Exhibit 10.9
EMPLOYMENT AGREEMENT
THIS EMPLOYMENT AGREEMENT (the "Agreement") is made and entered into this
7th day of May, 1997 by and between Brookdale Living Communities, Inc., a
Delaware corporation ("Employer"), and Xxxxxxx X. Xxxxxxxx, an individual
domiciled in the State of Illinois ("Executive").
W I T N E S S E T H
A. Employer is engaged primarily in the ownership, management, leasing,
marketing, acquisition, development and construction of senior and assisted
living facilities throughout the United States.
B. Employer believes that it would benefit from the application of
Executive's particular and unique skill, experience, and background to the
management and operation of Employer.
C. Executive wishes to commit himself to serve Employer in the position
set forth herein on the terms herein provided.
D. The parties wish by this Agreement to set forth the terms and
conditions of the employment relationship between Employer and Executive.
NOW, THEREFORE, in consideration of the foregoing and the mutual covenants
herein set forth, and for other good and valuable consideration, Employer and
Executive hereby agree as follows:
1. Employment and Duties. During the Employment Term (as defined in
Section 2 hereof), Employer agrees to employ Executive, and Executive agrees to
be employed by Employer, as the Vice President - Acquisitions of Employer on the
terms and conditions provided in this Agreement. Executive shall conduct,
operate, manage and promote the business and business concept of Employer, and
exercise such other powers and authority as are provided by the By-laws of
Employer ("By-laws"). The Board of Directors of Employer (the "Board") or the
Chief Executive Officer may from time to time further define and clarify
Executive's duties and services hereunder or under the By-laws as Vice President
- Acquisitions. Executive agrees to devote Executive's best efforts and
substantially all of Executive's business time, attention, energy and skill to
perform Executive's duties as Vice President - Acquisitions of Employer.
2. Term. The initial term of this Agreement (the "Initial Term") shall
commence on the date Employer's Registration Statement on Form S-1, as amended
(No. 333-12259; the "Registration Statement") is declared effective (the
"Effective Date") and expire on December 31, 1999 (the "Scheduled Termination
Date"), provided, however, this Agreement shall automatically extend for one
year terms following the Initial Term (each a "Renewal Term", together with the
Initial Term, the "Employment Term"), unless either party shall give the other
party prior to thirty (30) days before the end of the Initial Term or any
Renewal Term, as applicable, written notice of its intention to terminate this
Agreement.
3. Compensation and Related Matters. (a) Base Salary. As compensation
for performing the services required by this Agreement during the Employment
Term, Employer shall pay to Executive an annual salary of no less than Ninety-
Five Thousand Dollars ($95,000) ("Base Compensation"), payable in accordance
with the general policies and procedures for payment of salaries to its
executive personnel maintained, from time to time, by Employer (but no less
frequently than monthly), subject to withholding for applicable federal, state,
and local taxes. Increases in Base Compensation, if any, shall be determined by
the Compensation Committee of the Board (the "Committee") based on periodic
reviews of Executive's performance conducted on at least an annual basis.
(b) Bonus. (i) In addition to Base Compensation, Executive shall have
the right to receive, and Employer agrees to distribute to Executive,
performance bonus distributions (a "Performance Bonus Distribution") in an
amount equal to 18/100 of 1% of the total purchase price of each property
acquired by Employer, provided that Executive had primary responsibility or was
the procuring cause for such acquisition, which Performance Distribution shall
be payable within thirty (30) days following the completion of the acquisition.
The foregoing bonus program shall not apply with respect to portfolio
acquisitions or acquisitions of (or mergers with) another company or
substantially all of the assets of another company. With respect to such
transactions, a separate bonus arrangement will be structured by Employer on a
case-by-case basis, based on, among other factors, the degree of Executive's
involvement in such acquisition and the size thereof. Executive acknowledges
that Executive is entitled to Performance Bonus Distributions only with respect
to acquisitions of properties for which Executive has primary responsibilities
or is the procuring cause and will not be entitled to a Performance Bonus
Distribution with respect to any other properties acquired by Employer;
provided, however, it is Employer's expectation that, if and to the extent
Employer is interested in pursuing an acquisition with respect to which
Executive is not the procuring cause, Employer will consider having Executive
involved in such acquisition provided Employer determines that, based on
Executive's then current duties and responsibilities on the other acquisitions
on which Executive is then involved, Executive can devote the time and effort on
such acquisition that may be necessary and appropriate.
(ii) In addition to Base Compensation and the Performance Bonus
Distribution, Executive will be eligible for additional performance-based bonus
distributions (the "Additional Bonus") based on the achievement by Executive of
certain tangible objectives. The maximum Additional Bonus to which Executive is
eligible under this Section 3(b)(ii) each year shall be an amount equal to
fifteen percent (15%) of Executive's Base Compensation for the year to which the
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Additional Bonus relates. The objectives on which the Additional Bonus is based
and the other terms of the Additional Bonus program shall be established upon
the mutual agreement of Executive and Employer.
(iii) Upon and in connection with the initial public offering of stock
of Employer, Employer shall pay Executive in cash a one-time special bonus of
Twelve Thousand Five Hundred Dollars ($12,500).
(c) Benefits. During the Employment Term and subject to the
limitations and alternative rights set forth in this Section 3(c), Executive and
Executive's eligible dependents shall have the right to participate in any
retirement, pension, insurance, health, dental or other benefit plan or program
that has been or is hereafter adopted by Employer (or in which Employer
participates), as such plans and programs may be amended or modified from time
to time by Employer, according to the terms of such plan or program with all the
benefits, rights and privileges as are enjoyed by any other senior executive
officer of Employer. If the participation of Executive would adversely affect
the qualification of a plan intended to be qualified under Section 401(a) of the
Internal Revenue Code as the same may be amended from time to time (the "Code"),
Employer shall have the right to exclude Executive from that plan in return for
Executive's participation in (i) a nonqualified deferred compensation plan which
provides substantially comparable benefits or (ii) an arrangement providing
substantially comparable benefits under a plan that is either a qualified or
nonqualified under the Code at Employer's option.
(d) Expenses. Executive shall be reimbursed, subject to Employer's
receipt of invoices or similar records as Employer may reasonably request in
accordance with its policies and procedures, as such policies as and procedures
may be amended or modified from time to time by Employer, for all reasonable and
necessary expenses incurred by Executive in the performance of Executive's
duties hereunder.
(e) Vacations. During the Employment Term, Executive shall be entitled
to two (2) weeks paid vacation in accordance with Employer's practices, as such
practices may be amended or modified from time to time by Employer.
4. Stock Options. Employer has established a stock incentive plan (the
"Stock Incentive Plan") that will become effective prior to the completion of
the initial public offering of shares of common stock of Employer (the "Common
Stock") contemplated by the Registration Statement. The Stock Incentive Plan
initially provides, among other things, for the issuance from time to time to
certain officers, directors and other employees of Employer of up to 830,000
stock options ("Options"). On the Effective Date, Employer shall grant to
Executive 25,000 Options that will have such terms and conditions as are set
forth in the Stock Incentive Plan and the Stock Option Agreement to be entered
into between Employer and Executive.
5. Termination and Termination Benefits. (a) Termination by Employer.
(i) Without Cause. Employer may terminate this Agreement and Executive's
employment at any time for any reason or for no reason at all upon thirty (30)
days' prior written notice to Executive following notice
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of termination. In connection with the termination of Executive's employment
pursuant to this Section 5(a)(i), Executive shall (A) be paid Executive's Base
Compensation in accordance with Section 3(a) hereof, and be entitled to the
benefits set forth in Sections 3(c), 3(d) and 3(e) hereof, up to the effective
date of such termination, (B) be paid any Performance Bonus Distribution to
which Executive becomes entitled under Section 3(b)(i) hereof as a result of the
closing of a property acquisition occurring prior to or within forty-five days
after the date of such termination, (C) be paid any unpaid Additional Bonus
which Executive earned as of the date of such termination under Section 3(b)(ii)
hereof, and (D) receive the Termination Compensation specified in Section 5(d)
hereof. For purposes of the Agreement, in the event Employer defaults in its
obligation under Section 9 hereof and, as a consequence thereof, Executive's
employment with Employer (or Employer's successor or assign) is terminated, such
termination shall be deemed to be a termination under this Section 5(a)(i).
(ii) With Cause. Employer may terminate this Agreement with cause
immediately upon written notice to Executive. Employer may elect to require
Executive to continue to perform Executive's duties under this Agreement for an
additional thirty (30) days following notice of termination. In connection with
the termination of Executive's employment pursuant to this Section 5(a)(ii),
Executive shall (A) be paid Executive's Base Compensation in accordance with
Section 3(a) hereof, and be entitled to the benefits set forth in Sections 3(c),
3(d) and 3(e) hereof, up to the effective date of such termination, (B) be paid
any Performance Bonus Distribution to which Executive becomes entitled under
Section 3(b)(i) hereof as a result of the closing of a property acquisition
occurring prior to or within forty-five days after the date of such termination,
and (C) be paid any unpaid Additional Bonus which Executive earned as of the
date of such termination under Section 3(b)(i) hereof. For purposes of this
Section 5(a)(ii), "cause" shall mean (A) a finding by the Chief Executive
Officer of Employer or the Board that Executive has materially harmed Employer,
its business, assets or employees through an act of dishonesty, material
conflict of interest, gross misconduct or willful malfeasance, (B) Executive's
conviction of (or pleading nolo contendere to) a felony, (C) Executive's failure
to perform (which shall not include inability to perform due to disability) in
any material respects Executive's material duties under this Agreement, (D) the
breach by Executive of any of Executive's material obligations hereunder (other
than those covered by clause (C) above) and the failure of Executive to cure
such breach within ten (10) days after receipt by Executive of a written notice
of Employer specifying in reasonable detail the nature of the breach (provided,
however, if, based on the nature of the breach, such breach cannot reasonably
and with diligence be cured within such ten (10) day period, Executive shall
have an additional period, not to exceed thirty (30) days, to cure such breach
if (1) Executive has commenced curing such breach within the initial ten (10)
day period and continuously and diligently pursues such cure and (2) in the
reasonable judgment of Employer, the granting to Executive of an additional
period to cure such breach will not have an adverse effect on the business or
operations of Employer or on any of Employer's facilities or acquisition
opportunities), (E) Executive's sanction (including restrictions, prohibitions
and limitations agreed to under a consent decree or agreed order) under, or
conviction for violation of, any federal or state securities law, rule or
regulation (provided that in the case of a sanction, such sanction materially
impedes or impairs the ability of Executive to perform Executive's duties and
exercise Executive's responsibilities hereunder in a satisfactory manner), or
(F) Executive's willful breach of any material policies or procedures of
Employer.
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(iii) Disability. If due to illness, physical or mental disability, or
other incapacity, Executive shall fail during any four (4) consecutive months to
perform the duties required by this Agreement, Employer may terminate this
Agreement upon thirty (30) days' written notice to Executive. In such event,
Executive shall (A) be paid Executive's Base Compensation in accordance with
Section 3(a) hereof, and be entitled to the benefits set forth in Section 3(c)
hereof (or the after-tax cash equivalent), up to the effective date of such
termination and be entitled to the benefits set forth in Sections 3(d) and 3(e)
hereof up to the date of such disability, (B) be paid any Performance Bonus
Distribution to which Executive becomes entitled under Section 3(b)(i) hereof as
a result of the closing of a property acquisition occurring prior to or within
forty-five days after the date of such disability and (C) be paid any unpaid
Additional Bonus which Executive earned as of the date of such termination under
Section 3(b)(ii) hereof. This Section 5(a)(iii) shall not limit the entitlement
of Executive, Executive's estate or beneficiaries to any disability or other
benefits available to Executive under any disability insurance or other benefits
plan or policy which is maintained by Employer for Executive's benefit. For
purposes of this Agreement, the "date of disability" shall mean the first day of
the consecutive period during which Executive fails to perform the duties
required by this Agreement due to illness, physical or mental disability or
other incapacity.
(b) Termination by Executive Without Good Reason. Executive may
terminate this Agreement and Executive's employment at any time for any reason
or for no reason at all upon thirty (30) days' written notice to Employer,
during which period Executive shall continue to perform Executive's duties under
this Agreement if Employer so elects. In connection with the termination of
Executive's employment pursuant to this Section 5(b), Executive shall (A) be
paid Executive's Base Compensation in accordance with Section 3(a) hereof, and
be entitled to the benefits set forth in Sections 3(c), 3(d) and 3(e) hereof, up
to the effective date of such termination, (B) be paid any Performance Bonus
Distribution to which Executive becomes entitled under Section 3(b)(i) hereof as
a result of the closing of a property acquisition occurring prior to or within
forty-five days after the date of such termination and (C) be paid any unpaid
Additional Bonus which Executive earned as of the date of such termination under
Section 3(b)(ii) hereof.
(c) Death. Notwithstanding any other provision of this Agreement, this
Agreement shall terminate on the date of Executive's death. In such event,
Executive shall (A) be paid Executive's Base Compensation in accordance with
Section 3(a) hereof, and be entitled to the benefits set forth in Sections 3(c)
(or the after-tax cash equivalent), 3(d) and 3(e) hereof, up to the date of such
death, (B) be paid any Performance Bonus Distribution to which Executive becomes
entitled under Section 3(b)(i) hereof as a result of the closing of a property
acquisition occurring prior to or within forty-five days after the date of such
death and (C) be paid any unpaid Additional Bonus which Executive earned as of
the date of such termination under Section 3(b)(ii) hereof. This Section 5(c)
shall not limit the entitlement of Executive, Executive's estate or
beneficiaries under any insurance or other benefits plan or policy which is
maintained by Employer for Executive's benefit.
(d) Termination Compensation. In the event of a termination of this
Agreement pursuant to Section 5(a)(i) hereof, Employer shall pay to Executive,
within thirty (30) days of
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termination, an amount in one lump sum ("Termination Compensation") equal to 50%
of Executive's annual Base Compensation as of the effective date of such
termination; provided, however, that the foregoing shall not affect Employer's
obligation to pay Executive any Performance Bonus Distributions to which
Executive may become entitled after the date of such termination pursuant to the
applicable provisions of this Section 5.
6. Covenants of Executive.
(a) No Conflicts. Executive represents and warrants that he is not
personally subject to any agreement, order or decree which restricts Executive's
acceptance of this Agreement and the performance of Executive's duties with
Employer hereunder.
(b) Non-Competition. In return for the performance of the management
duties described in Section 1 hereof, during the Employment Term and for a
period of one year thereafter in the event of the termination of this Agreement
pursuant to the provisions of Section 5(a)(ii) or 5(b) hereof, Executive shall
not, directly or indirectly, in any capacity whatsoever, either on Executive's
own behalf or on behalf of any other person or entity with whom he may be
employed or associated, (i) own any interest in, participate or engage in the
day-to-day supervision, management, acquisition, development, marketing or
operation of any senior or assisted living facilities (the "Business") either
located within seven (7) miles from any facility in which Employer has a direct
or indirect interest as of the date of the termination of this Agreement or
within seven (7) miles from any facility or development site and with respect to
which, on or prior to the date of such termination, Employer has entered a
letter of intent or contract to acquire, or (ii) pursue any senior or assisted
living facility or any development site therefor (A) which Employer is pursuing
as of the date of the termination of this Agreement and with respect to which,
prior to the date of such termination, Employer has entered a letter of intent
or contract to acquire or (B) of which Executive became aware prior to the date
of termination of this Agreement but which Executive did not present to Employer
(unless, after the Employment Term, such facility or site is presented to
Employer and Employer elects not to pursue such facility or site). Furthermore,
for a period of two years after any applicable Section 5 termination event,
Executive shall not, directly or indirectly, solicit, attempt to hire or hire
any employee of Employer. Notwithstanding the foregoing, nothing herein shall
prohibit Executive from owning 5% or less of any securities of a competitor
engaged in the same Business if such securities are listed on a nationally
recognized securities exchange or traded over-the-counter on the National
Association of Securities Dealers Automated Quotation System or otherwise.
(c) Non-Disclosure. During the Employment Term and for a period of two
years after the expiration or termination of this Agreement for any reason,
Executive shall not disclose or use, except in the pursuit of the Business for
or on behalf of Employer, any Trade Secret (as hereinafter defined) of Employer,
whether such Trade Secret is in Executive's memory or embodied in writing or
other physical form. For purposes of this Section 6(c), "Trade Secret" means any
information which derives independent economic value, actual or potential, with
respect to Employer from not being generally known to, and not being readily
ascertainable by proper means by, other persons who can obtain economic value
from its disclosure or use and is the subject of
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efforts to maintain its secrecy that are reasonable under the circumstances,
including, but not limited to, trade secrets, customer lists, sales records and
other proprietary commercial information. Said term, however, shall not include
general "know-how" information acquired by Executive during the course of
Executive's service which could have been obtained by Executive from public
sources without the expenditure of significant time, effort and expense which
does not relate to Employer.
(d) Return of Documents. Upon termination of Executive's services with
Employer, Executive shall return all originals and copies of books, records,
documents, customer lists, sales materials, tapes, keys, credit cards and other
tangible property of Employer within Executive's possession or under Executive's
control.
(e) Equitable Relief. In the event of any breach by Executive of any
of the covenants contained in this Section 6, it is specifically understood and
agreed that Employer shall be entitled, in addition to any other remedy which it
may have, to equitable relief by way of injunction, an accounting or otherwise
and to notify any employer or prospective employer of Executive as to the terms
and conditions hereof.
(f) Acknowledgment. Executive acknowledges that he may be directly and
materially involved as a senior executive in certain important policy and
operational decisions of Employer. Executive further acknowledges that the scope
of the foregoing restrictions has been specifically bargained between Employer
and Executive, each being fully informed of all relevant facts. Accordingly,
Executive acknowledges that the foregoing restrictions of Section 6 are fair and
reasonable, are minimally necessary to protect Employer, its other stockholders
and the public from the unfair competition of Executive who, as a result of
Executive's performance of services on behalf of Employer, will have had
unlimited access to the most confidential and important information of Employer,
its business and future plans. Executive furthermore acknowledges that no
unreasonable harm or injury will be suffered by Executive from enforcement of
the covenants contained herein and that he will be able to earn a reasonable
livelihood following termination of Executive's services notwithstanding
enforcement of the covenants contained herein.
7. Prior Agreements. This Agreement supersedes and is in lieu of any and
all other employment arrangements between Executive and Employer or its
predecessor or any subsidiary and any and all such employment agreements and
arrangements are hereby terminated and deemed of no further force or effect.
8. Assignment. Neither this Agreement nor any rights or duties of
Executive hereunder shall be assignable by Executive and any such purported
assignment by Executive shall be void. Employer may assign all or any of its
rights hereunder provided that substantially all of the assets of Employer are
also transferred to the same party.
9. Successor to Employer. Employer will require any successor or assign
(whether direct or indirect, by purchase, merger, consolidation or otherwise) to
all or substantially all the business and/or assets of Employer, as the case may
be, by agreement in form and substance reasonably satisfactory to Executive,
expressly, absolutely and unconditionally to assume and agree
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to perform this Agreement in the same manner and to the same extent that
Employer would be required to perform it if no such succession or assignment had
taken place. Any failure of Employer to obtain such agreement prior to the
effectiveness of any such succession or assignment shall be a material breach of
this Agreement. This Agreement shall inure to the benefit of and be enforceable
by Executive's personal and legal representatives, executors, administrators,
successors, heirs, distributees, devisees and legatees. If Executive should die
while any amounts are still payable to Executive hereunder, all such amounts,
unless otherwise provided herein, shall be paid in accordance with the terms of
this Agreement to Executive's devisee, legatee or other designee or, if there be
no such designee, to Executive's estate.
10. Notices. Any notice required or permitted to be given under this
Agreement shall be sufficient if in writing and if personally delivered or sent
by courier or certified mail, postage or delivery charges prepaid, to the
following addresses:
(a) if to Executive, to:
Xxxxxxx X. Xxxxxxxx
000 X. Xxxxxxx
0xx Xxxxx
Xxxxxxx, XX 00000
(b) if to Employer, to:
Brookdale Living Communities, Inc.
Xxxxx 0000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Chief Executive Officer
With a copy to:
Brookdale Living Communities, Inc.
Xxxxx 0000
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: General Counsel
and to:
Winston & Xxxxxx
00 Xxxx Xxxxxx Xxxxx
Xxxxxxx, XX 00000
Attn: Xxxxx X. Xxxxxx
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Any notice, claim, demand, request or other communication given as provided in
this Section 10, if delivered personally, shall be effective upon delivery; and
if given by courier, shall be effective one (1) business day after deposit with
the courier if next day delivery is guaranteed; and if given by mail, shall be
effective three (3) business days after deposit in the mail. Either party may
change the address at which it is to be given notice by giving written notice to
the other party as provided in this Section 10.
11. Amendment. This Agreement may not be changed, modified or amended
except in writing signed by both parties hereto.
12. Waiver of Breach. The waiver by either party of the breach of any
provision of this Agreement shall not operate or be construed as a waiver of any
subsequent breach by either party.
13. Severability. Employer and Executive each expressly agree and
contract that it is not the intention of either party to violate any public
policy, statutory or common law, and that if any covenant, sentence, paragraph,
clause or combination of the same of this Agreement (a "Contractual Provision")
is in violation of the law of any state where applicable, such Contractual
Provision shall be void in the jurisdictions where it is unlawful, and the
remainder of such Contractual Provision, if any, and the remainder of this
Agreement shall remain binding on the parties such that such Contractual
Provision shall be binding only to the extent that such Contractual Provision is
lawful or may be lawfully performed under then applicable laws. In the event
that any part of any Contractual Provision of this Agreement is determined by a
court of competent jurisdiction to be overly broad thereby making the
Contractual Provision unenforceable, the parties hereto agree, and it is their
desire, that such court shall substitute a judicially enforceable limitation in
its place, and that the Contractual Provision, as so modified, shall be binding
upon the parties as if originally set forth herein.
14. Indemnification. Executive shall indemnify Employer for any and all
consequential damages, costs and expenses resulting from any of Executive's acts
or omissions that constitute a material conflict of interest or willful or
intentional misconduct that cause material harm to Employer's business or
reputation. Executive also shall indemnify Employer for any and all
consequential damages, costs and expenses resulting from Executive's acts of
omission constituting reckless disregard of Executive's duties to Employer
following notice thereof by Employer after it becomes aware of such conduct and
Executive's failure to so cure within thirty (30) days.
15. Governing Law. This Agreement shall be governed by, and construed,
interpreted and enforced in accordance with the laws of the State of Illinois,
exclusive of the conflict of laws provisions of the State of Illinois.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the date first written above.
EMPLOYER:
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Title: President
---------------------------------
/s/ Xxxxxxx X. Xxxxxxxx
---------------------------------------
Xxxxxxx X. Xxxxxxxx
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