RESTRICTED STOCK UNIT AGREEMENT
EXECUTION COPY
UNDER
THE BROOKDALE SENIOR LIVING INC.
OMNIBUS
STOCK INCENTIVE PLAN
This
Restricted Stock Unit Agreement (this “Agreement”), dated as
of June 23, 2009, is made by and between Brookdale Senior Living Inc., a
Delaware corporation (the “Company”), and W. E.
Sheriff (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 Stock
Units. The Company hereby grants to the Participant 500,000
restricted stock units (the “RSUs”), subject to
all of the terms and conditions of this Agreement and the Plan.
2. Vesting and
Forfeiture.
(a) Vesting. Subject
to the provisions set forth in this Section 2 below, the RSUs shall vest at such
times and in the amounts set forth below, and shares of Common Stock with
respect to such RSUs shall be delivered to the Participant within forty-five
(45) days following each such date, subject to the Participant’s continued
employment or service as a “Consultant” (each as defined in the employment
agreement between the Company and the Participant, dated as of June 23, 2009
(the “Employment
Agreement”)) on each date:
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Vesting Date
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Number
of RSUs
Vesting on Such Vesting
Date
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|
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December
15, 2009
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100,000
RSUs
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|
|
December
15, 2010
|
100,000
RSUs
|
|
|
December
15, 2011
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100,000
RSUs
|
|
|
December
15, 2012
|
100,000
RSUs
|
|
|
December
15, 2013
|
100,000
RSUs
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(b) Accelerated
Vesting. Notwithstanding anything to the contrary in Section
2(a), all outstanding RSUs which have not previously been forfeited pursuant to
the provisions of Section 2(e) below shall vest upon, and shares of Common Stock
shall be delivered to the Participant within forty-five (45) days following, the
earliest to occur of (i) a Change in Control (but only if such Change in Control
constitutes a change in the ownership or effective control of the Company or in
the ownership of a substantial portion of the assets of the Company under
Section 409A of the Code); (ii) the Participant’s death; or (iii) the
Participant’s Disability.
(c) Participant’s Termination of
Employment Prior to December 31, 2010.
(i) If
the Participant’s employment is terminated (and such termination constitutes a
separation from service under Section 409A of the Code) (1) by
the
Company
without “Cause” (as defined in the Employment Agreement) or (2) by the
Participant for “Good Reason” (as defined in the Employment Agreement), in
either case prior to December 31, 2010, all outstanding RSUs shall vest and
shares of Common Stock with respect to such RSUs will be delivered in accordance
with the schedule set forth in Section 2(a) above.
(ii) If
the Participant resigns from employment without Good Reason prior to December
31, 2010, but continues serving as a Consultant, the RSUs which are scheduled to
vest on each of December 15, 2012 and December 15, 2013 shall be forfeited and
shares of Common Stock with respect to the remaining outstanding RSUs will be
delivered in accordance with the schedule set forth in Section 2(a) above; provided, that the
Participant either continues serving as a Consultant on each such date or his
service as a Consultant is terminated either by the Company without Cause or by
the Participant for Good Reason.
(d) Participant’s Termination of
Employment On or After December 31, 2010. If the Participant’s
employment is terminated (and such termination constitutes a separation from
service under Section 409A of the Code) (i) by the Company without Cause or
(ii) voluntarily by the Participant for any reason (whether or not the
Participant becomes a Consultant), in either case on or after December 31, 2010,
shares of Common Stock with respect to all outstanding RSUs will be delivered to
the Participant within forty-five (45) days following such termination of
employment.
(e) Forfeiture. Notwithstanding
anything in this Section 2 to the contrary, all outstanding RSUs shall be
forfeited upon (i) the termination of the Participant’s employment or service as
a Consultant for Cause; (ii) the voluntary termination (without Good Reason) of
the Participant’s employment (without becoming a Consultant) prior to December
31, 2010; or (iii) the voluntary termination (without Good Reason) of the
Participant’s service as a Consultant.
3. Shares of Common
Stock. Upon vesting, each RSU granted hereunder shall
represent the right to receive one (1) share of Common Stock in accordance with
the applicable schedule set forth in Section 2.
4. Execution of
Release. The delivery of shares of Common Stock to the
Participant as a result of, or following, termination of employment or service
as a Consultant for any reason shall only be made upon the Participant’s
execution and non-revocation of a general release of claims in a form
satisfactory to the Company.
5. Restrictions. Until
the delivery of shares of Common Stock with respect to the RSUs in accordance
with Section 2, no transfer of the RSUs or any of the Participant’s rights with
respect to the RSUs, whether voluntary or involuntary, by operation of law or
otherwise, shall be permitted. Unless the Administrator determines
otherwise, upon any attempt to transfer RSUs or any rights in respect of RSUs
before the delivery of shares of Common Stock with respect to the RSUs in
accordance with Section 2, such RSUs, 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.
6.
Dividend Equivalents;
Rights as a Stockholder. Any cash dividends or distributions
declared by the Company with respect to the shares of Common Stock subject
to
2
the RSUs
shall be paid in cash to the Participant at the same time such dividends or
distributions are paid to the Company’s stockholders generally, provided that
the Participant is then employed by or a Consultant to the
Company. Except as set forth in the immediately preceding sentence,
the Participant shall have no rights of a stockholder until shares of Common
Stock are delivered to the Participant pursuant to the terms of this
Agreement.
7. 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 RSUs.
8. Notices. All
notices and other communications under this 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., 000 Xxxxxxxx Xxxxx, Xxxxx 000, Xxxxxxxxx, XX 00000,
Facsimile: (000) 000-0000, 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.
9. Securities Laws
Requirements. The Company shall not be obligated to transfer
any Common Stock to the Participant 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). The Company shall take appropriate
reasonable actions to ensure that the delivery of Common Stock hereunder will be
in compliance with the Securities Act or an applicable exemption from
registration under the Securities Act.
10. 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 RSUs by any holder thereof in violation of the provisions
of this Agreement will be valid, and the Company will not transfer any of said
RSUs on its books nor will any of such RSUs 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.
11. Tax
Withholding. The Company shall be entitled to require a cash
payment by or on behalf of the Participant and/or to deduct from RSUs granted
hereunder or other compensation payable to the Participant any sums required by
federal, state or local tax law to be withheld or to satisfy any applicable
payroll deductions with respect to the vesting of, lapse of restrictions on, or
payment with respect to any RSU.
12. Failure to Enforce Not a
Waiver. The failure of the Company to enforce at any time any
provision of this Agreement shall in no way be construed to be a waiver of such
provision or of any other provision hereof.
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13. Governing
Law. This 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 RSUs and this Agreement shall be subject to all terms and
conditions of the Plan.
15. Amendments;
Construction. The Administrator may amend the terms of this
Agreement prospectively or retroactively at any time, but no such amendment
shall impair the rights of the Participant hereunder without his or her
consent. Headings to Sections of this Agreement are intended for
convenience of reference only, are not part of this Agreement and shall have no
effect on the interpretation hereof.
16. Survival of
Terms. This 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.
17. 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.
18. Agreement Not a Contract for
Services. Neither the Plan, the granting of the RSUs, this
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.
19. Authority of the
Administrator. The Administrator shall have full authority to
interpret and construe the terms of the Plan and this Agreement. The
determination of the Administrator as to any such matter of interpretation or
construction shall be final, binding and conclusive.
20. 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 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 (and not the Company)
shall be responsible for any tax liability that may arise as a result of the
transactions contemplated by this Agreement.
21.
Severability. Should
any provision of this 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 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
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and
treated as though contained in this original Agreement. Moreover, if
one or more of the provisions contained in this 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.
22. Acceptance. The
Participant hereby acknowledges receipt of a copy of the Plan and this
Agreement. The Participant has read and understands the terms and
provisions of the Plan and this Agreement, and accepts the RSUs subject to all
the terms and conditions of the Plan and this 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 Agreement.
23. Section 409A
Compliance. The intent of the parties is that payments and
benefits under this Agreement comply with Section 409A of the Code to the extent
subject thereto, and, accordingly, to the maximum extent permitted, this
Agreement shall be interpreted and be administered to be in compliance
therewith. Notwithstanding anything contained herein to the contrary,
to the extent required in order to avoid accelerated taxation and/or tax
penalties under Section 409A of the Code, the Participant shall not be
considered to have terminated employment with the Company for purposes of this
Agreement and no payment shall be due to the Participant under this Agreement
until the Participant would be considered to have incurred a “separation from
service” from the Company within the meaning of Section 409A of the
Code. Any payments described in this Agreement or the Plan that are
due within the “short-term deferral period” as defined in Section 409A of the
Code shall not be treated as deferred compensation unless applicable law
requires otherwise. Notwithstanding anything to the contrary in this
Agreement or the Plan, to the extent that any RSUs are payable upon a separation
from service and such payment would result in the imposition of any individual
excise tax and late interest charges imposed under Section 409A of the Code, the
settlement and payment of such awards shall instead be made on the first
business day after the date that is six (6) months following such separation
from service (or death, if earlier).
[Signature
page to follow.]
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IN
WITNESS WHEREOF, the parties hereto have executed and delivered this Agreement
as of the day and year first above written.
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By:
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/s/
T. Xxxxxx Xxxxx
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Name:
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T.
Xxxxxx Xxxxx
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Title:
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Executive
Vice President
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W.E.
SHERIFF
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/s/
W.E. Sheriff
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Participant
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