SEPARATION AGREEMENT AND GENERAL RELEASE
AND
CONSULTING AGREEMENT
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 Paul A. Froning (" Employee
" or " Froning
") have entered into this Separation Agreement and General
Release (this " Agreement
") on this 11th 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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Last Day of Employment . Employee and Brookdale
agree that Employee's employment with Brookdale has been terminated
by Employee on February 11, 2008 (the "Termination
Date"). Brookdale will reimburse Employee for all
business expenses incurred on behalf of Brookdale through the
Termination Date, in accordance with Brookdale's policies with
respect to the reimbursement of expenses. Employee hereby confirms
that, effective on the Termination Date, Employee no longer held
any positions as an officer, director, manager, governor or
employee of Brookdale (including its parents, subsidiaries and
affiliates at any level), and Employee 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, including, without
limitation, resignations of any such positions. Employee
acknowledges that his last day of employment with Brookdale
coincided with or preceded his signing of this
Agreement.
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2.
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Consulting Services . Immediately following the
Termination Date until September 14, 2010, or such earlier date as
either Froning or Brookdale shall terminate the consulting
relationship being established hereunder (the applicable date being
sometimes called the "Consulting Termination Date"), Froning agrees
to make himself available to consult with Brookdale at reasonable
times that do not interfere with Froning’s other
commitments. Brookdale and Froning anticipate that the
level of bona fide services Froning will perform pursuant to this
Agreement shall be no more than fifty percent (50%) of the average
level of bona fide services performed during the thirty-six (36)
months immediately preceding the Termination Date. On
reasonable request, Froning 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 Froning’s cooperation
necessary (taking into account Froning’s other
commitments). Froning shall be reimbursed for all
reasonable out-of-pocket expenses he incurs (including, without
limitation, reasonable attorney fees). Froning's
consulting services may include (by way of illustration, and not
limitation) providing advice to Brookdale's management regarding
potential acquisitions and investment
opportunities. Until Froning is no longer serving as a
consultant hereunder (or until such earlier date as Froning may
advise Brookdale that he no longer needs the office space and
facilities), Brookdale shall provide Froning with
Chicago
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office
space, facilities and assistance from Brookdale personnel
comparable to the space, facilities and assistance he had as
an officer of Brookdale. 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 amend unilaterally his Award Agreement dated
as of September 14, 2005 (the "2005 Agreement"), his
Restricted Share Agreement dated as of March 13, 2006 (the
"2006 Agreement"), and his Restricted Share Agreement dated as
of March 7, 2007 (the "2007 Agreement", and, collectively with
the 2005 Agreement and the 2006 Agreement, the "Restricted
Share Agreements") so that (i) his termination of employment
on February 11, 2008 shall not be treated as a termination of
employment under the Restricted Share Agreements, (ii) for
vesting purposes the period during which he renders consulting
services hereunder shall be treated as a continued period of
employment, and (iii) any termination of his post-employment
consulting services shall be treated as a termination of
employment under the Restricted Share Agreements.
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3.
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Independent Contractor Status as Consultant
. While Froning is providing consulting services to
Brookdale pursuant to this Agreement (the "Consulting Period"),
Froning shall at all times be an independent contractor with
respect to Brookdale, and Brookdale shall not withhold or deduct
from any amounts payable under this Agreement to Froning as a
consultant any amount in respect of income taxes or other
employment taxes of any other nature on behalf of
Froning. It is intended that the compensation paid
hereunder to Froning as a consultant shall constitute revenues to
Froning, that Froning shall be solely responsible for payment of
any federal, state, local or other income, payroll and/or
employment taxes. Froning shall have full and complete
control over the manner and method of rendering his consulting
services hereunder. However, the consulting services of
Froning are subject to the approval of Brookdale and shall be
subject to Brookdale's general right of supervision to secure the
satisfactory performance thereof. Froning shall not be
entitled to the benefits provided by Brookdale to its employees,
including any group insurance and coverage under any tax-qualified
retirement plan.
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4.
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Confidentiality . Froning acknowledges and agrees
that all Trade Secrets (as defined herein) are confidential to and
shall be and remain the sole and exclusive property of
Brookdale. Froning agrees that he shall (a) hold all
Trade Secrets in strictest confidence; (b) not disclose, reproduce,
distribute or otherwise disseminate such Trade Secrets, and shall
protect such Trade Secrets from disclosure by others; and (c) make
no use of such Trade Secrets without the prior written consent of
Brookdale, except in connection with Froning’s relationship
with Brookdale. For the purposes of this Agreement,
“Trade Secrets” shall mean any and all data and
information relating to Brookdale which (i) derive independent
economic value, actual or potential, from not being generally known
to, and not being readily ascertainable by proper means by, other
persons who can obtain economic value from their disclosure or use;
and (ii) are the subject of efforts that are reasonable under the
circumstances to maintain their secrecy. Trade Secrets
may include technical or non-technical data, formulas, patterns,
compilations, programs, devices, methods, techniques, drawings,
processes, financial data, financial plans, product plans, sales or
advertising information and plans, marketing information and plans,
pricing information, the identity or lists of customers,
prospective customers and suppliers. Notwithstanding the
foregoing, Trade Secrets shall not include data and
information
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which
were: (A) at the time of disclosure to Froning or became
thereafter through no fault of Froning a part of the public
domain by publication or otherwise; (B) developed or
ascertained by or for Froning by independent means without the
benefit of the Trade Secrets; or (C) received by Froning
without restriction from a third party who was under no
obligation of confidentiality to Brookdale with respect
thereto.
Upon
the Consulting Termination Date, or upon the earlier request
of Brookdale, Froning shall deliver to Brookdale all property
belonging to Brookdale, including without limitation all
documents evidencing any physical embodiments of Trade Secrets
then in his custody, control or possession.
Froning
shall abide by all of Brookdale’s information system
security policies and procedures provided to Froning by
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