EXECUTION COPY
RESTRICTED STOCK UNIT
AGREEMENT
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:
|
Vesting
Date
|
|
Number of RSUs
Vesting on Such Vesting
Date
|
|
December 15, 2009
|
|
100,000 RSUs
|
|
December 15, 2010
|
|
100,000 RSUs
|
|
December 15, 2011
|
|
100,000 RSUs
|
|
December 15, 2012
|
|
100,000 RSUs
|
|
December 15, 2013
|
|
100,000 RSUs
|
(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
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
