UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM
10-K/A
(Amendment No. 1)
(Mark One)
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Annual Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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For the fiscal year ended December 31, 2009
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Transition Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
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For the transition period from
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Commission File Number: 001-33549
Care Investment Trust Inc.
(Exact name of Registrant as specified in its charter)
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Maryland
(State or other jurisdiction of
incorporation or organization)
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38-3754322
(IRS Employer
Identification Number)
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505 Fifth Avenue, 6
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Floor, New York, New York 10017
(Address of Registrants principal executive offices)
(212) 771-0505
(Registrants
telephone number, including area code)
Securities Registered Pursuant to Section 12(b) of the Act:
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Title of each class
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Name of each exchange on which registered
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Common Stock
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New York Stock Exchange
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Securities Registered Pursuant to Section 12(g) of the Act: None
Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Act. Yes
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No
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Indicate by check mark if the registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Act. Yes
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No
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Indicate by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months
(or for such shorter period that the registrant was required to file such reports), and (2) has
been subject to such filing requirements for the past 90 days. Yes
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No
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Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K (§ 229.405 of this chapter) is not contained herein, and will not be contained, to
the best of the registrants knowledge, in definitive proxy or information statements incorporated
by reference in Part III of this Form 10-K or any amendment to this Form 10-K
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Indicate by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer, or a smaller reporting company. See definition of
large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the
Exchange Act (check one):
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Large accelerated filer
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Accelerated filer
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Non-accelerated filer
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(Do not check if a smaller reporting company)
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Smaller reporting company
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Indicate by check mark whether the registrant is a shell company (as defined in Rule
12b-2 of the Act). Yes
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No
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State the aggregate market value of the voting and non-voting common equity held by
non-affiliates computed by reference to the price at which the common equity was last sold, or the
average bid and asked price of such common equity, as of the last day of the registrants most
recently completed second fiscal quarter: $65,704,642.
Indicate the number of shares outstanding of each of the issuers classes of common
stock, as of the latest practicable date.
As of April 20, 2010, there were 20,230,152 shares, par value $0.001, of the registrants
common stock outstanding.
DOCUMENTS INCORPORATED BY REFERENCE
None.
EXPLANATORY NOTE
Care Investment Trust Inc. (the Company) is filing this Amendment No. 1 to Form 10-K on
Form 10-K/A for the fiscal year ended December 31, 2009, in order to amend and restate Part III,
Items 10 through 14 of the report on Form 10-K that we originally filed with the Securities and
Exchange Commission (the SEC) on March 16, 2010.
This Form 10-K/A has been prepared and filed in reliance on General Instruction G to Form
10-K, which provides that registrants may provide the information required by Part III in a
definitive proxy statement or an amendment to the Form 10-K filed with the SEC within 120 days
after the end of the fiscal year covered by the report. The Company had initially planned to file
the Part III information in a definitive proxy statement. The Company has determined to instead
file this Form 10-K/A to provide the Part III information within the required time period.
In accordance with Rule 12b-15 under the Securities Exchange Act of 1934, as amended (the
Exchange Act), each item of the original Form 10-K that is amended by this Form 10-K/A is
restated in its entirety, and this Form 10-K/A is accompanied by currently dated certifications on
Exhibits 31.1 and 32.1 by the Companys Chief Executive Officer and Exhibits 31.2 and 32.2 by the Companys
Chief Financial Officer.
The original Form 10-K is therefore amended to (i) delete the reference on the cover of the
original Form 10-K to the incorporation by reference of a definitive proxy statement into Part III
of such Form 10-K and (ii) revise Part III, Items 10 through 14 of the Companys original Form 10-K
to include information previously omitted from the original Form 10-K.
Except as described above, no other changes have been made to the original Form 10-K. The
original Form 10-K continues to speak as of March 16, 2010, the date the Company filed the original
Form 10-K with the SEC, and other than as expressly indicated in this Form 10-K/A, the Company has
not updated the disclosures contained therein to reflect any events that have occurred at a date
subsequent to March 16, 2010. Accordingly, this Form 10-K/A should be read in conjunction with the
original Form 10-K and the Companys other reports filed thereafter.
FORWARD LOOKING STATEMENTS
Care Investment Trust Inc. (all references to Care, the Company, we, us, and our
mean Care Investment Trust Inc. and its subsidiaries) makes forward-looking statements in this
Form 10-K/A that are subject to risks and uncertainties. Forward-looking statements include all
statements that do not relate solely to historical or current facts and can be identified by the
use of words such as may, will, expect, believe, intend, plan, estimate, continue,
should and other comparable terms. These forward-looking statements include information about
possible or assumed future results of our business and our financial condition, liquidity, results
of operations, plans and objectives. They also include, among other things, statements concerning
anticipated revenue, income or loss, capital expenditures, dividends, capital structure, or other
financial terms as well as statements regarding subjects that are forward-looking by their nature.
The forward looking statements are based on our beliefs, assumptions, and expectations of our
future performance, taking into account the information currently available to us. These beliefs,
assumptions, and expectations can change as a result of many possible events or factors, not all of
which are known to us. If a change occurs, our business, financial condition, liquidity, and
results of operations may vary materially from those expressed in our forward looking statements.
You should carefully consider these risks that could cause actual results to vary from our forward looking statements
when you make a decision concerning an investment in our
securities. We are not
obligated to publicly update or
revise any forward looking statements, whether as a result of new information, future events,
or otherwise.
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Part III
ITEM 10. Directors, Executive Officers and Corporate Governance.
Directors
Set forth below is the name, age, title and tenure of each director of the Company followed by
a summary of each directors background and principal occupations.
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Name
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Age
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Director Since
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Flint D. Besecker (Chairman of the Board)
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2007
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Gerald E. Bisbee, Jr., Ph.D. (Chairman of the Audit Committee)
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2007
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Karen P. Robards
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2007
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J. Rainer Twiford (Chair of the CNG Committee)
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2007
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Steven N. Warden
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2008
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Flint
D. Besecker
has been a member of our Board of Directors since
Care was formed in 2007 and serves
as our chairman. Mr. Besecker is a veteran of both the commercial finance and healthcare
industries and currently runs Firestone Asset Management, a healthcare middle market private equity
business he founded in 2008. Firestone owns a variety of private equity investments focused on
early stage life science drug development as well as specialty pharmaceutical companies. In
addition, Mr. Besecker was formerly a director and chairman of the compensation committee of
Allion Healthcare, a specialty pharmaceutical company serving patients throughout the U.S. Prior to
founding Firestone Asset Management, Mr. Besecker served as the president and founder of CIT
Healthcare LLC (our Manager), and also served as president of CIT Commercial Real Estate. Prior
to joining CIT in 2004, Mr. Besecker held a variety of executive positions including managing
director of GE Healthcare Financial Services, executive vice president and chief risk officer of
Heller Healthcare Finance and president and co-founder of Healthcare Analysis Corporation. He also
served as an officer of Healthcare Financial Partners prior to its acquisition by Heller. Mr.
Besecker is treasurer and board member for the Center of Hospice and Palliative Care of Western NY.
He received a BS in Accounting from Canisius College in 1988 and is a Certified Public Accountant.
Mr. Besecker was selected to serve as a member and chairman of our Board of Directors because of
his significant achievements with, and intimate knowledge of, the Company and his extensive
experience in healthcare and real estate.
Gerald E. Bisbee, Jr., Ph.D.
has been a member of our Board of Directors since the
consummation of our initial public offering in 2007. Since 1998, Mr. Bisbee has been chairman,
president and chief executive officer of ReGen Biologics, Inc., an orthopedic medical device
developer, manufacturer and distributor. Prior to joining ReGen, Mr. Bisbee was chairman and chief
executive officer of APACHE Medical Systems, Inc., which he joined in 1989. Mr. Bisbee is currently
a director of Cerner Corporation (NASDAQ: CERN) and ReGen Biologics,
Inc. (US: RGBOE). Mr. Bisbee received a BA in business from North
Central College, an MBA from the Wharton School of the University of Pennsylvania and a Ph.D. and
M. Phil. from Yale University. Mr. Bisbee was selected to serve as a member of our Board of
Directors because of his significant high level experience in the health care industry and
experience of serving on the boards of other public companies.
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Karen P. Robards
has been a member of our Board of Directors since the consummation of our
initial public offering in 2007. Since 1987, Ms. Robards has been a partner of Robards & Company,
LLC, a financial advisory and private investment firm. From 1976 to 1987, Ms. Robards was an
investment banker at Morgan Stanley & Co., where she headed its healthcare investment banking
activities. Ms. Robards serves as the vice chair of the board and chair of the audit committee of
the closed-end mutual funds managed by Blackrock, Inc., and she is a director of AtriCure Inc.
(NASDAQ: ATRC) where she serves on the audit committee and is chair of the compensation committee.
From 1996 to 2005, Ms. Robards served on the board of directors and was chair of the audit committee
of Enable Medical Corporation, which was acquired by AtriCure Inc. in 2005. Ms. Robards is a
co-founder and director of the Cooke Center for Learning and Development. Ms. Robards received an
AB in economics from Smith College and an MBA from Harvard Business School. Ms. Robards was
selected to serve on our Board of Directors because of her more than fifteen years of corporate governance
experience and long and extensive healthcare and finance experience.
J. Rainer Twiford
has been a member of our Board of Directors since the consummation of our
initial public offering in 2007. Since 1999, Mr. Twiford has been president of Brookline Partners,
Inc., an investment advisory company. Prior to joining Brookline Partners, Mr. Twiford was partner
of Trammell Crow Company from 1987 until 1991. Mr. Twiford is currently a director of IPI, Inc.,
Smith of Georgia and Tracon Pharmaceuticals, and previously served on the board of a children
behavioral health company. Mr. Twiford received a BA and a Ph.D. from the University of
Mississippi, an MA from the University of Akron and a JD from the University of Virginia. Mr.
Twiford was selected to be a member of our Board of Directors because of his extensive high level
experience in the financial industry.
Steven
N. Warden
has been a member of our Board of Directors since
2008. Mr. Warden joined CIT Group (NYSE: CIT) in 2005 as co-founder of our Manager. Mr. Warden was named
President of our Manager in April 2008. Mr. Warden is also a member of our Managers Investment
Committee. Prior to joining CIT, Mr. Warden was managing director of the Strategic Relationship
Group at GE Healthcare Financial Services from 2002 to 2005. From 1992 to 2002, Mr. Warden was with
Deutsche Bank Securities in New York, most recently as a managing director in the Leveraged Finance
Group. Prior to joining Deutsche Bank Securities, Mr. Warden worked at Wells Fargo Bank and
Manufacturers Hanover Trust Company. Mr. Warden received a BA from St. Lawrence University. Mr.
Warden was selected to be a member of our Board of Directors because of his intimate knowledge of
our Manager and significant experience in the financial industry.
Board of Directors Upon Closing of Transaction with Tiptree Financial Partners, L.P.
On March 16, 2010, we entered into a purchase and sale agreement with Tiptree Financial
Partners, L.P. (Tiptree). One of the conditions to closing the transaction is the resignation
of at least three (3) of our current directors and the appointment by Cares board of directors of
candidates acceptable to Tiptree to fill the resulting vacancies.
Director Independence
Our Corporate Governance Guidelines require that a substantial majority of the Board be
composed of directors who meet the independence criteria established by the NYSE. For a director to
be considered independent, the Board must affirmatively determine that the director has no material
relationship with Care (either directly or as a partner, stockholder, or officer of an organization
that has a relationship with Care). In assessing the materiality of a directors relationship with
Care, the Board broadly considers all relevant facts and circumstances, not only from the
standpoint of the director, but also that of persons or organizations with which the director has
an affiliation. The Board considers the following criteria, among others, in determining whether a
director qualifies as independent:
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The director cannot have been an employee, or have an immediate family
member who was an executive officer, of Care during the preceding
three (3) years;
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The director cannot receive, or have an immediate family member who
has received at any time during the previous three (3) years, more
than $100,000 during any twelve-month period in direct compensation
from Care, other than director and committee fees and pension or other
forms of deferred compensation for prior service (provided such
compensation is not contingent on continued service);
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The director cannot be affiliated with or employed by, or have an
immediate family member who was affiliated with or employed in a
professional capacity by, a present or former internal or external
auditor of Care or any of its consolidated subsidiaries during the
preceding three (3) years;
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The director cannot be employed, or have an immediate family member
who was employed, as an executive officer of another company where any
of Cares present executives has served on such companys compensation
committee during the preceding three (3) years; and
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The director cannot be an executive officer or an employee, or have an
immediate family member who was an executive officer, of a company
that made payments to or received payments from Care for property or
services in an amount per year in excess of the greater of $1 million
or 2% of such companys consolidated gross revenues during the
preceding three (3) years.
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Our Definition of Independent Director is included as Appendix A to this Form 10-K/A. Our
Board of Directors has affirmatively determined, based upon its review of all relevant facts and
circumstances, that each of the following directors has no direct or indirect material
relationship with us and is independent under NYSE standards and our Definition of an Independent
Director: Messrs. Gerald E. Bisbee, Jr., Ph.D. and J. Rainer Twiford and Ms. Karen P. Robards.
Audit Committee
Our Board of Directors has established an audit committee that meets the definition provided
by Section 3(a)(58)(A) of the Securities Exchange Act of 1934, as amended. The Audit Committee is
comprised of our three (3) independent directors: Messrs. Bisbee and Twiford and Ms. Robards. In
addition to satisfying the NYSEs definition of independence and the Companys own definition of
independence, our Audit Committee members satisfy the definition of independence imposed by
Rule 10A-3 under the Securities Exchange Act of 1934, as amended. Mr. Bisbee chairs the committee
and has been determined by our Board of Directors to be an audit committee financial expert as
that term is defined in the Securities Exchange Act of 1934, as amended.
The Audit Committee assists the Board of Directors in overseeing:
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our accounting and financial reporting processes;
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the integrity and audits of our consolidated financial statements;
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our compliance with legal and regulatory requirements;
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the qualifications and independence of our independent auditors; and
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the performance of our independent auditors and any internal auditors.
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The Audit Committee is also responsible for engaging the independent auditors, reviewing with
the independent auditors the plans and results of the audit engagement, approving professional
services provided by the independent auditors and considering the range of audit and non-audit
fees.
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AUDIT COMMITTEE REPORT
The Audit Committee oversees our financial reporting process on behalf of our Board of
Directors, in accordance with our Audit Committee Charter, which was approved in 2007. Management
has the primary responsibility for the preparation and presentation and integrity of our financial
statements and has represented to the Audit Committee that such financial statements were prepared
in accordance with generally accepted accounting principles. In fulfilling its oversight
responsibilities, our Audit Committee reviewed the audited financial statements in the Annual
Report on Form 10-K for the year ended December 31, 2009 with management, including a discussion of
the quality, not just the acceptability, of the accounting principles, the reasonableness of
significant judgments and the clarity of disclosures in the financial statements.
Our Audit Committee reviewed with our independent auditors, who are responsible for auditing
our financial statements and for expressing an opinion on the conformity of those audited financial
statements with accounting principles generally accepted in the United States, their judgment as to
the quality, not just the acceptability, of our accounting principles and such other matters as are
required to be discussed with the Audit Committee under Statement on Auditing Standards No. 61
(Communication with Audit Committees), as currently in effect. Our independent auditors also
provided to the Audit Committee the written disclosures required by the applicable requirements of
the Public Company Accounting Oversight Board relating to the independent accountants
communications with the Audit Committee concerning independence. In addition, the Audit Committee
has discussed with our independent auditors the auditors independence from both management and our
Company.
Our Audit Committee discussed with our independent auditors the overall scope and plans for
their audit. Our Audit Committee met with our independent auditors, with and without management
present, to discuss the results of their examinations, and the overall quality of our financial
reporting.
In reliance on the reviews and discussions referred to above, our Audit Committee recommended
to our Board of Directors that the audited financial statements be included in the Annual Report on
Form 10-K for the year ended December 31, 2009 for filing with the SEC.
Submitted by our Audit Committee
Gerald E. Bisbee, Jr. Ph.D. (Chairman)
Karen P. Robards
J. Rainer Twiford
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Executive Officers
Set forth below is the name, age and title of each executive officer of the Company followed
by a summary of each executives background.
Salvatore (Torey) V. Riso Jr.
, age 48, has served as our president and chief executive officer
since December 2009. Mr. Riso formerly served as our secretary and chief compliance officer since
February 2008 and has been employed by CIT Group since September 2005, serving as senior vice
president and chief counsel of CIT Corporate Finance since March 2007. Prior to his current
position at CIT Group, Mr. Riso served as chief counsel for our Manager, CIT Healthcare, and other
business units of CIT Group. Between 1997 and 2005, Mr. Riso was in private practice in the New
York office of Orrick Herrington & Sutcliffe LLP, where he worked in Orricks global finance
practice group. Mr. Riso received a BA in economics and history cum laude from UCLA, as well as a
JD from the Loyola Law School of Los Angeles.
Paul F. Hughes
, age 55, has been our chief financial officer and treasurer since March 2009
and has served as our secretary and chief compliance officer since December 2009. Mr. Hughes is
senior vice president and chief financial officer of the CIT Corporate Finance Unit. Mr. Hughes has
over 30 years of finance and accounting experience, including 25 years with CIT. Mr. Hughes joined
CIT in 1983 as a manager in the Internal Audit Department. He has held a number of executive
positions including a leadership position in CIT Equipment Finance from 1986 to 2002 where he was
responsible for the financial operations and other management roles with the business unit. Most
recently, Mr. Hughes served as Senior Vice President of Corporate Development from 2003 to 2009
where he handled all aspects of pricing, contract negotiations and internal/external coordination
for acquisitions and dispositions of CIT businesses. Prior to joining CIT, Mr. Hughes was an audit
manager at Coopers and Lybrand. Mr. Hughes is a graduate of Northeastern University in Boston, MA,
with a B.S. in Business Administration. Mr. Hughes has also attended the Executive Management
Program at the Tuck School of Business at Dartmouth. Mr. Hughes is a CPA, licensed in the State of
New York.
Section 16(a) Beneficial Ownership Reporting Compliance
Section 16(a) of the Securities Exchange Act of 1934, as amended, requires our executive
officers and directors, and persons who own more than 10% of a registered class of our equity
securities, to file reports of ownership and changes in ownership with the SEC. Officers, directors
and persons who own more than 10% of a registered class of our equity securities are required to
furnish us with copies of all Section 16(a) forms that they file. To our knowledge, based solely on
review of the copies of such reports furnished to us, all Section 16(a) filing requirements
applicable to our executive officers, directors and persons who own more than 10% of a registered
class of our equity securities were filed on a timely basis, except for that Mr. Besecker filed one
(1) late report with respect to one (1) transaction (shares purchased through the reinvestment of
dividends declared on our common stock).
Code of Business Conduct, Code of Ethical Conduct and Board Committee Charters
Our Board of Directors has adopted a Code of Business Conduct and a Code of Ethical Conduct as
required by the listing standards of the NYSE that applies to our directors, executive officers and
employees of our Manager and its affiliates. The Code of Business Conduct and Code of Ethical Conduct were designed to
assist our directors, executive officers and employees of our Manager
and its affiliates in complying with the law,
resolving moral and ethical issues that may arise and in complying with our policies and
procedures. Among the areas addressed by the Code of Business Conduct and Code of Ethical Conduct
are compliance with applicable laws, conflicts of interest, use and protection of our Companys
assets,
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confidentiality, communications with the public, accounting matters, records retention and
discrimination and harassment.
Corporate Governance Documents Available at Our Website
We are committed to operating our business under strong and accountable corporate governance
practices. You are encouraged to visit the corporate governance section of our corporate website at
http://www.carereit.com
to view or to obtain copies of the respective charters of our Audit
Committee and Compensation, Nominating and Governance Committee, our Code of Business Conduct, Code
of Ethical Conduct, Corporate Governance Guidelines and our Definition of an Independent Director.
Communications with our Board of Directors
We have a process by which stockholders and/or other parties may communicate with our Board of
Directors, our independent directors as a group or our individual directors. Any such
communications may be sent to our Board by U.S. mail or overnight delivery and should be directed
to the Board of Directors, a Committee, the independent directors as a group, or an individual
director, c/o Paul F. Hughes, Secretary and Chief Compliance Officer, at Care Investment
Trust Inc., 505 Fifth Avenue, 9th Floor, New York, New York 10017, who will forward such
communications on to the intended recipient. Any such communications may be made anonymously. In
addition, stockholder communications can be directed to the Board by calling the Care hotline
listed on our website.
Executive Sessions of Independent Directors
In accordance with our Corporate Governance Guidelines, the independent directors serving on
our Board of Directors generally meet in executive session at the end of each regularly scheduled
Board meeting without the presence of any non-independent directors or other persons who are part of our
management. The executive sessions regularly are chaired by Ms. Robards. Interested parties
may communicate directly with the presiding director or non-management directors as a group through
the process set forth above under Communications with our Board of Directors.
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ITEM 11. Executive Compensation.
Compensation Discussion and Analysis
Overview
We have no employees. We are managed by CIT Healthcare LLC, our Manager, pursuant to a
management agreement between our Manager and us. All of our named executive officers (Messrs. Riso and
Hughes) are, or in the case of Messrs. Kellman and Plenskofski, were, employees of our
Manager or one of its affiliates. We have not paid, and we do not intend to pay, any cash
compensation to our executive officers and we do not currently intend to adopt any policies with
respect thereto. We do not have agreements with any of our executive officers or any employees of
our Manager or its affiliates with respect to their cash compensation. Our Manager determines the levels of base
salary and cash incentive compensation that may be earned by our executive officers, as our Manager
determines is appropriate. Our Manager also determines whether and to what extent our executive
officers are provided with pension, deferred compensation and other employee benefits plans and
programs.
Cash compensation paid to our executive officers is paid by our Manager or its affiliates in
part from the fees paid by us to our Manager under the management agreement. We do not control how
such fees are allocated by our Manager to its employees. In addition, we understand that, because
the services performed by our Managers and its affiliates employees, including our executive officers, are not
performed exclusively for us, our Manager is not able to segregate that portion of the cash
compensation paid to our executive officers by our Manager or its affiliates that relates to their
services to us.
Equity Compensation
Our Compensation, Nominating and Governance
Committee (CNG Committee), may, from time to
time, grant equity awards designed to align the interests of our executive officers with those of
our stockholders, by allowing our executive officers to share in the creation of value for our
stockholders through stock appreciation and dividends. The equity awards granted to our executive
officers are generally subject to time-based vesting requirements designed to promote the retention
of management and to achieve strong performance for our Company. These awards further provide
flexibility to us in our ability to enable our Manager to attract, motivate and retain talented
individuals at our Manager. We have adopted the Care Investment Trust Inc. 2007 Equity Plan, which
provides for the issuance of equity-based awards, including stock options, stock appreciation
rights, restricted stock, restricted stock units, unrestricted stock awards and other awards based
on our common stock that may be made by us to our directors and officers and to our advisors and
consultants who are providing services to the Company (which may include employees of our Manager
and its affiliates) as of the date of the grant of the award. Shares of common stock issued to our
independent directors with respect to their annual retainer fees are also issued under this plan.
Our Board of Directors has delegated its administrative responsibilities under the 2007 Equity
Plan to our CNG Committee. In its capacity as plan administrator, the CNG Committee has the
authority to make awards to eligible directors, officers, advisors and consultants, and to
determine what form the awards will take and the terms and conditions of the awards. Grants of
equity-based or other compensation to our chief executive officer must also be approved by the
independent members of our Board.
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Special Equity Grant to Mr. Kellman
On March 13, 2009, our Board of Directors approved a special grant of 21,440 restricted stock
units to Mr. Kellman. The award was structured to vest in four equal installments beginning on the first
anniversary of the grant date (March 13, 2010). Our Board of Directors granted the award to Mr.
Kellman, which had a grant date fair value of $124,995 based on our closing stock price on March
13, 2009 of $5.83 per share, to recognize his service as Chief Executive Officer and President of
the Company. Mr. Kellman resigned from the Company on December 4, 2009. Pursuant to the terms of his award, the 21,440 restricted stock units vested upon his resignation.
Special Equity Grant to Mr. Riso
On March 12, 2009, our Board of Directors approved a special grant of 10,486 restricted stock
units to Mr. Riso. The award was structured to vest in four equal installments beginning on the first anniversary
of the grant date (March 12, 2010). Our Board of Directors granted the award to Mr. Riso, which
had a grant date fair value of $62,497 based on our closing stock price on March 12, 2009 of $5.96
per share, to recognize Mr. Risos continued service to the Company. These shares vested on
January 28, 2010, upon the approval of the plan of liquidation by our stockholders.
Special Equity Grant to Mr. Hughes
On May 7, 2009, our Board of Directors approved a special grant of 13,333 restricted stock
units to Mr. Hughes. The award was structured to vest in four equal installments beginning on the first anniversary
of the grant date (May 7, 2010). Our Board of Directors granted the award to Mr. Hughes, which had
a grant date fair market value of $66,265 based on our closing stock price on May 7, 2009 of $4.97
per share, to recognize Mr. Hughess service to our company as the new chief financial officer and
treasurer. These shares vested on January 28, 2010, upon the
approval of the plan of liquidation by our stockholders.
Performance Share Awards to Mr. Riso and Mr. Hughes
On December 10, 2009, our Board of Directors awarded Mr. Riso and Mr. Hughes performance share
awards with target levels of 5,000 and 3,000, respectively. These awards were amended and
restated on February 23, 2010, such that the awards are triggered upon the execution, during 2010,
of one or more of the following transactions that results in a return of liquidity to our
stockholders within the parameters expressed in the agreement: (i) a merger or other business
combination resulting in the disposition of all of the issued and outstanding equity securities of
the Company, (ii) a tender offer made directly to our stockholders either by us or a third party
for at least a majority of our issued and outstanding common stock, or (iii) the declaration of
aggregate distributions by the our Board equal to or exceeding $8.00 per share. If the net
proceeds are less than $7.50 per share, each individual will receive 50% of their respective target
awards. If the net proceeds are greater than or equal to $7.50 per share and less than or equal to
$7.99 per share, each individual will receive his respective target award. If the net proceeds are
equal to or exceed $8.00 per share, each individual will receive 200% of his respective target
award. Each performance share award will accrue any distributions declared during the award period
without duplication. If any of these individuals is terminated or removed during the award period
for cause, they will automatically forfeit their performance share award. If any of these
individuals is terminated or removed during the award period for any other reason, then they will
receive a prorated award at the end of the award period based on the number of days during the
award period that they were with the Company. Upon a change in control of the Company, other than a
liquidity event, during the award period, the award period will automatically be deemed completed
and payouts will be made to each individual at their respective target levels.
Mr. Riso will be entitled to receive 10,000 performance shares in connection with the Tiptree
transaction, which will represent $90,000 in value if the tender offer to be conducted as part
of the Tiptree transaction is completed.
Mr. Hughes will be entitled to receive 6,000
performance shares in connection with the Tiptree transaction, which will represent $54,000 in value if
the tender offer to be conducted as part of the Tiptree transaction is completed.
- 10 -
COMPENSATION, NOMINATING AND GOVERNANCE COMMITTEE REPORT
Our CNG Committee has reviewed and discussed the Compensation Discussion and Analysis required
by Item 402(b) of Regulation S-K with management and, based on such review and discussions, our
Compensation Committee recommended to our Board of Directors that the Compensation Discussion and
Analysis be included in this annual report on Form 10-K.
Submitted by our CNG Committee
J. Rainer Twiford (Chairman)
Gerald E. Bisbee, Jr., Ph.D.
Karen P. Robards
- 11 -
Summary Compensation Table
The following table sets forth information regarding the compensation paid to our named
executive officers by us in 2009, 2008 and 2007.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock Awards
(1)
|
|
|
Total
|
|
Name And Principal Position
|
|
Year
|
|
|
($)
|
|
|
($)
|
|
Salvatore (Torey) V. Riso Jr.
(2)
|
|
|
2008
|
|
|
$
|
18,058
|
|
|
$
|
18,058
|
|
Chief Executive Officer, President
|
|
|
2009
|
|
|
$
|
149,933
|
|
|
$
|
149,933
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul F.
Hughes
(3)
|
|
|
2009
|
|
|
$
|
110,131
|
|
|
$
|
110,131
|
|
Chief Financial Officer, Treasurer, Secretary & Chief
Compliance Officer
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
F. Scott Kellman
(4)
|
|
|
2007
|
|
|
$
|
75,719
|
|
|
$
|
75,719
|
|
Chief Executive Officer, President
|
|
|
2008
|
|
|
$
|
256,881
|
|
|
$
|
256,881
|
|
|
|
|
2009
|
|
|
$
|
966,734
|
|
|
$
|
966,734
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Frank E. Plenskofski
(5)
|
|
|
2008
|
|
|
$
|
0
|
|
|
$
|
0
|
|
Chief Financial Officer, Treasurer
|
|
|
2009
|
|
|
$
|
0
|
|
|
$
|
0
|
|
|
|
|
(1)
|
|
Amounts recognized by the Company for financial statement
reporting purposes in the fiscal years ended December 31, 2007,
December 31, 2008 and December 31, 2009 in accordance with Accounting Standards Codification 718
Compensation Stock Compensation
. See Footnote 10 to our Consolidated Financial Statements in
our Annual Report on Form 10-K for the year ended December 31,
2007 and Footnote 14 to our Consolidated Financial Statements in
our Annual Report on Form 10-K for each of the years ended
December 31, 2009 and 2008. In accordance with SEC rules,
estimates of forfeitures related to service-based conditions have
been disregarded.
|
|
(2)
|
|
Mr. Riso was not an executive officer in 2007. On
December 10, 2009, Mr. Riso was awarded a performance share award with a threshold, target and
maximum award of 2,500, 5,000 and 10,000 shares, respectively. The grant date fair value of the
award assuming the achievement of the highest level of performance is $79,800. On February 23,
2010, our Board amended the performance share awards. See Compensation Discussion and Analysis
Performance Share Awards to Mr. Riso and Mr. Hughes for more information on the amendment. The
grant date fair value of the award on February 23, 2010 for the highest level of performance is
$83,200.
|
|
(3)
|
|
Mr. Hughes was not an executive officer in 2007 and 2008.
On December 10, 2009, Mr. Hughes was awarded a performance share award with a threshold, target and
maximum award of 1,500, 3,000 and 6,000 shares, respectively. The grant date fair value of the award
assuming the highest level of performance is $47,880. On February 23, 2010, our Board amended the
performance share awards. See Compensation Discussion and Analysis Performance Share Awards to
Mr. Riso and Mr. Hughes for more information on the amendment. The grant date fair value of the
award on February 23, 2010 for the highest level of performance is $49,920.
|
|
(4)
|
|
On December 4, 2009, Mr. Kellman resigned as Chief Executive
Officer and President of the Company. Pursuant to the terms of Mr. Kellmans
restricted stock and RSU awards, the restricted stock and RSU awards vested upon
his resignation. In addition, upon Mr. Kellmans resignation, we agreed that,
notwithstanding the terms of his performance share award, when the determination
of the payout percentage is made by our compensation committee at the end of the
award period, the performance goals under the award shall be deemed to have been
attained at target level performance, or 23,255 shares of common stock. Under
the terms of the performance share award and our equity plan, stockholder approval
of the plan of liquidation on January 28, 2010, resulted in the acceleration of the
award period and the 23,255 shares vested.
|
|
(5)
|
|
Mr. Plenskofski resigned as Chief Financial Officer and Treasurer
of the Company on March 16, 2009. In connection with his resignation,
Mr. Plenskofski forfeited his RSU award.
|
Grants of Plan-Based Awards
The following table sets forth information about awards granted to our named executive
officers by us during the fiscal year ended December 31, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
All Other
|
|
|
|
|
|
|
Grant
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Stock
|
|
|
|
|
|
|
Date
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Awards:
|
|
|
|
|
|
|
Fair
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Number of
|
|
|
Market
|
|
|
Value of
|
|
|
|
|
|
|
|
Estimated Future Payouts Under
|
|
|
Shares of
|
|
|
Price on
|
|
|
Stock and
|
|
|
|
|
|
|
|
Equity Incentive Plan Awards
|
|
|
Stock or
|
|
|
Grant
|
|
|
Option
|
|
|
|
Grant
|
|
|
Threshold
|
|
|
Target
|
|
|
Maximum
|
|
|
Units
|
|
|
Date
|
|
|
Awards
|
|
Name
|
|
Date
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
(#)
|
|
|
($/Sh)
|
|
|
($)
|
|
Salvatore (Torey) V. Riso, Jr.
|
|
|
3/12/2009
|
(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
10,486
|
|
|
$
|
5.96
|
|
|
$
|
62,497
|
|
|
|
|
12/10/2009
|
(1)
|
|
|
2,500
|
|
|
|
5,000
|
|
|
|
10,000
|
|
|
|
|
|
|
$
|
7.98
|
|
|
$
|
79,800
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul F. Hughes
|
|
|
5/7/2009
|
(2)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
13,333
|
|
|
$
|
4.97
|
|
|
$
|
66,265
|
|
|
|
|
12/10/2009
|
(1)
|
|
|
1,500
|
|
|
|
3,000
|
|
|
|
6,000
|
|
|
|
|
|
|
$
|
7.98
|
|
|
$
|
47,880
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Scott F. Kellman
|
|
|
3/13/2009
|
(3)
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
21,440
|
|
|
$
|
5.83
|
|
|
$
|
124,995
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Frank E. Plenskofski
|
|
|
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
0
|
|
|
|
|
|
(4)
|
|
|
|
(4)
|
- 12 -
|
|
|
(1)
|
|
Award under the Amended and Restated Performance Share Award Agreement granted on December 10, 2009 and amended and restated on
February 23, 2010. The stock award in the table above represents the maximum opportunity for Mr. Riso
and Mr. Hughes, respectively, expressed as a number of RSUs. The fair value of the grants made to Mr. Riso and
Mr. Hughes as of the amendment date of February 23, 2010 for highest level of performance is $83,200 and $49,920, respectively.
|
|
(2)
|
|
RSU awards that were structured to vest ratably over the four
period from the grant date, beginning on March 12, 2010 and May 7, 2010 for Mr. Riso and Mr. Hughes,
respectively.
|
|
(3)
|
|
Mr. Kellman resigned from the company on
December 4, 2009. Pursuant to the terms of his award, these
RSUs vested upon his resignation.
|
|
(4)
|
|
Mr. Plenskofski did not receive any equity awards in 2009.
|
Outstanding Equity Awards at Fiscal Year End
The following table sets forth certain information with respect to all outstanding Care equity
awards held by each named executive officer at the end of the fiscal year ended December 31, 2009.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Market
|
|
|
Equity
|
|
|
|
Number
|
|
|
Value of
|
|
|
Incentive
|
|
|
|
of Shares
|
|
|
Shares or
|
|
|
Plan Awards:
|
|
|
|
or Units
|
|
|
Units of
|
|
|
Number of
|
|
|
|
of Stock
|
|
|
Stock
|
|
|
Unearned Shares,
|
|
|
|
That Have
|
|
|
That Have
|
|
|
Units or Other
|
|
|
|
Not
|
|
|
Not
|
|
|
Rights That
|
|
Name
|
|
Vested (#)
|
|
|
Vested ($)
(1)
|
|
|
Have Not Vested
|
|
Salvatore (Torey) V. Riso, Jr.
|
|
|
12,210
|
(2)
|
|
$
|
94,994
|
(6)
|
|
|
|
|
|
|
|
10,486
|
(2)
|
|
$
|
81,581
|
(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
5,000
|
(7)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Paul F. Hughes
|
|
|
13,333
|
(3)
|
|
$
|
103,731
|
(6)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
3,000
|
(8)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Scott Kellman
|
|
|
0
|
(4)
|
|
$
|
0
|
(4)
|
|
|
23,255
|
(9)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Frank E. Plenskofski
|
|
|
0
|
(5)
|
|
$
|
0
|
(5)
|
|
|
|
|
|
|
|
(1)
|
|
Based on the closing price of our common stock on the last
business day of the fiscal year ended December 31, 2009 of $7.78.
|
|
(2)
|
|
RSU awards granted on May 12, 2008 and March 12, 2009, that were structured to
vest in four equal installments on the anniversaries of the
grant date. Number represents portion of RSUs not yet vested as of December 31, 2009.
|
|
(3)
|
|
RSU award granted on May 7, 2009, that were structured to vest in four equal installments on the anniversaries of the grant date.
|
|
(4)
|
|
Mr. Kellman resigned from the Company on December 4, 2009.
In connection with his resignation, Mr. Kellmans 40,000 restricted shares and 73,882 RSUs vested, including the 21,440 RSUs
granted to Mr. Kellman on March 13, 2009.
In connection with the approval of the plan of liquidation by our stockholders on January 28, 2010,
Mr. Kellmans 23,255 performance shares vested.
|
|
(5)
|
|
Mr. Plenskofski resigned from the Company on March 16, 2009. He forfeited his grants in connection with his resignation.
|
|
(6)
|
|
All RSU awards granted vested on January 28, 2010.
|
|
(7)
|
|
On December 10, 2009, Mr. Riso was awarded a performance
share award with a target level of 5,000 shares. On February 23,
2010, our Board amended the performance share award. See
Compensation Discussion and Analysis Performance Share
Awards to Mr. Riso and Mr. Hughes for more information on the
award.
|
|
(8)
|
|
On December 10, 2009, Mr. Hughes was awarded a performance
share award with a target level of 3,000 shares. On February 23, 2010,
our Board amended the performance share award. See Compensation
Discussion and Analysis Performance Share Awards to Mr. Riso
and Mr. Hughes for more information on the award.
|
|
(9)
|
|
In May 2008, Mr. Kellman was granted a performance share award to cover the performance period from
January 1, 2008 through December 31, 2010. Upon Mr. Kellmans resignation on December 4, 2009, we agreed that,
notwithstanding the terms of his performance share award, when the determination of the payout percentage is
made by our compensation committee at the end of the award period, the performance goals under the award shall
be deemed to have been attained at target level performance, or 23,255 shares of common stock. Under the terms
of the performance share award and our equity plan, stockholder approval of the plan of liquidation on January 28, 2010,
resulted in the acceleration of the award period and the 23,255 shares vested.
|
Option Exercises and Stock Vested
We
have not granted any stock options. The 40,000 shares of restricted stock granted to Mr.
Kellman at the time of our initial public offering vested due to his termination from our Manager
(after he
had resigned from Care) without cause. Apart from Mr. Kellman, no other named executives restricted shares vested
during the fiscal year ended December 31, 2009.
- 13 -
Pension Benefits
Our named executive officers received no benefits in fiscal year 2009 from us under defined
pension or defined contribution plans.
Nonqualified Deferred Compensation
Our Company does not have a nonqualified deferred compensation plan that provides for deferral
of compensation on a basis that is not tax-qualified for our named executive officers.
Potential Payments Upon Termination or Change in Control
Our
named executive officers are employees of our Manager or its
affiliates and therefore we generally have no
obligation to pay them any form of cash compensation upon their termination of employment, except
with respect to the restricted stock award agreements, RSU agreements and performance share award
agreements.
On January 28, 2010, our stockholders approved a plan of liquidation, which was filed as
Exhibit A to our definitive proxy statement filed on December 28, 2009. Pursuant to the terms of
the restricted stock and RSU grant instruments and our Equity Plan, stockholder approval of the
plan of liquidation resulted in the accelerated vesting of restricted stock and RSUs. Therefore,
our directors and executive officers outstanding restricted stock and RSUs vested on January 28,
2010.
On May 12, 2008, Mr. Kellman, our former chief executive officer, was granted a performance
share award to cover the performance period from January 1, 2008 through December 31, 2010. In
connection with Mr. Kellmans resignation as our chief executive officer, we agreed that,
notwithstanding the terms of his performance share award, when the determination of the payout
percentage is made by our compensation committee at the end of the award period, the performance
goals under the award shall be deemed to have been attained at target level performance, or
23,255 shares of common stock. Under the terms of the performance share award and our Equity Plan,
stockholder approval of the plan of liquidation on January 28, 2010, resulted in the acceleration
of the award period and the 23,255 shares vested.
As
discussed above in Item 11: Performance Share Awards to Mr. Riso and Mr. Hughes, Messrs. Riso and
Hughes were awarded performance share awards on December 10,
2009, as amended on February 23, 2010. If Messrs. Riso or Hughes are terminated for cause, as defined in their
Amended and Restated Performance Share Award Agreements, prior to December 31, 2010, all
performance shares awarded to them under the performance share award agreements would be
automatically forfeited. If Messrs. Riso or Hughes are terminated for any reason other than for
cause prior to December 31, 2010, the individual will receive a pro-rata percentage of the
performance shares that would otherwise be payable if he had not been terminated.
If
we experienced a change in control as of December 31, 2009, other than a liquidity event,
the performance period would have been deemed to have completed as of such date, and the Company
would have been deemed to have achieved target level performance, resulting in an award of 5,000
shares of common stock to Mr. Riso and 3,000 shares of common stock to Mr. Hughes, which would have
had a fair market value as of December 31, 2009 of $38,900 and $23,340, respectively, based on our
closing stock price on December 31, 2009 of $7.78 per share.
Director Compensation
- 14 -
The following table sets forth information regarding the compensation paid to, and the
compensation expense we recognized, with respect to our Board of Directors during the fiscal year
ended December 31, 2009:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Fees Earned or Paid in Cash
|
|
Stock Awards
|
|
Total
|
Name
|
|
($)
|
|
($)
(1)
|
|
($)
|
Flint D. Besecker
(2)
|
|
$
|
51,974
|
|
|
$
|
49,983
|
|
|
$
|
101,956
|
|
Gerald E. Bisbee, Jr., Ph.D.
|
|
$
|
57,517
|
|
|
$
|
49,983
|
|
|
$
|
107,500
|
|
Kirk E. Gorman
(3)
|
|
$
|
45,012
|
|
|
$
|
37,488
|
|
|
$
|
82,500
|
|
Alexandra Lebenthal
(4)
|
|
$
|
50,017
|
|
|
$
|
49,983
|
|
|
$
|
100,000
|
|
Karen P. Robards
|
|
$
|
57,017
|
|
|
$
|
49,983
|
|
|
$
|
107,000
|
|
J. Rainer Twiford
|
|
$
|
55,017
|
|
|
$
|
49,983
|
|
|
$
|
105,000
|
|
Steven N. Warden
(5)
|
|
$
|
0
|
|
|
$
|
123,900
|
|
|
$
|
123,900
|
|
|
|
|
(1)
|
|
Amounts recognized by the Company for financial statement reporting
purposes in the fiscal year ended December 31, 2009 in accordance with
Accounting Standards Codification 718
Compensation Stock Compensation
. See Footnote 14 to our Consolidated Financial Statements in
our Annual Report on Form 10-K. In accordance with SEC rules,
estimates of forfeitures related to service-based conditions have been
disregarded. As discussed below, each director, except for Mr. Warden,
receives an annual retainer payable half in cash and half in
unrestricted shares of our common stock. These unrestricted shares are
granted in approximately equal amounts per quarter in arrears and are
based on the closing price of our common stock on the last business
day of each quarter. The grant date fair market value of our common
stock as of the ends of each of the fiscal quarters in 2009 were
$7.78, $7.67, $5.20 and $5.46, respectively.
|
|
(2)
|
|
Mr. Besecker was granted 10,000 RSUs on November 5,
2009 that were structured to vest in four equal installments beginning on the first anniversary of the grant
date. In addition, on December 10, 2009, Mr. Besecker was
awarded a performance share award with a threshold, target and maximum award of 2,500, 5,000, and
10,000 shares, respectively. The grant date fair value of the award assuming the achievement of the highest level of performance
is $79,800. On February 23, 2010, our Board amended the performance share awards. See Performance Share Award to Mr. Besecker below for more information
on the amendment. The grant date fair value of the award on February 23, 2010 for
the highest level of performance is $83,200.
|
|
(3)
|
|
Mr. Gorman resigned from the Board of Directors on October 19, 2009.
|
|
(4)
|
|
Ms. Lebenthal resigned from the Board of Directors on January 28, 2010.
|
|
(5)
|
|
Mr. Warden was granted 15,000 RSUs on May 7, 2009
that were structured to vest in
four equal installments beginning on the first anniversary of the
grant date.
|
Each independent director receives an annual retainer of $100,000. The annual retainer
payable to our independent directors is payable quarterly in arrears, half in cash and half in
unrestricted stock. Any portion of the annual retainer that an independent director receives in
stock is granted pursuant to our 2007 Equity Plan.
The Chairman of our Board of Directors is entitled to receive an additional annual retainer of
$10,000. The Chairs of our Audit Committee and our former NCGIO Committee are each entitled to
receive an additional annual retainer of $7,500. The Chairman of our former Compensation Committee
is entitled to receive an additional annual retainer of $5,000. Effective January 28, 2010, the
Compensation Committee and NCGIO Committee were combined into the CNG Committee. The Chair of our
CNG Committee is entitled to receive an additional annual retainer of $7,000. These additional
retainer amounts paid to our Board and committee chairs are payable in cash. In addition, we
reimburse all directors for reasonable out-of-pocket expenses incurred in connection with their
services on our Board of Directors.
Performance Share Award to Mr. Besecker
On December 10, 2009, our Board of Directors awarded Mr. Besecker a performance share award
with a target share award of 5,000 shares of our common stock. This award was amended and restated
on
- 15 -
February 23, 2010, such that the award is triggered upon the execution, during 2010, of one or more
of the following transactions that results in a return of liquidity to our stockholders within the
parameters expressed in the agreement: (i) a merger or other business combination resulting in the
disposition of all of the issued and outstanding equity securities of the Company, (ii) a tender
offer made directly to our stockholders either by us or a third party for at least a majority of
our issued and outstanding common stock, or (iii) the declaration of aggregate distributions by the
our Board equal to or exceeding $8.00 per share.
Mr. Besecker will be entitled to receive 10,000 performance
shares in connection with the Tiptree transaction, which will represent $90,000 in value if the tender offer to be
conducted as part of the Tiptree transaction is completed.
Compensation Committee Interlocks and Insider Participation
There are no Compensation Committee interlocks and none of our executive officers participate
on our Compensation Committee.
- 16 -
ITEM 12. Security Ownership of Certain Beneficial Owners and Management and Related
Stockholder Matters.
The following table sets forth the beneficial ownership of our common stock, as of March 25,
2010, for (1) each person known to us to be the beneficial owner of more than 5% of our outstanding
common stock, (2) each of our directors, (3) each of our named executive officers as of March 25,
2010 (including Mr. Kellman who resigned on December 4, 2009) and (4) our directors and named
executive officers as a group. Except as otherwise described in the notes below, the following
beneficial owners have sole voting power and sole investment power with respect to all shares of
common stock set forth opposite their respective names.
In accordance with SEC rules, each listed persons beneficial ownership includes:
|
|
|
all shares the investor actually owns beneficially or of record;
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|
|
|
|
all shares over which the investor has or shares voting or dispositive
control (such as in the capacity as a general partner of an investment
fund); and
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|
|
|
|
all shares the investor has the right to acquire within 60 days (such
as upon exercise of options that are currently vested or which are
scheduled to vest within 60 days).
|
Unless otherwise indicated, all shares are owned directly and the indicated person has sole
voting and investment power. Unless otherwise indicated, the business address for each beneficial
owner listed below shall be c/o Care Investment Trust Inc., 505 Fifth Avenue, 6th Floor, New York,
New York 10017.
|
|
|
|
|
|
|
|
|
|
|
Amount and Nature
|
|
|
|
|
|
|
of Beneficial
|
|
|
|
|
|
|
Ownership of
|
|
|
Percent of
|
|
Name
|
|
Common Stock
|
|
|
Total
(1)
|
|
CIT Group Inc.
(2)
505 5th Avenue, 6
th
Floor
New York, New York 10017
|
|
|
8,024,040
|
|
|
|
38.84
|
%
|
|
|
|
|
|
|
|
|
|
GoldenTree Asset Management LP
(3)
300 Park Avenue, 21st Floor
New York, New York 10022
|
|
|
4,360,454
|
|
|
|
21.56
|
%
|
|
|
|
|
|
|
|
|
|
Tyndall Capital Partners, L.P.
(4)
599 Lexington Avenue, Suite 4100
New York, New York 10022
|
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|
1,049,000
|
|
|
|
5.19
|
%
|
|
|
|
|
|
|
|
|
|
F. Scott Kellman
(5)
|
|
|
142,950
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
Flint D. Besecker
(6)
|
|
|
11,675
|
|
|
|
*
|
|
Salvatore (Torey) V. Riso Jr.
(7)
|
|
|
40
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
Paul F. Hughes
(8)
|
|
|
0
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
Gerald E. Bisbee, Jr. Ph.D.
(9)
|
|
|
20,834
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
Karen P. Robards
(9)
|
|
|
21,334
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
J. Rainer Twiford
(9)
|
|
|
0
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
Steven N. Warden
(10)
|
|
|
5,352
|
|
|
|
*
|
|
|
|
|
|
|
|
|
|
|
All Directors and Executive Officers as a Group (8 Persons)
|
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|
202,185
|
|
|
|
*
|
|
|
|
|
*
|
|
The percentage of shares beneficially owned does not exceed one percent of the total shares of our common stock outstanding.
|
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(1)
|
|
As of March 25, 2010, 20,224,548 shares of common stock were issued and outstanding and entitled to vote. The percent of
total for all of the persons listed in the table above is based on such 20,224,548 shares of common stock, except for CIT
Group Inc., whose percent of total is based on 20,659,548 shares of common stock, which includes a warrant to purchase
435,000 shares of our common stock.
|
- 17 -
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(2)
|
|
In an amendment to Schedule 13D filed on October 2, 2008, CIT
Real Estate Holding Corporation and CIT Healthcare LLC, each
located at 505 Fifth Avenue, 6th Floor, New York, New York 10017,
were deemed, pursuant to Rule 13d-3 of the Securities Exchange
Act of 1934, as amended, to hold shared voting and dispositive
power over 6,981,350 and 1,042,690 shares of our common stock,
respectively. This amendment to Schedule 13D amended and
supplemented the Schedule 13D originally filed on July 9, 2007
and was filed to report the grant to CIT Healthcare LLC of
warrants to purchase 435,000 shares of our common stock pursuant
to a warrant agreement by and between CIT Group Inc. and the
company, dated September 30, 2008. By virtue of its 100%
ownership of CIT Real Estate Holding Corporation and CIT
Healthcare LLC, CIT Group Inc. was deemed to have shared voting
and dispositive power over 8,024,040 shares of our common stock.
On March 16, 2010, CIT Group Inc. entered into a warrant purchase
agreement with Tiptree, pursuant to which, CIT Group Inc. will
sell its warrant to purchase 435,000 shares of our common stock
to Tiptree upon the closing of a contemplated transaction between
Care and Tiptree.
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(3)
|
|
In an amendment to Schedule 13G filed on January 25, 2010,
GoldenTree Asset Management LP was deemed, pursuant to Rule 13d-3
of the Securities Exchange Act of 1934, as amended, to hold
shared voting and dispositive power over 4,041,040 shares of our
common stock. By virtue of serving as the general partner of
GoldenTree Asset Management LP, GoldenTree Asset Management LLC
was deemed to have shared voting and dispositive power over the
shares held by GoldenTree Asset Management LP. Likewise,
Mr. Steven A. Tananbaum, by virtue of serving as managing member
to GoldenTree Asset Management LLC, was deemed to have shared
voting and dispositive power over the shares held by GoldenTree
Asset Management LP. In a Schedule 13G filed on March 4, 2009,
GoldenTree Asset Management LP, GoldenTree Asset Management LLC
and Mr. Steven A. Tananbaum, together with the Investment Manager
and IMGP, reported that they have ceased to be beneficial
owners of our common stock for purposes of Section 16(a) of the
Securities Exchange Act of 1934, as amended.
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(4)
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|
In a Schedule 13G filed on February 5, 2010, Tyndall Capital
Partners, L.P., located at 599 Lexington Avenue, Suite 4100, New
York, New York 10022, was deemed, pursuant to Rule 13d-3 of the
Securities Exchange Act of 1934, as amended, to hold shared
voting and dispositive power over 1,049,000 shares of our common
stock, due to its position as general partner of Tyndall
Partners, L.P. and Tyndall Institutional Partners, L.P.
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|
(5)
|
|
Mr. Kellman resigned as chief executive officer and president of our company on December 4, 2009.
In connection with his resignation, Mr. Kellmans 40,000 restricted shares and 73,882 RSUs vested.
In connection with the approval of the plan of liquidation by our stockholders on January 28, 2010,
Mr. Kellmans 23,255 performance shares vested.
|
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(6)
|
|
All of Mr. Beseckers unvested restricted stock and restricted
stock units vested upon the approval of the plan of liquidation
by our stockholders on January 28, 2010. Mr. Beseckers
beneficial ownership figure does not reflect the 10,000 shares
issuable to him upon settlement of the performance share award
granted to him on December 10, 2009.
|
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(7)
|
|
All of Mr. Risos unvested restricted stock units vested upon the
approval of the plan of liquidation by our stockholders on
January 28, 2010. Mr. Risos beneficial ownership figure does not
reflect the 10,000 shares issuable to him upon settlement of the
performance share award granted to him on December 10, 2009.
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(8)
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|
All of Mr. Hughes unvested restricted stock units vested upon
the approval of the plan of liquidation by our stockholders on
January 28, 2010. Mr. Hughes beneficial ownership figure does
not reflect the 6,000 shares issuable to him upon settlement of
the performance share award granted to him on December 10, 2009.
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(9)
|
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All of our directors unvested restricted stock vested upon the
approval of the plan of liquidation by our stockholders on
January 28, 2010.
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(10)
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|
All of Mr. Wardens unvested restricted stock units vested upon
the approval of the plan of liquidation by our stockholders on
January 28, 2010.
|
Equity Compensation Plan Information
The following table summarizes information, as of December 31, 2009, relating to our equity
compensation plans pursuant to which shares of our common stock or other equity securities may be
granted from time to time.
- 18 -
|
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|
|
|
|
|
|
|
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|
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(c)
|
|
|
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(a)
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|
|
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|
|
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Number of
|
|
|
|
Number of
|
|
|
(b)
|
|
|
securities
|
|
|
|
securities to be
|
|
|
Weighted
|
|
|
remaining
|
|
|
|
issued upon
|
|
|
average
|
|
|
available for
|
|
|
|
exercise of
|
|
|
exercise price of
|
|
|
future issuance
|
|
|
|
outstanding
|
|
|
outstanding
|
|
|
under equity
|
|
|
|
options, warrants
|
|
|
options, warrants
|
|
|
compensation
|
|
Plan category
|
|
and rights
|
|
|
and rights
|
|
|
Plans
(3)
|
|
Equity compensation plans approved by security holders
|
|
|
|
|
|
|
|
|
|
|
|
|
2007 Equity Plan
(1), (4)
|
|
|
149,210
|
|
|
NA
|
|
|
|
257,516
|
|
2007 Manager Equity Plan
|
|
|
435,000
|
|
|
$
|
17.00
|
|
|
|
282,945
|
|
Equity compensation plans not approved by security holders
|
|
|
N/A
|
|
|
|
N/A
|
|
|
|
N/A
|
|
Total
|
|
|
584,210
|
|
|
NA
|
|
|
|
540,461
|
|
|
|
|
(1)
|
|
Our 2007 Equity Plan was adopted by our sole stockholder prior to
our initial public offering on June 22, 2007. The number of shares
in Column (a) includes 95,955 restricted stock units, as well
as (i) 23,255 performance shares awarded to Mr. Kellman that
were deemed to be vested on January 28, 2010 and (ii) 30,000
performance share awards granted to our executive officers. On
March 12, 2009, May 7, 2009 and November 4, 2009, our Compensation
Committee granted an additional 49,961 RSUs, 30,333 RSUs, and
10,000 RSUs, respectively, to our executive officers and employees
of our Manager and its affiliates pursuant to the 2008 Performance-Based RSU Award
Program. In addition, on December 10, 2009, our Compensation
Committee granted 30,000 performance shares to our executive
officers and employees of our Manager.
|
|
(2)
|
|
Our 2007 Manager Equity Plan was adopted by our sole stockholder
prior to our initial public offering on June 22, 2007. The number
of shares in Column (a) represents shares issuable upon exercise
of a warrant that we granted to our Manager on September 30, 2008.
See Certain Relationships and Related Transactions below. On
March 16, 2010, our Manager entered into a warrant purchase
agreement with Tiptree, pursuant to which, our Manager will sell
its warrant to purchase 435,000 shares of our common stock to
Tiptree upon the closing of a contemplated transaction between
Care and Tiptree.
|
|
(3)
|
|
Under the purchase and sale agreement with Tiptree, Care is
prohibited from making grants until the earlier of the termination
of the purchase and sale agreement or the Closing Date (as defined
in the purchase and sale agreement that was filed as Exhibit 10.1
to Cares Form 8-K on March 16, 2010).
|
|
(4)
|
|
All RSU awards which were granted and the performance share
granted to Mr. Kellman vested on January 28, 2010. As of
January 29, 2010, only the 30,000 performance shares granted on
December 10, 2009 are outstanding.
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- 19 -
ITEM 13. Certain Relationships and Related Transactions, and Director Independence.
Policies and Procedures With Respect to Related Party Transactions
It is the policy of our Board of Directors that all related party transactions (generally,
transactions involving amounts exceeding $120,000 in which a related party (directors and executive
officers or their immediate family members, or stockholders owning 5% of more of our outstanding
stock) had or will have a direct or indirect material interest) shall be subject to approval or
ratification by the Audit Committee in accordance with the following procedures.
Each party to a potential related party transaction is responsible for notifying our Managers
legal department of the potential related person transaction in which such person or any immediate
family member of such person may be directly or indirectly involved as soon as he or she becomes
aware of such transaction. Our Managers legal department will determine whether the transaction
should be submitted to the Audit Committee for consideration. The Audit Committee will then review
the material facts of the transaction and either approve or disapprove of the entry into such
transaction.
Management Agreement
In connection with our initial public offering, we entered into a Management Agreement with
our Manager, which describes the services to be provided by our Manager and its compensation for
those services. On September 30, 2008, we amended (the Amendment) the Management Agreement
between ourselves and the Manager, and on January 15, 2010 we further amended and restated (the
Amendment and Restatement) the Management Agreement. In consideration of the Amendment and for the
Managers continued and future services to the us, we granted the Manager warrants to purchase
435,000 shares of our common stock at $17.00 per share (the Warrant) under the 2007 Manager
Equity Plan. The Warrant, which is immediately exercisable, expires on September 30, 2018.
Under the Amendment and Restatement, our Manager, subject to the oversight of our board of
directors, is required to conduct our business affairs in conformity with the policies and the
investment guidelines that are approved by our Board of Directors. The Amendment and Restatement
continues in effect, unless earlier terminated, until December 31, 2011.
The Amendment and Restatement reduces the base management fee to a monthly amount equal to (i)
$125,000 from February 1, 2010 until the earlier of (x) June 30, 2010 and (y) the date on which
four of our six Existing Investments have been sold; then from such date (ii) $100,000 until the
earlier of (x) December 31, 2010 and (y) the date on which five of our six Existing Investments
have been sold; then from such date (iii) $75,000 until the effective date of expiration or earlier
termination of the Amendment and Restatement by either of us or the Manager; provided, however,
that notwithstanding the foregoing, the Base Management Fee will remain at $125,000 per month until
the later of: (a) ninety (90) days after the filing by us of a Form 15 with the SEC; and (b) the
date that the we are no longer subject to the reporting requirements of the Exchange Act.
In addition, pursuant to the Amendment and Restatement, we will pay the Manager a Buyout
Payment of $7.5 million, payable as follows: (i) $2.5 million on the Effective Date; (ii)
$2.5 million upon the earlier of (a) April 1, 2010 and (b) the effective date of the termination of
the Amendment and Restatement by either of us or the Manager; and (iii) $2.5 million upon the
earlier of (a) June 30, 2011 and (b) the effective date of the termination of the Amendment and
Restatement by either us or the
- 20 -
Manager.
The Termination Fee that is operative under the original Management
Agreement was replaced by the Buyout Payments under the Amendment and
Restatement. On January 29, 2010 and April 1, 2010, we paid our
Manager $2.5 million and $2.5 million, respectively, pursuant to the
Buyout Payments under the Amendment and Restatement.
The Manager is also eligible for an Incentive Fee of $1.5 million if (i) at any time prior to
December 31, 2011, the aggregate cash dividends paid to our stockholders since the Effective Date
equal or exceed $9.25 per share or (ii) as of December 31, 2011, the sum of (x) the aggregate cash
dividends paid to our stockholders since the Effective Date and (y) the Aggregate Distributable
Cash equals or exceeds $9.25 per share. In the event that the Aggregate Distributable Cash equals
or exceed $9.25 per share but for the impact of payment of a $1.5 million Incentive Fee, we will
pay the Manager an Incentive Fee an amount that allows the Aggregate Distributable Cash to equal
$9.25 per share.
Both parties can terminate the Amendment and Restatement without cause under certain
circumstances, and we can terminate the Amendment and Restatement with cause.
For the year ended December 31, 2009, we recognized $2.2 million in management fee expense
related to the base management fee, and our Manager was not eligible for an incentive fee.
Mortgage Purchase Agreement
On September 30, 2008, we entered into a Mortgage Purchase Agreement (the MPA) with our
Manager in order to secure a potential additional source of liquidity. The MPA expired on September
30, 2009. Pursuant to the MPA, we had the right, but not the obligation, to cause the Manager to
purchase our current senior mortgage assets (the Mortgage Assets) at their then-current fair
market value, as determined by a third party appraiser. However, the MPA provided that in no event
shall the Manager be obligated to purchase any Mortgage Asset if (a) the Manager has already
purchased Mortgage Assets with an aggregate sale price of $125.0 million pursuant to the MPA or
(b) the third-party appraiser determines that the fair market value of such Mortgage Asset is
greater than 105% of the then outstanding principal balance of such Mortgage Asset. We had the
right exercise our rights under the MPA with respect to any or all of the Mortgage Assets
identified in the MPA at any time or from time to time until the MPA expired on September 30, 2009.
Pursuant to the MPA, we sold loans made to four borrowers with carrying amounts of
$24.8 million, $22.5 million, $2.9 million and $18.7 million for total proceeds of $65.2 million.
The sale of the first loan closed in November of 2008 and the company recorded a loss on the sale
of $2.4 million in the consolidated statement of operations for the year ended December 31, 2008.
The second loan closed in February of 2009 at a loss of $4.5 million and the third loan closed in
September 2009 at a loss of $1.3 million. In consideration
of the Amendment and Restatement, we agreed to terminate the MPA and
rescind all outstanding put notices under the MPA.
Warrant
In consideration of the Amendment and for the Managers continued and future services to the
Company, the Company granted the Manager warrants to purchase 435,000 shares of the Companys
common stock at $17.00 per share (the Warrant) under the 2007 Manager Equity Plan. The Warrant,
which is immediately exercisable, expires on September 30, 2018. On March 16, 2010, our Manager
entered into a warrant purchase agreement with Tiptree, pursuant to which, our Manager will sell
the Warrant to Tiptree upon the closing of a contemplated transaction between Care and Tiptree.
- 21 -
ITEM 14. Principal Accounting Fees and Services.
Audit Fees
Fees for audit services totaled approximately $865,500 in 2008, which represent audit fees
associated with our annual audit, reviews of our quarterly reports on Form 10-Q, review of
documents filed with the SEC, and a consent. In addition, fees for audit-related services totaled
$152,500 for compliance with internal controls and purchase price allocation.
Fees for audit services totaled approximately $821,000 in 2009, which represent audit fees
associated with our annual audit, review of our quarterly reports on Form 10-Q, review of documents
filed with the SEC, and a consent. There were no fees for audit-related services in 2009.
There were no tax fees or other fees paid to Deloitte & Touche LLP in 2008 and 2009.
Pre-Approval Policies and Procedures of our Audit Committee
Our Audit Committee has sole authority (with the input of management) to approve in advance
all engagements of our independent auditors for audit or non-audit services. All audit services
provided by Deloitte & Touche LLP in 2009 were pre-approved by our Audit Committee.
- 22 -
Part IV
ITEM 15. Exhibits, Financial Statement Schedules
(b) Exhibits.
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Exhibit No.
|
|
Description
|
31.1
|
|
Certification of CEO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
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|
31.2
|
|
Certification of CFO pursuant to Section 302 of the Sarbanes-Oxley Act of 2002.
|
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32.1
|
|
Certification of CEO pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
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32.2
|
|
Certification of CFO pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.
|
23
SIGNATURES
Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the undersigned, thereunto
duly authorized.
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Care Investment Trust Inc.
|
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By:
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/s/ Paul F. Hughes
|
|
|
|
Paul F. Hughes
|
|
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|
Chief Financial Officer and Treasurer and
Chief Compliance Officer and Secretary
|
|
|
April 30, 2010
Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been duly
signed below by the following persons on behalf of the Registrant and in the capacities and on the
dates indicated.
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|
|
Signature
|
|
Title
|
|
Date
|
|
|
|
|
|
/s/ Salvatore (Torey) V. Riso, Jr.
|
|
President and Chief Executive
|
|
April 30, 2010
|
|
|
|
|
|
Salvatore (Torey) V. Riso, Jr.
|
|
Officer (Principal Executive Officer)
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Paul F. Hughes
|
|
Chief Financial Officer and Treasurer and
|
|
April 30, 2010
|
|
|
|
|
|
Paul F. Hughes
|
|
Chief Compliance
Officer and Secretary
(Principal
Financial and Accounting Officer)
|
|
|
|
|
|
|
|
|
|
|
|
|
/s/ Flint D. Besecker
|
|
Chairman of the Board of Directors
|
|
April 30, 2010
|
|
|
|
|
|
Flint D. Besecker
|
|
|
|
|
|
|
|
|
|
/s/ Gerald E. Bisbee, Jr.
|
|
Director
|
|
April 30, 2010
|
|
|
|
|
|
Gerald E. Bisbee, Jr.
|
|
|
|
|
|
|
|
|
|
/s/ Karen P. Robards
|
|
Director
|
|
April 30, 2010
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Karen P. Robards
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/s/ J. Rainer Twiford
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Director
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April 30, 2010
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J. Rainer Twiford
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/s/ Steve Warden
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Director
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April 30, 2010
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Steve Warden
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Appendix A
DEFINITION OF INDEPENDENT DIRECTOR
For purposes of this definition, immediate family member shall include a persons spouse,
parents, children, siblings, mothers and fathers-in-law, sons and daughters-in-law, brothers and
sisters-in-law, and anyone (other than domestic employees) who shares such persons home.
A director shall be an independent director if such director:
1. is affirmatively determined by the Board, after consideration of all relevant facts and
circumstances, as having no material relationship with Care
1
(either directly or as a
partner, shareholder or officer of an organization that has a relationship with Care);
2. is not currently, and has not at any time during the prior three years been, an employee of
Care or any of its affiliates;
3. does not have an immediate family member who is, or has been in the prior three years, an
executive officer of Care or any of its affiliates;
4. does not receive compensation, directly or indirectly, from Care for services rendered as a
consultant or in any capacity other than a director, except for an amount that does not exceed the
dollar amount (currently $120,000) for which disclosure would be required under Item 404(a) of
Regulation S-K, and does not possess an interest in any other transaction for which disclosure
would be required pursuant to Item 404(a) of Regulation S-K;
5. does not receive, and no immediate family member of such director receives, and has not at
any time during the prior three years received, more than $100,000 during any twelve-month period
in direct compensation from Care or any of its affiliates, other than director and committee fees
and pension or other forms of deferred compensation for prior service (provided such compensation
is not contingent in any way on continued service);
6. is not affiliated with or employed by, and no member of such directors immediate family is
affiliated with or employed by, and has not within the prior three years been affiliated with or
employed in a professional capacity by, a present or former internal or external auditor of Care or
any of its consolidated subsidiaries;
7. is not employed, and no immediate family member of such director is employed, and has not
within the prior three years been employed as an executive officer of another company where any of
Cares present executives serves on that companys compensation committee;
8. is not an executive officer or an employee, and no immediate family member of such director
is an executive officer, of another company (A) that has made payments to Care in an amount which,
in any of the last three fiscal years, accounts for at least 2% or $1 million, whichever is
greater, of Cares consolidated gross revenues, or (B) that has received payments from Care in an
amount which, in any of the last three fiscal years, accounts for at least 2% or $1 million,
whichever is greater, of such other companys consolidated gross revenues;
9. is not a former employee of Care who receives compensation for prior services (other than
benefits under a tax-qualified retirement plan) during the taxable year;
10. has never been an officer of Care; and
11. does not receive remuneration from Care, either directly or indirectly, in any capacity
other than as a director, as such is more fully described in 26 CFR §1.162-27.
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1
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For purposes of determining independence, all references to Care shall mean
Care Investment Trust Inc. and each of its consolidated subsidiaries, if any.
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