UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
 
FORM 8‑K
 
CURRENT REPORT
Pursuant to Section 13 OR 15(d) of the Securities Exchange Act of 1934
 
 
Date of Report (Date of earliest event reported)
 
February 12, 2013 (February 11, 2013)


Brookdale Senior Living Inc.
(Exact name of registrant as specified in its charter)


Delaware
001-32641
20-3068069
(State or other jurisdiction
(Commission File Number)
(IRS Employer
of incorporation)
 
Identification No.)
 
 
 
 
 
 
111 Westwood Place, Suite 400, Brentwood, Tennessee
37027
(Address of principal executive offices)
(Zip Code)


Registrant's telephone number, including area code
 
(615) 221-2250
 
 
 
(Former name or former address, if changed since last report.)
 
Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions ( see General Instruction A.2. below):
 
o
Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
 
o
Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
 
o
Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
 
o
Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))



 
Section 5 — Corporate Governance and Management

Item 5.02     Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

(b)              On February 11, 2013, Brookdale Senior Living Inc. (the "Company") issued a press release announcing that W.E. Sheriff, Chief Executive Officer ("CEO") of the Company, will retire as CEO effective as of the first business day following the filing of the Company's Annual Report on Form 10-K for the year ended December 31, 2012.  As previously announced, Mr. Sheriff will continue to serve the Company as a member of the Company's Board of Directors (the "Board") and as a consultant pursuant to the terms of his existing employment agreement.

A copy of the press release announcing Mr. Sheriff's retirement as CEO is filed as Exhibit 99.1 hereto, which is incorporated herein by reference.

(c)              On February 11, 2013, the Company announced in the same press release that its Board has selected T. Andrew Smith to succeed Mr. Sheriff as CEO of the Company.  Mr. Smith, age 52, currently the Company's Executive Vice President, General Counsel and Secretary, will assume his new role as CEO on the first business day following the filing of the Company's Annual Report on Form 10-K for the year ended December 31, 2012.

A copy of the press release announcing Mr. Smith's appointment as CEO is filed as Exhibit 99.1 hereto, which is incorporated herein by reference.

(e)              On February 11, 2013 (the "Effective Date"), Mr. Smith entered into an employment agreement with the Company (the "Employment Agreement").  The following summary of certain provisions of the Employment Agreement is qualified in its entirety by reference to the Employment Agreement filed as Exhibit 10.1 hereto, which is incorporated herein by reference.  The Employment Agreement superceded and replaced the Severance Pay Policy Letter Agreement, dated as of August 6, 2010, between the Company and Mr. Smith.

The Employment Agreement has a three year term, subject to automatic extensions for additional one year periods, unless either Mr. Smith or the Company gives written notice to the other no less than 90 days prior to the expiration of the term that the term will not be so extended.

Mr. Smith's initial base salary will be $480,000 per year, which will be increased to $825,000 per year as of the date that his service as CEO begins.  In addition, Mr. Smith will have an annual cash bonus opportunity targeted at 125% of base salary, subject to the terms of the Company's incentive compensation plan for senior executive officers.

Mr. Smith is eligible to participate in the various Company benefit plans made available to senior executive officers of the Company.  In addition, the Company will provide Mr. Smith with basic term life insurance benefits of at least 100% of Mr. Smith's base salary, at no cost to Mr. Smith.  The Company will also reimburse Mr. Smith for all reasonable legal fees and related

 
expenses incurred by him in connection with his appointment as CEO, up to a maximum of $30,000.

The Employment Agreement provides that, in the event Mr. Smith's employment is terminated by the Company for "cause" or he resigns without "good reason" (each as defined therein), he will be entitled to receive: (i) his accrued base salary through the date of termination; (ii) any annual bonus earned but unpaid as of the date of termination for any previously completed calendar year; (iii) reimbursement for any properly incurred business expenses; and (iv) benefits, if any, to which he may be entitled under the Company's benefits plans (collectively, the "Accrued Benefits").

In the event Mr. Smith's employment is terminated by the Company without cause or he resigns for good reason (in each case other than within 12 months following a "change in control" (as defined in the Employment Agreement)) he will be entitled to receive the Accrued Benefits, and upon signing a release of claims in a form adopted by the Company and continuing to comply with all applicable restrictive covenants, the following severance payments and benefits: (i) 250% of his base salary paid in installments over 18 months, (ii) an annual bonus for the year of termination (to the extent earned under the terms of the bonus plan), pro-rated based on the number of days he was employed by the Company (the "Pro-Rated Annual Bonus"), and (iii) if then eligible for, and he elects continuation of health coverage under COBRA, the Company will pay the employer portion of Mr. Smith's COBRA premium payments for 18 months as if he were still an active employee of the Company (the "Severance Benefits").

If Mr. Smith's employment is terminated by reason of his death or "disability" (as defined in the Employment Agreement), Mr. Smith (or his beneficiary or estate, as applicable) will be entitled to receive (i) the Accrued Benefits, and (ii) the Pro-Rated Annual Bonus, subject, in the event of termination by reason of disability, to Mr. Smith signing a release of claims in a form adopted by the Company and continuing to comply with all applicable restrictive covenants.

In the event Mr. Smith's employment is terminated by the Company without cause or he resigns for good reason, in each case within 12 months following a change in control, he will be entitled to receive the Accrued Benefits, and upon signing a release of claims in a form adopted by the Company and continuing to comply with all applicable restrictive covenants, the following severance payments and benefits: (i) 300% of his base salary paid in installments over 18 months, (ii) the Pro-Rated Annual Bonus, and (iii) the Severance Benefits.

Termination of Mr. Smith's employment within 30 days of the end of the initial term or any renewal term of the Employment Agreement following the provision of written notice of non-renewal by the Company will be treated as a termination of Mr. Smith's employment without cause for purposes of the Employment Agreement and for purposes of any equity awards previously granted to Mr. Smith or granted to him during the term of the Employment Agreement.

Under the terms of the Employment Agreement, all post-termination payments and benefits provided to Mr. Smith are to be structured to comply with Section 409A of the Internal

 
Revenue Code (the "Code").  With respect to any termination of Mr. Smith's employment, treatment of restricted stock awards will be as provided in the applicable award agreement governing such awards.

Any payments that are not deductible to the Company under Section 280G of the Code will be cut back only to the extent that the cutback results in a better after tax position for Mr. Smith.

The Employment Agreement contains customary non-competition, non-solicitation, confidentiality and mutual non-disparagement covenants.  The non-competition restrictions will continue in effect during Mr. Smith's employment and for one year following his termination of employment; the non-solicitation restrictions will continue in effect during his employment and for two years following his termination of employment.  The confidentiality and mutual non-disparagement obligations will apply during his employment and at all times thereafter.

In connection with entering into the Employment Agreement, Mr. Smith was granted 55,804 shares of Company time-based restricted stock under the terms of the Company's Omnibus Stock Incentive Plan, as amended and/or restated form time to time (the "Plan").  The time-based shares of restricted stock were granted pursuant to the terms of a Restricted Share Agreement, dated as of the Effective Date, between the Company and Mr. Smith (the "Restricted Share Agreement (Time-Vesting)"), filed as Exhibit 10.2 hereto, which is incorporated herein by reference.  The following summary of certain provisions of the Restricted Share Agreement (Time-Vesting) is qualified in its entirety by reference to such exhibit.

The time-based shares of restricted stock vest ratably in four installments on February 27, 2014, February 27, 2015, February 27, 2016 and February 27, 2017, subject only to Mr. Smith's continued employment.  In the event that (i) Mr. Smith's employment is terminated without "cause" (as defined in the Plan), (ii) he resigns for "good reason" (as defined in the Employment Agreement), or (iii) his employment is terminated by death or "disability" (as defined in the Plan), the tranche of restricted stock scheduled to vest on the next vesting date will immediately vest, with any remaining unvested restricted stock being immediately forfeited.  Upon the occurrence of a "change in control" (as defined in the Plan), the tranche of restricted stock scheduled to vest on the next vesting date will immediately vest.  All other shares would remain outstanding and would vest on the previously established vesting dates (subject only to continued employment).  In addition, in the event that Mr. Smith's employment is terminated without cause or he resigns for good reason, in each case within 12 months following a change in control, any restricted stock that is not vested as of the date of such termination will immediately vest.

In connection with entering into the Employment Agreement, Mr. Smith was also granted 65,104 shares of Company performance-based restricted stock under the terms of the Plan.  The performance-based shares of restricted stock were granted pursuant to the terms of a Restricted Share Agreement, dated as of the Effective Date, between the Company and Mr. Smith (the "Restricted Share Agreement (Performance-Vesting)"), filed as Exhibit 10.3 hereto, which is incorporated herein by reference.  The following summary of certain provisions of the Restricted Share Agreement (Performance-Vesting) is qualified in its entirety by reference to such exhibit.

 
Up to 75% of the performance-based shares of restricted stock are eligible to vest on February 27, 2016, and up to 25% of such shares of restricted stock are eligible to vest on February 27, 2017, in each case subject to Mr. Smith's continued employment and dependent upon the level of achievement of performance targets established for each tranche by the Compensation Committee of the Board.

The performance targets for the first tranche of performance-based shares are based on the Company's three year compound annual growth rate ("CAGR") of Cash From Facility Operations ("CFFO") per share, with results to be measured based on the Company's CFFO per share in 2015.  The performance targets for the second tranche of performance-based shares are based on the Company's calendar year 2016 return on investment ("ROI") on all Program Max projects approved in 2013 and completed prior to the end of 2014.  Any performance-based shares which do not vest in either tranche will be forfeited.

Upon the occurrence of a "change in control" (as defined in the Plan), the tranche of restricted stock scheduled to vest on the next vesting date will immediately vest upon the date of the change in control; provided, however, (i) if the change in control occurs on or prior to February 27, 2014, 25% of the restricted stock will immediately vest and (ii) if the change in control occurs after February 27, 2014 but on or prior to February 27, 2015, 50% of the restricted stock will immediately vest.  In addition, upon a change in control, any remaining tranches of restricted stock will be converted into time-vesting tranches, vesting on the same vesting dates initially established for each such tranche, subject only to Mr. Smith's continued employment, and regardless of whether any performance targets are achieved.

In the event that (i) Mr. Smith's employment is terminated without "cause" (as defined in the Plan), (ii) he resigns for "good reason" (as defined in the Employment Agreement), or (iii) his employment is terminated by death or "disability" (as defined in the Plan) (either before or after a change in control), the tranche of restricted stock scheduled to vest on the next vesting date will remain outstanding until such vesting date (with any remaining restricted stock being immediately forfeited) and would vest only if (and to the extent) that the relevant performance targets for such tranche have been achieved;  provided, however, (i) if the termination occurs on or prior to February 27, 2014, 25% of the restricted stock will remain outstanding and be eligible to vest on February 27, 2014 upon achievement of the applicable performance targets (with any remaining unvested restricted stock being immediately forfeited) and (ii) if the termination occurs after February 27, 2014 but on or prior to February 27, 2015, 50% of the restricted stock will remain outstanding and be eligible to vest on February 27, 2015 upon achievement of the applicable performance targets (with any remaining unvested restricted stock being immediately forfeited).  If the tranche of restricted stock scheduled to vest on the next vesting date is subject only to time-vesting (as a result of a previous change in control), such restricted stock will immediately vest.  Notwithstanding the foregoing, in the event that Mr. Smith's employment is terminated without cause or he resigns for good reason, in each case within 12 months following a change in control, any restricted stock that is not vested as of the date of such termination will immediately vest.

The Restricted Share Agreement (Time-Vesting) and the Restricted Share Agreement (Performance-Vesting) also contain non-competition, non-solicitation, confidentiality and mutual

 
non-disparagement covenants.  Mr. Smith will be entitled to receive dividends on any unvested shares of restricted stock, to the extent that any such dividends are declared in the future.

Section 9 — Financial Statements and Exhibits

Item 9.01     Financial Statements and Exhibits.

(d)
Exhibits
 
 
 
10.1
 
Employment Agreement, dated as of February 11, 2013, by and between Brookdale Senior Living Inc. and T. Andrew Smith
 
 
 
10.2
 
Restricted Share Agreement (Time-Vesting), dated as of February 11, 2013, by and between Brookdale Senior Living Inc. and T. Andrew Smith
 
 
 
10.3
 
Restricted Share Agreement (Performance-Vesting), dated as of February 11, 2013, by and between Brookdale Senior Living Inc. and T. Andrew Smith
 
 
 
99.1
 
Press Release dated February 11, 2013



SIGNATURE

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 
 
BROOKDALE SENIOR LIVING INC.
 
 
 
 
 
 
Date:
February 12, 2013
 
By:
 
/s/ T. Andrew Smith
 
 
Name:
T. Andrew Smith
 
 
Title:
Executive Vice President, General Counsel and Secretary




EXHIBIT INDEX


Exhibit No.
 
Exhibit
 
 
 
10.1
 
Employment Agreement, dated as of February 11, 2013, by and between Brookdale Senior Living Inc. and T. Andrew Smith.
 
 
 
10.2
 
Restricted Share Agreement (Time-Vesting), dated as of February 11, 2013, by and between Brookdale Senior Living Inc. and T. Andrew Smith.
 
 
 
10.3
 
Restricted Share Agreement (Performance-Vesting), dated as of February 11, 2013, by and between Brookdale Senior Living Inc. and T. Andrew Smith.
 
 
 
99.1
 
Press Release dated February 11, 2013.






BROOKDALE SENIOR LIVING INC.
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (this " Agreement ") is made and entered into as of February 11, 2013 (the " Effective Date "), by and between Brookdale Senior Living Inc., a Delaware corporation (the " Company "), and T. Andrew Smith (" Executive "). Where the context permits, references to "the Company" shall include the Company and any successor of the Company.
W I T N E S S E T H:
WHEREAS , the Company and Executive mutually desire to enter into this Agreement setting forth the terms and conditions of Executive's employment as of the Effective Date, which shall supersede and replace any other agreements in respect thereof (including that certain Severance Pay Policy Letter Agreement, dated as of August 6, 2010, between the Company and Executive (the " Severance Pay Policy Letter Agreement ").
NOW, THEREFORE , in consideration of the mutual promises, covenants and agreements herein contained, together with other good and valuable consideration the receipt of which is hereby acknowledged, the parties hereto do hereby agree as follows:
1.              SERVICES AND DUTIES . Subject to Section 2 hereof, from and after the Effective Date through (but not including) the first business day following the filing date of the Company's annual report on Form 10-K for the year ended December 31, 2012 (the " CEO Start Date "), Executive shall, pursuant to the terms of this Agreement, continue his current employment by the Company as Executive Vice President, General Counsel, and Secretary, subject to Executive's current reporting relationships. Subject to Section 2 hereof, from and after the CEO Start Date, Executive shall, pursuant to the terms of this Agreement, be employed by the Company as the Chief Executive Officer (the " CEO "), and shall report directly to the Company's Board of Directors (the " Board "). In addition, the Company shall nominate Executive for election to the Board upon the first vacancy on or after the CEO Start Date, but in any event no later than the 2014 annual meeting of shareholders. The principal location of Executive's employment with the Company shall be the same as Executive's principal location of employment as of the Effective Date, although Executive understands and agrees that Executive may be required to travel from time to time for business reasons. During the Term (as defined in Section 2(a) hereof), Executive shall be a full-time employee of the Company and shall dedicate all of Executive's working time to the Company and shall have no other employment and no other business ventures which are undisclosed to the Company or which conflict with Executive's duties under this Agreement. Executive shall perform such duties as are normally associated with Executive's position, together with such additional duties, commensurate with Executive's position, as may be assigned to Executive from time to time by the Board. Notwithstanding the foregoing, nothing herein shall prohibit Executive from (i) participating in trade associations or industry organizations which are related to the business of the Company or engaging in activities for charitable, civic or political organizations (including serving as a member of the board of such organization) , (ii) engaging in personal investment activities for Executive and Executive's family that do not give rise to any conflicts of interest with the

 
Company or its "Affiliates" (as defined below), (iii) subject to the prior approval of the Chairman of the Board, which shall not be unreasonably withheld, serving as a member of the board of directors of any for-profit entity  that does not give rise to any conflict of interests with the Company or its Affiliates, or (iv) continuing to serve in the positions set forth on Schedule 1 hereto, in each case so long as the activities in (i), (ii), (iii) and (iv) above do not interfere, individually or in the aggregate, with the performance of Executive's duties hereunder.
2.              TERM . Executive's employment under the terms and conditions of this Agreement shall commence on the Effective Date and shall expire on the third (3rd) anniversary of the Effective Date (the " Initial Term "). The term of Executive's employment under this Agreement shall be automatically extended on each anniversary of the Effective Date commencing with the date of the scheduled expiration of the Initial Term for an additional one-year term (each, a " Renewal Term "). The Initial Term and any Renewal Term are collectively referred to herein as the " Term ," and the Term shall continue as described in the preceding sentence unless either Executive or the Company has given written notice (a " Notice of Non-Renewal ") to the other no less than ninety (90) days prior to the expiration of the Term that the Term shall not be so extended. Notwithstanding the above, the Term shall earlier expire immediately upon the termination of Executive's employment pursuant to Section 5 hereof.
 
3.              COMPENSATION .
 
(a)              Base Salary . Effective as of the Effective Date, the Company agrees to pay Executive a base salary in the amount of four-hundred eighty-thousand dollars ($480,000) per annum, which shall be increased, effective as of the CEO Start Date, to the amount of eight-hundred twenty-five thousand dollars ($825,000) per annum (the " Base Salary "), payable in such installments as the Company pays its similarly placed employees (but not less frequently than each calendar month), subject to  employee contributions to any health, welfare and/or retirement programs in which Executive is enrolled. Executive's Base Salary shall be reviewed annually and may be increased from time to time at the Board's sole discretion, but in no event shall the Base Salary be reduced without Executive's approval.
 
(b)              Annual Bonus . In addition to the Base Salary, for each calendar year ending during the Term, Executive shall be eligible to receive a bonus (" Annual Bonus "), subject to the terms of the Company's incentive compensation plan for senior executive officers as in effect from time to time (the " Bonus Plan "), with a target Annual Bonus of one-hundred twenty-five percent (125%) of the cumulative Base Salary paid to Executive during such calendar year (including base salary paid prior to the Effective Date).
Provided Executive is employed as of December 31 of the applicable calendar year, the Annual Bonus in respect of such year shall be paid to Executive, in cash, no later than thirty (30) days following completion of the Company's audit for the applicable year, which the Company shall endeavor in good faith to complete within three (3) months following the last day of such year; provided , however , that in no event shall the Annual Bonus be paid to Executive prior to January 1 or later than December 31 of the year following the year to which such Annual Bonus relates.
(c)              2013 Restricted Stock Grant . Effective upon the Effective Date, Executive shall receive a one-time grant under the Brookdale Senior Living Inc. Omnibus Stock Incentive
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Plan, as amended and/or restated from time to time (the " Plan "), of Company restricted stock (the " 2013 Restricted Stock Grant ") as follows:
 
(i)            Time-Based Restricted Stock . Company restricted stock with a grant date value of one-million five-hundred thousand dollars ($1,500,000) based on the closing stock price of the Company's common stock on February 11, 2013, vesting ratably in four installments on February 27 of each year, beginning February 27, 2014, provided Executive is employed at such date by the Company. Such restricted stock award shall be subject to, and governed by, the Plan and the applicable restricted stock award agreement, the form of which is attached hereto as Exhibit A.
 
(ii)            Performance-Based Restricted Stock . Company restricted stock with a grant date value of one-million seven-hundred and fifty thousand dollars ($1,750,000) based on the closing stock price of the Company's common stock on February 11, 2013, up to seventy-five percent (75%) of such restricted stock vesting on February 27, 2016, and up to twenty-five percent (25%) of such restricted stock vesting on February 27, 2017, with the actual percentage vesting in each case being determined based on achievement of certain performance-based targets. Such restricted stock award shall be subject to, and governed by, the Plan and the applicable restricted stock award agreement, the form of which is attached hereto as Exhibit B.
 
(d)              Annual Long Term Equity Incentive Compensation . At least annually during the Term beginning, in 2014 and beyond, the Compensation Committee of the Board shall consider Executive for a grant of an equity-based award at a level commensurate with Executive's position, and in a form and on terms no less favorable than as provided to other senior executive officers of the Company (the " Annual Long Term Equity Incentives Awards ").
 
(e)              Existing Restricted Stock Grants . All grants of restricted stock made to Executive prior to the Effective Date shall continue to be governed by the applicable terms of such grants (such grants, together with the 2013 Restricted Stock Grant and any Annual Long Term Equity Incentive Awards, the " Equity Awards "), subject to Sections 5(e) and 7 hereof.
 
(f)              Withholding . All taxable compensation payable to Executive pursuant to this Agreement shall be subject to any applicable withholding taxes and such other taxes as are required under Federal law or the law of any state or governmental body to be collected with respect to compensation paid by the Company to Executive.
 
4.              BENEFITS AND PERQUISITES .
 
(a)              Retirement and Welfare Benefits . During the Term, Executive shall be eligible to participate in all benefit plans made available to the Company's senior executive officers (other than the Company's Severance Pay Policy, Tier I). Such benefits shall be subject to the applicable limitations and requirements imposed by the terms of such benefit plans and shall be governed in all respects in accordance with the terms of such plans as from time to time in effect. Nothing in this Section 4, however, shall require the Company to maintain any benefit plan or provide any type or level of benefits to its current or former employees, including Executive.
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(b)              Life Insurance . During the Term, the Company shall provide Executive with basic term life insurance benefits of at least one-hundred percent (100%) of Executive's Base Salary, at no cost to Executive, to the extent such coverage is available at commercially reasonable terms.
 
(c)              Paid Time Off . During the Term, Executive shall be eligible to participate in the paid time off policy generally applicable to the Company's senior executive officers, as it may be amended from time to time.
 
(d)              Reimbursement of Expenses . The Company shall reimburse Executive for any expenses reasonably and necessarily incurred by Executive during the Term in furtherance of Executive's duties hereunder, including travel, meals and accommodations, upon submission by Executive of vouchers or receipts and in compliance with such rules and policies relating thereto as the Company may from time to time adopt.
 
(e)              Attorney's Fees . The Company shall reimburse Executive for all reasonable legal fees and related expenses, up to a maximum amount of thirty-thousand dollars ($30,000), incurred by Executive in connection with his promotion to CEO.
 
5.              TERMINATION . Executive's employment shall be terminated at the earliest to occur of the following: (i) the end of the Term, unless Executive agrees to continue employment with the Company on an at-will basis; (ii) the date on which the Board delivers written notice that Executive is being terminated for "Disability" (as defined below); or (iii) the date of Executive's death. In addition, Executive's employment with the Company may be earlier terminated (1) by the Company for "Cause" (as defined below), effective on the date on which a written notice to such effect is delivered to Executive; (2) by the Company at any time without Cause, effective on the date on which a written notice to such effect is delivered to Executive or such other date as is reasonably designated by the Company; (3) by Executive for "Good Reason" (as defined below), effective on the date on which a written notice to such effect is delivered to the Company, but in no event prior to the expiration of the thirty (30) day period that the Company has to fully correct the circumstances giving rise to such Good Reason pursuant to this Agreement; or (4) by Executive at any time, effective thirty (30) days following the date on which a written notice to such effect is delivered to the Company.
 
(a)              For Cause Termination or Voluntary Resignation by Executive Without Good Reason . If Executive's employment with the Company is terminated by the Company for Cause, or if Executive voluntarily resigns his employment without Good Reason, Executive shall not be entitled to any further compensation or benefits other than, in each case if applicable as of the date of termination: (i) any accrued but unpaid Base Salary (payable as provided in Section 3(a) hereof); (ii) any Annual Bonus earned but unpaid as of the date of termination for any previously completed year, payable as set forth in Section 3(b) hereof; (iii) reimbursement for any business expenses properly incurred by Executive prior to the date of termination in accordance with Section 4(d) hereof, payable on the Company's first regularly scheduled payroll date which occurs at least ten (10) days after the date of termination; and (iv) vested benefits, if any, to which Executive may be entitled under the Company's employee benefit plans as of the date of termination (collectively, the " Accrued Benefits "). For the avoidance of doubt, the Equity
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Awards shall be treated as provided in the applicable equity incentive plan and award agreement governing such awards.
(b)              Termination by the Company without Cause or by Executive for Good Reason (Other than Within Twelve (12) Months Following a Change in Control) . In the event that Executive's employment is terminated by the Company without Cause or by Executive for Good Reason prior to the end of the Term, in each case other than within twelve (12) months following a "Change in Control" (as defined below), and, with respect to clauses (ii), (iii) and (iv) below, Executive timely provides the Company with an enforceable "Release" (as defined below) in accordance with Sections 5(f) and 5(g) hereof, then Executive shall be entitled to, in each case if applicable as of the date of termination:
 
(i)            the Accrued Benefits;
 
(ii)            two-hundred and fifty percent (250%) of Executive's Base Salary at the current rate of Base Salary in effect at the date of termination or, if greater, before the occurrence of the circumstances giving rise to Good Reason;
 
(iii)            an Annual Bonus (to the extent earned under the terms of the Bonus Plan, without regard to any requirement of continued employment) for the year of termination, pro-rated based on the number of days Executive was employed by the Company during such year and payable as set forth in Section 3(b) hereof (the " Pro-Rated Annual Bonus ");
 
(iv)            to the extent Executive is then eligible for, and elects COBRA continuation benefits pursuant to Section 4980B of the Code and Section 601, et. seq. of the Employee Retirement Income Security Act of 1974, as amended (" COBRA "), under the Company's medical plan (including dependent coverage where applicable) in accordance with the terms of the applicable plan, as such plan may be amended from time to time, the Company will continue to provide current coverage (minus the amount of the then-applicable employee contribution portion) during the "Severance Pay Period" (as defined below) (exclusive of any tax consequences to the recipient(s) on resulting coverage or benefits) as if Executive were still an active employee of the Company (subject to the following provisions hereunder, the " Severance Benefits "). The costs of the Company's portion of any premiums due under this clause (iv) shall be included in Executive's gross income to the extent the provision of such benefits would be deemed to be discriminatory under Section 105(h) of the Code, and any successor provision. For the avoidance of doubt, the parties mutually agree any Severance Benefits paid during the Severance Pay Period shall run concurrently with the applicable COBRA continuation period and Executive shall be solely responsible for the full cost of any health premiums for the continuation of COBRA coverage which may extend past the Severance Pay Period, if any. Notwithstanding the foregoing, Executive's Severance Benefits coverage shall end on the earliest of (A) the last day of the Severance Pay Period, (B) the date of any material breach of the provisions of this Agreement by Executive, or (C) the date Executive first becomes eligible for medical coverage under another employer's plan, program or other arrangement of any type or description, without regard to whether Executive neglects, refuses or otherwise fails to take any action required for enrollment in such other plan, program or other arrangement. Executive shall provide notice to the Company in writing within seven (7) days of becoming eligible for any such alternate coverage;
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(v)            the treatment of the Equity Awards as provided in the applicable equity incentive plan and award agreement governing such awards.
 
(c)              Death or Disability . If Executive's employment is terminated by reason of Executive's death or Disability prior to the end of the Term, in lieu of any other payments or benefits, Executive (or Executive's beneficiary or estate, as applicable) shall be entitled to (i) the Accrued Benefits, and (ii) the Pro-Rated Annual Bonus, subject, in the event Executive's employment is terminated by reason of Disability, to Executive's timely provision to the Company of the Release in accordance with Sections 5(f) and 5(g) hereof. For the avoidance of doubt, the Equity Awards shall be treated as provided in the applicable equity incentive plan and award agreement governing such awards.
 
(d)              Termination by the Company without Cause or by Executive for Good Reason Within Twelve (12) Months Following a Change in Control . If Executive's employment is terminated by the Company other than for Cause or by Executive for Good Reason prior to the end of the Term, in each case within twelve (12) months following a Change in Control, and, with respect to clauses (ii), (iii) and (iv) below, Executive timely provides the Company with the Release in accordance with Sections 5(f) and 5(g) hereof, then Executive shall be entitled to, in each case if applicable as of the date of termination:
 
(i)            the Accrued Benefits;
 
(ii)            three-hundred percent (300%) of Executive's Base Salary at the current rate of Base Salary in effect at the date of termination or, if greater, before the occurrence of the circumstances giving rise to Good Reason (payments provided for in this Section 5(d)(ii) and those provided for in Section 5(b)(ii) hereof, are collectively referred to herein as the " Severance Pay ");
 
(iii)            the Pro-Rated Annual Bonus;
 
(iv)            the Severance Benefits;
 
(v)            the treatment of the Equity Awards as provided in the applicable equity incentive plan and award agreement governing such awards.
 
(e)              Non-Renewal .  Termination of Executive's employment within thirty (30) days of the end of the Initial Term or any Renewal Term following the provision of a Notice of Non-Renewal by the Company shall be treated as a termination of Executive's employment without Cause, including for purposes of Section 5(b) and 5(d) (and shall be treated as having occurred prior to the end of the Term for purposes thereof), and for purposes of any Equity Award.
 
(f)              Payment of Severance Pay, the Pro-Rated Annual Bonus and Severance Benefits . Severance Pay will be paid to Executive in periodic installments over the Severance Pay Period on the Company's regular payroll dates, with such payments commencing as of the "Severance Commencement Date" (as defined below), so long as all requirements of this Section 5 and all other provisions of this Agreement regarding the payment of Severance Pay are met. The " Severance Pay Period " shall mean a period of eighteen (18) months. Notwithstanding any
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other provision of this Agreement, any Severance Pay provided for in this Section 5 shall be paid or commence on the sixtieth (60th) day (the " Severance Commencement Date ") following the date of Executive's termination of employment, so long as Executive has signed and returned a Release and the seven (7) day revocation period (as described in Section 5(g) hereof) for the signed Release has expired. If a signed Release is not returned, Executive revokes the Release or the seven (7) day revocation period has not expired by the sixtieth (60th) day following Executive's termination of employment, Executive shall forfeit all Severance Pay, the Pro-Rated Annual Bonus and the right to any continued Severance Benefits (as of the date of revocation or the Severance Commencement Date, whichever is earlier). All taxes and other deductions required by law, and any additional undisputed sums owing the Company shall be deducted from any Severance Pay, the Pro-Rated Annual Bonus and/or Severance Benefits. Any benefits that accrue under this Section 5, if any, are net of any such amount other than taxes and other deductions required by law.
 
(g)              Waiver and Release .
 
(i)            In order to receive the Severance Pay, the Pro-Rated Annual Bonus, or to continue to receive the Severance Benefits provided for under this Section 5, Executive must execute and submit to the Company a signed, enforceable release (the " Release ") reasonably satisfactory to the Company pursuant to the time periods of the applicable Release and within forty-five (45) days of receiving the Release. In the Release, Executive will waive all claims or causes of action arising out of or related to his employment and the termination of his employment, other than claims or causes of action for his entitlements under Sections 5(b), 5(c), or 5(d) as applicable, related to his status as a stockholder of the Company, or for indemnification or liability insurance coverage.  Such Release shall be provided to Executive within three (3) business days of the date of Executive's termination of employment. Executive may revoke his signed Release within seven (7) days of signing such Release, provided such revocation is made in accordance with the provisions for revocation set forth below. Any such revocation must be made in writing and must be received by the Company within such seven (7) day period. If Executive timely revokes his Release he shall not be eligible to receive any Severance Pay or the Pro-Rated Annual Bonus or continue to receive Severance Benefits under this Section 5 effective on the date of such revocation. If Executive timely submits a signed Release and does not exercise his right of revocation and/or the revocation period expires prior to the Severance Commencement Date he shall be eligible to receive Severance Pay and the Pro-Rated Annual Bonus and continue to receive Severance Benefits under this Section 5. Executive's acceptance and right to retention of Severance Pay, the Pro-Rated Annual Bonus and/or Severance Benefits are contingent upon the terms of this Agreement and full compliance with the terms of the Release.
 
(ii)            Executive must acknowledge in the Release that the restrictive covenants contained in this Agreement or in any equity awards issued pursuant to the Plan or any predecessor or successor plan and any and all other agreements between Executive and the Company or to which Executive is a party, relating to non-competition, non-solicitation of employees, clients and others, non-disparagement and confidentiality will remain in force for the period specified therein and the Severance Pay that Executive may be entitled to pursuant to this Agreement is additional consideration for such restrictive covenants.  The Release will not contain any further restrictions or other covenants to which Executive must agree.
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(iii)            Not by way of limitation, a breach of such restrictive covenants by Executive shall result in (A) the immediate and permanent cessation of payment of Severance Pay and the provision of Severance Benefits to Executive, (B) the obligation of Executive to repay to the Company upon written demand ninety percent (90%) of the amount, cost or value of the Severance Pay, the Pro-Rated Annual Bonus and/or Severance Benefits previously paid or provided to Executive, and (C) the obligation of Executive to pay to the Company its costs and expenses in enforcing this clause (iii) (including court costs, expenses and reasonable legal fees).
 
(h)              Definitions . For purposes of this Agreement:
" Affiliate " means an affiliate of the Company (or other referenced entity, as the case may be) as defined in Rule 12b-2 promulgated under Section 12 of the Securities Exchange Act of 1934, as amended.
" Beneficial Owner " shall have the meaning set forth in Rule 13d-3 under the Exchange Act.
" Cause " shall mean and be limited to the following: (i) conviction of, or guilty plea concerning or confession of any felony, (ii) any act of fraud, theft or embezzlement committed by Executive in connection with the Company's or its subsidiaries' business, (iii) any material breach by Executive of this Agreement, after written notice thereof from the Board is given in writing and such breach is not cured to the satisfaction of the Company within a reasonable period of time (not greater than thirty (30) days) under the circumstances; (iv) any material breach of any reasonable and lawful rule or directive of the Board which is consistent with Executive's position as Executive Vice President, General Counsel and Secretary, or CEO, as applicable, (v) the gross or willful neglect of duties or gross misconduct by Executive; or (vi) the habitual use of illegal drugs or habitual, excessive use of alcohol to the extent that any of such uses in the Board's good faith determination materially interferes with the performance of Executive's duties to the Company.
" Change in Control " shall be deemed to have occurred if an event set forth in any one of the following paragraphs shall have occurred: (i) any Person is or becomes the Beneficial Owner, directly or indirectly, of securities of the Company (not including in the securities beneficially owned by such Person any securities acquired directly from the Company or any of its Affiliates) representing 50% or more of the combined voting power of the Company's then outstanding securities; (ii) there is consummated a merger or consolidation of the Company or any direct or indirect subsidiary of the Company with any other corporation, other than a merger or consolidation immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the Board of the entity surviving such merger or consolidation or, if the Company or the entity surviving such merger is then a subsidiary, the ultimate parent thereof; or (iii) the stockholders of the Company approve a plan of complete liquidation or dissolution of the Company or there is consummated an agreement for the sale or disposition by the Company of all or substantially all of the Company's assets, other than (A) a sale or disposition by the Company of all or substantially all of the Company's assets to an entity, at least 50% of the combined voting power of the voting securities of which are owned by stockholders of the Company following the completion of such transaction in substantially the same proportions as their ownership of the Company immediately prior to such sale or (B) a sale
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or disposition of all or substantially all of the Company's assets immediately following which the individuals who comprise the Board immediately prior thereto constitute at least a majority of the board of directors of the entity to which such assets are sold or disposed or, if such entity is a subsidiary, the ultimate parent thereof. Notwithstanding the foregoing, a Change in Control shall not be deemed to have occurred by virtue of the consummation of any transaction or series of integrated transactions immediately following which the holders of the common stock of the Company immediately prior to such transaction or series of transactions continue to have substantially the same proportionate ownership in an entity which owns all or substantially all of the assets of the Company immediately following such transaction or series of transactions. As used in the foregoing definition of "Change in Control", the term "Company" shall not include any successor of the Company.
" Disability " means, as determined by the Board in good faith, Executive's inability, due to disability or incapacity, to perform all of Executive's duties hereunder on a full-time basis for (i) periods aggregating one hundred eighty (180) days, whether or not continuous, in any continuous period of three hundred and sixty five (365) days or, (ii) where Executive's absence is adversely affecting the performance of the Company in a significant manner, periods greater than ninety (90) days and Executive is unable to resume Executive's duties on a full time basis within ten (10) days of receipt of written notice of the Board's determination under this clause (ii).
" Excise Tax " means the excise tax imposed by Section 4999 of the Code, or any successor provision thereto, or any similar tax imposed by state or local law, or any interest or penalties with respect to such excise tax.
" Good Reason " means the occurrence, without the express prior written consent of Executive, of any of the following circumstances, unless such circumstances are fully corrected by the Company within thirty (30) days following written notification by Executive (which written notice must be delivered within thirty (90) days of the occurrence of such circumstances) that Executive intends to terminate Executive's employment for one of the reasons set forth below: (i) the failure by the Company to pay to Executive any portion of Executive's Base Salary or Annual Bonus within thirty (30) days following the date such compensation is due; (ii) the relocation of Executive's principal office at the Company to a location outside a fifty (50) mile radius from Executive's present principal office location with the Company; (iii) Executive is assigned duties, compensation or responsibilities that are materially and significantly reduced with respect to the scope or nature his duties, compensation and/or responsibilities immediately prior to such assignment; and (iv) any material breach by the Company of this Agreement.  Executive's right to terminate employment for Good Reason must be exercised by Executive within six (6) months following the initial existence of the condition that constitutes Good Reason, otherwise Executive's right to terminate employment for Good Reason shall be deemed to have been waived.
" Person " shall have the meaning given in Section 3(a)(9) of the Exchange Act, as modified and used in Sections 13(d) and 14(d) thereof, except that such term shall not include (i) the Company, its Affiliates or any of their respective subsidiaries, (ii) a trustee or other fiduciary holding securities under an employee benefit plan of the Company or any of its subsidiaries, (iii) an underwriter temporarily holding securities pursuant to an offering of such securities, or (iv) a
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corporation owned, directly or indirectly, by the stockholders of the Company in substantially the same proportions as their ownership of stock of the Company.
(i)              Resignation as Officer or Director . Upon a termination of employment for any reason, unless requested otherwise by the Company, Executive shall resign each position (if any) that Executive then holds as an officer or director of the Company or any of its subsidiaries. Executive's execution of this Agreement shall be deemed the grant by Executive to the officers of the Company of a limited power of attorney to sign in Executive's name and on Executive's behalf any such documentation as may be required to be executed solely for the limited purposes of effectuating such resignations.
 
(j)              Section 409A . It is intended that (i) each installment of the payments provided under this Agreement is a separate "payment" for purposes of Section 409A of the Code, and (ii) the payments satisfy, to the greatest extent possible, the exemptions from the application of Section 409A of the Code provided under Treasury Regulations 1.409A-1(b)(4), 1.409A-1(b)(9)(iii), and 1.409A-1(b)(9)(v). Notwithstanding anything contained to the contrary in this Agreement, to the extent required in order to avoid accelerated taxation and/or tax penalties under Section 409A of the Code, Executive shall not be considered to have terminated employment with the Company for purposes of this Agreement and no payments shall be due to Executive under Section 5 hereof until Executive would be considered to have incurred a "separation from service" (as such term is defined under Treasury Regulation 1.409A-1(h)). Notwithstanding anything to the contrary in this Agreement, if the Company determines (1) that on the date Executive's employment with the Company terminates or at such other time that the Company determines to be relevant, Executive is a "specified employee" (as such term is defined under Treasury Regulation 1.409A-1(i)(1)) of the Company and (2) that any payments to be provided to Executive pursuant to this Agreement are or may become subject to the additional tax under Section 409A(a)(1)(B) of the Code or any other taxes or penalties imposed under Section 409A of the Code, if provided at the time otherwise required under this Agreement, then such payments shall be delayed until the date that is six (6) months after the date of Executive's "separation from service" (as such term is defined under Treasury Regulation 1.409A-1(h)) with the Company, or, if earlier, the date of Executive's death. Any payments delayed pursuant to this Section 5(j) shall be made in a lump sum on the first day of the seventh (7th) month following Executive's "separation from service" (as such term is defined under Treasury Regulation 1.409A-1(h)), or, if earlier, the date of Executive's death. In addition, to the extent that any reimbursement, fringe benefit or other, similar plan or arrangement in which Executive participates provides for a "deferral of compensation" within the meaning of Section 409A of the Code, (x) the amount eligible for reimbursement or payment under such plan or arrangement in one (1) calendar year may not affect the amount eligible for reimbursement or payment in any other calendar year (except that a plan providing medical or health benefits may impose a generally applicable limit on the amount that may be reimbursed or paid), and (y) subject to any shorter time periods provided herein or the applicable plans or arrangements, any reimbursement or payment of an expense under such plan or arrangement must be made on or before the last day of the calendar year following the calendar year in which the expense was incurred.
 
6.              COVENANTS . Executive acknowledges that during the period of his employment with the Company or any subsidiary, he shall have access to the Company's
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"Confidential Information" (as defined below) and will meet and develop relationships with the Company's potential and existing suppliers, financing sources, clients, customers and employees.
(a)              Noncompetition . Executive agrees that during the period of his employment with the Company and for the one (1) year period immediately following the date of termination of Executive's employment with the Company or any subsidiary for any reason or for no reason, Executive shall not directly or indirectly, either as a principal, agent, employee, employer, consultant, partner, shareholder of a closely held corporation or shareholder in excess of five percent (5%) of a publicly traded corporation, corporate officer or director, or in any other individual or representative capacity, engage or otherwise participate in any manner or fashion in any business that is a "Competing Business" in the "Area" (each as defined below). Executive further covenants and agrees that this restrictive covenant is reasonable as to duration, terms and geographical area and that the same protects the legitimate interests of the Company and its Affiliates, imposes no undue hardship on Executive, is not injurious to the public, and that any violation of this restrictive covenant shall be specifically enforceable in any court with jurisdiction upon short notice. Solely for purposes of this paragraph (a): "Area" means a fifteen (15) mile radius of any senior living facility owned, managed or operated by the Company (or its successor) at the time Executive's employment is terminated; and "Competing Business" means the business of owning, operating or managing senior living facilities having gross annualized revenues of at least thirty-five million dollars ($35,000,000) or owning, operating or managing, in the aggregate, at least one-thousand (1,000) units/beds provided that at least seven-hundred and fifty (750) units/beds owned, operated or managed by such business are located within the Area.
 
(b)              Solicitation of Employees, Etc . Executive agrees that during the period of his employment with the Company and for the two (2) year period immediately following the date of termination of Executive's employment with the Company or any subsidiary for any reason or for no reason, Executive shall not, directly or indirectly, (i) solicit or induce any officer, director, employee, agent or consultant of the Company or any of its successors, assigns, subsidiaries or Affiliates to terminate his, her or its employment or other relationship with the Company or its successors, assigns, subsidiaries or Affiliates, or otherwise encourage any such person or entity to leave or sever his, her or its employment or other relationship with the Company or its successors, assigns, subsidiaries or Affiliates, for any other reason or (ii) hire any individual who left the employ of the Company or any of its Affiliates during the immediately preceding one (1) year period.
 
(c)              Solicitation of Clients, Etc . Executive agrees that during the period of his employment with the Company and for the two (2) year period immediately following the date of termination of Executive's employment with the Company or any subsidiary for any reason or for no reason, Executive shall not, directly or indirectly, solicit or induce (i) any customers or clients of the Company or its successors, assigns, subsidiaries or Affiliates or (ii) any vendors, suppliers or consultants then under contract to the Company or its successors, assigns, subsidiaries or Affiliates, to terminate his, her or its relationship with the Company or its successors, assigns, subsidiaries or Affiliates, or otherwise encourage such customers or clients, or vendors, suppliers or consultants then under contract, to terminate his, her or its relationship with the Company or its successors, assigns, subsidiaries or Affiliates, for any other reason. Nothing in this paragraph applies to those customers, clients, vendors, suppliers, or consultants
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who did not conduct business with the Company, or its successors, assigns, subsidiaries or Affiliates, during Executive's employment with the Company.
(d)              Disparaging Comments . The Company and Executive agree that during the period of Executive's employment with the Company and at all times thereafter, (i) Executive shall not make any disparaging or defamatory comments regarding the Company or its Affiliates, and the Company and its Affiliates shall not make or issue any public statements which are disparaging or defamatory regarding Executive, and (ii) after termination of Executive's employment relationship with the Company, neither party shall make any comments concerning any aspect of the termination of their relationship. The obligations of the Company or Executive under this paragraph shall not apply to disclosures required by applicable law, regulation or order of any court or governmental agency.
Nothing contained in this Section 6 shall limit any common law or statutory obligation that Executive may have to the Company or any of its Affiliates. For purposes of all provisions of this Section 6, the "Company" refers to the Company and any incorporated or unincorporated Affiliates of the Company, including any entity which becomes Executive's employer as a result of any reorganization or restructuring of the Company for any reason.
(e)              Confidentiality . All books of account, records, systems, correspondence, documents, and any and all other data, in whatever form, concerning or containing any reference to the works and business of the Company or its Affiliates shall belong to the Company and shall be given up to the Company whenever the Company requires Executive to do so. Executive agrees that Executive shall not at any time during the term of Executive's employment or thereafter, without the Company's prior written consent, disclose to any person (individual or entity) any information or any trade secrets, plans or other information or data, in whatever form, (including, without limitation, (i) any financing strategies and practices, pricing information and methods, training and operational procedures, advertising, marketing, and sales information or methodologies or financial information and (ii) any "Proprietary Information" (as defined below)), concerning the Company's or any of its affiliated companies' or customers' practices, businesses, procedures, systems, plans or policies (collectively, " Confidential Information "), nor shall Executive utilize any such Confidential Information in any way or communicate with or contact any such customer other than in connection with Executive's employment by the Company. Executive hereby confirms that all Confidential Information constitutes the Company's exclusive property, and that all of the restrictions on Executive's activities contained in this Agreement and such other nondisclosure policies of the Company are required for the Company's reasonable protection. Confidential Information shall not include any information that has otherwise been disclosed to the public not in violation of this Agreement. This confidentiality provision shall survive the termination of this Agreement and shall not be limited by any other confidentiality agreements entered into with the Company or any of its Affiliates.
Executive agrees that Executive shall promptly disclose to the Company in writing all information and inventions generated, conceived or first reduced to practice by him alone or in conjunction with others, during or after working hours, while employed by the Company (all of which is collectively referred to herein as " Proprietary Information "); provided , however, that such Proprietary Information shall not include (i) any information that has otherwise been disclosed to the public not in violation of this Agreement or (ii) general business knowledge and
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work skills of Executive, even if developed or improved by Executive while employed by the Company. All such Proprietary Information shall be the exclusive property of the Company and is hereby assigned by Executive to the Company. Executive's obligation relative to the disclosure to the Company of such Proprietary Information shall continue beyond Executive's termination of employment and Executive shall, at the Company's expense, give the Company all assistance it reasonably requires to perfect, protect and use its right to the Proprietary Information.
(f)              Acknowledgement . Executive agrees and acknowledges that each restrictive covenant in this Section 6 is reasonable as to duration, terms and geographical area and that the same protects the legitimate interests of the Company and its Affiliates, imposes no undue hardship on Executive, is not injurious to the public, and that, notwithstanding any provision in this Agreement to the contrary, any violation of this restrictive covenant shall be specifically enforceable in any court with jurisdiction upon short notice. Executive agrees and acknowledges that a portion of the compensation paid to Executive under this Agreement will be paid in consideration of the covenants contained in this Section 6, the sufficiency of which consideration is hereby acknowledged. If any provision of this Section 6 as applied to Executive or to any circumstance is adjudged by a court with jurisdiction upon short notice to be invalid or unenforceable, the same shall in no way affect any other circumstance or the validity or enforceability of any other provisions of this Section 6. If the scope of any such provision, or any part thereof, is too broad to permit enforcement of such provision to its full extent, Executive agrees that the court making such determination shall have the power to reduce the duration and/or area of such provision, and/or to delete specific words or phrases, and in its reduced form, such provision shall then be enforceable and shall be enforced. Executive agrees and acknowledges that the breach of this Section 6 will cause irreparable injury to the Company and upon breach of any provision of this Section 6, the Company shall be entitled to injunctive relief, specific performance or other equitable relief by any court with jurisdiction upon short notice; provided , however , that this shall in no way limit any other remedies which the Company may have (including, without limitation, the right to seek monetary damages). Each of the covenants in this Section 6 shall be construed as an agreement independent of any other provisions in this Agreement.
 
7.              SECTION 280G .
 
(a)              Notwithstanding anything in this Agreement or any other plan, arrangement or agreement to the contrary, in the event that any payment or benefit received or to be received by Executive (whether pursuant to the terms of this Agreement or any other plan, arrangement or agreement) (all such payments and benefits, the " Total Payments ") would not be deductible (in whole or in part) by the Company or any of its subsidiaries or Affiliates making such payment or providing such benefits as a result of Section 280G of the Code, then, to the extent necessary to make such portion of the Total Payments deductible, the portion of the Total Payments that do not constitute deferred compensation within the meaning of Section 409A shall first be reduced (if necessary, to zero), and all other Total Payments shall thereafter be reduced (if necessary, to zero) with cash payments being reduced before non-cash payments, and payments to be paid last being reduced first, but only if (i) the net amount of such Total Payments, as so reduced (and after subtracting the net amount of federal, state and local income taxes on such reduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such reduced Total Payments) is greater than
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or equal to (ii) the net amount of such Total Payments without such reduction (but after subtracting the net amount of federal, state and local income taxes on such Total Payments and the amount of Excise Tax to which the Eligible Employee would be subject in respect of such unreduced Total Payments and after taking into account the phase out of itemized deductions and personal exemptions attributable to such unreduced Total Payments).
(b)              For purposes of this limitation, (i) no portion of the Total Payments the receipt or enjoyment of which Executive shall have waived at such time and in such manner as not to constitute a "payment" within the meaning of Section 280G(b) of the Code shall be taken into account; (ii) no portion of the Total Payments shall be taken into account which, in the opinion of tax counsel (" Tax Counsel ") reasonably acceptable to Executive and selected by the accounting firm which was, immediately prior to the Change in Control, the Company's independent auditor (the " Auditor "), does not constitute a "parachute payment" within the meaning of Section 280G(b)(2) of the Code, including by reason of Section 280G(b)(4)(A) of the Code; (iii) the severance payments payable to Executive pursuant to Section 5 hereof shall be reduced only to the extent necessary so that the Total Payments (other than those referred to in clauses (i) or (ii) of this paragraph) in their entirety constitute reasonable compensation for services actually rendered within the meaning of Section 280G(b)(4)(B) of the Code or are otherwise not subject to disallowance as deductions by reason of Section 280G of the Code, in the opinion of Tax Counsel; and (iv) the value of any non-cash benefit or any deferred payment or benefit included in the Total Payments shall be determined by the Auditor in accordance with the principles of Sections 280G(d)(3) and (4) of the Code.
 
8.              ASSIGNMENT . This Agreement, and all of the terms and conditions hereof, shall bind the Company and its successors and assigns and shall bind Executive and Executive's heirs, executors and administrators. No transfer or assignment of this Agreement shall release the Company from any obligation to Executive hereunder. Neither this Agreement, nor any of the Company's rights or obligations hereunder, may be assigned or otherwise subject to hypothecation by Executive, and any such attempted assignment or hypothecation shall be null and void. The Company may assign the rights and obligations of the Company hereunder, in whole or in part, to any of the Company's subsidiaries, Affiliates or parent corporations, provided that such subsidiary, Affiliate or parent corporation directly or indirectly owns all or substantially all of the Company's consolidated assets, or to any other successor or assign in connection with the sale of all or substantially all of the Company's assets or stock or in connection with any merger, acquisition and/or reorganization, provided the assignee assumes the obligations of the Company hereunder.
 
9.              GENERAL .
 
(a)              Notices . Any notices provided hereunder must be in writing and shall be deemed effective upon the earlier of one (1) business day following personal delivery (including personal delivery by telecopy or telex), or the third (3 rd ) business day after mailing by first class mail to the recipient at the address indicated below:
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To the Company:
General Counsel
Brookdale Senior Living Inc.
111 Westwood Place
Suite 400
Brentwood, TN 37027
with a copies which shall not constitute notice to:
Jeffrey R. Leeds
c/o Brookdale Senior Living Inc.
111 Westwood Place
Suite 400
Brentwood, TN 37027
and
Regina Olshan
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, NY 10036
To Executive:
T. Andrew Smith
At the address shown in the Company's personnel records
with a copy which shall not constitute notice to:
Gary S. Rothstein
Morgan, Lewis & Bockius LLP
101 Park Avenue
New York, NY 10178
or to such other address or to the attention of such other person as the recipient party will have specified by prior written notice to the sending party.
(b)              Severability . Any provision of this Agreement which is deemed by a court of competent jurisdiction to be invalid, illegal or unenforceable in any jurisdiction shall, as to that jurisdiction and subject to this paragraph be ineffective to the extent of such invalidity, illegality or unenforceability, without affecting in any way the remaining provisions hereof in such jurisdiction or rendering that or any other provisions of this Agreement invalid, illegal, or unenforceable in any other jurisdiction. If any covenant should be deemed invalid, illegal or unenforceable by a court of competent jurisdiction because its scope is considered excessive, such covenant shall be modified so that the scope of the covenant is reduced only to the minimum extent necessary to render the modified covenant valid, legal and enforceable.
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(c)              Entire Agreement . This document, together with all restrictive covenants in any and all agreements between Executive and the Company or to which Executive is a party, and that certain Indemnification Agreement, dated as of February 23, 2011, between the Company and Executive, constitute the final, complete, and exclusive embodiment of the entire agreement and understanding between the parties related to the subject matter hereof and except as otherwise explicitly set forth in this Agreement, supersedes and preempts any prior or contemporaneous understandings, agreements, or representations by or between the parties, written or oral, including but limited to (i) that certain term sheet entered into by and between the Company and Executive setting forth the terms and conditions of an employment agreement to be entered into by and between the Company and Executive, subject to the execution of definitive documentation memorializing such employment agreement, (ii) the Brookdale Senior Living Inc. Severance Pay Policy, Tier I, and (iii) the Severance Pay Policy Letter Agreement, which are hereby terminated and superseded in their entirety as they relate to Executive.
 
(d)              Counterparts . This Agreement may be executed on separate counterparts, any one (1) of which need not contain signatures of more than one (1) party, but all of which taken together will constitute one and the same agreement.
 
(e)              Amendments . No amendments or other modifications to this Agreement may be made except by a writing signed by all parties. No amendment or waiver of this Agreement requires the consent of any individual, partnership, corporation or other entity not a party to this Agreement. Nothing in this Agreement, express or implied, is intended to confer upon any third person any rights or remedies under or by reason of this Agreement.
 
(f)              Choice of Law . All questions concerning the construction, validity and interpretation of this Agreement shall be governed by the laws of the State of Tennessee without giving effect to principles of conflicts of law of such state.
 
(g)              Survivorship . The provisions of this Agreement necessary to carry out the intention of the parties as expressed herein shall survive the termination or expiration of this Agreement.
 
(h)              Waiver . The waiver by either party of the other party's prompt and complete performance, or breach or violation, of any provision of this Agreement shall not operate nor be construed as a waiver of any subsequent breach or violation, and the failure by any party hereto to exercise any right or remedy which it may possess hereunder shall not operate nor be construed as a bar to the exercise of such right or remedy by such party upon the occurrence of any subsequent breach or violation. No waiver shall be deemed to have occurred unless set forth in a writing executed by or on behalf of the waiving party. No such written waiver shall be deemed a continuing waiver unless specifically stated therein, and each such waiver shall operate only as to the specific term or condition waived and shall not constitute a waiver of such term or condition for the future or as to any act other than that specifically waived.
 
(i)              Captions . The captions of this Agreement are for convenience and reference only and in no way define, describe, extend or limit the scope or intent of this Agreement or the intent of any provision hereof.
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(j)              Construction . The parties acknowledge that this Agreement is the result of arm's-length negotiations between sophisticated parties, each afforded representation by legal counsel. Each and every provision of this Agreement shall be construed as though both parties participated equally in the drafting of the same, and any rule of construction that a document shall be construed against the drafting party shall not be applicable to this Agreement.
 
(k)              Arbitration . Except as necessary for the Company and its subsidiaries, Affiliates, successors or assigns or Executive to specifically enforce or enjoin a breach of this Agreement, the parties agree that any and all disputes that may arise in connection with, arising out of or relating to this Agreement, or any dispute that relates in any way, in whole or in part, to Executive's services on behalf of the Company or any subsidiary, the termination of such services or any other dispute by and between the parties or their subsidiaries, Affiliates, successors or assigns, shall be submitted to binding arbitration in Nashville, Tennessee according to the National Employment Dispute Resolution Rules and procedures of the American Arbitration Association. The parties agree that each party shall bear its or his own expenses incurred in connection with any such dispute. This arbitration obligation extends to any and all claims that may arise by and between the parties or their subsidiaries, Affiliates, successors or assigns, and expressly extends to, without limitation, claims or causes of action for wrongful termination, impairment of ability to compete in the open labor market, breach of an express or implied contract, breach of the covenant of good faith and fair dealing, breach of fiduciary duty, fraud, misrepresentation, defamation, slander, infliction of emotional distress, disability, loss of future earnings, and claims under the United States Constitution, and applicable state and federal fair employment laws, federal and state equal employment opportunity laws, and federal and state labor statutes and regulations, including, but not limited to, the Civil Rights Act of 1964, as amended, the Fair Labor Standards Act, as amended, the Americans With Disabilities Act of 1990, as amended, the Rehabilitation Act of 1973, as amended, the Employee Retirement Income Security Act of 1974, as amended, the Age Discrimination in Employment Act of 1967, as amended, and any other state or federal law.
 
10.              EXECUTIVE REPRESENTATION AND ACCEPTANCE . By signing this Agreement, Executive hereby represents that Executive is not currently under any contractual obligation to work for another employer and that Executive is not restricted by any agreement or arrangement from entering into this Agreement and performing Executive's duties hereunder.
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IN WITNESS WHEREOF AND INTENDING TO BE LEGALLY BOUND THEREBY, the parties hereto have executed and delivered this Agreement as of the year and date first above written.


 
 
 
BROOKDALE SENIOR LIVING INC.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
/s/Jeffrey R. Leeds
 
 
 
 
Name:
Jeffrey R. Leeds
 
 
 
 
Title:
Chairman of the Board of Directors
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
/s/ W.E. Sheriff
 
 
 
 
Name:
W.E. Sheriff
 
 
 
 
Title:
Chief Executive Officer
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
EXECUTIVE
 
 
 
 
 
 
 
 
 
 
/s/ T. Andrew Smith
 
 
 
 
T. Andrew Smith
 



18

RESTRICTED SHARE AGREEMENT
UNDER THE BROOKDALE SENIOR LIVING INC.
OMNIBUS STOCK INCENTIVE PLAN
This Award Agreement (this "Restricted Share Agreement"), dated as of February 11, 2013 (the "Date of Grant"), is made by and between Brookdale Senior Living Inc., a Delaware corporation (the "Company"), and T. Andrew Smith (the "Participant"). Capitalized terms not defined herein shall have the meaning ascribed to them in the Brookdale Senior Living Inc. Omnibus Stock Incentive Plan (as amended and/or restated from time to time, the "Plan"). Where the context permits, references to the Company shall include any successor to the Company.
1.              Grant of Restricted Shares . The Company hereby grants to the Participant 55,804 shares of Common Stock (such shares, the "Restricted Shares"), subject to all of the terms and conditions of this Restricted Share Agreement and the Plan.
 
2.              Lapse of Restrictions .
 
(a)              Vesting .
 
(i)              General . Subject to the provisions set forth below, the Restricted Shares granted pursuant to Section 1 hereof shall vest (and the restrictions on transfer set forth in Section 2(b) hereof shall lapse) at such times (each, a "vesting date") and in the amounts set forth below, subject to the continued employment of the Participant by the Company or one of its Subsidiaries or Affiliates as of each such vesting date:
25% on February 27, 2014
25% on February 27, 2015
25% on February 27, 2016
25% on February 27, 2017
Notwithstanding the foregoing, upon the occurrence of a Change in Control, the restrictions on transfer with respect to the Restricted Shares normally subject to vesting at the next vesting date shall immediately lapse and such Restricted Shares shall be fully vested effective upon the date of the Change in Control. Notwithstanding anything herein to the contrary, no fractional shares shall be issuable upon any vesting date. With respect to all Restricted Shares, the Participant shall be entitled to receive, and retain, all ordinary and extraordinary cash and stock dividends which may be declared on the Restricted Shares with a record date on or after the Date of Grant and before any forfeiture thereof (regardless of whether a share later vests or is forfeited).
(ii)              Following Certain Terminations of Employment . Subject to the following paragraph, upon termination of the Participant's employment with the Company and its Subsidiaries and Affiliates for any reason, any Restricted Shares as to which the restrictions on transferability described in this Section shall not already have lapsed shall be immediately forfeited by the Participant and transferred to, and reacquired by, the Company without consideration of any kind and neither the Participant nor any of the Participant's successors,



heirs, assigns, or personal representatives shall thereafter have any further rights or interests in such Restricted Shares.
Notwithstanding the foregoing, in the event that either (i) the Participant's employment is terminated by the Company (or its successor) or a Subsidiary or Affiliate without Cause, (ii) the Participant terminates employment for Good Reason (as defined in the Employment Agreement by and between the Company and the Participant, dated as of February 11, 2013), or (iii) the Participant's employment is terminated by death or Disability (either before or after a Change in Control), the restrictions on transfer with respect to the Restricted Shares normally subject to vesting at the next vesting date shall immediately lapse and such Restricted Shares shall be fully vested, with any remaining Restricted Shares being forfeited upon the date of such termination. Notwithstanding the foregoing or any provision hereof to the contrary, in the event that either (i) the Participant's employment is terminated by the Company (or its successor) or a Subsidiary or Affiliate without Cause, or (ii) the Participant terminates employment for Good Reason, in either case on or after the effective date of a Change in Control but prior to twelve (12) months following such Change in Control, then any Restricted Shares that are not vested as of the date of such termination shall immediately vest.
(b)              Restrictions . Until the restrictions on transfer of the Restricted Shares lapse as provided in Section 2(a) hereof, or as otherwise provided in the Plan, no transfer of the Restricted Shares or any of the Participant's rights with respect to the Restricted Shares, whether voluntary or involuntary, by operation of law or otherwise, shall be permitted. Unless the Administrator determines otherwise, upon any attempt to transfer Restricted Shares or any rights in respect of Restricted Shares before the lapse of such restrictions, such Restricted Shares, and all of the rights related thereto, shall be immediately forfeited by the Participant and transferred to, and reacquired by, the Company without consideration of any kind.
 
3.              Adjustments . Pursuant to Section 5 of the Plan, in the event of a change in capitalization as described therein, the Administrator shall make such equitable changes or adjustments, as it deems necessary or appropriate, in its discretion, to the number and kind of securities or other property (including cash) issued or issuable in respect of outstanding Restricted Shares.
 
4.              Legend on Certificates . The Participant agrees that any certificate issued for Restricted Shares (or, if applicable, any book entry statement issued for Restricted Shares) prior to the lapse of any outstanding restrictions relating thereto shall bear the following legend (in addition to any other legend or legends required under applicable federal and state securities laws):
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE (THE "RESTRICTIONS") AS SET FORTH IN THE BROOKDALE SENIOR LIVING INC. OMNIBUS STOCK INCENTIVE PLAN AND A RESTRICTED SHARE AGREEMENT ENTERED INTO BETWEEN THE REGISTERED OWNER AND BROOKDALE SENIOR LIVING INC., COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY. ANY ATTEMPT TO DISPOSE OF THESE SHARES IN CONTRAVENTION OF THE
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RESTRICTIONS, INCLUDING BY WAY OF SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHERWISE, SHALL BE NULL AND VOID AND WITHOUT EFFECT AND SHALL RESULT IN THE FORFEITURE OF SUCH SHARES AS PROVIDED BY SUCH PLAN AND AGREEMENT.
5.              Certain Changes . The Administrator may accelerate the date on which the restrictions on transfer set forth in Section 2(b) hereof shall lapse or otherwise adjust any of the terms of the Restricted Shares; provided that, subject to Section 5 of the Plan, no action under this Section shall adversely affect the Participant's rights hereunder.
 
6.              Notices . All notices and other communications under this Restricted Share Agreement shall be in writing and shall be given by facsimile or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three days after mailing or 24 hours after transmission by facsimile to the respective parties, as follows: (i) if to the Company, at Brookdale Senior Living Inc., 111 Westwood Place, Suite 400, Brentwood, TN 37027, Facsimile: (615) 564-8204, Attn: General Counsel and (ii) if to the Participant, using the contact information on file with the Company. Either party hereto may change such party's address for notices by notice duly given pursuant hereto.
 
7.              Securities Laws Requirements . The Company shall not be obligated to transfer any Common Stock to the Participant free of the restrictive legend described in Section 4 hereof or of any other restrictive legend, if such transfer, in the opinion of counsel for the Company, would violate the Securities Act of 1933, as amended (the "Securities Act") (or any other federal or state statutes having similar requirements as may be in effect at that time).
 
8.              No Obligation to Register . The Company shall be under no obligation to register the Restricted Shares pursuant to the Securities Act or any other federal or state securities laws.
 
9.              Protections Against Violations of Agreement . No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any of the Restricted Shares by any holder thereof in violation of the provisions of this Restricted Share Agreement will be valid, and the Company will not transfer any of said Restricted Shares on its books nor will any of such Restricted Shares be entitled to vote, nor will any distributions be paid thereon, unless and until there has been full compliance with said provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce said provisions.
 
10.              Taxes . The Participant shall pay to the Company promptly upon request, and in any event at the time the Participant recognizes taxable income with respect to the Restricted Shares (or, if the Participant makes an election under Section 83(b) of the Code in connection with such grant), an amount equal to the taxes the Company determines it is required to withhold under applicable tax laws with respect to the Restricted Shares. The Participant may satisfy the foregoing requirement by making a payment to the Company in cash or, with the approval of the Administrator, in its sole discretion, by delivering already owned unrestricted shares of Common Stock, in each case, having a value equal to the minimum amount of tax required to be withheld. Such shares of Common Stock shall be valued at their Fair Market Value on the date as of which
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the amount of tax to be withheld is determined. Fractional share amounts shall be settled in cash. The Participant shall promptly notify the Company of any election made pursuant to Section 83(b) of the Code. A form of such election is attached hereto as Exhibit A .
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S SOLE RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
The Participant acknowledges that the tax laws and regulations applicable to the Restricted Shares and the disposition of the Restricted Shares following vesting are complex and subject to change.
11.              Failure to Enforce Not a Waiver . The failure of the Company to enforce at any time any provision of this Restricted Share Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof.
 
12.              Restrictive Covenants . The Participant acknowledges that during the period of his or her employment with the Company or any Subsidiary or Affiliate, he or she shall have access to the Company's Confidential Information (as defined below) and will meet and develop relationships with the Company's employees, clients, customers and suppliers.
 
(a)              Noncompetition . The Participant agrees that during the period of his employment with the Company and for the one (1) year period immediately following the termination of such employment for any reason or for no reason, the Participant shall not directly or indirectly, either as a principal, agent, employee, employer, consultant, partner, shareholder of a closely held corporation or shareholder in excess of five percent of a publicly traded corporation, corporate officer or director, or in any other individual or representative capacity, engage or otherwise participate in any manner or fashion in any business that is a Competing Business in the Area. The Participant further covenants and agrees that this restrictive covenant is reasonable as to duration, terms and geographical area and that the same protects the legitimate interests of the Company and its affiliates, imposes no undue hardship on the Participant, is not injurious to the public, and that any violation of this restrictive covenant shall be specifically enforceable in any court with jurisdiction upon short notice. Solely for purposes of this paragraph: "Area" means a 15 mile radius of any senior living facility owned, managed or operated by the Company (or its successor) at the time Participant's employment is terminated; and "Competing Business" means the business of owning, operating or managing senior living facilities having gross annualized revenues of at least $35 million or owning, operating or managing, in the aggregate, at least 1,000 units/beds provided that at least 750 units/beds owned, operated or managed by such business are located within the Area.
 
(b)              Solicitation of Employees, Etc. The Participant agrees that during the period of his employment with the Company and for the two (2) year period immediately following the date of termination of the Participant's employment with the Company or any subsidiary for any reason, the Participant shall not, directly or indirectly, solicit or induce any officer, director, employee, agent or consultant of the Company or any of its successors, assigns,
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subsidiaries or affiliates to terminate his, her or its employment or other relationship with the Company or its successors, assigns, subsidiaries or affiliates for the purpose of associating with any competitor of the Company or its successors, assigns, subsidiaries or affiliates, or otherwise encourage any such person or entity to leave or sever his, her or its employment or other relationship with the Company or its successors, assigns, subsidiaries or affiliates, for any other reason.
(c)              Solicitation of Clients, Etc. The Participant agrees that during the period of his employment with the Company and for the two (2) year period immediately following the date of termination of the Participant's employment with the Company or any subsidiary, the Participant shall not, directly or indirectly, solicit or induce (i) any customers or clients of the Company or its successors, assigns, subsidiaries or affiliates or (ii) any vendors, suppliers or consultants then under contract to the Company or its successors, assigns, subsidiaries or affiliates, to terminate his, her or its relationship with the Company or its successors, assigns, subsidiaries or affiliates, for the purpose of associating with any competitor of the Company or its successors, assigns, subsidiaries or affiliates, or otherwise encourage such customers or clients, or vendors, suppliers or consultants then under contract, to terminate his, her or its relationship with the Company or its successors, assigns, subsidiaries or affiliates, for any other reason. Nothing in this Section applies to those customers, clients, vendors, suppliers, or consultants who did not conduct business with the Company, or its successors, assigns, subsidiaries or affiliates, during the Participant's employment with the Company.
 
(d)              Disparaging Comments . The Company and the Participant agree that during the period of the Participant's employment with the Company and at all times thereafter, (i) the Participant shall not make any disparaging or defamatory comments regarding the Company, and the Company shall not make or issue any public statements which are disparaging or defamatory regarding the Participant, and (ii) after termination of the Participant's employment relationship with the Company, neither party shall make any comments concerning any aspect of the termination of their relationship. The obligations of the Company or the Participant under this subsection shall not apply to disclosures required by applicable law, regulation or order of any court or governmental agency.
 
(e)              Confidentiality . All books of account, records, systems, correspondence, documents, and any and all other data, in whatever form, concerning or containing any reference to the works and business of the Company or its affiliated companies shall belong to the Company and shall be given up to the Company whenever the Company requires the Participant to do so. The Participant agrees that the Participant shall not at any time during the term of the Participant's employment or thereafter, without the Company's prior written consent, disclose to any person (individual or entity) any information or any trade secrets, plans or other information or data, in whatever form (including, without limitation, (a) any financing strategies and practices, pricing information and methods, training and operational procedures, advertising, marketing, and sales information or methodologies or financial information and (b) any Proprietary Information (as defined below)), concerning the Company's or any of its affiliated companies' or customers' practices, businesses, procedures, systems, plans or policies (collectively, "Confidential Information"), nor shall the Participant utilize any such Confidential Information in any way or communicate with or contact any such customer other than in connection with the Participant's employment by the Company or any Subsidiary or Affiliate.
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The Participant hereby confirms that all Confidential Information constitutes the Company's exclusive property, and that all of the restrictions on the Participant's activities contained in this Restricted Share Agreement and such other nondisclosure policies of the Company are required for the Company's reasonable protection. Confidential Information shall not include any information that has otherwise been disclosed to the public not in violation of this Restricted Share Agreement. This confidentiality provision shall survive the termination of this Restricted Share Agreement and shall not be limited by any other confidentiality agreements entered into with the Company or any of its affiliates.
With respect to any Confidential Information that constitutes a "trade secret" pursuant to applicable law, the restrictions described above shall remain in force for so long as the particular information remains a trade secret or for the two year period immediately following termination of Participant's employment for any reason, whichever is longer. With respect to any Confidential Information that does not constitute a "trade secret" pursuant to applicable law, the restrictions described above shall remain in force during Participant's employment and for the two year period immediately following termination of Participant's employment for any reason.
The Participant agrees that the Participant shall promptly disclose to the Company in writing all information and inventions generated, conceived or first reduced to practice by him or her alone or in conjunction with others, during or after working hours, while in the employ of the Company (all of which is collectively referred to in this Restricted Share Agreement as "Proprietary Information"); provided, however, that such Proprietary Information shall not include (a) any information that has otherwise been disclosed to the public not in violation of this Restricted Share Agreement and (b) general business knowledge and work skills of the Participant, even if developed or improved by the Participant while in the employ of the Company. All such Proprietary Information shall be the exclusive property of the Company and is hereby assigned by the Participant to the Company. The Participant's obligation relative to the disclosure to the Company of such Proprietary Information anticipated in this Section shall continue beyond the Participant's termination of employment and the Participant shall, at the Company's expense, give the Company all assistance it reasonably requires to perfect, protect and use its right to the Proprietary Information.
Nothing contained in this Section shall limit any common law or statutory obligation that the Participant may have to the Company or any of its affiliates. For purposes of this Section, the "Company" refers to the Company and any incorporated or unincorporated affiliates of the Company, including any entity which becomes the Participant's employer as a result of any reorganization or restructuring of the Company for any reason. The Company shall be entitled, in connection with its tax planning or other reasons, to terminate the Participant's employment (which termination shall not be considered a termination for any purposes of this Restricted Share Agreement, any employment agreement or otherwise) in connection with an invitation from another affiliate of the Company to accept employment with such affiliate in which case the terms and conditions hereof shall apply to the Participant's employment relationship with such entity mutatis mutandis.
13.              Governing Law . This Restricted Share Agreement shall be governed by and construed according to the laws of the State of Delaware without regard to its principles of conflict of laws.
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14.              Incorporation of Plan . The Plan is hereby incorporated by reference and made a part hereof, and the Restricted Shares and this Restricted Share Agreement shall be subject to all terms and conditions of the Plan.
 
15.              Amendments; Construction . The Administrator may amend the terms of this Restricted Share Agreement prospectively or retroactively at any time, but no such amendment shall impair the rights of the Participant hereunder without his or her consent. To the extent the terms of Section 12 above conflict with any prior agreement between the parties related to such subject matter, the more restrictive provision shall be deemed to apply. Headings to Sections of this Restricted Share Agreement are intended for convenience of reference only, are not part of this Restricted Share Agreement and shall have no effect on the interpretation hereof.
 
16.              Survival of Terms . This Restricted Share Agreement shall apply to and bind the Participant and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors. The terms of Section 12 shall expressly survive the forfeiture of the Restricted Shares and this Restricted Share Agreement.
 
17.              Rights as a Stockholder . The Participant shall have no right with respect to Restricted Shares to vote as a stockholder of the Company during the period in which such Restricted Shares remain subject to a substantial risk of forfeiture.
 
18.              Compliance with Stock Ownership Guidelines . The Participant hereby agrees to comply with the Company's Stock Ownership Guidelines (as amended from time to time, the "Guidelines"), to the extent such Guidelines are applicable, or become applicable, to the Participant. The Participant further acknowledges that, if he or she is not in compliance with such Guidelines (if applicable), the Administrator may refrain from issuing additional equity awards to the Participant and/or elect to pay the Participant's annual bonus in the form of vested or unvested Common Stock.
 
19.              Agreement Not a Contract for Services . Neither the Plan, the granting of the Restricted Shares, this Restricted Share Agreement nor any other action taken pursuant to the Plan shall constitute or be evidence of any agreement or understanding, express or implied, that the Participant has a right to continue to provide services as an officer, director, employee, consultant or advisor of the Company or any Subsidiary or Affiliate for any period of time or at any specific rate of compensation.
 
20.              Authority of the Administrator . The Administrator shall have full authority to interpret and construe the terms of the Plan and this Restricted Share Agreement. The determination of the Administrator as to any such matter of interpretation or construction shall be final, binding and conclusive.
 
21.              Representations . The Participant has reviewed with the Participant's own tax advisors the Federal, state, local and foreign tax consequences of the transactions contemplated by this Restricted Share Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands that he or she (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Restricted Share Agreement.
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22.              Severability . Should any provision of this Restricted Share Agreement be held by a court of competent jurisdiction to be unenforceable, or enforceable only if modified, such holding shall not affect the validity of the remainder of this Restricted Share Agreement, the balance of which shall continue to be binding upon the parties hereto with any such modification (if any) to become a part hereof and treated as though contained in this original Restricted Share Agreement. Moreover, if one or more of the provisions contained in this Restricted Share Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable, in lieu of severing such unenforceable provision, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear, and such determination by such judicial body shall not affect the enforceability of such provision or provisions in any other jurisdiction.
 
23.              Acceptance . The Participant hereby acknowledges receipt of a copy of the Plan and this Restricted Share Agreement. The Participant has read and understands the terms and provisions of the Plan and this Restricted Share Agreement, and accepts the Restricted Shares subject to all the terms and conditions of the Plan and this Restricted Share Agreement. The Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under this Restricted Share Agreement.
 
[Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Restricted Share Agreement as of the day and year first above written.

 
 
 
BROOKDALE SENIOR LIVING INC.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
/s/ W.E. Sheriff
 
 
 
 
Name:
W.E. Sheriff
 
 
 
 
Title:
Chief Executive Officer
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
T. Andrew Smith
 
 
 
 
 
 
 
 
 
 
/s/ T. Andrew Smith
 
 
 
 
Participant
 



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NOTE: Should you wish to make an election under Section 83(b), please contact the
Compensation Department
EXHIBIT A
ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income for the current taxable year the amount of any compensation taxable to taxpayer in connection with taxpayer's receipt of the property described below:
1.              The name, address, taxpayer identification number and taxable year of the undersigned are as follows:
NAME OF TAXPAYER:                                                                                                                                                             
NAME OF SPOUSE:                                                                                                                                                             
ADDRESS:                                                                                                                                                             
IDENTIFICATION NO. OF TAXPAYER:                                                                                                                                                             
IDENTIFICATION NUMBER OF SPOUSE:                                                                                                                                                             
TAXABLE YEAR:                                                                                                                                                             
2.              The property with respect to which the election is made is described as follows: ________ shares of Common Stock, par value $.01 per share, of Brookdale Senior Living Inc. ("Company").
3.              The date on which the property was transferred is: February [__], 2013.
4.              The property is subject to the following restrictions:
The property may not be transferred and is subject to forfeiture under the terms of an agreement between the taxpayer and the Company. These restrictions lapse upon the satisfaction of certain conditions in such agreement.
5.              The fair market value at the time of transfer, determined without regard to any restriction other than a restriction which by its terms will never lapse, of such property is: $_______________.
6.              The amount (if any) paid for such property is: $_______________.
The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned's receipt of the above-described property. The transferee of such property is the person performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked except with the consent of the Commissioner .


Date:  _________________, 20___
 
 
 
 
 
Taxpayer
 

The undersigned spouse of taxpayer joins in this election.
 

Date:  _________________, 20___
 
 
 
 
 
Spouse of Taxpayer
 




RESTRICTED SHARE AGREEMENT
UNDER THE BROOKDALE SENIOR LIVING INC.
OMNIBUS STOCK INCENTIVE PLAN
This Award Agreement (this "Restricted Share Agreement"), dated as of February 11, 2013 (the "Date of Grant"), is made by and between Brookdale Senior Living Inc., a Delaware corporation (the "Company"), and T. Andrew Smith (the "Participant"). Capitalized terms not defined herein shall have the meaning ascribed to them in the Brookdale Senior Living Inc. Omnibus Stock Incentive Plan (as amended and/or restated from time to time, the "Plan"). Where the context permits, references to the Company shall include any successor to the Company.
WHEREAS, the Compensation Committee of the Company's Board of Directors (the "Compensation Committee") has awarded the Participant shares of restricted stock that are subject to performance-based vesting conditions, subject to the Participant's agreement to the terms and conditions set forth in this Restricted Share Agreement; and
WHEREAS, the performance targets applicable to the shares have been previously established by the Compensation Committee and are set forth on Exhibits A and B hereto.
NOW, THEREFORE, in consideration of the premises and mutual promises herein contained, it is agreed as follows:
1.              Grant of Restricted Shares . The Company hereby grants to the Participant 65,104 shares of Common Stock (such shares, the "Restricted Shares"), subject to all of the terms and conditions of this Restricted Share Agreement and the Plan.
 
2.              Lapse of Restrictions .
 
(a)              Vesting .
 
(i)              General . Subject to the provisions set forth below, the restrictions on transfer set forth in Section 2(b) hereof shall lapse as follows:
 
(A)              Up to seventy-five percent (75%) of the Restricted Shares may vest on the first vesting date, February 27, 2016, with the exact percentage vesting being determined by the degree to which the performance targets based on the Company's three year compound annual growth rate ("CAGR") of Cash From Facility Operations ("CFFO") per share have been met, in accordance with the schedule set forth on Exhibit A hereto. Any Restricted Shares scheduled to vest on the first vesting date which do not vest on the first vesting date shall be forfeited.
 
(B)              Up to twenty-five percent (25%) of the Restricted Shares may vest on the second vesting date, February 27, 2017, with the exact percentage vesting being determined by the degree to which the performance targets based on the Company's calendar year 2016 return on investment ("ROI") on all Program Max projects approved in 2013 and completed prior to the end of 2014 have been met , in accordance with the schedule set forth on Exhibit B hereto. Any Restricted Shares scheduled to vest on the second vesting date which do not vest on the second vesting date shall be forfeited.


Except as otherwise specifically set forth herein, vesting on any vesting date is subject to the continued employment of the Participant by the Company or one of its Subsidiaries or Affiliates as of such vesting date. Notwithstanding the foregoing, upon the occurrence of a Change in Control, the restrictions on transfer with respect to the Restricted Shares normally subject to vesting at the next vesting date shall immediately lapse and such Restricted Shares shall be fully vested effective upon the date of the Change in Control; provided, however, (i) if the Change in Control occurs on or prior to February 27, 2014, 25% of the Restricted Shares shall immediately vest and (ii) if the Change in Control occurs after February 27, 2014 but on or prior to February 27, 2015, 50% of the Restricted Shares shall immediately vest. In addition, upon the occurrence of a Change in Control, any tranches of Restricted Shares that would otherwise be subject to any of the performance-vesting requirements set forth in this subsection 2(a)(i) will be converted into time-vesting only tranches, vesting on the same vesting dates initially established for each such tranche, subject only to the Participant's continued employment by the Company or one of its Subsidiaries or Affiliates, and regardless of whether, or the extent to which, any such performance-vesting goals are achieved. Notwithstanding anything herein to the contrary, no fractional shares shall be issuable upon any vesting date. With respect to all Restricted Shares, the Participant shall be entitled to receive, and retain, all ordinary and extraordinary cash and stock dividends which may be declared on the Restricted Shares with a record date on or after the Date of Grant and before any forfeiture thereof (regardless of whether a share later vests or is forfeited).
(ii)              Following Certain Terminations of Employment . Subject to the following paragraphs, upon termination of the Participant's employment with the Company and its Subsidiaries and Affiliates for any reason, any Restricted Shares as to which the restrictions on transferability described in this Section shall not already have lapsed shall be immediately forfeited by the Participant and transferred to, and reacquired by, the Company without consideration of any kind and neither the Participant nor any of the Participant's successors, heirs, assigns, or personal representatives shall thereafter have any further rights or interests in such Restricted Shares.
Notwithstanding the foregoing, in the event that either (i) the Participant's employment is terminated by the Company (or its successor) or a Subsidiary or Affiliate without Cause, (ii) the Participant terminates employment for Good Reason (as defined in the Employment Agreement by and between the Company and the Participant, dated as of February 11, 2013), or (iii) the Participant's employment is terminated by death or Disability (either before or after a Change in Control), the tranche of Restricted Shares normally subject to vesting at the next vesting date shall remain subject hereto until the vesting date that immediately follows such termination (subject to earlier vesting upon the occurrence of an intervening Change in Control), with any remaining Restricted Shares being forfeited upon the date of such termination; provided, however, (i) if the termination occurs on or prior to February 27, 2014, 25% of the Restricted Shares shall remain outstanding and shall be eligible to vest on February 27, 2014 in accordance with the following sentences (with any remaining Restricted Shares being immediately forfeited upon the date of termination) and (ii) if the termination occurs after February 27, 2014 but on or prior to February 27, 2015, 50% of the Restricted Shares shall remain outstanding and shall be eligible to vest on February 27, 2015 in accordance with the following sentences (with any remaining Restricted Shares being immediately forfeited upon the date of termination). If the Restricted Shares scheduled to vest on the next vesting date are subject to performance-vesting
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under subsections 2(a)(i)(A) or (B) above, upon such vesting date the same number of Restricted Shares shall vest as would have vested if the Participant had remained employed by the Company on such vesting date (if any), and the remaining Restricted Shares (if any) shall be forfeited; provided, however, (i) with respect to a termination that occurs on or prior to February 27, 2014, the number of Restricted Shares that shall vest shall be determined assuming that the performance target applicable to such Restricted Shares was based on the Company's one year CAGR of CFFO per share, in accordance with the schedule set forth on Exhibit A hereto and (ii) with respect to a termination that occurs after February 27, 2014 but on or prior to February 27, 2015, the number of Restricted Shares that shall vest shall be determined assuming that the performance target applicable to such Restricted Shares was based on the Company's two year CAGR of CFFO per share, in accordance with the schedule set forth on Exhibit A hereto. If the Restricted Shares scheduled to vest on the next vesting date are subject only to time-vesting (as a result of a previous Change in Control), such Restricted Shares shall immediately vest.
Notwithstanding the foregoing or any provision hereof to the contrary, in the event that either (i) the Participant's employment is terminated by the Company (or its successor) or a Subsidiary or Affiliate without Cause, or (ii) the Participant terminates employment for Good Reason, in either case on or after the effective date of a Change in Control but prior to twelve (12) months following such Change in Control, then any Restricted Shares that are not vested as of the date of such termination shall immediately vest.
(b)              Restrictions . Until the restrictions on transfer of the Restricted Shares lapse as provided in Section 2(a) hereof, or as otherwise provided in the Plan, no transfer of the Restricted Shares or any of the Participant's rights with respect to the Restricted Shares, whether voluntary or involuntary, by operation of law or otherwise, shall be permitted. Unless the Administrator determines otherwise, upon any attempt to transfer Restricted Shares or any rights in respect of Restricted Shares before the lapse of such restrictions, such Restricted Shares, and all of the rights related thereto, shall be immediately forfeited by the Participant and transferred to, and reacquired by, the Company without consideration of any kind.
 
3.              Adjustments . Pursuant to Section 5 of the Plan, in the event of a change in capitalization as described therein, the Administrator shall make such equitable changes or adjustments, as it deems necessary or appropriate, in its discretion, to the performance-vesting goals set forth in subsection 2(a)(i) and to the number and kind of securities or other property (including cash) issued or issuable in respect of outstanding Restricted Shares.
 
4.              Legend on Certificates . The Participant agrees that any certificate issued for Restricted Shares (or, if applicable, any book entry statement issued for Restricted Shares) prior to the lapse of any outstanding restrictions relating thereto shall bear the following legend (in addition to any other legend or legends required under applicable federal and state securities laws):
THE SHARES OF COMMON STOCK REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE (THE "RESTRICTIONS") AS SET FORTH IN THE BROOKDALE SENIOR LIVING INC. OMNIBUS STOCK INCENTIVE PLAN AND A RESTRICTED SHARE AGREEMENT ENTERED INTO BETWEEN THE
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REGISTERED OWNER AND BROOKDALE SENIOR LIVING INC., COPIES OF WHICH ARE ON FILE WITH THE SECRETARY OF THE COMPANY. ANY ATTEMPT TO DISPOSE OF THESE SHARES IN CONTRAVENTION OF THE RESTRICTIONS, INCLUDING BY WAY OF SALE, ASSIGNMENT, TRANSFER, PLEDGE, HYPOTHECATION OR OTHERWISE, SHALL BE NULL AND VOID AND WITHOUT EFFECT AND SHALL RESULT IN THE FORFEITURE OF SUCH SHARES AS PROVIDED BY SUCH PLAN AND AGREEMENT.
5.              Certain Changes . The Administrator may accelerate the date on which the restrictions on transfer set forth in Section 2 (b) hereof shall lapse or otherwise adjust any of the terms of the Restricted Shares; provided that, subject to Section 5 of the Plan and Section 20 hereof, no action under this Section shall adversely affect the Participant's rights hereunder.
 
6.              Notices . All notices and other communications under this Restricted Share Agreement shall be in writing and shall be given by facsimile or first class mail, certified or registered with return receipt requested, and shall be deemed to have been duly given three days after mailing or 24 hours after transmission by facsimile to the respective parties, as follows: (i) if to the Company, at Brookdale Senior Living Inc., 111 Westwood Place, Suite 400, Brentwood, TN 37027, Facsimile: (615) 564-8204, Attn: General Counsel and (ii) if to the Participant, using the contact information on file with the Company. Either party hereto may change such party's address for notices by notice duly given pursuant hereto.
 
7.              Securities Laws Requirements . The Company shall not be obligated to transfer any Common Stock to the Participant free of the restrictive legend described in Section 4 hereof or of any other restrictive legend, if such transfer, in the opinion of counsel for the Company, would violate the Securities Act of 1933, as amended (the "Securities Act") (or any other federal or state statutes having similar requirements as may be in effect at that time).
 
8.              No Obligation to Register . The Company shall be under no obligation to register the Restricted Shares pursuant to the Securities Act or any other federal or state securities laws.
 
9.              Protections Against Violations of Agreement . No purported sale, assignment, mortgage, hypothecation, transfer, pledge, encumbrance, gift, transfer in trust (voting or other) or other disposition of, or creation of a security interest in or lien on, any of the Restricted Shares by any holder thereof in violation of the provisions of this Restricted Share Agreement will be valid, and the Company will not transfer any of said Restricted Shares on its books nor will any of such Restricted Shares be entitled to vote, nor will any distributions be paid thereon, unless and until there has been full compliance with said provisions to the satisfaction of the Company. The foregoing restrictions are in addition to and not in lieu of any other remedies, legal or equitable, available to enforce said provisions.
 
10.              Taxes . The Participant shall pay to the Company promptly upon request, and in any event at the time the Participant recognizes taxable income with respect to the Restricted Shares (or, if the Participant makes an election under Section 83(b) of the Code in connection with such grant), an amount equal to the taxes the Company determines it is required to withhold under applicable tax laws with respect to the Restricted Shares. The Participant may satisfy the foregoing requirement by making a payment to the Company in cash or, with the approval of the
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Administrator, in its sole discretion, by delivering already owned unrestricted shares of Common Stock, in each case, having a value equal to the minimum amount of tax required to be withheld. Such shares of Common Stock shall be valued at their Fair Market Value on the date as of which the amount of tax to be withheld is determined. Fractional share amounts shall be settled in cash. The Participant shall promptly notify the Company of any election made pursuant to Section 83(b) of the Code. A form of such election is attached hereto as Exhibit C .
THE PARTICIPANT ACKNOWLEDGES THAT IT IS THE PARTICIPANT'S SOLE RESPONSIBILITY AND NOT THE COMPANY'S TO FILE TIMELY THE ELECTION UNDER SECTION 83(b) OF THE CODE, EVEN IF THE PARTICIPANT REQUESTS THE COMPANY OR ITS REPRESENTATIVE TO MAKE THIS FILING ON THE PARTICIPANT'S BEHALF.
The Participant acknowledges that the tax laws and regulations applicable to the Restricted Shares and the disposition of the Restricted Shares following vesting are complex and subject to change.
11.              Failure to Enforce Not a Waiver . The failure of the Company to enforce at any time any provision of this Restricted Share Agreement shall in no way be construed to be a waiver of such provision or of any other provision hereof.
 
12.              Restrictive Covenants . The Participant acknowledges that during the period of his or her employment with the Company or any Subsidiary or Affiliate, he or she shall have access to the Company's Confidential Information (as defined below) and will meet and develop relationships with the Company's employees, clients, customers and suppliers.
 
(a)              Noncompetition . The Participant agrees that during the period of his employment with the Company and for the one (1) year period immediately following the termination of such employment for any reason or for no reason, the Participant shall not directly or indirectly, either as a principal, agent, employee, employer, consultant, partner, shareholder of a closely held corporation or shareholder in excess of five percent of a publicly traded corporation, corporate officer or director, or in any other individual or representative capacity, engage or otherwise participate in any manner or fashion in any business that is a Competing Business in the Area. The Participant further covenants and agrees that this restrictive covenant is reasonable as to duration, terms and geographical area and that the same protects the legitimate interests of the Company and its affiliates, imposes no undue hardship on the Participant, is not injurious to the public, and that any violation of this restrictive covenant shall be specifically enforceable in any court with jurisdiction upon short notice. Solely for purposes of this paragraph: "Area" means a 15 mile radius of any senior living facility owned, managed or operated by the Company (or its successor) at the time Participant's employment is terminated; and "Competing Business" means the business of owning, operating or managing senior living facilities having gross annualized revenues of at least $35 million or owning, operating or managing, in the aggregate, at least 1,000 units/beds provided that at least 750 units/beds owned, operated or managed by such business are located within the Area.
 
(b)              Solicitation of Employees, Etc. The Participant agrees that during the period of his employment with the Company and for the two (2) year period immediately
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following the date of termination of the Participant's employment with the Company or any subsidiary for any reason, the Participant shall not, directly or indirectly, solicit or induce any officer, director, employee, agent or consultant of the Company or any of its successors, assigns, subsidiaries or affiliates to terminate his, her or its employment or other relationship with the Company or its successors, assigns, subsidiaries or affiliates for the purpose of associating with any competitor of the Company or its successors, assigns, subsidiaries or affiliates, or otherwise encourage any such person or entity to leave or sever his, her or its employment or other relationship with the Company or its successors, assigns, subsidiaries or affiliates, for any other reason.
(c)              Solicitation of Clients, Etc. The Participant agrees that during the period of his employment with the Company and for the two (2) year period immediately following the date of termination of the Participant's employment with the Company or any subsidiary, the Participant shall not, directly or indirectly, solicit or induce (i) any customers or clients of the Company or its successors, assigns, subsidiaries or affiliates or (ii) any vendors, suppliers or consultants then under contract to the Company or its successors, assigns, subsidiaries or affiliates, to terminate his, her or its relationship with the Company or its successors, assigns, subsidiaries or affiliates, for the purpose of associating with any competitor of the Company or its successors, assigns, subsidiaries or affiliates, or otherwise encourage such customers or clients, or vendors, suppliers or consultants then under contract, to terminate his, her or its relationship with the Company or its successors, assigns, subsidiaries or affiliates, for any other reason. Nothing in this Section applies to those customers, clients, vendors, suppliers, or consultants who did not conduct business with the Company, or its successors, assigns, subsidiaries or affiliates, during the Participant's employment with the Company.
 
(d)              Disparaging Comments . The Company and the Participant agree that during the period of the Participant's employment with the Company and at all times thereafter, (i) the Participant shall not make any disparaging or defamatory comments regarding the Company, and the Company shall not make or issue any statements which are disparaging or defamatory regarding the Participant, and (ii) after termination of the Participant's employment relationship with the Company, neither party shall make any comments concerning any aspect of the termination of their relationship. The obligations of the Company or the Participant under this subsection shall not apply to disclosures required by applicable law, regulation or order of any court or governmental agency.
 
(e)              Confidentiality . All books of account, records, systems, correspondence, documents, and any and all other data, in whatever form, concerning or containing any reference to the works and business of the Company or its affiliated companies shall belong to the Company and shall be given up to the Company whenever the Company requires the Participant to do so. The Participant agrees that the Participant shall not at any time during the term of the Participant's employment or thereafter, without the Company's prior written consent, disclose to any person (individual or entity) any information or any trade secrets, plans or other information or data, in whatever form (including, without limitation, (a) any financing strategies and practices, pricing information and methods, training and operational procedures, advertising, marketing, and sales information or methodologies or financial information and (b) any Proprietary Information (as defined below)), concerning the Company's or any of its affiliated companies' or customers' practices, businesses, procedures, systems, plans or policies
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(collectively, "Confidential Information"), nor shall the Participant utilize any such Confidential Information in any way or communicate with or contact any such customer other than in connection with the Participant's employment by the Company or any Subsidiary or Affiliate. The Participant hereby confirms that all Confidential Information constitutes the Company's exclusive property, and that all of the restrictions on the Participant's activities contained in this Restricted Share Agreement and such other nondisclosure policies of the Company are required for the Company's reasonable protection. Confidential Information shall not include any information that has otherwise been disclosed to the public not in violation of this Restricted Share Agreement. This confidentiality provision shall survive the termination of this Restricted Share Agreement and shall not be limited by any other confidentiality agreements entered into with the Company or any of its affiliates.
With respect to any Confidential Information that constitutes a "trade secret" pursuant to applicable law, the restrictions described above shall remain in force for so long as the particular information remains a trade secret or for the two year period immediately following termination of Participant's employment for any reason, whichever is longer. With respect to any Confidential Information that does not constitute a "trade secret" pursuant to applicable law, the restrictions described above shall remain in force during Participant's employment and for the two year period immediately following termination of Participant's employment for any reason.
The Participant agrees that the Participant shall promptly disclose to the Company in writing all information and inventions generated, conceived or first reduced to practice by him or her alone or in conjunction with others, during or after working hours, while in the employ of the Company (all of which is collectively referred to in this Restricted Share Agreement as "Proprietary Information"); provided, however, that such Proprietary Information shall not include (a) any information that has otherwise been disclosed to the public not in violation of this Restricted Share Agreement and (b) general business knowledge and work skills of the Participant, even if developed or improved by the Participant while in the employ of the Company. All such Proprietary Information shall be the exclusive property of the Company and is hereby assigned by the Participant to the Company. The Participant's obligation relative to the disclosure to the Company of such Proprietary Information anticipated in this Section shall continue beyond the Participant's termination of employment and the Participant shall, at the Company's expense, give the Company all assistance it reasonably requires to perfect, protect and use its right to the Proprietary Information.
Nothing contained in this Section shall limit any common law or statutory obligation that the Participant may have to the Company or any of its affiliates. For purposes of this Section, the "Company" refers to the Company and any incorporated or unincorporated affiliates of the Company, including any entity which becomes the Participant's employer as a result of any reorganization or restructuring of the Company for any reason. The Company shall be entitled, in connection with its tax planning or other reasons, to terminate the Participant's employment (which termination shall not be considered a termination for any purposes of this Restricted Share Agreement, any employment agreement or otherwise) in connection with an invitation from another affiliate of the Company to accept employment with such affiliate in which case the terms and conditions hereof shall apply to the Participant's employment relationship with such entity mutatis mutandis.
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13.              Governing Law . This Restricted Share Agreement shall be governed by and construed according to the laws of the State of Delaware without regard to its principles of conflict of laws.
 
14.              Incorporation of Plan . The Plan is hereby incorporated by reference and made a part hereof, and the Restricted Shares and this Restricted Share Agreement shall be subject to all terms and conditions of the Plan.
 
15.              Amendments; Construction . The Administrator may amend the terms of this Restricted Share Agreement prospectively or retroactively at any time, but no such amendment shall impair the rights of the Participant hereunder without his or her consent. To the extent the terms of Section 12 above conflict with any prior agreement between the parties related to such subject matter, the more restrictive provision shall be deemed to apply. Headings to Sections of this Restricted Share Agreement are intended for convenience of reference only, are not part of this Restricted Share Agreement and shall have no effect on the interpretation hereof.
 
16.              Survival of Terms . This Restricted Share Agreement shall apply to and bind the Participant and the Company and their respective permitted assignees and transferees, heirs, legatees, executors, administrators and legal successors. The terms of Section 12 shall expressly survive the forfeiture of the Restricted Shares and this Restricted Share Agreement.
 
17.              Rights as a Stockholder . The Participant shall have no right with respect to Restricted Shares to vote as a stockholder of the Company during the period in which such Restricted Shares remain subject to a substantial risk of forfeiture.
 
18.              Compliance with Stock Ownership Guidelines . The Participant hereby agrees to comply with the Company's Stock Ownership Guidelines (as amended from time to time, the "Guidelines"), to the extent such Guidelines are applicable, or become applicable, to the Participant. The Participant further acknowledges that, if he or she is not in compliance with such Guidelines (if applicable), the Administrator may refrain from issuing additional equity awards to the Participant and/or elect to pay the Participant's annual bonus in the form of vested or unvested Common Stock.
 
19.              Agreement Not a Contract for Services . Neither the Plan, the granting of the Restricted Shares, this Restricted Share Agreement nor any other action taken pursuant to the Plan shall constitute or be evidence of any agreement or understanding, express or implied, that the Participant has a right to continue to provide services as an officer, director, employee, consultant or advisor of the Company or any Subsidiary or Affiliate for any period of time or at any specific rate of compensation.
 
20.              Authority of the Administrator . The Administrator shall have full authority to interpret and construe the terms of the Plan and this Restricted Share Agreement (including, without limitation, the authority to determine whether, and the extent to which, any performance-vesting goals have been achieved). Pursuant to the terms of the Plan, the Administrator shall also have full authority to make equitable adjustments to any performance-vesting goals in recognition of unusual or non-recurring events affecting the Company or any Subsidiary or Affiliate or the financial statements of the Company or any Subsidiary or Affiliate, in response to
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changes in applicable laws or regulations, or to account for items of gain, loss or expense determined to be extraordinary or unusual in nature or infrequent in occurrence or related to the disposal of a segment of a business or related to a change in accounting principles. The determination of the Administrator as to any such matter(s) set forth in this Section 20 shall be final, binding and conclusive.
21.              Representations . The Participant has reviewed with the Participant's own tax advisors the Federal, state, local and foreign tax consequences of the transactions contemplated by this Restricted Share Agreement. The Participant is relying solely on such advisors and not on any statements or representations of the Company or any of its agents. The Participant understands that he or she (and not the Company) shall be responsible for any tax liability that may arise as a result of the transactions contemplated by this Restricted Share Agreement.
 
22.              Severability . Should any provision of this Restricted Share Agreement be held by a court of competent jurisdiction to be unenforceable, or enforceable only if modified, such holding shall not affect the validity of the remainder of this Restricted Share Agreement, the balance of which shall continue to be binding upon the parties hereto with any such modification (if any) to become a part hereof and treated as though contained in this original Restricted Share Agreement. Moreover, if one or more of the provisions contained in this Restricted Share Agreement shall for any reason be held to be excessively broad as to scope, activity, subject or otherwise so as to be unenforceable, in lieu of severing such unenforceable provision, such provision or provisions shall be construed by the appropriate judicial body by limiting or reducing it or them, so as to be enforceable to the maximum extent compatible with the applicable law as it shall then appear, and such determination by such judicial body shall not affect the enforceability of such provision or provisions in any other jurisdiction.
 
23.              Acceptance . The Participant hereby acknowledges receipt of a copy of the Plan and this Restricted Share Agreement. The Participant has read and understands the terms and provisions of the Plan and this Restricted Share Agreement, and accepts the Restricted Shares subject to all the terms and conditions of the Plan and this Restricted Share Agreement. The Participant hereby agrees to accept as binding, conclusive and final all decisions or interpretations of the Administrator upon any questions arising under this Restricted Share Agreement.

[Signature page to follow.]
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IN WITNESS WHEREOF, the parties hereto have executed and delivered this Restricted Share Agreement as of the day and year first above written.

 
 
 
BROOKDALE SENIOR LIVING INC.
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
By:
/s/ W.E. Sheriff
 
 
 
 
Name:
W.E. Sheriff
 
 
 
 
Title:
Chief Executive Officer
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
 
T. Andrew Smith
 
 
 
 
 
 
 
 
 
 
/s/ T. Andrew Smith
 
 
 
 
Participant
 

 

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EXHIBIT A


[Intentionally omitted.]


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EXHIBIT B


[Intentionally omitted.]


BB-1



NOTE: Should you wish to make an election under Section 83(b), please contact the
Compensation Department
EXHIBIT C
ELECTION UNDER SECTION 83(b) OF THE INTERNAL REVENUE CODE OF 1986
The undersigned taxpayer hereby elects, pursuant to Section 83(b) of the Internal Revenue Code of 1986, as amended, to include in taxpayer's gross income for the current taxable year the amount of any compensation taxable to taxpayer in connection with taxpayer's receipt of the property described below:
1.              The name, address, taxpayer identification number and taxable year of the undersigned are as follows:
NAME OF TAXPAYER:                                                                                                                                                             
NAME OF SPOUSE:                                                                                                                                                             
ADDRESS:                                                                                                                                                             
IDENTIFICATION NO. OF TAXPAYER:                                                                                                                                                             
IDENTIFICATION NUMBER OF SPOUSE:                                                                                                                                                             
TAXABLE YEAR:                                                                                                                                                             
2.              The property with respect to which the election is made is described as follows: ________ shares of Common Stock, par value $.01 per share, of Brookdale Senior Living Inc. ("Company").
3.              The date on which the property was transferred is: February [__], 2013.
4.              The property is subject to the following restrictions:
The property may not be transferred and is subject to forfeiture under the terms of an agreement between the taxpayer and the Company. These restrictions lapse upon the satisfaction of certain conditions in such agreement.
5.              The fair market value at the time of transfer, determined without regard to any restriction other than a restriction which by its terms will never lapse, of such property is: $_______________.
6.              The amount (if any) paid for such property is: $_______________.
The undersigned has submitted a copy of this statement to the person for whom the services were performed in connection with the undersigned's receipt of the above-described property. The transferee of such property is the person performing the services in connection with the transfer of said property.
The undersigned understands that the foregoing election may not be revoked except with the consent of the Commissioner .

Date:  _________________, 20___
 
 
 
 
 
Taxpayer
 

The undersigned spouse of taxpayer joins in this election.
 

Date:  _________________, 20___
 
 
 
 
 
Spouse of Taxpayer
 


 
 
FOR IMMEDIATE RELEASE

Brookdale Senior Living Appoints Andy Smith as Chief Executive Officer

NASHVILLE, Tenn. , Feb. 11, 2013 -- Brookdale Senior Living Inc. (NYSE: BKD) today announced that its Board of Directors has selected T. Andrew (Andy) Smith to serve as Chief Executive Officer of the Company.   Mr. Smith, currently the Company's Executive Vice President and General Counsel , will succeed Bill Sheriff as CEO, who had previously announced his intent to retire after 28 years with the Company and its predecessors. Mr. Smith will assume the new role on the first business day following the filing of the Company's Annual Report on Form 10-K for the year ended December 31, 2012, which the Company expects to occur within approximately the next week.

Jeffrey R. Leeds, Brookdale's Chairman, commented, "The Board conducted an extensive search for Bill Sheriff's successor, which considered candidates inside and outside the Company.  We concluded that Andy's sharp intellect, deep understanding of and experience in the senior living industry, and his strong commitment to our philosophy and values best qualifies him to lead our Company into the future."

Mr. Leeds continued, "Andy assumes leadership of a company with a unique position in the senior living industry in terms of the size, scope and quality of its product offerings.  This commanding presence is a testament to Bill Sheriff's vision and wisdom in the years since he became co-CEO and, eventually, sole CEO of Brookdale.  On behalf of the entire Board, I want to express our sincere gratitude for Bill's dedicated service to our shareholders, our associates and our residents."

Mr. Sheriff added, "I have worked closely with Andy for more than 25 years, and I have tremendous confidence in his business expertise, his healthcare and real estate experience, his values and his integrity.  Over the last six years, Andy has been a key executive officer, driving Brookdale's growth and success through a broad set of both strategic and operational responsibilities that gave him a comprehensive understanding of the Company's operations, challenges and opportunities.  He has continuously demonstrated his strong judgment and management capabilities through his diverse and substantial contributions, including effecting major transactions that factored into the Company's historic growth.  Andy is absolutely the right person to lead the Company and our associates forward to ensure that our residents and their families continue to receive outstanding service and to maximize Brookdale's shareholder value."

Mr. Smith has served as Executive Vice President and General Counsel since joining the Company in October 2006 and as a member of the senior management Executive Committee since its formation.  In addition to his role in managing the Company's legal affairs, Mr. Smith

 
 
has been responsible for management and oversight of the Company's corporate development functions (including acquisitions and expansion and development activity); corporate finance activities (including capital structure, debt and lease transactions and lender/lessor relations); strategic planning; and risk management.  Prior to joining the Company, Mr. Smith was an attorney for nearly 21 years with Bass, Berry & Sims PLC, where he was a member of the firm's corporate and securities group and served as the chair of the firm's healthcare group. While at Bass, Berry & Sims, he served American Retirement Corporation (a predecessor company to Brookdale) as outside General Counsel.

Mr. Smith commented, "It is an honor both to be named CEO of a company whose associates do so much every day to enrich the lives of our residents and their families and to follow Bill Sheriff, who has led the growth of Brookdale to its strong position of industry leadership.  Speaking for all of the associates at Brookdale, I thank Bill for his excellent leadership and deep commitment to the Company's success, and I look forward to continuing to benefit from his expertise and counsel.

"This transition takes place at an exciting time for Brookdale.  Our platform is well-positioned to continue our growth in average occupancy and other key operating and financial metrics. We will remain highly focused on driving superior operating and financial results.  We are confident that as we achieve our objectives, we will also continue to meet our goal of enhancing shareholder value.  At the same time, we remain fully committed to providing our residents with superior service and supporting our associates' ability to perform."

About Brookdale Senior Living

Brookdale Senior Living Inc. is a leading owner and operator of senior living communities throughout the United States.  The Company is committed to providing an exceptional living experience through properties that are designed, purpose-built and operated to provide the highest-quality service, care and living accommodations for residents.  Currently the Company operates independent living, assisted living, and dementia-care communities and continuing care retirement centers, with 647 communities in 36 states and the ability to serve approximately 66,700 residents.  Through its Innovative Senior Care program, the Company also offers a range of outpatient therapy, home health and hospice services, primarily to residents of its communities.

Safe Harbor

Certain items in this press release may constitute forward-looking statements within the meaning of the Private Securities Litigation Reform Act of 1995. Those forward-looking statements are subject to various risks and uncertainties and include all statements that are not historical statements of fact and those regarding our intent, belief or expectations.  Words such as "expect(s)" and similar expressions are intended to identify such forward-looking statements. These statements are based on management's current expectations and beliefs and are subject to a number of factors that could lead to actual results materially different from those described in the forward-looking statements. We can give no assurance that our expectations will be attained. Factors that could cause actual results to differ materially from our expectations include, but are not limited to, the risks detailed from time to time in our filings with the Securities and Exchange Commission, including our Annual Report on Form 10-K and Quarterly Reports on Form 10-Q. Such forward-looking statements speak only as of the date of this press release. We expressly

 
 
disclaim any obligation to release publicly any updates or revisions to any forward-looking statements contained herein to reflect any change in our expectations with regard thereto or change in events, conditions or circumstances on which any statement is based.

Contact:
Brookdale Senior Living Inc.
Ross Roadman
Senior Vice President, Investor Relations
(615) 564-8104