SEPARATION AGREEMENT AND GENERAL RELEASE
Brookdale Senior Living
Inc., 330 North Wabash Avenue, Suite 1400, Chicago, IL 60611,
(including affiliates and its successors, assigns, employees,
officers, directors, representatives, shareholders and
agents, collectively referred to as " Brookdale
"), and Mark J. Schulte (" Employee
") have entered into this Separation Agreement and General
Release (this " Agreement
") on this 7 th
day of February, 2008 (collectively referred to as the "
Parties
"). In consideration of the mutual promises contained herein,
the Parties agree as follows:
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1.
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Notice of Termination; Certain Position Resignations
. As required by Section 5 of his Employment Agreement
with Brookdale and Brookdale Living Communities, Inc. made as of
August 9, 2005 (the "Employment Agreement"), the Employee hereby
gives notice to the Company that he will terminate his employment
on March 3, 2008 (the "Termination Date"). As agreed
between the Parties, the Employee hereby resigns his position as
Co-Chief Executive Officer of Brookdale, effective
immediately. Employee also agrees that, effective
immediately, he resigns all of his positions as an officer,
director, manager, governor or employee of Brookdale or any parent,
subsidiary or affiliate at any level, and he agrees to promptly
execute such customary documents and take such customary actions as
may be necessary or reasonably requested by Brookdale to effectuate
or memorialize the termination of such positions; provided,
however, that such resignation shall not apply to Employee's
service as a member of the Board of Directors of Brookdale or to
Employee's service as a key employee of Brookdale pursuant to
Section 2 hereof.
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2.
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Continued Service as Key Employee; Restricted Shares
. The Employee agrees to serve Brookdale as a key
employee until the Termination Date, on which date his employment
and the Employment Agreement shall terminate. Brookdale
agrees to cause the Administrator of the Brookdale Senior Living
Inc. Omnibus Stock Incentive Plan, as Amended and Restated June 12,
2007 (the "Plan") to accelerate the vesting of all of the
Employee's outstanding restricted shares of Company stock under the
Plan or any predecessor plan and cause the restrictions on all of
the Employee’s restricted shares to lapse on the Termination
Date, if (and only if) the Employee continues to serve Brookdale as
a key employee until the Termination Date, terminates his
employment on the Termination Date, and executes and delivers to
Brookdale a Final Separation Agreement substantially in the form
attached hereto as Exhibit A on the Termination
Date. The accelerated vesting shall apply to all
restricted shares outstanding under his Award Agreement dated as of
August 9, 2005 (the "2005 Agreement") and his Restricted Share
Agreement dated as of March 7, 2007 (the "2007
Agreement"). The Employee agrees that he shall not
transfer the newly vested shares, except to the extent required to
pay taxes with respect to such vesting, before March 3,
2009.
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3.
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Last Day of Employment . Employee and Brookdale agree that
Employee's employment with Brookdale will be terminated by Employee
on March 3, 2008 (the "Termination Date"), and that Employee has
given prior notice to Brookdale in accordance with his Employment
Agreement. Brookdale will reimburse Employee for all
business expenses
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incurred
on behalf of Brookdale through the Termination Date, in
accordance with Brookdale's policies with respect to the
reimbursement of expenses.
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4.
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Restrictive Covenants; Cooperation . The Employee
agrees that the restrictive covenants of Sections 15 and 16 of the
2005 Agreement and Sections 12 and 13 of the 2007 Agreement
relating to non-competition, non-solicitation of employees, clients
and others, non-disparagement and confidentiality are incorporated
by reference herein and shall continue to apply for the longer of
(i) the periods specified therein or (ii) the period ending nine
months after the date he is no longer serving Brookdale either as
an employee or as a member of Brookdale's Board of
Directors. On reasonable request, Employee will
cooperate in all reasonable respects with Brookdale and its
affiliates in connection with any and all existing or future
litigation, actions or proceedings (whether civil, criminal,
administrative, regulatory or otherwise) brought by or against
Brookdale or any of its affiliates, to the extent Brookdale
reasonably deems Employee’s cooperation necessary (taking
into account Employee’s other
commitments). Employee shall be reimbursed for all
reasonable out-of-pocket expenses he incurs (including, without
limitation, reasonable attorney fees).
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5.
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Special Benefits and Payments . Effective as of
the Termination Date, Employee will cease all Brookdale health
benefit coverage as an employee and other employee benefit
coverage. Brookdale is amending its health benefit coverage to
include non-employee directors who are former executive officers of
Brookdale. Subject to this Agreement having been
completely executed and the revocation period described in Section
20 hereof having passed without any revocation, Brookdale agrees to
provide, at Brookdale's expense, continued group health plan
coverage for Employee and Employee's eligible dependents (to the
extent so elected), subject to co-payments and deductibles
applicable to active employees of Brookdale. The
obligations of Brookdale set forth in the immediately preceding
sentence shall become effective as of the Termination Date and
shall continue to apply for the longer of (i) the period ending on
the date that Employee ceases to serve as a non-employee member of
Brookdale's Board of Directors or (ii) the period ending on March
3, 2009. Employee acknowledges that the benefits
and payments described in this Section are in addition to any
amounts to which Employee is already entitled (without the
execution of this Agreement) and that these payments and benefits
provide adequate and satisfactory consideration for the assurances
made by Employee in this Agreement, including, without limitation,
the general release of claims given in Section 7
hereof.
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6.
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Final Separation Agreement . If (and only if)
Employee's employment is terminated in accordance with the first
sentence of Section 1 hereof, Employee will be asked to execute a
Final Separation Agreement substantially in the form attached
hereto as Exhibit A on the Termination Date; however, the
provisions of this Agreement are not contingent upon Employee's
execution of the Final Separation Agreement. If (and
only if) Employee executes the Final Separation Agreement on the
Termination Date and delivers it to Brookdale on the Termination
Date in accordance with the second sentence of Section 2 hereof,
the vesting of his outstanding restricted shares of Brookdale under
the 2005 Agreement and the 2007 Agreement shall be accelerated,
their restrictions shall lapse, and they shall be delivered to
Employee on the Termination Date (the "Final
Separation
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Payment"). Their
vesting and delivery shall not be delayed until the end of the
revocation period described in the Final Separation
Agreement.
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7.
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Employee General Release of Claims . Employee for Employee,
Employee's estate, Employee's heirs, family members, successors and
assigns hereby voluntarily, knowingly and willfully forever
releases and discharges Brookdale and its affiliates, successors,
assigns, employees, officers, directors, representative,
shareholder agents and all persons acting by, through, under or in
concert with any of the foregoing in both their official and
personal capacities (the "Releasees") from any and all claims,
whether or not known, accrued, vested or ripe (hereinafter,
"Claims"), that Employee has or may have against the Releasees
arising from or in any way related to Employee's employment with
Brookdale or any affiliate thereof up to and including the date of
Employee's execution of this Agreement or the termination of that
employment relationship in accordance with the contractual
provisions of this Agreement, including, but not limited to, any
such claim for an alleged violation of any or all federal, state
and local laws and anti-discrimination laws or the following
statutes and court-made legal principles:
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Title
VII of the Civil Rights Act of 1964, as amended;
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The
Civil Rights Act of 1991;
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The
Equal Pay Act;
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Any
claim arising under the provisions of the False Claims Act, 31
U.S.C.A. § 3730, including, but not limited to, any right
to personal gain with respect to any claim asserted under its
"qui tam" provisions;
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Sections
1981 through 1988 of Title 42 of the United States Code, as
amended;
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The
Employee Retirement Income Security Act of 1974, as
amended;
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The
Immigration Reform and Control Act, as amended;
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The
Americans with Disabilities Act of 1990, as
amended;
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The
Age Discrimination in Employment Act of 1967, as
amended;
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The
Workers Adjustment and Retraining Notification Act, as
amended;
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The
Occupational Safety and Health Act, as amended;
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The
Fair Labor Standards Act of 1938, as amended;
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The
Illinois Human Rights Act, as amended;
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The
Municipal Code of Chicago, as amended;
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any
other federal, state or local civil or human rights law or any
other local, state or federal law, regulation or
ordinance;
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any
claims arising out of or related to an express or implied
employment contract (including, without limitation, the
Employment Agreement) or a covenant of good faith and fair
dealing;
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any
public policy, contract, tort, or common law; or
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any
allegation for costs, fees, or other expenses including
attorneys' fees incurred in these matters.
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Notwithstanding
the foregoing, nothing in this Agreement shall release or
waive any rights or claims Employee may have: (i) under this
Agreement; (ii) for indemnification under any written
indemnification agreement by and between Employee and
Brookdale and/or under applicable law or Brookdale's charter
or bylaws; (iii) under any applicable insurance coverage(s)
(including, without limitation, COBRA rights); (iv) with
respect to any accrued and vested benefits under any
tax-qualified retirement plans; or (v) any claim that cannot
be waived or released by a private agreement (including the
right to seek a determination of the validity of the waiver of
Employee's rights under the federal Age Discrimination in
Employment Act of 1967 ("ADEA")). Additionally, nothing in
this Agreement shall be construed to prohibit Employee from
filing any charge or participating in any investigation or
proceeding conducted by the Equal Employment Opportunity
Commission or a comparable state or local agency.
Notwithstanding the for
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