As filed with the Securities and Exchange Commission on October 6, 2016
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
FORM S-8
REGISTRATION STATEMENT UNDER THE
SECURITIES ACT OF 1933
MEDEQUITIES REALTY TRUST, INC.
(Exact name of registrant as specified in its charter)
| Maryland | 46-5477146 | |
|
(State or other jurisdiction of incorporation or organization) |
(IRS Employer Identification Number) |
|
|
3100 West End Avenue, Suite 1000 Nashville, TN |
37203 | |
| (Address of principal executive offices) | (Zip code) | |
MedEquities Realty Trust Inc. Amended and Restated 2014 Equity Incentive Plan
(Full title of the plan)
John W. McRoberts
Chief Executive Officer and Chairman of the Board of Directors
MedEquities Realty Trust, Inc.
3100 West End Avenue, Suite 1000
Nashville, TN 37203
(Name and address of agent for service)
(615) 627-4710
(Telephone number, including area code, of agent for service)
Copies to:
David P. Slotkin
Morrison & Foerster LLP
2000 Pennsylvania Avenue, NW, Suite 6000
Washington, D.C. 20006
(202) 887-1500
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 the definitions of “large accelerated filer,” “accelerated filer” and “smaller reporting company” in Rule 12b-2 of the Exchange Act. (Check one):
| Large accelerated filer | ☐ | Accelerated filer | ☐ | |||||
| Non-accelerated filer | ☑ | (Do not check if a smaller reporting company) | Smaller reporting company | ☐ | ||||
CALCULATION OF REGISTRATION FEE
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| Title of securities to be registered |
Amount to be
Registered (1) |
Proposed maximum offering price per share (2) |
Proposed maximum aggregate offering price |
Amount of
Fee(3) |
||||
|
Common Stock, $0.01 par value per share |
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|
— Amended and Restated 2014 Equity Incentive Plan |
693,082(4) | $11.58 | $8,025,890 | $931 | ||||
|
— Amended and Restated 2014 Equity Incentive Plan (RSUs) |
359,025(5) | $11.58 | $4,157,510 | $482 | ||||
|
TOTAL |
1,052,107 | $11.58 | $12,183,399 | $1,413 | ||||
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| (1) | Pursuant to Rule 416 under the Securities Act of 1933, as amended (the “Securities Act”), this registration statement also covers an additional indeterminate amount of shares to be offered or sold pursuant to the MedEquities Realty Trust, Inc. Amended and Restated 2014 Equity Incentive Plan (the “Plan”) and shares that may become issuable under the Plan by reason of certain corporate transactions or events, including any share dividend, share split, recapitalization or any other similar adjustment of outstanding common stock, $0.01 par value per share (“Common Stock”) of MedEquities Realty Trust, Inc. (the “Company”). |
| (2) | Estimated in accordance with Rules 457(c) and (h) under the Securities Act solely for the purpose of calculating the registration fee based on the average high and low offering prices per share of Common Stock on the New York Stock Exchange on September 29, 2016. |
| (3) | In connection with the Company’s Registration Statement on Form S-11 (File No. 333-206490) (as amended, the “IPO Registration Statement”), the Company paid an aggregate of $34,630 in registration fees consisting of (i) a payment of $17,430 on August 20, 2014 and (ii) a payment of $17,200 on September 19, 2016. On October 4, 2016, the Company completed the offering of 19,925,333 shares of Common Stock at $12.00 per share and may issue up to 2,988,800 additional shares of Common Stock pursuant to the underwriters’ 30-day over-allotment option, in each case under the IPO Registration Statement. Pursuant to Rule 457(p) under the Securities Act, the Company is offsetting the entire registration fee of $1,413 due under this Registration Statement against the $3,828 that is remaining from the registration fees paid in connection with the IPO Registration Statement (assuming the underwriters’ over-allotment option is exercised in full). |
| (4) | Represents shares of Common Stock reserved for issuance under the Plan. |
| (5) | Represents shares of Common Stock reserved for issuance pursuant to restricted stock unit awards outstanding under the Plan as of the date of this Registration Statement. Any shares of Common Stock that are subject to restricted stock unit awards under the Plan that are forfeited or lapse unvested will be returned to the share reserve under the Plan. |
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
The documents containing the information specified in this Part I will be sent or given to the persons participating in the Plan, as specified by Rule 428(b)(1) under the Securities Act. In accordance with the instructions to Part I of Form S-8, such documents need not be filed with the Securities and Exchange Commission (the “Commission”) either as part of this registration statement or as prospectuses or prospectus supplements pursuant to Rule 424 promulgated under the Securities Act. These documents and the documents incorporated by reference in this registration statement pursuant to Item 3 of Part II of this registration statement, taken together, constitute a prospectus that meets the requirements of Section 10(a) of the Securities Act.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
| Item 3. | Incorporation of Documents by Reference. |
The following documents, which the Company has previously filed with the Commission, are hereby incorporated by reference into this registration statement.
| (1) | The Company’s final prospectus, dated September 28, 2016, filed with the Commission pursuant to Rule 424(b), relating to the Registration Statement on Form S-11, as amended (File No. 333-206490), which contains the Company’s audited financial statements for the latest fiscal year for which such statements have been filed; and |
| (2) | The description of the Company’s common stock contained in the Company’s Registration Statement on Form 8-A (File No. 001-37887) filed with the Commission on September 21, 2016, pursuant to Section 12(b) of the Securities Exchange Act of 1934, as amended (the “Exchange Act”), including any amendment or report filed for the purpose of updating such description. |
In addition, all documents and reports subsequently filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior to the filing of a post-effective amendment which indicates that all securities offered have been sold or which deregisters all securities remaining unsold, shall be deemed to be incorporated by reference in this registration statement and to be part hereof from the date of filing of such documents or reports. Any statement contained in a document incorporated or deemed to be incorporated by reference herein shall be deemed to be modified or superseded for purposes of this registration statement to the extent that a statement contained herein or in any other subsequently filed document which also is or is deemed to be incorporated by reference herein modifies or supersedes such statement. Any such statement so modified or superseded shall not be deemed, except as so modified or superseded, to constitute a part of this registration statement.
| Item 4. | Description of Securities. |
Not applicable.
| Item 5. | Interests of Named Experts and Counsel. |
Not applicable.
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| Item 6. | Indemnification of Directors and Officers. |
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (a) actual receipt of an improper benefit or profit in money, property or services or (b) active and deliberate dishonesty that is established by a final judgment and is material to the cause of action. The Company’s charter contains a provision which eliminates the Company’s directors’ and officers’ liability to the maximum extent permitted by Maryland law.
Maryland law requires a Maryland corporation (unless its charter provides otherwise, which the Company’s charter does not) to indemnify a director or officer who has been successful in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. Maryland law permits a Maryland corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities 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 (i) was committed in bad faith or (ii) was the result of active and deliberate dishonesty; (b) the director or officer actually received an improper personal benefit in money, property or services; or (c) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful. However, under Maryland law, a Maryland corporation may not indemnify for an adverse judgment in a suit by or in the right of the corporation or for a judgment of liability on the basis that personal benefit was improperly received, unless in either case a court orders indemnification and then only for expenses. In addition, Maryland law permits a Maryland corporation to advance reasonable expenses to a director or officer upon the corporation’s receipt of (a) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation and (b) a written undertaking by him or her or on his or her behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the standard of conduct was not met.
The Company’s charter authorizes the Company, to the maximum extent permitted by Maryland law, to obligate the Company, and the Company’s bylaws obligate the Company, to indemnify any present or former director or officer or any individual who, while a director or officer of the Company and at the Company’s request, serves or has served as a director, officer, partner, trustee, member or manager of another corporation, real estate investment trust, limited liability company, partnership, joint venture, trust, employee benefit plan or other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity from and against any claim or liability to which that individual may become subject or which that individual may incur by reason of his or her service in any of the foregoing capacities and to pay or reimburse his or her reasonable expenses in advance of final disposition of a proceeding.
The Company has entered into indemnification agreements with each of its executive officers and directors whereby the Company has agreed to indemnify such executive officers and directors to the fullest extent permitted by Maryland law against all expenses and liabilities, subject to limited exceptions. These indemnification agreements also provide that upon an application for indemnity by an executive officer or director to a court of appropriate jurisdiction, such court may order the Company to indemnify such executive officer or director. In addition, the Company’s directors and officers are indemnified for specified liabilities and expenses pursuant to the partnership agreement of MedEquities Realty Operating Partnership, LP, the partnership whose sole general partner is the Company’s wholly owned subsidiary.
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Insofar as the foregoing provisions permit indemnification of directors, officer or persons controlling the Company for liability arising under the Securities Act, the Company has been informed that in the opinion of the Commission this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
| Item 7. | Exemption from Registration Claimed. |
Not applicable.
| Item 8. | Exhibits. |
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Exhibit
|
Description |
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| 4.1 | Articles of Amendment and Restatement (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-11 (File No. 333-206490) filed on August 20, 2015). | |
| 4.2 | Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-11 (File No. 333-206490) filed on August 20, 2015). | |
| 5.1* | Opinion of Morrison & Foerster LLP. | |
| 10.1 | MedEquities Realty Trust, Inc. Amended and Restated 2014 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the Company’s Registration Statement on Form S-11 (File No. 333-206490) filed on August 20, 2015). | |
| 10.2* | Form of Restricted Stock Unit Award Agreement. | |
| 10.3* | Form of Restricted Stock Award Agreement for Officers. | |
| 10.4* | Form of Restricted Stock Award Agreement for Directors. | |
| 23.1* | Consent of KPMG. | |
| 23.2* | Consent of Morrison & Foerster LLP (included in Exhibit 5.1). | |
| 24.1* | Power of Attorney (included on signature page). | |
| * | Filed herewith. |
| Item 9. | 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;
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(ii) To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high 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 a 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 the registration statement or any material change to such information in the registration statement;
provided, however , that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the information required to be included in a post-effective amendment by those paragraphs is contained in periodic reports filed with or furnished to the Commission by the registrant pursuant to Section 13 or Section 15(d) of the Securities Exchange Act of 1934 that are incorporated by reference in this 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.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, each filing of the registrant’s annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934 (and, where applicable, each filing of an employee benefit plan’s annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act of 1933 may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the Registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Securities Act of 1933 and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has duly caused this registration statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of Nashville, State of Tennessee on the 6 th day of October, 2016.
| MedEquities Realty Trust, Inc. | ||
| By: | / S / J OHN W. M C R OBERTS | |
|
John W. McRoberts Chief Executive Officer and Chairman of the Board of Directors |
||
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below hereby constitutes and appoints John W. McRoberts or William C. Harlan and each of them, his true and lawful attorney-in-fact and agent, with full power of substitution and resubstitution, for him and in his name, place and stead, in any and all capacities, to sign any and all amendments to this registration statement (including post-effective amendments to the registration statement), and to file the same, with all exhibits thereto, and any other documents in connection therewith, granting unto 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 to all intents and purposes as he might or could do in person, hereby ratifying and confirming all that said attorneys-in-fact and agents, or their 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 and on the dates indicated.
|
Name |
Capacity |
Date |
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|
/ S / J OHN W. M C R OBERTS John W. McRoberts |
Chief Executive Officer and Chairman of the Board of Directors (Principal Executive Officer) | October 6, 2016 | ||
|
/ S / W ILLIAM C. H ARLAN William C. Harlan |
President, Chief Operating Officer and Director | October 6, 2016 | ||
|
/ S / J EFFERY C. W ALRAVEN Jeffery C. Walraven |
Executive Vice President and Chief Financial Officer (Principal Financial Officer) | October 6, 2016 | ||
|
/ S / D AVID L. T RAVIS David L. Travis |
Senior Vice President and Chief Accounting Officer (Principal Accounting Officer) | October 6, 2016 | ||
|
/ S / R ANDALL L. C HURCHEY Randall L. Churchey |
Director | October 6, 2016 | ||
|
/ S / J OHN N. F OY John N. Foy |
Director | October 6, 2016 | ||
|
/ S / S TEVEN I. G ERINGER Steven I. Geringer |
Director | October 6, 2016 | ||
|
/ S / S TEPHEN L. G UILLARD Stephen L. Guillard |
Director | October 6, 2016 | ||
|
/ S / E LLIOTT M ANDELBAUM Elliott Mandelbaum |
Director | October 6, 2016 | ||
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/ S / S TUART C. M C W HORTER Stuart C. McWhorter |
Director | October 6, 2016 | ||
|
/ S / J AMES B. P IERI James B. Pieri |
Director | October 6, 2016 | ||
EXHIBIT INDEX
|
Exhibit
|
Description |
|
| 4.1 | Articles of Amendment and Restatement (incorporated by reference to Exhibit 3.1 to the Company’s Registration Statement on Form S-11 (File No. 333-206490) filed on August 20, 2015). | |
| 4.2 | Amended and Restated Bylaws (incorporated by reference to Exhibit 3.2 to the Company’s Registration Statement on Form S-11 (File No. 333-206490) filed on August 20, 2015). | |
| 5.1* | Opinion of Morrison & Foerster LLP. | |
| 10.1 | MedEquities Realty Trust, Inc. Amended and Restated 2014 Equity Incentive Plan (incorporated by reference to Exhibit 10.4 to the Company’s Registration Statement on Form S-11 (File No. 333-206490) filed on August 20, 2015). | |
| 10.2* | Form of Restricted Stock Unit Award Agreement. | |
| 10.3* | Form of Restricted Stock Award Agreement for Officers. | |
| 10.4* | Form of Restricted Stock Award Agreement for Directors. | |
| 23.1* | Consent of KPMG. | |
| 23.2* | Consent of Morrison & Foerster LLP (included in Exhibit 5.1). | |
| 24.1* | Power of Attorney (included on signature page). | |
| * | Filed herewith. |
Exhibit 5.1
[Letterhead of Morrison & Foerster LLP]
October 6, 2016
Board of Directors
MedEquities Realty Trust, Inc.
3100 West End Avenue, Suite 1000
Nashville, TN 37203
| Re: | Registration Statement on Form S-8 |
Ladies and Gentlemen:
We are acting as counsel to MedEquities Realty Trust, Inc., a Maryland corporation (the “Company”), in connection with its registration statement on Form S-8 (the “Registration Statement”), filed with the Securities and Exchange Commission under the Securities Act of 1933, as amended (the “Securities Act”), relating to the proposed offering an aggregate amount of up to 1,052,107 shares (the “Shares”) of the Company’s common stock, $0.01 par value per share, which includes (i) 693,082 Shares reserved for issuance under the Company’s Amended and Restated 2014 Equity Incentive Plan (the “Plan”) and (ii) 359,025 Shares underlying restricted stock units outstanding under the Plan.
As counsel for the Company, we have examined originals or copies, certified or otherwise identified to our satisfaction, of such documents, corporate records, certificates of public officials and other instruments as we have deemed necessary for the purposes of rendering this opinion and we are familiar with the proceedings taken and proposed to be taken by the Company in with the authorization, issuance and sale of the Shares. In our examination, we have assumed the genuineness of all signatures, the authenticity of all documents submitted to us as originals and the conformity with the originals of all documents submitted to us as copies. We also have assumed that the Shares will not be issued in violation of the ownership limit contained in the Company’s Articles of Amendment and Restatement. This opinion letter is given, and all statements herein are made, in the context of the foregoing.
This opinion letter is based as to matters of law solely on the Maryland General Corporation Law, as amended. We express no opinion herein as to any other laws, statutes, ordinances, rules, or regulations. As used herein, the term “Maryland General Corporation Law, as amended” includes the statutory provisions contained therein, all applicable provisions of the Maryland Constitution and reported judicial decisions interpreting these laws.
Based upon, subject to and limited by the foregoing, we are of the opinion that following (i) effectiveness of the Registration Statement, (ii) issuance of the Shares pursuant to the terms of the Plan, and (iii) receipt by the Company of the consideration for the Shares specified in the applicable resolutions of the Board of Directors or a duly authorized committee thereof and the Plan, the Shares will be validly issued, fully paid and nonassessable.
This opinion letter has been prepared for use in connection with the Registration Statement. We assume no obligation to advise you of any changes in the foregoing subsequent to the effective date of the Registration Statement.
We consent to the use of this opinion as an exhibit to the Registration Statement, and we consent to the reference of our name wherever appearing in the Registration Statement and any amendments thereto. In giving such consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Securities Act.
Very truly yours,
/s/ Morrison & Foerster LLP
Exhibit 10.2
MEDEQUITIES REALTY TRUST, INC.
2014 EQUITY INCENTIVE PLAN
STOCK UNITS AGREEMENT
MedEquities Realty Trust, a Maryland corporation (the “ Company ”), hereby grants stock units (“ Stock Units ”) for shares of its common stock, $0.01 par value per share (“ Common Stock ”), to the Grantee named below, subject to the vesting and other conditions set forth below. Additional terms and conditions of the grant are set forth in this cover sheet and in the attachment (collectively, the “ Agreement ”) and in the Company’s 2014 Equity Incentive Plan (as amended from time to time, the “ Plan ”). Capitalized terms used but not defined herein shall have the meanings given them in the Plan.
Name of Grantee:
Number of Stock Units:
Grant Date:
Vesting Schedule: Subject to your continuous Service and other limitations set forth in this Agreement and the Plan, 50% of your Stock Units will vest based on the achievement of absolute total return to stockholders (“ TSR ”) (the “ TSR Performance Units ”) and 50% of the Stock Units will vest based on the achievement of relative TSR as compared to the performance of the MSCI US REIT Index (the “ MSCI US REIT Index Performance Units ”), during the performance period commencing on the Grant Date and ending on third (3 rd ) anniversary of the Grant Date (the “ Performance Period ”). Vesting of the Stock Units is dependent upon the achievement of the applicable hurdle amounts for the TSR Performance Units and the MSCI US REIT Index Performance Units during the Performance Period. For performance between the hurdle amounts for the TSR Performance Units and the MSCI US REIT Index Performance Units, the amount earned will be interpolated on a linear basis. The hurdle amounts for the TSR Performance Units and the MSCI US REIT Index Performance Units are as follows:
| TSR Performance Units | ||||||
| TSR Performance | % of Award Earned | |||||
| 25.5 | % | 0 | % | |||
| 27.5 | % | 25 | % | |||
| 29.5 | % | 50 | % | |||
| 31.5 | % | 75 | % | |||
| 33.5 | % | 100 | % | |||
| MSCI US REIT Index Performance Units | ||||
|
MSCI US REIT Index
Performance |
% of Award Earned | |||
| = Index | 0 | % | ||
| Index +3% | 50 | % | ||
| Index +6% or greater | 100 | % | ||
For the sake of clarity, TSR is calculated as (i) (a) the value per Share at the end of the Performance Period, assuming reinvestment on the payment date of dividends and any other stockholder payouts during the Performance Period in additional Shares, less (b) the value per Share at the beginning of the Performance Period, divided by (ii) the value per Share at the beginning of the Performance Period, expressed as a percentage. For purposes of this Agreement, the value per Share at the beginning of the Performance Period will be $[ ], and the value per Share at the end of the Performance Period will be (y) if the Shares are listed on a Stock Exchange or publicly traded on a Securities Market, the average closing stock price over last fifteen (15) trading days ending on the last trading day of the Performance Period, or (z) if the Shares are not listed on a Stock Exchange or publicly traded on a Securities Market, as determined by the Committee in good faith.
By your signature below, you agree to all of the terms and conditions described herein, in the attached Agreement and in the Plan, a copy of which is also attached. You acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this cover sheet or Agreement should appear to be inconsistent.
| Grantee: |
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Date: |
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| (Signature) | ||||||||
| Company: |
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Date: |
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| (Signature) | ||||||||
| Title: | ||||||||
Attachment
This is not a stock certificate or a negotiable instrument.
MEDEQUITIES REALTY TRUST, INC.
2014 EQUITY INCENTIVE PLAN
STOCK UNITS AGREEMENT
| Stock Units | This Agreement evidences an award of stock units for Shares in the number set forth on the cover sheet and subject to the vesting and other conditions set forth herein, in the Plan and on the cover sheet (the “ Stock Units ”). | |
| Transfer of Unvested Stock Units | Except as authorized by the Committee in writing, unvested Stock Units may not be sold, assigned, transferred, pledged, hypothecated or otherwise encumbered, whether by operation of law or otherwise, nor may the Stock Units be made subject to execution, attachment or similar process. If you attempt to do any of these things without the Committee’s written authorization, the Stock Units will immediately become forfeited. | |
| Vesting |
The Company will issue your Stock Units in the name set forth on the cover sheet.
Your rights under this Stock Units grant and this Agreement shall vest in accordance with the vesting schedule set forth on the cover sheet so long as you continue in Service through the vesting dates set forth on the cover sheet. |
|
| Delivery | As your Stock Units vest, the Company will issue the Shares to which the then vested Stock Units relate. The resulting aggregate number of vested Shares will be rounded to the nearest whole number, and you cannot vest in more than the number of Shares covered by this grant. The issuance of Shares shall be made within fifteen (15) days of the date on which Stock Units representing such Shares are vested. | |
| Evidence of Issuance | The issuance of the Shares under the grant of Stock Units evidenced by this Agreement shall be evidenced in such a manner as the Company, in its discretion, will deem appropriate, including, without limitation, book-entry, registration or issuance of one or more Share certificates. You will have no further rights with regard to a Stock Unit once the Share related to such Stock Unit has been issued. | |
| Forfeiture of Unvested Stock Units | Unless the termination of your Service triggers accelerated vesting of your Stock Units, or other treatment pursuant to the terms of this Agreement, the Plan, or in an employment or any other written agreement between the Company or any Affiliate, as applicable, and | |
| you, you will automatically forfeit to the Company all of the unvested Stock Units in the event you are no longer providing Service for any reason. | ||
| Leaves of Absence |
For purposes of this Agreement, your Service does not terminate when you go on a bona fide leave of absence that was approved by your employer in writing if the terms of the leave provide for continued Service crediting, or when continued Service crediting is required by applicable law. Your Service terminates in any event when the approved leave ends unless you immediately return to active employee work.
Your employer may determine, in its discretion, which leaves count for this purpose, and when your Service terminates for all purposes under the Plan in accordance with the provisions of the Plan. Notwithstanding the foregoing, the Company may determine, in its discretion, that a leave counts for this purpose even if your employer does not agree. |
|
| Withholding Taxes | You agree as a condition of this grant that you will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the vesting or receipt of the Stock Units within a reasonable period of time, or you shall forfeit the Shares. In the event that the Company or any Affiliate determines that any federal, state, local or foreign tax or withholding payment is required relating to the vesting or receipt of Shares arising from this grant, the Company or any Affiliate shall have the right to require such payments from you, or withhold such amounts from other payments due to you from the Company or any Affiliate (including withholding the delivery of vested Shares otherwise deliverable under this Agreement). | |
| Retention Rights | This Agreement and the grant evidenced hereby do not give you the right to be retained by the Company or any Affiliate in any capacity. Unless otherwise specified in an employment or other written agreement between the Company or any Affiliate and you, the Company or any Affiliate reserves the right to terminate your Service at any time and for any reason. | |
| Stockholder Rights | You, or your estate or heirs, do not have any of the rights of a stockholder with respect to any vested or unvested Stock Units (other than with respect to the Dividend Equivalent Rights described below) until the Shares have been issued to you and either a certificate evidencing your Shares have been issued or an appropriate entry has been made on the Company’s books. | |
| Your grant shall be subject to the terms of Section 18 of the Plan in the event of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. | ||
| Dividend Equivalent Rights | You shall also be entitled to Dividend Equivalent Rights with respect to your Stock Units, as described herein. If the Company declares a normal cash dividend on its Shares and the record date of such dividend is prior to the earlier of the date your Stock Units are settled in full or terminate, you will receive a dividend equivalent credit equal to such normal cash dividend for each outstanding Stock Unit. Any such dividend equivalent credits shall be accumulated (without interest) and shall be subject to the same terms and conditions as are applicable to the Stock Units to which the dividend equivalents relate, including, without limitation, the restrictions on transfer, forfeiture, vesting and payment provisions contained in this Agreement. For avoidance of doubt, dividend equivalents shall be paid in cash on the date the Stock Units to which they relate are converted into Shares. | |
| Legends | If and to the extent that the Shares are issued and represented by certificates rather than book entry, all certificates representing the Shares issued under this grant shall, where applicable, have endorsed thereon the following legends: | |
|
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING, FORFEITURE AND OTHER RESTRICTIONS ON TRANSFER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS CERTIFICATE.” |
||
| To the extent the Shares are represented by a book entry, such book entry will contain an appropriate legend or restriction similar to the foregoing. | ||
| Clawback | If the Company adopts a “clawback” or recoupment policy, this Award will be subject to repayment to the Company to the extent so provided under the terms of such policy. | |
| Applicable Law | This Agreement will be interpreted and enforced under the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | |
| The Plan |
The text of the Plan is incorporated in this Agreement by reference.
Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan.
This Agreement and the Plan constitute the entire understanding between you and the Company regarding this grant; except that any written employment, consulting, confidentiality, non-competition, non-solicitation and/or severance agreement between you and the Company or any Affiliate shall supersede this Agreement with respect to its subject matter. Any other prior agreements, commitments or negotiations concerning this grant are superseded. |
|
| Data Privacy |
In order to administer the Plan, the Company may process personal data about you. Such data includes, but is not limited to, information provided in this Agreement and any changes thereto, other appropriate personal and financial data about you such as your contact information, payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Plan.
By accepting this grant, you give explicit consent to the Company to process any such personal data. |
|
| Code Section 409A | It is intended that this Award comply with Code Section 409A or an exemption to Code Section 409A, and this Award shall be interpreted accordingly. To the extent that the Company determines | |
| that you would be subject to the additional 20% tax imposed on certain non-qualified deferred compensation plans pursuant to Code Section 409A as a result of any provision of this Agreement, such provision shall be deemed amended to the minimum extent necessary to avoid application of such additional tax. The nature of any such amendment shall be determined by the Company. For purposes of this Award, a termination of Service only occurs upon an event that would be a Separation from Service within the meaning of Code Section 409A. |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
Exhibit 10.3
MEDEQUITIES REALTY TRUST, INC.
2014 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
MedEquities Realty Trust, Inc., a Maryland corporation (the “ Company ”), hereby grants shares of its common stock, $0.01 par value per share (“ Common Stock ”), to the Grantee named below, subject to the vesting and other conditions set forth below. Additional terms and conditions of the grant are set forth in this cover sheet and in the attachment (collectively, the “ Agreement ”) and in the Company’s 2014 Equity Incentive Plan (as amended from time to time, the “ Plan ”). Capitalized terms used but not defined herein shall have the meanings given them in the Plan.
Name of Grantee:
Number of Restricted Shares of Common Stock (“ Shares ”):
Grant Date:
Vesting Schedule:
By your signature below, you agree to all of the terms and conditions described herein, in the attached Agreement and in the Plan, a copy of which is also attached. You acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this cover sheet or Agreement should appear to be inconsistent.
| Grantee: |
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Date: |
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| (Signature) | ||||||||
| Company: |
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Date: |
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| (Signature) | ||||||||
| Title: | ||||||||
Attachment
This is not a stock certificate or a negotiable instrument.
MEDEQUITIES REALTY TRUST, INC.
2014 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
| Restricted Stock | This Agreement evidences an award of Shares in the number set forth on the cover sheet and subject to the vesting and other conditions set forth herein, in the Plan and on the cover sheet (the “ Restricted Stock ”). | |
| Transfer of Unvested Restricted Stock | Except as authorized by the Committee in writing, unvested Restricted Stock may not be sold, assigned, transferred, pledged, hypothecated or otherwise encumbered, whether by operation of law or otherwise, nor may the Restricted Stock be made subject to execution, attachment or similar process. If you attempt to do any of these things without the Committee’s written authorization, the Restricted Stock will immediately become forfeited. | |
| Issuance and Vesting | The Company will issue your Restricted Stock in the name set forth on the cover sheet. | |
| Your rights under this Restricted Stock grant and this Agreement shall vest in accordance with the vesting schedule set forth on the cover sheet so long as you continue in Service through the vesting dates set forth on the cover sheet. | ||
| Evidence of Issuance | The issuance of the Shares under the grant of Restricted Stock evidenced by this Agreement shall be evidenced in such a manner as the Company, in its discretion, deems appropriate, including, without limitation, book-entry, direct registration or issuance of one or more share certificates, with any unvested Restricted Stock bearing the appropriate restrictions imposed by this Agreement. As your interest in the Restricted Stock vests, the recordation of the number of Restricted Stock attributable to you will be appropriately modified if necessary. | |
| Forfeiture of Unvested Restricted Stock | Unless the termination of your Service triggers accelerated vesting of your Restricted Stock or other treatment pursuant to the terms of this Agreement, the Plan, or in an employment or any other written agreement between the Company or any Affiliate and you, you will automatically forfeit to the Company all of the unvested Restricted Stock in the event you are no longer providing Service. | |
| Leaves of Absence | For purposes of this Agreement, your Service does not terminate when you go on a bona fide leave of absence that was approved by your employer in writing if the terms of the leave provide for continued Service crediting, or when continued Service crediting is required by applicable law. Your Service terminates in any event when the approved leave ends unless you immediately return to active employee work. | |
2
| Your employer may determine, in its discretion, which leaves count for this purpose, and when your Service terminates for all purposes under the Plan in accordance with the provisions of the Plan. Notwithstanding the foregoing, the Company may determine, in its discretion, that a leave counts for this purpose even if your employer does not agree. | ||
| Withholding Taxes | You agree as a condition of this grant that you will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the vesting or receipt of the Restricted Stock. In the event that the Company or any Affiliate determines that any federal, state, local or foreign tax or withholding payment is required relating to the vesting or receipt of Shares arising from this grant, the Company or any Affiliate shall have the right to require such payments from you, or withhold such amounts from other payments due to you from the Company or any Affiliate (including withholding the delivery of vested Shares otherwise deliverable under this Agreement). | |
| Retention Rights | This Agreement and the grant evidenced hereby do not give you the right to be retained by the Company or any Affiliate in any capacity. Unless otherwise specified in an employment or other written agreement between the Company or any Affiliate and you, the Company or any Affiliate reserves the right to terminate your Service at any time and for any reason. | |
| Stockholder Rights | You will be entitled to receive all dividends or other distributions made on outstanding Shares. No adjustments are made for dividends or other rights if the applicable record date occurs before an appropriate book entry is made (or your certificate is issued), except as described in the Plan. | |
| Your grant shall be subject to the terms of Section 18 of the Plan in the event of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. | ||
| Legends | If and to the extent that the Shares are represented by certificates rather than book entry, all certificates representing the Shares issued under this grant shall, where applicable, have endorsed thereon the following legends: | |
3
4
| Code Section 409A | It is intended that this Award comply with Code Section 409A or an exemption to Code Section 409A, and this Award shall be interpreted accordingly. To the extent that the Company determines that you would be subject to the additional 20% tax imposed on certain non-qualified deferred compensation plans pursuant to Code Section 409A as a result of any provision of this Agreement, such provision shall be deemed amended to the minimum extent necessary to avoid application of such additional tax. The nature of any such amendment shall be determined by the Company. For purposes of this Award, a termination of Service only occurs upon an event that would be a Separation from Service within the meaning of Code Section 409A. | |
| Section 83(b) Election | Absent advance written consent by the Committee, you may not make an election under Code Section 83(b) with regard to this grant of Restricted Stock, and any attempt to make such an election without first obtaining such consent shall result in the forfeiture of the Restricted Stock. | |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
5
Exhibit 10.4
MEDEQUITIES REALTY TRUST, INC.
2014 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
MedEquities Realty Trust, Inc., a Maryland corporation (the “ Company ”), hereby grants shares of its common stock, $0.01 par value per share (“ Common Stock ”), to the Grantee named below, subject to the vesting and other conditions set forth below. Additional terms and conditions of the grant are set forth in this cover sheet and in the attachment (collectively, the “ Agreement ”) and in the Company’s 2014 Equity Incentive Plan (as amended from time to time, the “ Plan ”). Capitalized terms used but not defined herein shall have the meanings given them in the Plan.
Name of Grantee:
Number of Restricted Shares of Common Stock (“ Shares ”):
Grant Date:
Vesting Schedule:
By your signature below, you agree to all of the terms and conditions described herein, in the attached Agreement and in the Plan, a copy of which is also attached. You acknowledge that you have carefully reviewed the Plan, and agree that the Plan will control in the event any provision of this cover sheet or Agreement should appear to be inconsistent.
| Grantee: |
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Date: |
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| (Signature) | ||||||||
| Company: |
|
Date: |
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| (Signature) | ||||||||
| Title: | ||||||||
Attachment
This is not a stock certificate or a negotiable instrument.
MEDEQUITIES REALTY TRUST, INC.
2014 EQUITY INCENTIVE PLAN
RESTRICTED STOCK AGREEMENT
| Restricted Stock | This Agreement evidences an award of Shares in the number set forth on the cover sheet and subject to the vesting and other conditions set forth herein, in the Plan and on the cover sheet (the “ Restricted Stock ”). | |
| Transfer of Unvested Restricted Stock | Except as authorized by the Committee in writing, unvested Restricted Stock may not be sold, assigned, transferred, pledged, hypothecated or otherwise encumbered, whether by operation of law or otherwise, nor may the Restricted Stock be made subject to execution, attachment or similar process. If you attempt to do any of these things without the Committee’s written authorization, the Restricted Stock will immediately become forfeited. | |
| Issuance and Vesting | The Company will issue your Restricted Stock in the name set forth on the cover sheet. | |
| Your rights under this Restricted Stock grant and this Agreement shall vest in accordance with the vesting schedule set forth on the cover sheet so long as you continue in Service through the vesting dates set forth on the cover sheet. | ||
| Change in Control | Notwithstanding the vesting schedule set forth above, upon the consummation of a Change in Control, the Restricted Stock will become 100% vested. | |
| Evidence of Issuance | The issuance of the Shares under the grant of Restricted Stock evidenced by this Agreement shall be evidenced in such a manner as the Company, in its discretion, deems appropriate, including, without limitation, book-entry, direct registration or issuance of one or more share certificates, with any unvested Restricted Stock bearing the appropriate restrictions imposed by this Agreement. As your interest in the Restricted Stock vests, the recordation of the number of Restricted Stock attributable to you will be appropriately modified if necessary. | |
| Forfeiture of Unvested Restricted Stock | Unless the termination of your Service triggers accelerated vesting of your Restricted Stock or other treatment pursuant to the terms of this Agreement, the Plan, or any other written agreement between the Company or any Affiliate and you, you will automatically forfeit to the Company all of the unvested Restricted Stock in the event you are no longer providing Service. | |
| Withholding Taxes | You agree as a condition of this grant that you will make acceptable arrangements to pay any withholding or other taxes that may be due as a result of the vesting or receipt of the Restricted Stock. In the event that the | |
| Company or any Affiliate determines that any federal, state, local or foreign tax or withholding payment is required relating to the vesting or receipt of Shares arising from this grant, the Company or any Affiliate shall have the right to require such payments from you, or withhold such amounts from other payments due to you from the Company or any Affiliate (including withholding the delivery of vested Shares otherwise deliverable under this Agreement). | ||
| Retention Rights | This Agreement and the grant evidenced hereby do not give you the right to be retained by the Company or any Affiliate in any capacity. Unless otherwise specified in a written agreement between the Company or any Affiliate and you, the Company or any Affiliate reserves the right to terminate your Service at any time and for any reason. | |
| Stockholder Rights | You will be entitled to receive all dividends or other distributions made on outstanding Shares. No adjustments are made for dividends or other rights if the applicable record date occurs before an appropriate book entry is made (or your certificate is issued), except as described in the Plan. | |
| Your grant shall be subject to the terms of any applicable agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. | ||
| Legends | If and to the extent that the Shares are represented by certificates rather than book entry, all certificates representing the Shares issued under this grant shall, where applicable, have endorsed thereon the following legends: | |
|
“THE SHARES REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN VESTING, FORFEITURE AND OTHER RESTRICTIONS ON TRANSFER, OR HIS OR HER PREDECESSOR IN INTEREST. A COPY OF SUCH AGREEMENT IS ON FILE AT THE PRINCIPAL OFFICE OF THE COMPANY AND WILL BE FURNISHED UPON WRITTEN REQUEST TO THE SECRETARY OF THE COMPANY BY THE HOLDER OF RECORD OF THE SHARES REPRESENTED BY THIS CERTIFICATE.” |
||
| To the extent the Shares are represented by a book entry, such book entry will contain an appropriate legend or restriction similar to the foregoing. | ||
| Clawback | If the Company adopts a “clawback” or recoupment policy, this Award will be subject to repayment to the Company to the extent so provided under the terms of such policy. | |
| Applicable Law | This Agreement will be interpreted and enforced under the laws of the State of Maryland, other than any conflicts or choice of law rule or principle that might otherwise refer construction or interpretation of this Agreement to the substantive law of another jurisdiction. | |
| The Plan | The text of the Plan is incorporated in this Agreement by reference. | |
| Certain capitalized terms used in this Agreement are defined in the Plan, and have the meaning set forth in the Plan. | ||
| This Agreement and the Plan constitute the entire understanding between you and the Company regarding this grant; except that any written employment, consulting, confidentiality, non-competition, non-solicitation and/or severance agreement between you and the Company or any Affiliate shall supersede this Agreement with respect to its subject matter. Any other prior agreements, commitments or negotiations concerning this grant are superseded. | ||
| Corporate Activity | Your grant shall be subject to the terms of any applicable agreement of merger, liquidation or reorganization in the event the Company is subject to such corporate activity. | |
| Data Privacy | In order to administer the Plan, the Company may process personal data about you. Such data includes, but is not limited to, information provided in this Agreement and any changes thereto, other appropriate personal and financial data about you such as your contact information, payroll information and any other information that might be deemed appropriate by the Company to facilitate the administration of the Plan. | |
| By accepting this grant, you give explicit consent to the Company to process any such personal data. | ||
| Code Section 409A | It is intended that this Award comply with Code Section 409A or an exemption to Code Section 409A. To the extent that the Company determines that you would be subject to the additional 20% tax imposed on | |
| certain non-qualified deferred compensation plans pursuant to Code Section 409A as a result of any provision of this Agreement, such provision shall be deemed amended to the minimum extent necessary to avoid application of such additional tax. The nature of any such amendment shall be determined by the Company. For purposes of this Award, a termination of Service only occurs upon an event that would be a Separation from Service within the meaning of Code Section 409A. | ||
|
Section 83(b) Election |
Absent advance written consent by the Committee, you may not make an election under Code Section 83(b) with regard to this grant of Restricted Stock, and any attempt to make such an election without first obtaining such consent shall result in the forfeiture of the Restricted Stock. | |
By signing this Agreement, you agree to all of the terms and conditions described above and in the Plan.
Exhibit 23.1
Consent of Independent Registered Public Accounting Firm
The Board of Directors
MedEquities Realty Trust, Inc.:
We consent to the incorporation by reference in the Registration Statement (Form S-8) of MedEquities Realty Trust, Inc. pertaining to the Amended and Restated 2014 Equity Incentive Plan, of our report dated April 7, 2016 except for Note 4, as to which the date is May 3, 2016, with respect to the consolidated balance sheets of MedEquities Realty Trust, Inc. as of December 31, 2015 and 2014 and the consolidated statements of income, equity and cash flows for the year ended December 31, 2015 and for the period from April 23, 2014 (inception) to December 31, 2014, which report appears in the Registration Statement on Form S-11 as amended (No. 333-206490) of MedEquities Realty Trust, Inc.
/s/ KPMG LLP
Atlanta, Georgia
October 6, 2016