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Exhibit 4.1
AMENDED AND RESTATED
MEDICAL PROPERTIES TRUST, INC.
2004 EQUITY INCENTIVE PLAN
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.
Table of Contents
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ARTICLE 1.
DEFINITIONS............................................................................
1
ARTICLE 2. COMMON STOCK SUBJECT TO
PLAN...........................................................
5
2.1 Common
Stock Subject to
Plan..........................................................
5
2.2 Add-back
of
Grants....................................................................
5
ARTICLE 3. ELIGIBILITY; GRANTS; AWARD
AGREEMENTS..................................................
5
3.1
Eligibility...........................................................................
5
3.2
Awards................................................................................
6
3.3 Provisions
Applicable to Section 162(m)
Participants.................................. 6
3.4 Award
Agreement.......................................................................
7
ARTICLE 4.
OPTIONS................................................................................
7
4.1 Award
Agreement for Option
Grant......................................................
7
4.2 Option
Price..........................................................................
7
4.3
Qualification for Incentive Stock
Options............................................. 7
4.4 Change in
Incentive Stock Option
Grant................................................ 7
4.5 Option
Term...........................................................................
8
4.6 Option
Exercisability and
Vesting.....................................................
8
4.7 Fair
Market
Value.....................................................................
8
ARTICLE 5. EXERCISE OF
OPTIONS....................................................................
9
5.1
Exercise..............................................................................
9
5.2 Manner of
Exercise....................................................................
9
5.3 Conditions
to Issuance of Common
Stock................................................ 10
5.4 Rights as
Stockholders................................................................
10
5.5 Ownership
and Transfer
Restrictions...................................................
10
5.6
Limitations on Exercise of
Options....................................................
11
ARTICLE 6. STOCK
AWARDS...........................................................................
11
6.1 Award
Agreement.......................................................................
11
6.2 Awards of
Restricted Common Stock, Restricted Stock Units and Deferred Stock
Units.... 11
6.3 Rights as
Stockholders................................................................
12
6.4
Restriction...........................................................................
12
6.5 Lapse of
Restrictions.................................................................
13
6.6 Repurchase
of Restricted Common
Stock................................................. 13
6.7
Escrow................................................................................
13
6.8
Legend................................................................................
13
6.9
Conversion............................................................................
13
ARTICLE 7. STOCK APPRECIATION
RIGHTS..............................................................
13
7.1 Award
Agreement for
SARs..............................................................
13
7.2 General
Requirements..................................................................
13
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7.3 Base
Amount...........................................................................
14
7.4 Tandem
SARs...........................................................................
14
7.5 SAR
Exercisability....................................................................
14
7.6 Value of
SARs.........................................................................
14
7.7 Form of
Payment.......................................................................
14
ARTICLE 8. PERFORMANCE
UNITS......................................................................
14
8.1 Award
Agreement for Performance
Units................................................. 14
8.2 General
Requirements..................................................................
15
8.3
Performance Period and Performance
Goals.............................................. 15
8.4 Payment With Respect
to Performance Units.............................................
15
ARTICLE 9.
DEFERRALS..............................................................................
15
ARTICLE 10.
ADMINISTRATION........................................................................
15
10.1
Committee.............................................................................
15
10.2 Duties and
Powers of
Committee........................................................
16
10.3 Compensation;
Professional Assistance; Good Faith
Actions............................. 16
ARTICLE 11. MISCELLANEOUS
PROVISIONS..............................................................
16
11.1
Transferability.......................................................................
16
11.2 Amendment,
Suspension or Termination of this
Plan..................................... 17
11.3 Changes in
Common Stock or Assets of the Company, Acquisition or Liquidation
of
the Company and Other Corporate
Events................................................ 17
11.4 Continued
Employment..................................................................
19
11.5 Tax
Withholding.......................................................................
19
11.6 Forfeiture
Provisions.................................................................
20
11.7 Limitations
Applicable to Section 16 Persons and Performance-Based
Compensation....... 20
11.8
Restrictions..........................................................................
20
11.9 Restrictive
Legend....................................................................
21
11.10 Effect of Plan Upon
Option and Compensation Plans.....................................
21
11.11 Compliance with
Laws..................................................................
21
11.12
Titles................................................................................
22
11.13 Governing
Law.........................................................................
22
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<PAGE>
AMENDED AND RESTATED
MEDICAL PROPERTIES TRUST, INC.
2004 EQUITY INCENTIVE PLAN
Medical Properties Trust, Inc., a Maryland
corporation (the "Company"), has
established the Amended and Restated
Medical Properties Trust, Inc. 2004 Equity
Incentive Plan (the "Plan"), for the
benefit of Employees, Consultants and
Directors of the Company and MPT Operating
Partnership, L.P.
The purposes of this Plan are (a) to
recognize and compensate selected
Employees, Consultants and Directors who
contribute to the development and
success of the Company and its Affiliates
and Subsidiaries, (b) to attract and
retain, Employees, Consultants and
Directors, and (c) to provide incentive
compensation to Employees, Consultants and
Directors based upon the performance
of the Company and its Affiliates and
Subsidiaries.
This Plan became effective on March 31,
2004, when it was initially adopted by
the Board of Directors and approved by the
stockholders of the Company.
ARTICLE 1. DEFINITIONS
Wherever the following initially
capitalized terms are used in this Plan, they
shall have the meanings specified below,
unless the context clearly indicates
otherwise.
"Affiliate" shall mean any entity that
directly or indirectly through one or
more intermediaries, controls, is
controlled by, or is under common control with
the Company, including without limitation,
MPT Operating Partnership, L.P.
"Award" shall mean the grant or award of
Options, Restricted Common Stock,
Restricted Stock Units, Deferred Stock
Units, SARs or Performance Units under
this Plan.
"Award Agreement" shall mean the agreement
granting or awarding Options,
Restricted Common Stock, Restricted Stock
Units, Deferred Stock Units, SARs or
Performance Units.
"Board" shall mean the Board of Directors
of the Company, as comprised from time
to time.
"Cause" shall mean (i) the conviction of
the Employee of, or the entry of a plea
of guilty or nolo contendere by the
Employee to, a felony (exclusive of any
felony relating to negligent operation of a
motor vehicle and not including a
conviction, plea of guilty or nolo
contendere arising solely under a statutory
provision imposing criminal liability upon
the Employee on a per se basis due to
the Company offices held by the Employee,
so long as any act or omission of the
Employee with respect to such matter was
not taken or omitted in contravention
of any applicable policy or directive of
the Board), (ii) a willful breach of
his duty of loyalty which is materially
detrimental to the Company, (iii) a
willful failure to perform or adhere to
explicitly stated duties that are
consistent with the terms of his position
with the Company, or the Company's
reasonable and customary guidelines of
employment or reasonable and customary
corporate governance guidelines or
policies, including without limitation any
business code of ethics adopted by the
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Board, or to follow the lawful directives
of the Board (provided such directives
are consistent with the terms of the
Participant's Employment Agreement), which,
in any such case, continues for thirty (30)
days after written notice from the
Board to the Employee, or (iv) gross
negligence or willful misconduct in the
performance of the Employee's duties. No
act, or failure to act, on the
Employee's part will be deemed "gross
negligence" or "willful misconduct" unless
done, or omitted to be done, by the
Employee not in good faith and without a
reasonable belief that the Employee's act,
or failure to act, was in the best
interest of the Company. The Committee
shall determine, in good faith, if an
Employee has been terminated for Cause.
"Change of Control" shall mean the
occurrence of any of the following events:
(a) any person, entity or affiliated group,
excluding the Company or any
employee benefit plan of the Company,
acquiring more than 50% of the then
outstanding shares of voting stock of the
Company, (b) the consummation of any
merger or consolidation of the Company into
another company, such that the
holders of the shares of the voting stock
of the Company immediately before such
merger or consolidation own less than 50%
of the voting power of the securities
of the surviving company or the parent of
the surviving company, (c) the
adoption of a plan for complete liquidation
of the Company or for the sale or
disposition of all or substantially all of
the Company's assets, such that after
the transaction, the holders of the shares
of the voting stock of the Company
immediately prior to the transaction own
less than 50% of the voting securities
of the acquiror or the parent of the
acquiror, or (d) during any period of two
(2) consecutive years, individuals who at
the beginning of such period
constituted the Board (including for this
purpose any new director whose
election or nomination for election by the
Company's stockholders was approved
by a vote of at least a majority of the
directors then still in office who were
directors at the beginning of such period)
cease for any reason to constitute at
least a majority of the Board.
"Code" shall mean the Internal Revenue Code
of 1986, as amended.
"Committee" shall mean the Compensation
Committee of the Board.
"Common Stock " shall mean the common
stock, par value $0.001 per share, of the
Company.
"Company" shall mean Medical Properties
Trust, Inc., a Maryland corporation, or
any business organization which succeeds to
its business and elects to continue
this Plan. For purposes of this Plan, the
term Company shall include, where
applicable, the employer of the Employee or
Consultant, including without
limitation MPT Operating Partnership, L.P.
or such other Affiliate or Subsidiary
that employs the Employee or the
Consultant.
"Consultant" shall mean a professional or
technical expert, consultant or
independent contractor who provides
services to the Company or an Affiliate or
Subsidiary, and who may be selected to
participate in the Plan.
"Deferred Stock Unit" shall mean a right to
receive Common Stock awarded under
Article 6 of this Plan.
"Director" means any individual who is a
member of the Board.
2
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"Employee" shall mean any employee (as
defined in accordance with the
regulations and revenue rulings then
applicable under Section 3401(c) of the
Code) of the Company or an Affiliate or
Subsidiary of the Company, whether such
employee was so employed at the time this
Plan was initially adopted or becomes
so employed subsequent to the adoption of
this Plan.
"Employment Agreement" shall mean the
employment, consulting or similar
contractual agreement entered into by the
Employee or the Consultant, as the
case may be, and the Company governing the
terms of the Employee's or
Consultant's employment with the Company,
if any.
"Exchange Act" shall mean the Securities
Exchange Act of 1934, as amended.
"Fair Market Value" of a share of Common
Stock, as of a given date, shall be
determined pursuant to Section 4.7.
"Good Reason" shall only apply, and shall
only have the meaning, as contained in
the Participant's Employment Agreement. Any
provision herein that relates to a
Termination of Employment by the
Participant for Good Reason shall have no
effect if there is no Employment Agreement
or the Employment Agreement does not
contain a provision permitting the
Participant to terminate for Good Reason.
"Incentive Stock Option" shall mean an
option which conforms to the applicable
provisions of Section 422 of the Code and
which is designated as an Incentive
Stock Option by the Committee.
"Independent Director" shall mean a
Director who is not an Employee.
"MPT OP" means MPT Operating Partnership,
L.P., of which the Company is
presently a limited partner and the sole
owner of the general partner.
"Non-Qualified Stock Option" shall mean an
Option which the Committee does not
designate as an Incentive Stock Option.
"144A Offering" means the private placement
of Common Stock of the Company.
"Option" shall mean an option to purchase
shares of Common Stock that is granted
under Article 4 of this Plan. An option
granted under this Plan shall, as
determined by the Committee, be either a
Non-Qualified Stock Option or an
Incentive Stock Option; provided, however,
that Options granted to Independent
Directors and Consultants shall be
Non-Qualified Stock Options.
"Participant" shall mean an Employee,
Consultant or Director who has been
determined as eligible to receive an Award
pursuant to Section 3.2.
"Performance Units" shall mean performance
units granted under Article 8 of this
Plan.
"Permanent Disability" or "Permanently
Disabled" shall mean the inability of a
Participant, due to a physical or mental
impairment, to perform the material
services of the Participant's position with
the Company for a period of six (6)
months, whether or not consecutive, during
any 365-
3
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day period. A determination of Permanent
Disability shall be made by a physician
satisfactory to both the Participant and
the Committee, provided that if the
Participant and the Committee do not agree
on a physician, each of them shall
select a physician and those two physicians
together shall select a third
physician, whose determination as to
Permanent Disability shall be binding on
all parties.
"Plan" shall mean the Amended and Restated
Medical Properties Trust, Inc. 2004
Equity Incentive Plan, as embodied herein
and as amended from time to time.
"Plan Year" shall mean the fiscal year of
the Company.
"Restricted Common Stock" shall mean Common
Stock awarded under Article 6 of
this Plan.
"Restricted Stock Unit" shall mean a right
to receive Common Stock awarded under
Article 6 of this Plan.
"Retirement" or "Retire" shall, except as
otherwise defined in the Participant's
Employment Agreement, mean a Participant's
Termination of Employment with the
Company on or after his 65th birthday.
"Rule 16b-3" shall mean that certain Rule
16b-3 under the Exchange Act, as such
rule may be amended from time to time.
"SAR" shall mean stock appreciation rights
awarded under Article 7 of this Plan.
"Section 162(m) Participant" shall mean any
Employee the Committee designates to
receive an Award whose compensation for the
fiscal year in which the Employee is
so designated or a future fiscal year may
be subject to the limit on deductible
compensation imposed by Section 162(m) of
the Code, as determined by the
Committee in its sole discretion.
"Stock Award" shall mean an Award of
Restricted Common Stock, Restricted Stock
Units or Deferred Stock Units under Article
6 of this Plan.
"Stock Award Account" shall mean the
bookkeeping account reflecting Awards of
Restricted Stock Units and Deferred Stock
Units under Article 6 of this Plan.
"Subsidiary" shall mean an entity in an
unbroken chain beginning with the
Company if each of the entities other than
the last entity in the unbroken chain
owns 50 percent or more of the total
combined voting power of all classes of
equity in one of the other entities in such
chain.
"Termination of Employment" shall mean the
date on which the employee-employer,
consulting, contractual or similar
relationship between a Participant and the
Company is terminated for any reason, with
or without Cause, including, but not
by way of limitation, a termination of
employment by resignation, discharge,
death, Permanent Disability or Retirement,
but excluding (i) termination of
employment where there is a simultaneous
reemployment or continuing employment
of a Participant by the Company, and (ii)
at the discretion of the Committee,
4
<PAGE>
termination of employment which results in
a temporary severance of the
employee-employer relationship. The
Committee, in its absolute discretion, shall
determine the effect of all matters and
questions relating to a Termination of
Employment (subject to the provisions of
any Employment Agreement between a
Participant and the Company), including,
but not limited to all questions of
whether particular leaves of absence
constitute a Termination of Employment;
provided, however, that, unless otherwise
determined by the Committee in its
discretion, a leave of absence, change in
status from an employee to an
independent contractor or other change the
employee-employer, consulting,
contractual or similar relationship shall
constitute a Termination of Employment
if, and to the extent that, such leave of
absence, change in status or other
change interrupts employment for the
purposes of Section 422(a)(2) of the Code
and the then applicable regulations and
revenue rulings under said Section.
ARTICLE 2. COMMON STOCK SUBJECT TO PLAN
2.1 COMMON STOCK SUBJECT TO
PLAN.
2.1.1 The Common Stock subject to an Award
shall be shares of the Company's
authorized but unissued, reacquired, or
treasury Common Stock. Subject to
adjustment as described in Section 11.3.1,
the aggregate number of shares of
Common Stock that may be issued under the
Plan as Restricted Common Stock,
Restricted Stock Units, Deferred Stock
Units or pursuant to the exercise of
Options is 4,691,180.
2.1.2 The maximum number of shares of
Common Stock which may be awarded to any
individual in any calendar year shall not
exceed 300,000.
2.2 ADD-BACK OF GRANTS. If any Option or
SAR expires or is canceled without
having been fully exercised, is exercised
in whole or in part for cash as
permitted by this Plan, or is exercised
prior to becoming vested as permitted
under Section 4.6.3 and is forfeited prior
to becoming vested, the number of
shares of Common Stock subject to such
Option or SAR but as to which such
Option, SAR or other right was not
exercised or vested prior to its expiration,
cancellation or exercise may again be
optioned, granted or awarded hereunder.
Shares of Common Stock which are delivered
by the Participant or withheld by the
Company upon the exercise of any Option or
other award under this Plan, in
payment of the exercise price thereof, may
again be optioned, granted or awarded
hereunder. If any shares of Common Stock
awarded as Restricted Common Stock,
Restricted Stock Units or other equity
award hereunder or as payment for
Performance Units are forfeited by the
Participant, such shares may again be
optioned, granted or awarded hereunder.
Notwithstanding the provisions of this
Section 2.2, no shares of Common Stock may
again be optioned, granted or awarded
pursuant to an Incentive Stock Option if
such action would cause such Option to
fail to qualify as an Incentive Stock
Option under Section 422 of the Code.
ARTICLE 3. ELIGIBILITY; GRANTS; AWARD AGREEMENTS
3.1 ELIGIBILITY. Any Employee,
Consultant or Director selected to participate
pursuant to Section 3.2 shall be eligible
to participate in the Plan.
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3.2 AWARDS. The Committee shall
determine which Employees, Consultants and
Directors, shall receive Awards, whether
the Employee, Consultant or Director
will receive Options, Restricted Common
Stock, Restricted Stock Units, Deferred
Stock Units, SARs or Performance Units,
whether an Option grant shall be of
Incentive Stock Options or Non-Qualified
Stock Options, and the number of shares
of Common Stock subject to such Award.
Notwithstanding the foregoing, the terms
and conditions of an Award intended to
qualify as performance-based compensation
as described in Section 162(m)(4)(C) of the
Code shall include, but not be
limited to, such terms and conditions as
may be necessary to meet the applicable
provisions of Section 162(m) of the
Code.
3.3 PROVISIONS APPLICABLE TO
SECTION 162(m) PARTICIPANTS.
3.3.1 Notwithstanding anything in the Plan
to the contrary, the Committee may
grant Options, Restricted Common Stock,
Restricted Stock Units, SARs or
Performance Units to a Section 162(m)
Participant that vest upon the attainment
of performance targets for the Company
which are related to one or more of the
following performance goals: (i) pre-tax
income, (ii) operating income, (iii)
cash flow, (iv) earnings per share, (v)
return on equity, (vi) return on
invested capital or assets, (vii) cost
reductions or savings, or (vii) such
other identifiable and measurable
performance objectives, as determined by the
Committee.
3.3.2 To the extent necessary to comply
with the performance-based compensation
requirements of Section 162(m)(4)(C) of the
Code, no later than ninety (90) days
following the commencement of any fiscal
year in question or any other
designated fiscal period (or such other
time as may be required or permitted by
Section 162(m) of the Code), the Committee
shall, in writing, (i) designate one
or more Section 162(m) Participants, (ii)
select the performance goal or goals
applicable to the fiscal year or other
designated fiscal period, (iii) establish
the various targets and bonus amounts which
may be earned for such fiscal year
or other designated fiscal period and (iv)
specify the relationship between
performance goals and targets and the
amounts to be earned by each Section
162(m) Participant for such fiscal year or
other designated fiscal period.
Following the completion of each fiscal
year or other designated fiscal period,
the Committee shall certify in writing
whether the applicable performance
targets have been achieved for such fiscal
year or other designated fiscal
period. In determining the amount earned by
a Section 162(m) Participant, the
Committee shall have the right to reduce
(but not to increase) the amount
payable at a given level of performance to
take into account additional factors
that the Committee may deem relevant to the
assessment of individual or
corporate performance for the fiscal year
or other designated fiscal period.
3.4 AWARD AGREEMENT. Upon the
selection of an Employee, Consultant or Director
to become a Participant and receive an
Award, the Committee shall cause a
written Award Agreement to be issued to
such individual encompassing the terms
and conditions of such Award, as determined
by the Committee in its sole
discretion; provided, however, that if
applicable, the terms of such Award
Agreement shall comply with the terms of
such Participant's Employment
Agreement, if any. Such Award Agreement
shall provide for the exercise price for
Options and SARs; the purchase price for
Restricted Common Stock, Restricted
Stock Units and Deferred Stock Units; the
performance criteria for Performance
Units; and the exercisability and vesting
schedule, payment terms and such other
terms and conditions of such Award, as
determined by the Committee in its sole
discretion. Each Award Agreement shall be
executed by
6
<PAGE>
the Participant and an officer or a
Director (other than the Participant) of the
Company authorized to sign such Award
Agreement and shall contain such terms and
conditions that are consistent with the
Plan, including but not limited to the
exercisability and vesting schedule, if
any, as the Committee in its sole
discretion shall determine. All Awards
shall be made conditional upon the
Participant's acknowledgment, in writing in
the Award Agreement or otherwise by
acceptance of the Award, that all decisions
and determinations of the Committee
shall be final and binding on the
Participant, his beneficiaries and any other
person having or claiming an interest under
such Award.
ARTICLE 4. OPTIONS
4.1 AWARD AGREEMENT FOR OPTION
GRANT. Option grants shall be evidenced by an
Award Agreement, pursuant to Section 3.4.
All Award Agreements evidencing
Options intended to qualify as
performance-based compensation as described in
Section 162(m)(4)(C) of the Code shall
contain such terms and conditions as may
be necessary to meet the applicable
provisions of Section 162(m) of the Code.
All Award Agreements evidencing Incentive
Stock Options shall contain such terms
and conditions as may be necessary to meet
the applicable provisions of Section
422 of the Code.
4.2 OPTION PRICE. The price per
share of the Common Stock subject to each
Option shall be set by the Committee;
provided, however, that (i) such price
shall not be less than the par value of a
share of Common Stock and shall not be
less than 100% of the Fair Market Value of
a share of Common Stock on the date
the Option is granted, (ii) in the case of
Incentive Stock Options granted to an
individual then owning (within the meaning
of Section 424(d) of the Code) more
than 10% of the total combined voting power
of all classes of stock of the
Company or any Subsidiary or parent
corporation thereof (within the meaning of
Section 422 of the Code), such price shall
not be less than 110% of the Fair
Market Value of a share of Common Stock on
the date the Option is granted.
4.3 QUALIFICATION FOR INCENTIVE
STOCK OPTIONS. The Committee may grant an
Incentive Stock Option to an individual if
such person is an Employee of the
Company or is an Employee of an Affiliate
or Subsidiary as permitted under
Section 422(a)(2) of the Code.
4.4 CHANGE IN INCENTIVE STOCK
OPTION GRANT. Any Incentive Stock Option granted
under this Plan may be modified by the
Committee to disqualify such Option from
treatment as an Incentive Stock Option
under Section 422 of the Code. To the
extent that the aggregate Fair Market Value
of shares of Common Stock with
respect to which Incentive Stock Options
(within the meaning of Section 422 of
the Code, but without regard to Section
422(d) of the Code) are exercisable for
the first time by a Participant during any
calendar year (under the Plan and all
other Incentive Stock Option plans of the
Company) exceeds $100,000, such
Options shall be treated as Non-Qualified
Stock Options to the extent required
or permitted by Section 422 of the Code.
The rule set forth in the preceding
sentence shall be applied by taking Options
into account in the order in which
they were granted. For purposes of this
Section 4.4, the Fair Market Value of
shares of Common Stock shall be determined
as of the time the Option with
respect to such shares of Common Stock is
granted, pursuant to Section 4.7.
7
<PAGE>
4.5 OPTION TERM. The term of an
Option shall be set by the Committee in its
discretion; provided, however, in the case
of Incentive Stock Options, the term
shall not be more than ten (10) years from
the date the Incentive Stock Option
is granted, or five (5) years from such
date if the Incentive Stock Option is
granted to an Employee then owning (within
the meaning of Section 424(d) of the
Code) more than 10% of the total combined
voting power of all classes of stock
of the Company or any Subsidiary or parent
corporation thereof (within the
meaning of Section 422 of the Code). Such
Incentive Stock Options shall be
subject to Section 5.6, except as limited
by the requirements of Section 422 of
the Code and regulations and rulings
thereunder applicable to Incentive Stock
Options.
4.6 OPTION EXERCISABILITY AND
VESTING.
4.6.1 The period during which Options in
whole or in part become exercisable and
vest in the Participant shall be set by the
Committee and shall be as provided
for in the Award Agreement. At any time
after the grant of an Option, the
Committee may, in its sole and absolute
discretion and subject to whatever terms
and conditions it selects, accelerate the
period during which an Option becomes
exercisable and vests.
4.6.2 In each Award Agreement, the
Committee shall indicate whether the portion
of the Options, if any, that remains
non-exercisable and non-vested upon the
Participant's Termination of Employment
with the Company is forfeited. In so
specifying, the Committee may differentiate
between the reason for the
Participant's Termination of
Employment.
4.6.3 At any time on or after the grant of
an Option, the Committee may provide
in an Award Agreement that the Participant
may elect to exercise part or all of
an Option before it otherwise has become
exercisable. Any shares of Common Stock
so purchased shall be restricted Common
Stock and shall be subject to a
repu
