Exhibit: 10.79
AWARD AGREEMENT
UNDER THE BROOKDALE LIVING COMMUNITIES, INC.
EMPLOYEE RESTRICTED STOCK PLAN
This Award Agreement (this "Restricted Stock Agreement"), dated as of
August 9, 2005 (the "Date of Grant"), is made by and between Brookdale Living
Communities, Inc., a Delaware corporation (the "Company") and Xxxxxxx Xxxxxx
(the "Participant"). Capitalized terms not defined herein shall have the meaning
ascribed to them in the Company Employee Restricted Stock Plan (the "Plan").
Where the context permits, references to the Company shall include any successor
to the Company.
1. Number of Shares. The Company hereby grants to the Participant 94.7
Shares (the "Restricted Stock"), subject to all of the terms and conditions of
this Restricted Stock Agreement and the Plan.
2. Lapse of Restrictions.
(a) Vesting. The restrictions on transfer set forth in Section
2(b) hereof shall lapse as follows, subject to the continued employment of
Participant by the Company:
Provided a Participant remains continuously employed by the Company until the
consummation of an Initial Public Offering, 50% of the Restricted Stock shall be
vested as of the Date of Grant. In addition, 16.7% of the remaining 50% of the
Restricted Stock shall vest at the end of the third, fourth and fifth years
following the Date of Grant, provided the Participant has remained continuously
employed by the Company (or, following the consummation of the Brookdale Senior
Living Transaction, any successor thereto) as of each such date; provided that,
upon the occurrence of a Change in Control, 100% of the Restricted Stock that is
not vested at that time shall immediately vest.
Upon any termination of the Participant's employment with the Company prior to
the occurrence of an Initial Public Offering, any shares of Restricted Stock
pursuant to this Restricted Stock Agreement 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 shares of Restricted
Stock.
From and following the occurrence of an Initial Public Offering, upon
termination of the Participant's employment with the Company other than
termination by the Company (or any successor) without Cause or by the
Participant for Good Reason, any shares of
Restricted Stock 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 shares of Restricted
Stock. Notwithstanding the foregoing, if the Participant's employment is
terminated by the Company (or its successor) without Cause or by the Participant
for Good Reason, then the Participant shall immediately vest in the percentage
of the shares of Restricted Stock that would have vested on the anniversary of
the Date of Grant next following the date of such termination, or, if that
percentage is zero, then the percentage of Restricted Stock that would have
vested on the anniversary of the Date of Grant following the date of such
termination for which the vesting percentage is greater than zero.
(b) Restrictions. Until the restrictions on transfer of the
Restricted Stock lapse as provided in Section 2(a) hereof, or as otherwise
provided in the Plan, no transfer of the Restricted Stock or any of the
Participant's rights with respect to the Restricted Stock, whether voluntary or
involuntary, by operation of law or otherwise, shall be permitted. Moreover,
subject to Section 7.2 of the Plan, no shares of Restricted Stock shall be sold,
assigned, transferred, pledged, hypothecated or otherwise disposed of prior to
the consummation of the Initial Public Offering. Unvested Shares subject to
Stock Awards may not be sold, assigned, transferred, pledged, hypothecated or
otherwise disposed of and shall be subject to a risk of forfeiture until such
Shares become vested. Unless the Board or any other entity designated by the
Board to administer the Plan (the "Administrator") determines otherwise, upon
any attempt to transfer a share of Restricted Stock or any rights in respect of
a Share of Restricted Stock before the lapse of such restrictions, such Share,
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 4.2 of the Plan, in the event of a
change in capitalization as described therein, the Board shall make such
equitable changes or adjustments as it deems necessary or appropriate to the
number and kind of shares of stock or other property (including cash) issued or
issuable in respect of outstanding Restricted Stock. Upon the consummation of
the Brookdale Senior Living Transaction, each Share underlying the Restricted
Stock shall be automatically converted into such number of Brookdale Senior
Living securities as the Board, in its sole discretion, deems appropriate. The
vesting schedule of the Restricted Stock shall continue in effect following such
transaction, except that service with Brookdale Senior Living Inc. or any
surviving or continuing entity shall be considered service with the Company for
purposes of such schedule.
4. Legend on Certificates. The Participant agrees that any certificate
issued for Restricted Stock (or, if applicable, any book entry statement issued
for Restricted
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Stock) 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 REPRESENTED BY THIS CERTIFICATE ARE SUBJECT TO CERTAIN
RESTRICTIONS UPON TRANSFER AND RIGHTS OF REPURCHASE (THE "RESTRICTIONS") AS
SET FORTH IN THE BROOKDALE LIVING COMMUNITIES, INC. EMPLOYEE RESTRICTED
STOCK PLAN AND A RESTRICTED STOCK AGREEMENT ENTERED INTO BETWEEN THE
REGISTERED OWNER AND BROOKDALE LIVING COMMUNITIES, 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 IN 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 Stock; provided that no
action under this Section shall adversely affect the Participant's rights
hereunder.
6. Notices. All notices and other communications under this Restricted
Stock 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 named below:
If to the Company: Brookdale Living Communities, Inc.
000 X Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, XX 00000
Facsimile: (000) 000-0000
Attn: Chief Executive Officer
If to the Participant: Xxxxxxx Xxxxxx
000 Xxxxxxx Xxx.
Xxxxxxxx, XX 00000
Facsimile: ______________
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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 Shares 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 shares of Restricted Stock pursuant to the Securities Act or any
other federal or state securities laws.
9. Lock-Up. To the extent required by the Company, the Participant
shall not transfer any Shares of Restricted Stock acquired pursuant to the Plan
for a period of 180 days following the closing of an Initial Public Offering or
such longer or shorter period of time as may be reasonably requested by the
Company's underwriter in connection with such Initial Public Offering, or if
such Initial Public Offering is in connection with a sale or similar corporate
transaction, such longer period of time as may be set forth in any lock-up or
market stand-off agreement executed by the beneficial owners of at least 50% of
the outstanding Shares immediately before such sale or similar corporate
transaction.
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 Shares of Restricted Stock by any
holder thereof in violation of the provisions of this Restricted Stock Agreement
or the Certificate of Incorporation or the Bylaws of the Company, will be valid,
and the Company will not transfer any of said shares of Restricted Stock on its
books nor will any of such Shares of Restricted Stock be entitled to vote, nor
will any dividends 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. Taxes. The Participant shall pay to the Company promptly upon
request, and in any event at the time the Participant recognizes taxable income
in respect to the Shares of Restricted Stock (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 Shares of Restricted Stock. The
Participant may satisfy the foregoing requirement by making a payment to the
Company in cash or, with the approval of the Administrator, in it sole
discretion, by delivering already owned unrestricted Shares, in each case,
having a value
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equal to the minimum amount of tax required to be withheld. Such Shares 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 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 Stock and the disposition of the shares of Restricted Stock following
vesting are complex and subject to change.
12. Bonus Payments for Tax Withholding. Notwithstanding the foregoing,
if the Participant makes an election pursuant to Section 83(b) of the Code
within 30 days following the Date of Grant with respect to the Restricted Stock,
then the Company shall award to the Participant a cash bonus intended to be used
solely for purposes of paying the Company's withholding obligations (and any
related taxes) with respect to the Participant's tax obligations for such
Restricted Stock due as a result of having filed such Section 83(b) election.
The bonus will be in an amount equal to, on an after tax basis, the Company's
withholding obligation with respect to the Shares for up to 100% of the Shares
subject to this Restricted Stock Agreement (a) with respect to which the
forfeiture restrictions of Section 2(b) shall lapse as of the effective date of
an Initial Public Offering, and (b) for which the Participant has made such
timely election, and the Company shall directly remit such bonus to the Internal
Revenue Service. In addition, if the Participant terminates employment with the
Company (or any successor) or the Participant's employment is terminated for
Cause, in either case, prior to the occurrence of the first filing with the
Securities Exchange Commission with respect to an Initial Public Offering (the
"First Filing"), then the Participant shall be required to repay to the Company
(or any successor) the bonus described in this Section, no later than 60 days
following such termination of employment or if earlier, immediately prior to the
First Filing. The Participant will remain responsible, pursuant to Section 11
hereof, for any and all withholding obligations that exceed the value of the
bonus described in this Section.
13. Failure to Enforce Not a Waiver. The failure of the Company to
enforce at any time any provision of this Restricted Stock Agreement shall in no
way be construed to be a waiver of such provision or of any other provision
hereof.
14. Investment Representation. The Participant hereby represents and
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warrants to the Company that the Participant, by reason of the Participant's
business or financial experience (or the business or financial experience of the
Participant's professional advisors who are unaffiliated with and who are not
compensated by the Company or any affiliate or selling agent of the Company,
directly or indirectly), has the capacity to protect the Participant's own
interests in connection with the transactions contemplated under this Restricted
Stock Agreement.
15. Restrictive Covenants. The Participant acknowledges that during
the period of his employment with the Company or any subsidiary, he shall have
access to the Company's 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. The Participant agrees that during the period
of his employment with the Company and for the one year period immediately
following 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 Section
15(a): "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 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, (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 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
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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-year period.
(c) Solicitation of Clients, Etc. The Participant agrees that
during the period of his employment with the Company and for the two 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 Participant agrees that during the
period of the Participant's employment with the Company and thereafter, The
Participant shall not make any disparaging or defamatory comments regarding the
Company or, after termination of his employment relationship with the Company,
make any comments concerning any aspect of the termination of their
relationship. The obligations of The Participant under this subsection shall not
apply to disclosures required by applicable law, regulation or order of any
court or governmental agency.
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 and Section 16, 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 Stock 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.
16. Confidentiality. All books of account, records, systems,
correspondence, documents, and any and all other data, in whatever form,
concerning or
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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. 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 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 Restricted Stock
Agreement and shall not be limited by any other confidentiality agreements
entered into with the Company or any of its affiliates.
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 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 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 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.
17. Governing Law. This Restricted Stock 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.
18. Incorporation of Plan. The Plan is hereby incorporated by
reference
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and made a part hereof, and the Shares of Restricted Stock and this Restricted
Stock Agreement shall be subject to all terms and conditions of the Plan.
19. Amendments; Construction. The Administrator may amend the terms of
this Restricted Stock 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 15 or 16 above conflict
with any prior agreement between the parties related to such subject matter, the
terms of Sections 15 and 16 shall supersede such conflicting terms and control.
Headings to Sections of this Restricted Stock Agreement are intended for
convenience of reference only, are not part of this Restricted Stock Agreement
and shall have no affect on the interpretation hereof.
20. Survival of Terms. This Restricted Stock 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 Sections 15 and 16 shall expressly survive the
forfeiture of the Restricted Stock and this Agreement.
21. Rights as a Stockholder. Subject to the restrictions set forth in
the Plan and this Restricted Stock Agreement, the Participant shall possess all
incidents of ownership with respect to the shares of Restricted Stock, including
the right to receive dividends with respect to such shares of Restricted Stock
and to vote such shares of Restricted Stock.
22. Agreement Not a Contract for Services. Neither the Plan, the
granting of the Shares of Restricted Stock, this Restricted Stock 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.
23. Authority of the Administrator. The Administrator shall have full
authority to interpret and construe the terms of the Plan and this Restricted
Stock Agreement. The determination of the Administrator as to any such matter of
interpretation or construction shall be final, binding and conclusive.
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24. 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 Stock
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 Restricted Stock Agreement.
25. Severability. Should any provision of this Restricted Stock
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 Stock 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 Stock Agreement. Moreover, if one or more of the provisions contained
in this Restricted Stock 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 provisions or
provisions in any other jurisdiction.
26. Acceptance. The Participant hereby acknowledges receipt of a copy
of the Plan and this Restricted Stock Agreement. The Participant has read and
understand the terms and provision thereof, and accepts the shares of Restricted
Stock subject to all the terms and conditions of the Plan and this Restricted
Stock 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 Stock Agreement.
IN WITNESS WHEREOF, the parties hereto have executed and delivered
this Restricted Stock Agreement on the day and year first above written.
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Xxxx X. Xxxxxxx
---------------------------------
Name: Xxxx X. Xxxxxxx
---------------------------------
Title: Chairman and CEO
---------------------------------
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/s/ Xxxxxxx X. Xxxxxx
----------------------------------------
Xxxxxxx Xxxxxx
The Participant
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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 (the "Shares") of Brookdale Living
Communities, Inc. ("Company").
3. The date on which the property was transferred is: ______________,
20__.
4. The property is subject to the following restrictions:
The Shares may not be transferred and are 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.
Dated: , 2005
----------------- ----------------------------------------
Taxpayer
The undersigned spouse of taxpayer joins in this election.
Dated: , 2005
----------------- ----------------------------------------
Spouse of Taxpayer
