AS FILED
WITH THE SECURITIES AND EXCHANGE COMMISSION ON January 15, 2010
REGISTRATION NO. 333-_______
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
S-3
REGISTRATION
STATEMENT UNDER THE SECURITIES ACT OF 1933
OMEGA
HEALTHCARE INVESTORS, INC.
(Exact
name of registrant as specified in its charter)
| Maryland | 38-3041398 |
| (State or other jurisdiction of incorporation or organization) | (IRS Employer Identification Number) |
200
International Circle, Suite 3500
Hunt
Valley, Maryland 21030
(410)
427-1700
(Address,
including zip code and telephone number, including area code,
of
registrant’s principal executive offices)
C.
Taylor Pickett
Chief
Executive Officer
Omega
Healthcare Investors, Inc.
200
International Circle, Suite 3500
Hunt
Valley, Maryland 21030
(410)
427-1700
(Name,
address, including zip code, and telephone number,
including
area code, of agent for service)
Copies of
communications to:
Eliot
W. Robinson, Esq.
Bryan
Cave LLP
One
Atlantic Center, Fourteenth Floor
1201
West Peachtree Street, NW
Atlanta,
Georgia 30309-3488
(404)
572-6600
Approximate
date of commencement of proposed sale to the public: From time
to time 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. o
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. o
If this Form is a
post-effective amendment filed pursuant to Section 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. o
If this Form is a
registration statement pursuant to General Instruction I.D. or a post-effective
amendment thereto that shall become effective upon filing with the Commission
pursuant to Rule 462(e) under the Securities Act, check the following
box. x
If this Form is a
post-effective amendment to a registration statement filed pursuant to General
Instruction I.D. filed to register additional securities or additional classes
of securities pursuant to Rule 413(b) under the Securities Act, check the
following box. o
Indicate by check mark
whether the registrant is a large accelerated filer, an accelerated filer, or
non-accelerated filer. See definition of “accelerated filer and large
accelerated filer” in Rule 12b-2 of the Exchange Act. (Check
one:)
| Large accelerated filer x | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o |
CALCULATION
OF REGISTRATION FEE
|
Title
of Each Class
of
Securities to Be Registered
|
Amount
to Be
Registered
|
Proposed
Maximum
Offering
Price
Per
Share
|
Proposed
Maximum
Aggregate
Offering
Price
|
Amount
of
Registration
Fee
|
|
Common
Stock, $0.10 par value
|
2,714,959
(1)
|
$19.96 (2)
|
$54,190,581(2)
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$3,864
|
|
(1)
|
Pursuant
to Rule 416 of the Securities Act of 1933, as amended, this Registration
Statement also relates to such additional shares as may be issuable as a
result of certain adjustments, including, without limitation, stock
dividends and stock splits.
|
|
(2)
|
Estimated
solely for the purpose of calculating the registration fee pursuant to
Rule 457(c) under the Securities Act of 1933. The proposed
maximum offering price per share is based upon the average of the high and
low prices of Omega Healthcare Investors, Inc. Common Stock in New York
Stock Exchange transactions on January 11,
2010.
|
PROSPECTUS
|
2,714,959
Shares
|
||
| Common Stock | ||
On December 22, 2009, we
acquired certain subsidiaries of CapitalSource Inc. In connection
with the acquisition, we issued 2,714,959 shares
of our common stock to an affiliate of CapitalSource Inc. (referred to in this
Prospectus as the “selling stockholder”). This Prospectus will be used from time
to time by the selling stockholder to resell shares of our common stock issued
in connection with the acquisition. The selling stockholder may also
sell additional shares of common stock acquired as a result of stock splits,
stock dividends or similar transactions.
We will not receive any
proceeds from the shares of our common stock sold by the selling
stockholder.
The selling stockholder
may sell the shares of common stock described in this Prospectus in a number of
different ways and at varying prices. See “Plan of Distribution”
beginning on page 11 of this Prospectus for more information about how the
selling stockholder may sell its shares of common stock.
Shares of our common stock
are traded on the New York Stock Exchange under the symbol “OHI.” The
closing price of our common stock as reported by The New York Stock Exchange on
January 14, 2010 was $19.83 per share.
Investing in our
securities involves various risks. See “Risk Factors” beginning on
page 7 of this Prospectus for a discussion of certain factors that should be
considered by prospective purchasers.
Neither the Securities and
Exchange Commission nor any state securities commission has approved or
disapproved of the securities described in this Prospectus or passed upon the
adequacy or accuracy of this Prospectus. Any representation to the
contrary is a criminal offense.
The
date of this Prospectus is January 15, 2010.
We
have not authorized any dealer, salesperson or other person to give you written
information other than this Prospectus and any prospectus supplement, or to make
representations as to matters not stated in this Prospectus and any prospectus
supplement. You must not rely upon any information or representation not
contained or incorporated by reference in this Prospectus or any prospectus
supplement. This Prospectus and any prospectus supplement do not constitute an
offer to sell or our solicitation of an offer to buy any securities other than
the registered securities to which they relate. This Prospectus and any
prospectus supplement do not constitute an offer to sell or our solicitation of
an offer to buy securities in any jurisdiction to any person to whom it is
unlawful to make such offer or solicitation in such jurisdiction. The
delivery of this Prospectus or any prospectus supplement at any time does not
create an implication that the information contained herein or therein is
correct as of any time subsequent to their respective dates.
TABLE OF
CONTENTS
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1
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2
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3
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4
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6
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7
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9
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9
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9
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10
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This Prospectus is part of
an automatic shelf registration statement that we filed with the Securities and
Exchange Commission, or SEC, as a “well-known seasoned issuer” as defined in
Rule 405 under the Securities Act of 1933. Under this automatic shelf
registration process, the selling stockholder listed herein may, from time to
time, sell shares of our common stock as described in this Prospectus. As
permitted by SEC rules, this Prospectus omits various information you can find
in the registration statement or the exhibits to the registration statement. For
further information, you should refer to the registration statement and its
exhibits. The registration statement and the exhibits can be obtained from the
SEC as indicated under the heading “Where You Can Find More
Information.”
You
should rely only on the information contained and incorporated by reference in
this Prospectus or in any prospectus supplement. We have not
authorized anyone to provide you with information that is
different. The selling stockholder is offering to sell the shares,
and seeking offers to buy the shares, only in jurisdictions where offers and
sales are permitted by applicable law. Neither the delivery of this
Prospectus nor any sale hereunder shall, under any circumstances, create any
implication that there has been no change in our affairs since the date of this
Prospectus, that the information contained herein is correct as of any time
subsequent to the date hereof or that any information incorporated or deemed to
be incorporated by reference herein is correct as of any time subsequent to the
date hereof.
Unless otherwise mentioned
or unless the context requires otherwise, (i) all references in this Prospectus
to “we,” “us,” “our” or similar references mean Omega Healthcare Investors,
Inc., a Maryland corporation, and its subsidiaries, and (ii) all references in
this Prospectus to “stock,” “our stock,” “Omega stock,” “your stock,” “shares,”
or “Omega shares” refer to our common stock.
1
Company
Overview
We are a self-administered
real estate investment trust, or REIT, investing in income-producing healthcare
facilities, principally long-term care facilities located in the United States.
We provide lease or mortgage financing to qualified operators of skilled nursing
facilities, which we refer to as SNFs, and, to a lesser extent, assisted living
facilities, rehabilitation and acute care facilities.
Our portfolio of
investments at September 30, 2009, consisted of 256 healthcare facilities
located in 28 states and operated by 25 third-party operators. Our gross
investment in these facilities totaled approximately $1.5 billion at September
30, 2009, with 99% of our real estate investments related to long-term
healthcare facilities. This portfolio is made up of (i) 226 SNFs, (ii) seven
assisted living facilities, (iii) two rehabilitation hospitals owned and leased
to third parties, (iv) two independent living facilities, (v) fixed rate
mortgages on 15 SNFs, (vi) two SNFs that are owned and operated by us and (vii)
two SNFs that are currently held for sale by us. At September 30,
2009, we also held other investments of approximately $29.4 million, consisting
primarily of secured loans to third-party operators of our
facilities.
The
Acquisition
On December 22, 2009, we
acquired certain subsidiaries of CapitalSource Inc. (“CapitalSource”) owning 40
healthcare facilities and an option to purchase certain other CapitalSource
subsidiaries owning an additional 63 healthcare facilities pursuant to a
securities purchase agreement among the Company, CapitalSource and certain
subsidiaries of CapitalSource. As part of the purchase price for the
acquisition, we issued 2,714,959 shares of our common stock to an affiliate of
CapitalSource (referred to in this Prospectus as the “selling
stockholder”). See “Selling Stockholder” below.
Following the acquisition
of the CapitalSource subsidiaries on December 22, 2009, our portfolio of
investments consists of 296 healthcare facilities located in 31 states and
operated by 36 third party operators. Our gross investment in these
facilities totaled approximately $1.655 billion.
Additional
Information
We were incorporated in
the State of Maryland on March 31, 1991. Our principal executive offices are
located at 200 International Circle, Suite 3500, Hunt Valley, Maryland, 21030
and our telephone number is (410) 427-1700. Our website address is
www.omegahealthcare.com. We do not incorporate the information
contained on our website into this Prospectus, and you should not consider it
part of this Prospectus.
The
Offering
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Securities
Offered
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Common
stock, $0.10 par value per share
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Number
of shares of common stock offered for resale
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2,714,959
shares
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Common
stock issued and outstanding as of January
14, 2010
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88,265,565
shares
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Use
of Proceeds
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We
will not receive any proceeds from the shares sold by the selling
stockholder pursuant to this Prospectus.
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New
York Stock Exchange Symbol
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OHI
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2
AFFECTING
FUTURE RESULTS
This Prospectus may
contain forward-looking statements within the meaning of the federal securities
laws. These statements relate to, without limitation, our expectations, beliefs,
intentions, plans, objectives, goals, strategies, future events, performance and
underlying assumptions and other statements other than statements of historical
facts. In some cases, you can identify forward-looking statements by the use of
forward-looking terminology including, but not limited to, terms such as “may,”
“will,” “anticipates,” “expects,” “believes,” “intends,” “should” or comparable
terms or the negative thereof. These statements are based on information
available on the date of this Prospectus and only speak as to the date hereof
and no obligation to update such forward-looking statements should be assumed.
Our actual results may differ materially from those reflected in the
forward-looking statements contained herein as a result of a variety of factors,
including, among other things:
| (i) | those items discussed under the heading “Risk Factors” herein, in our most recent Annual Report on Form 10-K and in our subsequent Quarterly Reports on Form 10-Q; | |
| (ii) | uncertainties relating to the business operations of the operators of our assets; | |
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(iii)
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our ability to
manage, re-lease or sell any owned and operated
facilities;
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(iv)
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the availability and
cost of capital;
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(v)
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our ability to maintain credit ratings; | |
| (vi) |
competition in the
financing of healthcare facilities;
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(vii)
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regulatory and other
changes in the healthcare sector;
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(viii)
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changes in the
financial position of our operators;
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(ix)
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changes in interest
rates;
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| (x) |
the amount and yield
of any additional investments;
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| (xi) |
changes in tax laws
and regulations affecting real estate investment
trusts;
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(xii)
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our
ability to maintain our status as a real estate investment
trust;
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(xiii)
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the
potential impact of a general economic slowdown on governmental budgets
and healthcare reimbursement expenditures; and
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(xiv)
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the
effect of the recent financial crisis and severe tightening in the global
credit markets.
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3
Investment in our common
stock involves risk. You should carefully consider the risks of an investment in
the Company set forth below, in addition to the risks set forth under the
heading “Risk Factors” included in our most recent Annual Report on Form 10-K
and updated in our Quarterly Reports on Form 10-Q, which reports are
incorporated herein by reference. In the future, you should also carefully
consider the disclosures relating to the risks of an investment in the Company
contained in the reports or documents we subsequently file under Section 13(a),
13(c), 14 or 15(d) of the Securities Exchange Act of 1934, as amended, or the
Exchange Act, which reports and documents will deemed to be incorporated by
reference into this Prospectus upon their filing. See “Incorporation of Certain
Documents by Reference” and “Forward-Looking Statements and Other Factors
Affecting Future Results.”
The risks and
uncertainties described below and in the documents incorporated by reference
herein are not the only ones facing us. Additional risks and uncertainties that
we do not presently know about or that we currently believe are not material may
also adversely affect our business. If any of the risks and
uncertainties described in this Prospectus or the documents incorporated by
reference herein actually occur, our business, financial condition and results
of operation could be materially and adversely affected. If this were
to happen, the value of our common stock could decline significantly, and you
may lose part or all of your investment.
Risks
Related to Growth
We
may not be able to adapt our management and operational systems to integrate and
manage our growth without additional expense.
The acquisition of
the CapitalSource subsidiaries described above has significantly increased the
number of long-term care facilities in our investment portfolio and the number
of states in which we own facilities. We may acquire additional CapitalSource
subsidiaries pursuant to the terms of the securities purchase agreement
described above, which will further expand the size and scope of our portfolio.
We cannot assure you that we will be able to adapt our management,
administrative, accounting and operational systems to integrate and manage the
facilities we have acquired and those that we may acquire under our existing
cost structure. Our failure to timely integrate and manage the acquisition of
the CapitalSource subsidiaries and future acquisitions or developments, could
have a material adverse effect on our results of operations and financial
condition and our ability to make distributions to our
stockholders.
We
may be subject to additional risks in connection with our recent and future
acquisitions of long-term care facilities.
We may be subject to
additional risks in connection with our recent and future acquisition of
long-term care facilities from CapitalSource, including but not limited to the
following:
| ● | we have no previous business experience with the operators of a significant number of the facilities we acquired or may acquire from CapitalSource; |
| ● |
the
facilities may underperform due to various factors, including unfavorable
terms and conditions of the lease agreements that we assume or may assume,
disruptions caused by the management of the operators of the facilities or
changes in economic conditions impacting the facilities and/or the
operators;
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diversion
of our management’s attention away from other business
concerns;
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4
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exposure
to any undisclosed or unknown potential liabilities relating to the
facilities; and
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potential
underinsured losses on the
facilities.
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We cannot
assure you that we will be able to manage the new facilities without
encountering difficulties or that any such difficulties will not have a material
adverse effect on us.
We
issued shares of common stock in connection with the CapitalSource subsidiaries
we recently acquired, which diluted the ownership of our existing
stockholders.
As part of our
acquisition of the CapitalSource subsidiaries, we issued 2,714,959 shares of
common stock and agreed to register these shares with the SEC for resale by the
selling stockholder. As a result, our stockholders experienced dilution, and as
these shares become available for resale, the supply of our common stock will
increase, which could result in a decrease in the price of our common
stock.
We
incurred additional debt in connection with our recent acquisition of the
CapitalSource subsidiaries, which will expose us to increased risk of property
losses and may have adverse consequences on our business operations and our
ability to make distributions to stockholders.
We incurred
additional debt in connection with our recent acquisition of the CapitalSource
healthcare property portfolio, including the assumption of approximately $59
million of mortgage debt maturing December 31, 2011, $100 million in the form of
a separate secured term loan maturing December 31, 2014, and an additional $90
million drawn under our existing $200 million senior secured revolving credit
facility. In addition, we may incur substantial debt in connection with our
purchase of the additional CapitalSource subsidiaries as contemplated by the
securities purchase agreement. As of December 31, 2009, we had total
outstanding indebtedness of approximately $738 million. Our substantial
indebtedness could significantly impact our business. For example, it
could:
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limit
our ability to satisfy our obligations with respect to holders of our
capital stock;
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increase
our vulnerability to general adverse economic and industry
conditions;
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limit
our ability to obtain additional financing to fund future working capital,
capital expenditures and other general corporate requirements, or to carry
out other aspects of our business plan;
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require
us to dedicate a substantial portion of our cash flow from operations to
payments on indebtedness, thereby reducing the availability of such cash
flow to fund working capital, capital expenditures and other general
corporate requirements, or to carry out other aspects of our business
plan;
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require
us to pledge as collateral substantially all of our
assets;
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require
us to maintain certain debt coverage and financial ratios at specified
levels, thereby reducing our financial flexibility;
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limit
our ability to make material acquisitions or take advantage of business
opportunities that may arise;
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expose
us to fluctuations in interest rates, to the extent our borrowings bear
variable rates of interests;
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result
in a possible downgrade of our credit rating;
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limit
our flexibility in planning for, or reacting to, changes in our business
and industry; and
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place
us at a competitive disadvantage compared to our competitors that have
less debt.
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Since a
portion of our outstanding indebtedness bears interest at variable rates, if
interest rates were to increase significantly, our ability to borrow additional
funds may be reduced and the risk related to our indebtedness would
intensify. In addition, the terms of our senior credit facility and
other indebtedness require us to comply with a number of customary financial and
other covenants. Our continued ability to incur indebtedness and conduct our
operations is subject to compliance with these financial and other covenants.
Breaches of these covenants could result in defaults under the instruments
governing the applicable indebtedness, in addition to any other indebtedness
cross-defaulted against such instruments. Any such breach could materially
adversely affect our business, results of operations and financial
condition.
5
In connection with the
acquisition of certain CapitalSource subsidiaries, we have issued 2,714,959
shares of our common stock as consideration in a private placement to the
selling stockholder. Pursuant to a registration rights agreement we
entered into with CapitalSource and the selling stockholder in connection with
the acquisition, we are registering these shares of common stock to permit the
selling stockholder to offer the shares for resale from time to
time.
The selling stockholder
may from time to time offer and sell the shares of our common stock issued in
the acquisition pursuant to this Prospectus. The term “selling
stockholder” includes the entity listed below and its transferees, pledges,
donees or other successors. Information concerning the selling
stockholder may change after the date of this Prospectus and changed information
will be presented in an amendment or supplement to this Prospectus if and when
required.
The selling stockholder,
CapitalSource Healthcare REIT, a subsidiary of CapitalSource, did not have a
material relationship with Omega at any time during the last three years other
than in connection with the securities purchase agreement and acquisition of the
CapitalSource subsidiaries as described above, including but not limited to
Omega’s assumption of $59.4 million of debt that is payable to an affiliate of
CapitalSource.
The following table sets
forth the name of the selling stockholder, the number of shares and percentage
of our common stock beneficially owned by the selling stockholder immediately
prior to this registration, the number of shares registered and the number of
shares and percentage of our common stock to be beneficially owned by the
selling stockholder assuming all shares covered by this registration statement
are sold. The last two columns of this table assume that all shares
covered by this Prospectus will be sold by the selling stockholder and that no
additional shares of our common stock are bought or otherwise acquired or sold
by the selling stockholder.
|
Name
|
Beneficial
Ownership Prior to
the
Registration
|
Shares
Covered
by
this
Registration
Statement
|
Beneficial
Ownership After
the
Shares are Sold
|
||
|
Number
of
Shares
|
Percentage
Ownership
1
|
Number
of
Shares
|
Percentage Ownership
|
||
| CapitalSource Healthcare REIT |
2,714,959
|
3.1%
|
2,714,959
|
0
|
-
|
|
Total
|
2,714,959
|
3.1%
|
2,714,959
|
0
|
-
|
1 Based
on 88,265,565 shares of issued and outstanding common stock as of January 14,
2010.
6
The selling stockholder
may effect from time to time sales of our common stock directly or indirectly,
by or through underwriters, agents or broker-dealers, and our common stock may
be sold by one or a combination of several of the following
methods:
| ● |
on
any national securities exchange or quotation service on which the
securities may be listed or quoted at the time of the
sale;
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| ● |
in
transactions otherwise than on these exchanges or systems or in the
over-the-counter market;
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| ● |
ordinary
brokerage transactions;
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| ● |
an
underwritten public offering in which one or more underwriters
participate;
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| ● |
put
or call options transactions or hedging transactions relating to the
common stock;
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short
sales;
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| ● |
purchases
by a broker-dealer as principal and resale by that broker-dealer for its
own account;
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“block”
sale transactions;
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| ● |
privately
negotiated transactions;
|
| ● |
a
combination of any such methods of sale; and
|
| ● |
any
other method permitted pursuant to applicable
law.
|
The
common stock may be sold at prices and on terms then prevailing in the market,
at prices related to the then-current market price of the common stock or at
negotiated prices. At the time that a particular offer is made, a
prospectus supplement, if required, will be distributed that describes the name
or names of underwriters, agents or broker-dealers, any discounts, commissions
and other terms constituting selling compensation and any other required
information. Moreover, in effecting sales, broker-dealers engaged by the selling
stockholder and purchasers of the common stock may arrange for other
broker-dealers to participate in the sale process. Broker-dealers may receive
discounts or commissions from the selling stockholder and the purchasers of the
common stock in amounts that would be negotiated prior to the time of the sale.
Sales through broker-dealers will be made only through broker-dealers properly
registered in a subject jurisdiction or in transactions exempt from
registration. If the shares of common stock are sold through underwriters, the
selling stockholder will be responsible for underwriting discounts or
commissions. Any of these underwriters, broker-dealers or agents may perform
services for us or our affiliates in the ordinary course of business. We have
not been advised that the selling stockholder has any definitive selling
arrangement with any underwriter, broker-dealer or agent.
If the selling
stockholder effects transactions by selling shares of common stock to or through
underwriters, broker-dealers or agents, such underwriters, broker-dealers or
agents may receive commissions in the form of discounts, concessions or
commissions from the selling stockholder or commissions from purchasers of the
shares of common stock for whom they may act as agent or to whom they may sell
as principal (which discounts, concessions or commissions as to particular
underwriters, broker-dealers or agents may be in excess of those customary in
the types of transactions involved).
7
There can be no assurance
that the selling stockholder will sell any or all of the shares of common stock
registered pursuant to the registration statement, of which this Prospectus
forms a part.
The selling stockholder
and any other person participating in any distribution will be subject to
applicable provisions of the Exchange Act, and the rules and regulations
thereunder, including, without limitation, Regulation M of the Exchange Act,
which may limit the timing of purchases and sales of any of the shares of common
stock by the selling stockholder and any other participating person. Regulation
M may also restrict the ability of any person engaged in the distribution of the
shares of common stock to engage in market-making activities with respect to the
shares of common stock. All of the foregoing may affect the marketability of the
shares of common stock and the ability of any person or entity to engage in
market-making activities with respect to the shares of common
stock.
The selling stockholder
may also resell all or a portion of its common stock in open market transactions
in reliance upon Rule 144 of the Securities Act, provided that such sale meets
the criteria and conforms to the requirements of such rule.
Any broker or dealer
participating in any distribution of the common stock in connection with the
offering made by this Prospectus may be considered to be an “underwriter” within
the meaning of the Securities Act and may be required to deliver a copy of this
Prospectus, including a prospectus supplement, if required, to any person who
purchases any of the common stock from or through that broker or
dealer.
We will not receive any of
the proceeds from the sale of the common stock by the selling stockholder
pursuant to this Prospectus. We will bear all expenses incident to the
registration of the common stock under federal and state securities laws and the
sale of the common stock hereunder, other than discounts, fees of underwriters,
selling brokers and dealer managers, attorneys fees incurred by the selling
stockholder, and any transfer taxes payable on any shares.
To comply with various
states’ securities laws, if applicable, the common stock will be sold in such
jurisdictions only through registered or licensed brokers or
dealers.
We have agreed to
indemnify the selling stockholders and any person authorized to act and who acts
on behalf of the selling stockholder against liabilities relating to the
registration statement, including liabilities under the Securities Act and the
Exchange Act. The selling stockholder has agreed to indemnify us, our directors
and officers and any control persons against liabilities relating to any
information given to us by such parties for inclusion in the registration
statement, including liabilities under the Securities Act and the Exchange
Act.
8
The validity of the shares
of common stock being offered hereby has been passed upon for us by Bryan Cave
LLP, Atlanta, Georgia. In addition, Bryan Cave LLP, Atlanta, Georgia,
has passed upon certain federal income tax matters.
Ernst & Young LLP,
independent registered public accounting firm, has audited our consolidated
financial statements and schedules included in our Annual Report on Form 10-K
for the year ended December 31, 2008, and the effectiveness of internal
control over financial reporting as of December 31, 2008, as set forth in
their reports, which are incorporated by reference in this Prospectus and
elsewhere in the registration statement. Our financial statements and schedules
are incorporated by reference in reliance on Ernst & Young LLP’s reports,
given on their authority as experts in accounting and
auditing.
Ernst & Young LLP has
audited the combined statement of revenues and certain expenses of the
Healthcare Real Estate Carve-out of CapitalSource Inc.: Closings I & II for
the year ended December 31, 2008, which is incorporated by reference in this
Prospectus and elsewhere in the registration statement in reliance on Ernst
& Young LLP’s report thereon, given on their authority as experts in
accounting and auditing.
We file
annual, quarterly and current reports, proxy statements and other information
with the SEC. You may read and copy any document we file with the SEC at its
public reference room at 100 F Street, N.E., Washington, D.C. 20549. You can
call the SEC at 1-800-SEC-0330 for further information on the operation of the
public reference room. Our SEC filings are also available to the public at the
web site maintained by the SEC at www.sec.gov, as well as on our website at
www.omegahealthcare.com. You may inspect information that we file with the NYSE
at the offices of the NYSE at 20 Broad Street, New York, New York 10005.
Information on our website is not incorporated by reference herein and our web
address is included as an inactive textual reference only.
9
The
SEC allows us to “incorporate by reference” the information we file with the
SEC, which means that we can disclose important information to you by referring
to our other filings with the SEC. The information that we incorporate by
reference is considered a part of this Prospectus and information that we file
later with the SEC will automatically update and supersede the information
contained in this Prospectus. We incorporate by reference the following
documents (File No. 1-11316) we filed with the SEC pursuant to
Section 13(a), 13(c), 14 or 15(d) of the Exchange Act, other than
information in these documents that is not deemed to be filed with the
SEC:
| ● |
our
Annual Report on Form 10-K for the year ended December 31, 2008,
filed with the SEC on March 2, 2009;
|
| ● |
our
Quarterly Report on Form 10-Q for the quarter ended March 31, 2009, filed
with the SEC on May 8, 2009;
|
| ● |
our
Quarterly Report on Form 10-Q for the quarter ended June 30, 2009, filed
with the SEC on August 6, 2009;
|
| ● |
our
Quarterly Report on Form 10-Q for the quarter ended September 30, 2009,
filed with the SEC on November 5, 2009;
|
| ● |
our
current reports* on Form 8-K, filed with the SEC on February 10, 2009,
June 2, 2009, June 15, 2009, July 6, 2009, July 30, 2009, November 23,
2009, December 23, 2009, December 29, 2009; and January 15,
2010;
|
| ● |
the
description of our common stock contained in our Registration Statement on
Form 8-A, filed with the SEC on August 4, 2002, and any amendments or
reports filed for the purpose of updating that description;
and
|
| ● |
our
Proxy Statement on Schedule 14A, relating to the annual meeting of
stockholders held on May 21, 2009, filed with the SEC on April 20,
2009.
|
|
|
*
|
We
are not incorporating and will not incorporate by reference into this
Prospectus past or future information on reports furnished or that will be
furnished under Items 2.02 and/or 7.01 of, or otherwise with, Form
8-K.
|
All
documents we file later with the SEC pursuant to Sections 13(a), 13(c), 14 or
15(d) of the Exchange Act subsequent to the date of this Prospectus and prior to
the termination of the offering of our securities as described in this
Prospectus will be deemed to be incorporated by reference into this Prospectus,
other than information in the documents that is not deemed to be filed with the
SEC. A statement contained in this Prospectus or in a document incorporated or
deemed to be incorporated by reference into this Prospectus will be deemed to be
modified or superseded to the extent that a statement contained in any
subsequently filed document that is incorporated by reference into this
Prospectus, modifies or supersedes that statement. Any statements so modified or
superseded will not be deemed, except as so modified or superseded, to
constitute a part of this Prospectus.
We will
provide without charge to each person to whom this Prospectus is delivered, upon
written or oral request of any person, a copy of any or all of the documents
incorporated herein by reference, other than exhibits to the documents, unless
the exhibits are specifically incorporated by reference into the documents that
this Prospectus incorporates. Requests for copies in writing or by telephone
should be directed to:
Omega
Healthcare Investors, Inc.
200
International Circle
Suite
3500
Hunt
Valley, MD 21030
Attn:
Chief Financial Officer
(410) 427-1700
10
PART
II
INFORMATION
NOT REQUIRED IN PROSPECTUS
Item
14. Other Expenses of Issuance and Distribution
The
following table sets forth the costs and expenses to be paid by the Company in
connection with the offering of the securities registered. All amounts are
estimates except for the registration fee.
|
SEC
Registration Fee
|
$ | 3,864 | ||
|
Accounting
Fees and Expenses
|
20,000 | |||
|
Legal
Fees and Expenses
|
25,000 | |||
|
Printing
and Filing Expenses
|
5,000 | |||
|
Miscellaneous
|
6,136 | |||
|
Total
|
$ | 60,000 |
Item
15. 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 a criminal proceeding, 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. However, a corporation may not indemnify a
director or officer who shall have been adjudged to be liable to the
corporation, or who instituted a proceeding against the corporation (unless such
proceeding was brought to enforce the charter, bylaws or the indemnification
provisions thereunder). The termination of any proceeding by judgment, order or
settlement does not create a presumption that the director or officer 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. A director may not be indemnified for any proceeding
brought by that director against the corporation, except to enforce an
indemnification right, or if the corporation’s charter or an outside agreement
provides otherwise.
The
registrant has also entered into indemnity agreements with the officers and
directors of the registrant that provide that the registrant 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
registrant. Once an initial determination is made by the registrant that a
director or officer did not act in bad faith or for personal benefit, the
indemnification provisions contained in the charter, bylaws, and indemnity
agreements would require the registrant to advance any reasonable expenses
incurred by the director or officer, and to pay the costs, judgments, and
penalties determined against a director or officer in a proceeding brought
against them.
11
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 SEC is of the opinion that such
indemnification contravenes federal public policy as expressed in said act and
therefore is unenforceable.
Item
16. Exhibits
The exhibits to this
registration statement are listed in the Exhibit Index that immediately precedes
such exhibits and is hereby incorporated by reference.
Item
17. 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;
(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 in this 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 end 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; and
(iii) To
include any material information with respect to the plan of distribution not
previously disclosed in this 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
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
Exchange Act that are incorporated by reference in the registration statement,
or is contained in a form of prospectus filed pursuant to Rule 424(b) that is
part of 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.
12
(4) That,
for the purpose of determining liability under the Securities Act of 1933 to any
purchaser:
(i) If the
registrant is relying on Rule 430B:
|
|
(A) Each prospectus filed by the registrant pursuant to Rule
424(b)(3) shall be deemed to be part of the registration statement as of
the date the filed prospectus was deemed part of and included in the
registration statement; and
|
|
|
(B)
Each prospectus required to be filed pursuant to Rule 424(b)(2), (b)(5),
or (b)(7) as part of a registration statement in reliance on Rule 430B
relating to an offering made pursuant to Rule 415(a)(1)(i), (vii), or (x)
for the purpose of providing the information required by Section 10(a) of
the Securities Act of 1933 shall be deemed to be part of and included in
the registration statement as of the earlier of the date such form of
prospectus is first used after effectiveness or the date of the first
contract of sale of securities in the offering described in the
prospectus. As provided in Rule 430B, for liability purposes of the issuer
and any person that is at that date an underwriter, such date shall be
deemed to be a new effective date of the registration statement relating
to the securities in the registration statement to which that prospectus
relates, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof. Provided,
however, that no statement made in a registration statement or
prospectus that is part of the registration statement or made in a
document incorporated or deemed incorporated by reference into the
registration statement or prospectus that is part of the registration
statement will, as to a purchaser with a time of contract of sale prior to
such effective date, supersede or modify any statement that was made in
the registration statement or prospectus that was part of the registration
statement or made in any such document immediately prior to such effective
date; or
|
(b)
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 Exchange Act (and, where applicable, each filing of an
employee benefit plan’s annual report pursuant to section 15(d) of the Exchange
Act) 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 of 1933 may
be permitted to directors, officers and controlling persons of each 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.
13
SIGNATURES
Pursuant
to the requirements of the Securities Act of 1933, the Registrant certifies that
it has reasonable grounds to believe it meets all 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 Hunt
Valley, State of Maryland, on this 15th day
of January, 2010.
| OMEGA HEALTHCARE INVESTORS, INC. | ||
|
|
By:
|
/s/ Taylor Pickett |
| C. Taylor Pickett | ||
| Chief Executive Officer | ||
POWER
OF ATTORNEY
KNOW
ALL MEN BY THESE PRESENTS, that each person who signature appears below
constitutes and appoints C. Taylor Pickett and Robert O. Stephenson, or either
of them, his true and lawful attorneys-in-fact and agents, with full power of
substitution and resubstitution, for him and in his name, place and stead, in
any and all capacities, to sign any or all 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
either of said attorneys-in-fact and agents, 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 as to all intents and purposes as he might or could
do in person, hereby ratifying and confirming all that either of said
attorneys-in-fact and agents, or his or her substitute or substitutes, may
lawfully do or cause to be done by virtue hereof.
Pursuant
to the requirements of the Securities Act of 1933, this Registration Statement
has been signed by the following persons in the capacities indicated on January
15, 2010.
|
Signature
|
Position
|
||
|
/s/
Taylor Pickett
|
|
||
|
C.
Taylor Pickett
|
Chief
Executive Officer and Director
(Principal
Executive Officer)
|
||
|
/s/
Robert O. Stephenson
|
|
||
|
Robert
O. Stephenson
|
Chief
Financial Officer
(Principal
Financial Officer)
|
||
|
/s/
Michael D. Ritz
|
|
||
|
Michael
D. Ritz
|
Chief
Accounting Officer
(Principal
Accounting Officer)
|
||
| /s/ Bernard J. Korman | |||
| Bernard J. Korman | Chairman of the Board of Directors | ||
| /s/ Thomas S. Franke | |||
| Thomas S. Franke |
Director
|
||
|
/s/
Harold J. Kloosterman
|
|||
|
Harold
J. Kloosterman
|
Director
|
||
|
/s/
Edward Lowenthal
|
|||
|
Edward
Lowenthal
|
Director
|
||
|
/s/
Stephen D. Plavin
|
|||
|
Stephen
D. Plavin
|
Director
|
14
EXHIBIT
INDEX
|
Exhibit
Number
|
Description
|
|
||
|
5.1+
|
Opinion of Bryan Cave LLP regarding the legality of the securities being registered. | |||
|
8.1+
|
Opinion of Bryan Cave LLP regarding certain tax matters. | |||
|
23.1+
|
Consent of Ernst & Young LLP (with respect to Healthcare Real Estate Carve-Out of CapitalSource Inc.: Closings I and II). | |||
| 23.2+ | Consent of Ernst & Young LLP (with respect to Omega Healthcare Investors, Inc. audited financial statements). | |||
|
23.3+
|
Consent of Bryan Cave LLP (included in Exhibit 5.1). | |||
|
24.1
|
Power of Attorney (included on signature page of the registration statement). | |||
+ Filed
herewith.