Unassociated Document
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UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
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FORM
8-K
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CURRENT
REPORT
Pursuant
to Section 13 OR 15(d) of the Securities Exchange Act of
1934
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Date
of Report (Date of earliest event reported)
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June
23, 2009 (June 23, 2009)
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Brookdale
Senior Living Inc.
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(Exact
name of registrant as specified in its
charter)
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Delaware
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001-32641
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20-3068069
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(State
or other jurisdiction
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(Commission
File Number)
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(IRS
Employer
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of
incorporation)
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Identification
No.)
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111
Westwood Place, Suite 200, Brentwood, Tennessee
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37027
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(Address
of principal executive offices)
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(Zip
Code)
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Registrant’s
telephone number, including area code
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(615)
221-2250
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(Former
name or former address, if changed since last report.)
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Check the appropriate box below
if the Form 8-K filing is intended to simultaneously satisfy the filing
obligation of the registrant under any of the following provisions (see General Instruction
A.2. below):
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Written
communications pursuant to Rule 425 under the Securities Act (17 CFR
230.425)
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Soliciting
material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
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Pre-commencement
communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR
240.14d-2(b))
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Pre-commencement
communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR
240.13e-4(c))
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Section
5 — Corporate Governance and Management
Item
5.02 Departure
of Directors or Certain Officers; Election of Directors; Appointment of Certain
Officers; Compensatory Arrangements of Certain
Officers.
(e) At
the 2009 annual meeting of stockholders of Brookdale Senior Living Inc. (the
“Company”) held on June 23, 2009, our stockholders approved the Brookdale Senior
Living Inc. Omnibus Stock Incentive Plan, as amended and restated (the “Plan”).
The amended and restated Plan became effective as of June 23, 2009.
The
following is a summary of the material provisions of the Plan. This
summary does not purport to be complete and is qualified in its entirety by
reference to the full text of the Plan filed as Exhibit 10.1 hereto, which is
incorporated herein by reference. Additional information regarding
the Plan was included in the Company’s Proxy Statement filed with the Securities
and Exchange Commission on May 14, 2009. Such information is also
incorporated herein by reference.
The Plan
is an incentive plan designed to strengthen the commitment of our employees,
directors and consultants, motivate them to faithfully and diligently perform
their responsibilities and attract and retain competent and dedicated persons
who are essential to the success of our business and whose efforts will result
in our long-term growth and profitability. The Plan is also designed
to meet the requirements of Section 162(m) of the Internal Revenue Code for
“performance-based” compensation. The Company’s stockholders
initially approved the Plan in October 2005 and approved certain amendments to
the Plan in May 2006. The Board of Directors, pursuant to its authority under
the Plan, has also previously amended the Plan to make certain changes required
by law, including Section 409A of the Internal Revenue Code, and to make
miscellaneous clarifications to the Plan’s language.
The Plan
initially authorized 2,000,000 shares of common stock for issuance. The Board of
Directors and stockholders approved a 2,500,000 share increase on May 12,
2006. On June 23, 2009, as part of the adoption of the amended and
restated Plan, the Company’s stockholders approved an additional 6,000,000 share
increase. Under the terms of the Plan, the number of shares available
for issuance also increases on the first day of each fiscal year beginning
January 1, 2006 by the lesser of (1) 400,000 shares and (2) 2% of the number of
outstanding shares of our common stock on the last day of the immediately
preceding fiscal year.
Eligibility
Under the
Plan, the Company may award stock options, stock appreciation rights, restricted
shares, deferred shares, performance shares, unrestricted shares, other
stock-based awards and performance awards to the Company’s officers, key
employees, directors and consultants. Actual awards are made only at
the discretion of the Compensation Committee.
Maximum
Grant
All
shares of our common stock that are available for the grant of awards under the
Plan may be granted as incentive stock options. The maximum aggregate
number of shares that will be subject to stock options or stock appreciation
rights that may be granted to any individual who is likely to be a “covered
employee” under Section 162(m) during any fiscal year will be 500,000 and the
maximum aggregate number of shares that will be subject to awards of restricted
stock, deferred shares, unrestricted shares or other stock-based awards that may
be granted to any such individual during any fiscal year will be
500,000.
Administration
The Plan
was initially administered by our Board of Directors, and is now administered by
a committee of our Board of Directors that complies with the applicable
requirements of Section 162(m) of the Internal Revenue Code, Section 16 of the
Exchange Act and any other applicable legal or stock exchange listing
requirements (the board or committee being sometimes referred to as the ‘‘plan
administrator’’). The plan administrator may interpret the Plan and may
prescribe, amend and rescind rules and make all other determinations necessary
or desirable for the administration of the Plan. The Plan permits the plan
administrator to select the directors, key employees, and consultants who will
receive awards, to determine the terms and conditions of those awards, including
but not limited to the exercise price, the number of shares subject to awards,
the term of the awards and the vesting schedule applicable to awards, and to
amend the terms and conditions of outstanding awards, including but not limited
to reducing the exercise price of such awards, extending the exercise period of
such awards and accelerating the vesting schedule of such awards.
Stock
Options
We may
issue incentive stock options or non-qualified stock options under the Plan. The
incentive stock options, or ISOs, granted under the Plan are intended to qualify
as ‘‘incentive stock options’’ within the meaning of Section 422 of the Code and
may only be granted to our employees or any employee of any of our subsidiaries.
The option exercise price of all stock options granted under the Plan will be
determined by the plan administrator, except that any incentive stock option or
any stock option intended to qualify as performance-based compensation under
Section 162(m) will not be granted at a price that is less than 100% of the fair
market value of the stock on the date of grant. Further, the exercise price of
ISOs granted to stockholders who own greater than 10% of the voting stock will
not be granted at a price less than 110% of the fair market value of the stock
on the date of grant. The term of all stock options granted under the Plan will
be determined by the plan administrator, but may not exceed ten years (five
years for ISOs granted to stockholders who own greater than 10% of the voting
stock). To the extent that the aggregate fair market value (as of the date the
options were granted) of shares subject to ISOs granted to an optionee that
first become exercisable in any calendar year exceed $100,000, the excess
options will be treated as non-qualified stock options. Each stock option will
be exercisable at such time and pursuant to such terms and conditions as
determined by the plan administrator in the applicable stock option
agreement.
Unless
the applicable stock option agreement provides otherwise, in the event of an
optionee’s termination of employment or service for any reason other than cause,
retirement, disability or death, such optionee’s stock options (to the extent
exercisable at the time of such termination) generally will remain exercisable
until 90 days after such termination and will then expire. Unless the applicable
stock option agreement provides otherwise, in the event of an optionee’s
termination of employment or service due to retirement, disability or death,
such optionee’s stock options (to the extent exercisable at the time of such
termination) generally will remain exercisable until one year after such
termination and will then expire. Stock options that were not exercisable on the
date of termination will expire at the close of business on the date of such
termination. In the event of an optionee’s termination of employment or service
for cause, such optionee’s outstanding stock options will expire at the
commencement of business on the date of such termination.
In the
event of a change in control (as defined below), unless each outstanding stock
option is assumed, continued or substituted pursuant to the change in control
transaction’s governing document, such stock options will become fully vested
and exercisable immediately prior to the effective date of such change in
control and will expire upon the effective date of such change in control.
Unless otherwise determined by the plan administrator and evidenced in an award
agreement, if a change in control transaction occurs that includes a
continuation, assumption or substitution of stock options, and an optionee’s
employment with the Company or any acquiring entity or affiliate thereof is
terminated by the employer other than for cause on or after the effective date
of the change in control but prior to the first anniversary of the effective
date of the change in control, then 50% of the optionee’s outstanding and
unvested options will become fully vested and exercisable as of the date of such
termination and the restrictions will lapse (or performance goals will be deemed
to be achieved) with respect to 50% of the shares covered by any other award.
The term ‘‘change in control’’ generally means: (1) any person or entity (other
than (a) an affiliate of Fortress Investment Group LLC or any managing director,
general partner, director, limited partner, officer or employee of any such
affiliate of Fortress or (b) any investment fund or other entity managed
directly or indirectly by Fortress or any general partner, limited partner,
managing member or person occupying a similar role of or with respect to any
such fund or entity) becomes the beneficial owner of our securities representing
50% of our then outstanding voting power; (2) the consummation of a merger of us
or any of our subsidiaries with any other corporation, other than a merger
immediately following which our Board of Directors immediately prior to the
merger constitute at least a majority of the board of directors of the company
surviving the merger or, if the surviving company is a subsidiary, the ultimate
parent thereof; or (3) our stockholders approve a plan of complete liquidation
or dissolution of the Company or there is consummated an agreement for the sale
of all or substantially all of the Company’s assets, other than (a) a sale of
such assets to an entity, at least 50% of the voting power of which is held our
stockholders following the transaction in substantially the same proportions as
their ownership of us immediately prior to the transaction or (b) a sale of such
assets immediately following which our Board of Directors immediately prior to
such sale constitute at least a majority of the board of directors of the entity
to which the assets are sold or, if that entity is a subsidiary, the ultimate
parent thereof.
Stock
Appreciation Rights
Stock
appreciation rights, or SARs, may be granted under the Plan either alone or in
conjunction with all or part of any stock option granted under the Plan. A
stand-alone SAR granted under the Plan entitles its holder to receive, at the
time of exercise of the SAR and surrender of all or part of the related stock
option, an amount per share equal to the excess of the fair market value (at the
date of exercise) of a share of common stock over a specified price fixed by the
plan administrator (which must be no less than the fair market value at the date
of grant). A SAR granted in conjunction with all or part of a stock option under
the Plan entitles its holder to receive, at the time of exercise, an amount per
share equal to the excess of the fair market value (at the date of exercise) of
a share of common stock over the exercise price of the related stock option. In
the event of a participant’s termination of employment or service, stand-alone
SARs will be exercisable at such times and subject to such terms and conditions
determined by the plan administrator on or after the date of grant, while SARs
granted in conjunction with all or part of a stock option will be exercisable at
such times and subject to terms and conditions as set forth for the related
stock option. SARs will be designed to comply with Section 409A of the
Code.
Restricted
Shares
Restricted
shares, deferred shares and performance shares may be granted under the Plan.
The plan administrator will determine the purchase price, performance period and
performance goals, if any, with respect to the grant of restricted shares,
deferred shares and performance shares. Except as otherwise provided in an award
document, a participant granted restricted shares or performance shares will
generally not have the right to receive dividends or vote with respect to such
shares until such shares have vested. With respect to deferred shares, during
the restricted period, subject to the terms and conditions imposed by the plan
administrator, the deferred shares may be credited with dividend equivalent
rights. If the performance goals and other restrictions are not satisfied, the
participant will forfeit his or her shares of restricted shares, deferred shares
and/or performance shares. Subject to the provisions of the Plan and applicable
award agreement, the plan administrator has sole discretion to provide for the
lapse of restrictions in installments or the acceleration or waiver of
restrictions (in whole or part) under certain circumstances, including, but not
limited to, the attainment of certain performance goals, a participant’s
termination of employment or service or a participant’s death or
disability.
Other
Stock-Based Awards
The
administrator is also authorized to grant other stock-based awards to
participants, which may include restricted stock units, dividend equivalents or
performance units, each of which may be subject to the attainment of performance
goals or a period of continued employment or other terms or conditions as
permitted by the Plan.
Performance
Awards and Goals
Performance
awards may be granted by the administrator under the Plan. A
performance award consists of a right that is (i) denominated in cash or common
stock, (ii) valued, as
determined
by the administrator, in accordance with, or subject to, the achievement of such
performance goals during such performance periods as the administrator shall
establish, and (iii) payable at such time and in such form as the administrator
shall determine. Performance awards may be paid in a lump sum or in
installments or on a deferred basis. Termination of a participant’s
employment prior to the end of any performance period will result in the
forfeiture of the performance award for that period, and no payments will be
made with respect to that period, except that the administrator at or after
grant may provide that certain performance awards may be paid upon termination
by the Company other than for cause or upon termination due to death or
disability.
Performance
awards or performance shares granted under the Plan may be made subject to the
attainment of performance goals based on one or more of the following criteria:
(i) earnings including operating income, earnings before or after taxes,
earnings before or after interest, depreciation, amortization, or extraordinary
or special items or book value per share (which may exclude nonrecurring items);
(ii) pre-tax income or after-tax income; (iii) earnings per share (basic or
diluted); (iv) operating profit; (v) revenue, revenue growth or rate of revenue
growth; (vi) return on assets (gross or net), return on investment, return on
capital, or return on equity; (vii) returns on sales or revenues; (viii)
operating expenses; (ix) stock price appreciation; (x) cash flow, free cash
flow, cash flow return on investment (discounted or otherwise), net cash
provided by operations, or cash flow in excess of cost of capital; (xi)
implementation or completion of critical projects or processes; (xii) economic
value created; (xiii) cumulative earnings per share growth; (xiv) operating
margin or profit margin; (xv) common stock price or total stockholder return;
(xvi) cost targets, reductions and savings, productivity and efficiencies;
(xvii) strategic business criteria, consisting of one or more objectives based
on meeting specified market penetration, geographic business expansion, customer
satisfaction, employee satisfaction, human resources management, supervision of
litigation, information technology, and goals relating to acquisitions,
divestitures, joint ventures and similar transactions, and budget comparisons;
(xviii) personal professional objectives, including any of the foregoing
performance goals, the implementation of policies and plans, the negotiation of
transactions, the development of long term business goals, formation of joint
ventures, research or development collaborations, and the completion of other
corporate transactions; (xix) CFFO, CFFO per share or other operating cash flow
measures; (xx) Facility Operating Income, or FOI, or FOI per share; (xxi)
Adjusted EBITDA or Adjusted EBITDA per share; (xxii) net operating income, or
NOI, or NOI per share; and (xxiii) any combination of, or a specified increase
in, any of the foregoing. Any performance awards granted to covered
employees must be based solely upon one or more of these performance
goals.
Under the
Plan, the maximum annual number of shares in respect of which all performance
awards may be granted to a covered employee is 500,000 shares and the maximum
value of all performance awards settled in cash that may be granted to a covered
employee with respect to any annual period is $2,000,000.
No later
than 90 days following the commencement of a performance period (or such other
time as may be required or permitted under Section 162(m) of the Internal
Revenue Code), the Compensation Committee must, in writing (i) select the
performance goal or goals applicable to the performance period, (ii) establish
the various targets and bonus amounts which may be
earned
for such performance period, and (iii) specify the relationship between
performance goals and targets and the amounts to be earned by each participant
for the performance period.
Merger,
Consolidation, or Other Change in Corporate Structure
In the
event of a merger, consolidation, reorganization, recapitalization, stock
dividend or other change in corporate structure, the plan administrator may make
an equitable substitution or proportionate adjustment in (1) the aggregate
number of shares reserved for issuance under the Plan, (2) the maximum number of
shares that may be subject to awards granted to any participant in any calendar
or fiscal year, (3) the kind, number and exercise price of shares subject to
outstanding stock options and SARs granted under the Plan, and (4) the kind,
number and purchase price of shares subject to outstanding awards of restricted
shares, deferred shares, performance shares, other stock-based awards or
performance awards granted under the Plan, provided that no such adjustment will
cause any award under the Plan that is or becomes subject to section 409A of the
Code to fail to comply with the requirements of that section. In addition, the
plan administrator, in its discretion, may terminate all awards with the payment
of cash or in-kind consideration.
Amendment,
Alteration and Termination
The terms
of the Plan provide that the Board of Directors may amend, alter or terminate
the Plan, but no such action may impair the rights of any participant with
respect to outstanding awards without the participant’s consent. The plan
administrator, however, reserves the right to amend, modify or supplement an
award to either bring it into compliance with Section 409A of the Code, or to
cause the award not to be subject to such Section. Unless the Board determines
otherwise, stockholder approval of any such action will be obtained if required
to comply with applicable law. The Plan will terminate on October 13,
2015.
As noted
above, participants in the Plan are generally selected in the discretion of the
Compensation Committee from among the Company’s officers, key employees,
directors and consultants. Thus, the benefits or amounts that will be
received by or allocated to any individual or group generally are not
determinable.
Section
9 — Financial Statements and Exhibits
Item
9.01 Financial
Statements and Exhibits.
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(d)
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Exhibits
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10.1
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Brookdale
Senior Living Inc. Omnibus Stock Incentive Plan, as amended and restated
effective June 23, 2009
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SIGNATURE
Pursuant
to the requirements of the Securities Exchange Act of 1934, the registrant has
duly caused this report to be signed on its behalf by the undersigned hereunto
duly authorized.
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BROOKDALE
SENIOR LIVING INC.
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Date:
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June
23, 2009
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By:
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/s/
T. Andrew Smith
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Name:
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T.
Andrew Smith
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Title:
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Executive
Vice President, General
Counsel
and Secretary
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EXHIBIT
INDEX
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Exhibit No.
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Exhibit
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10.1
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Brookdale
Senior Living Inc. Omnibus Stock Incentive Plan, as amended and restated
effective June 23, 2009.
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