No.)
900 Victors Way Suite 350
Ann Arbor, Michigan 48108
(Address of principal executive offices) (Zip code)
OMEGA HEALTHCARE INVESTORS, INC. 1993 STOCK OPTION
AND RESTRICTED STOCK PLAN, AS AMENDED AND RESTATED
(Full title of the plan)
SUSAN ALLENE KOVACH
Vice-President, General Counsel
and Secretary
OMEGA HEALTHCARE INVESTORS, INC.
900 Victors Way, Suite 350
Ann Arbor, Michigan 48108
(Name and address of agent for service)
(734) 887-0200
(Telephone number, including area code, of agent for service)
-------------------------
The Commission is requested to send copies of all communications to:
DON M. PEARSON, ESQ.
Argue Pearson Harbison & Myers, LLP
801 South Flower Street, Suite 500
Los Angeles, California 90017
Pursuant to Rule 429, this Registration Statement also updates
Registration Statement File No. 333-3124
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<TABLE>
<CAPTION>
CALCULATION OF REGISTRATION FEE
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Proposed Proposed
Title of Maximum Maximum
Securities Amount Offering Aggregate Amount of
to be to be Price Offering Registration
Registered Registered Per Share Price Fee
- -------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Stock
$.10 par value,
issuable upon
exercise of
Options............750,000* $29.28125** $21,960,938 $6106
$ $
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</TABLE>
*In addition to the 750,000 shares of Common Stock being registered hereby,
pursuant to Rule 429, the prospectus contained herein also updates and relates
to 450,000 shares registered in Registration Statement File No. 333-3124, which
shares are being carried forward herein. A filing fee of $4,336 was paid in
connection with the 450,000 shares registered in Registration Statement File No.
333-3124.
**Estimated solely for purposes of computing the registration fee and computed
in accordance with Rule 457(h) upon the basis of the high and low prices per
share of the Registrant's Common Stock on December 21, 1998.
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PART I
INFORMATION REQUIRED IN THE SECTION 10(A) PROSPECTUS
ITEM 1. PLAN INFORMATION.
The document(s) containing the information specified in Item 1 will be
sent or given to employees as specified in Rule 428(b)(1) under the Securities
Act and are not required to be filed as part of this Registration Statement.
ITEM 2. REGISTRANT INFORMATION AND EMPLOYEE PLAN ANNUAL INFORMATION.
The document(s) containing the information specified in Item 2 will be
sent or given to employees as specified in Rule 428(b)(1) under the Securities
Act and are not required to be filed as part of this Registration Statement.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The following documents are incorporated herein by reference:
(1) Registrant's Annual Report on Form 10-K for the period ended
December 31, 1997;
(2) Registrant's Quarterly Reports on Form 10-Q for the quarters ended
March 31, 1998, June 30, 1998, and September 30,1998;
(3) Registrant's Reports on Form 8-K dated April 15, 1998, April 27,
1998, April 30, 1998, and June 9, 1998; and
(4) 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 (the
"Exchange Act") declared effective by the
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Commission on August 7, 1992, together with any amendment or report
filed subsequent to the date hereof for the purpose of updating
such description.
All documents subsequently filed by Registrant pursuant to Sections
13(a), 13(c), 14 and 15(d) of the Exchange Act prior to the filing of a
post-effective amendment which indicates that all securities offered have been
sold or which deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be part
hereof from the date of filing of such documents.
ITEM 4. DESCRIPTION OF SECURITIES.
Not applicable.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
Don M. Pearson, a partner in Argue Pearson Harbison & Myers, LLP
counsel for the Registrant that prepared this Registration Statement for the
Registrant, is an Assistant Secretary of the Registrant.
ITEM 6. 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 proceeding; provided, however, that if the
proceeding is one 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
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proceeding by conviction, or a 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.
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 7. EXEMPTION FROM REGISTRATION CLAIMED.
Not applicable.
ITEM 8. EXHIBITS.
4.1 Omega Healthcare Investors, Inc. 1993 Stock Option and Restricted
Stock Plan, as amended and restated, filed as Exhibit A to
Registrant's Proxy Statement dated April 6, 1998 for Registrant's
Annual Meeting of Shareholders held on May 7, 1998 and
incorporated herein by reference.
5.1 Opinion of Argue Pearson Harbison & Myers, LLP regarding validity
of securities.
23.1 Consent of Argue Pearson Harbison & Myers, LLP (included in its
opinion filed as Exhibit 5.1 hereto).
23.2 Consent of Ernst & Young, LLP.
ITEM 9. UNDERTAKINGS.
(a) The 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;
(ii) To reflect in the prospectus any facts or events arising after the
effective date of the registration statement
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(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;
(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 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed by the registrant pursuant
to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that
are incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment 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.
(4) If the registrant is a foreign private issuer, to file a
post-effective amendment to the registration statement to include any
financial statements required by Rule 3-19 of Regulation S-X at the start of
any delayed offering or throughout a continuous 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 the
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 may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or
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otherwise, Registrant has been advised that in the opinion of the Commission,
such indemnification is against public policy as expressed in the Securities 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, Registrant will, unless in the opinion of the counsel the matter has
been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question of whether such indemnification by it is against
public policy as expressed in the Securities Act and will be governed by the
final adjudication of such issue.
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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-8 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 29th day of December,
1998.
OMEGA HEALTHCARE INVESTORS, INC.
By: /S/ Essel W. Bailey, Jr.
-------------------------------------
Essel W. Bailey, Jr.
President and Chief Executive Officer
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.
Signatures Title Date
/s/ Essel W. Bailey, Jr.
- ------------------------- President, Chief December 29, 1998
Essel W. Bailey, Jr. Executive Officer,
and Director
(principal executive
officer)
/s/ David A. Stover
- ------------------------- Vice President and Chief December 29, 1998
David A. Stover Financial Officer
(principal financial and
accounting officer)
/s/ Martha A. Darling Director December 29, 1998
- -------------------------
Martha A. Darling
/s/ James E. Eden
- ------------------------- Director December 29, 1998
James E. Eden
/s/ Thomas F. Franke
- ------------------------- Director December 29, 1998
Thomas F. Franke
/s/ Henry Greer
- ------------------------- Director December 29, 1998
Henry Greer
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/s/ Harold J. Kloosterman
- ------------------------- Director December 29, 1998
Harold J. Kloosterman
/s/ Bernard J. Korman
- ------------------------- Director December 29, 1998
Bernard J. Korman
/s/ Edward Lowenthal
- ------------------------- Director December 29, 1998
Edward Lowenthal
/s/ Robert L. Parker
- ------------------------- Director December 29, 1998
Robert L. Parker
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Exhibit Index
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<TABLE>
<CAPTION>
Exhibit No. Description
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<S> <C>
5.1 Argue Person Harbison & Myers
Opinion relating thereto.
23.2 Consent of Ernst & Young, LLP.
</TABLE>
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EXHIBIT 5.1
[ARGUE PEARSON HARBISON & MYERS LLP LETTERHEAD]
December 28, 1998
Omega Healthcare Investors, Inc.
900 Victors Way, Suite 350
Ann Arbor, Michigan 48108
RE: OMEGA HEALTHCARE INVESTORS, INC./FORM S-8
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 750,000 shares of common stock, par value $.10 (the "Common
Stock"), all of which Common Stock may be offered and sold from time to time
pursuant to the terms of the Company's 1993 Stock Option and Restricted Stock
Plan, as amended and restated, and as set forth in the prospectus which forms a
part of the Registration Statement.
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 and sale of the Common Stock to be offered from time to time
has been or will be duly authorized 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 any 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.
We consent to the use of this opinion as an exhibit to said
Registration Statement.
Very truly yours,
/S/ Argue Pearson Harbison & Myers LLP
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EXHIBIT 23.2
CONSENT OF INDEPENDENT AUDITORS
We consent to the incorporation by reference in the Registration Statement
(Form S-8) pertaining to the Omega Healthcare Investors, Inc. 1993 Stock Option
and Restricted Stock Plan, as Amended and Restated and to the incorporation by
reference therein of our reports dated March 25, 1998, 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, 1997 and the related financial statement schedules included
therein, filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
Detroit, Michigan
December 24, 1998
