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Item 9A. Controls and Procedures

2021-02-25 compared with 2020-02-19 · 61 added, 71 removed, 145 unchanged (48% of the section changed)

15 unchanged sentences

Other Information

On February 22, 2021, the Compensation Committee (the “Committee”) of the Board of Directors of the Company approved a performance-based cash award (the “Award”) for Lucinda M.

Baier, the Company’s President and Chief Executive Officer.

The Award was issued outside of the Company’s Amended and Restated 2014 Omnibus Incentive Plan (the “Plan”).

The target amount of the Award of $2,765,000 represented one half of her target long-term incentive compensation awarded for 2021, and the remaining half was awarded in the form of time-based restricted stock units under the Plan consistent with the prior year.

The mix of time-based restricted stock units and performance-based cash awards to Ms.

Baier was similar to the mix awarded to other executive officers for 2021.

Such performance based awards were denominated in cash to conserve available shares under the Plan.

Seventy-five percent of Ms.

Baier’s target Award is eligible to vest on February 27, 2024 and twenty-five percent is eligible to vest on February 27, 2025, in each case subject to continued employment and achievement of performance goals established by the Committee.

The portion of the target Award eligible to vest on February 27, 2024 is divided into three equal tranches, the first of which is subject to a strategic goal for 2021 and the second and third of which are subject to year-over-year same community RevPAR growth for 2022 and 2023, respectively.

The portion of the target Award eligible to vest on February 27, 2025 is subject to a relative total stockholder return performance goal for the three year period ending December 31, 2023.

Performance below the threshold level of achievement for a performance goal will result in forfeiture of the target cash amount for the applicable portion of the Award, performance at the targeted level of achievement will result in the vesting of 100% of the applicable target cash amount, and performance at or above the target level of achievement will result in vesting of up to 150% of applicable target cash amount, with vesting percentages to be interpolated between the levels.

Directors, Executive Officers and Corporate Governance

5 unchanged sentences

Security Ownership of Certain Beneficial Owners and Management and Related Stockholder Matters

To the extent not set forth herein, the information required by this item regarding security ownership of certain beneficial owners and management is incorporated by reference from the discussion under the heading "Security Ownership of Certain Beneficial Owners and Management" in our Definitive Proxy Statement for the 2020 Annual Meeting of Stockholders or in an amendment to this Annual Report on Form 10-K, to be filed with the SEC within 120 days of December 31, 2019 .

To the extent not set forth herein, the information required by this item regarding security ownership of certain beneficial owners and management is incorporated by reference from the discussion under the heading "Stock Ownership Information" in our Definitive Proxy Statement for the 2021 Annual Meeting of Stockholders or in an amendment to this Annual Report on Form 10-K, to be filed with the SEC within 120 days of December 31, 2020.

The following table provides certain information as of December 31, 2020 with respect to our equity compensation plans (after giving effect to shares issued and/or vesting on such date):

Equity Compensation Plan Information

Number of securities to be issued upon exercise of outstanding options, warrants and rights

Weighted average exercise price of outstanding options, warrants and rights

Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))

Plan category

Number of securities to be issued upon exercise of outstanding options, warrants and rights Weighted average exercise price of outstanding options, warrants and rights Number of securities remaining available for future issuance under equity compensation plans (excluding securities reflected in column (a))

Plan category (a) (1)

Equity compensation plans approved by security holders (2)

$ 4,574,104 $ 6.99 $ 8,188,474

Equity compensation plans not approved by security holders (3)

As of December 31, 2019 , an aggregate of 7,252,459 shares of unvested restricted stock and an aggregate of 3,580 vested restricted stock units were outstanding under our 2014 Omnibus Incentive Plan.

Pursuant to SEC guidance, such shares of restricted stock and restricted stock units are not reflected in the table above.

Total $ 4,574,104 — $ 8,224,410

(1) The table above includes 25,297 shares issuable pursuant to vested restricted stock units;

4,370,880 shares potentially issuable pursuant to unvested restricted stock units, including 236,496 shares that may be issued for performance achievement in excess of target;

and 177,927 shares that may be issued pursuant to unvested performance-based restricted stock awards for performance achievement in excess of target.

Pursuant to SEC guidance, the table above excludes an aggregate of 4,349,421 shares of unvested restricted stock that were outstanding under our 2014 Omnibus Incentive Plan as of December 31, 2020.

Our 2014 Omnibus Incentive Plan allows awards to be made in the form of stock options, stock appreciation rights, restricted shares, restricted stock units, unrestricted shares, performance awards, and other stock-based awards.

The number of shares remaining available for future issuance under equity compensation plans approved by security holders consists of 11,042,465 shares remaining available for future issuance under our 2014 Omnibus Incentive Plan and 454,861 shares remaining available for future issuance under our Associate Stock Purchase Plan.

(2) The number of shares remaining available for future issuance under equity compensation plans approved by security holders consists of 7,957,894 shares remaining available for future issuance under our 2014 Omnibus Incentive Plan, excluding those reported in column (a), and 230,580 shares remaining available for future issuance under our Associate Stock Purchase Plan.

(3) Represents shares remaining available for future issuance under our Director Stock Purchase Plan.

21 unchanged sentences

Schedule II – Valuation and Qualifying Accounts

2.1 Securities Purchase Agreement dated as of February 24 , 2021, by and among the Company and certain of its subsidiaries and certain subsidiaries of HCA Healthcare, Inc.

(incorporated by reference to Exhibit 2.1 to the Company's Current Report on Form 8-K filed on February 24 , 2021 (File No.

001-32641) ).

3.1 Amended and Restated Certificate of Incorporation of the Company, as amended (incorporated by reference to Exhibit 3.1 to the Company's Quarterly Report on Form 10-Q filed on November 5, 2019 (File No.

3 unchanged sentences

333-127372)).

Description of the Company's common stock.

Amended and Restated Master Transactions and Cooperation Agreement dated effective as of October 1, 2019, by and between the Company and HCP, Inc.

(now known as Healthpeak Properties, Inc., ("Healthpeak")).†

Equity Interest Purchase Agreement dated effective as of October 1, 2019, by and among certain subsidiaries of the Company and certain subsidiaries of Healthpeak, and the Company and Healthpeak for the limited purposes stated therein.†

Amendment No.

1 to Equity Interest Purchase Agreement dated as of October 29, 2019 by and among certain subsidiaries of the Company and certain subsidiaries of Healthpeak.

First Amendment to Amended and Restated Master Transactions and Cooperation Agreement dated as of January 31, 2020, by and among the Company and Healthpeak.

Amendment No.

2 to the Equity Interest Purchase Agreement dated as of January 31, 2020, by and among certain subsidiaries of the Company and certain subsidiaries of Healthpeak.

Master Lease and Security Agreement dated as of April 26, 2018 by and between certain of the Company's affiliates named therein as lessees and certain of the affiliates of Ventas, Inc.

named therein as lessors (the "Master Lease") (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on August 7, 2018 (File No.

001-32641)).††

Amendment No.

1 effective September 1, 2018 to Master Lease by and between certain of the Company's affiliates named therein as lessees and certain of the affiliates of Ventas, Inc.

named therein as lessors (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on November 6, 2018 (File No.

4.2 Description of the Company's common stock (incorporated by reference to Exhibit 4.2 to the Company's Annual Report on Form 10-K filed on February 19, 2020 (File No.

001-32641)) .

Amendment No.

2 effective as of April 22, 2019 to Master Lease by and between certain affiliates of the Company named therein as Tenant and certain affiliates of Ventas, Inc.

named therein as landlord (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on August 6, 2019 (File No.

Letter Agreement dated as of July 26, 2020 by and between the Company and Ventas (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q filed on August 10, 2020 (File No.

Amended and Restated Master Lease and Security Agreement dated as of July 26, 2020 by an among certain subsidiaries of the Company as Tenant and certain subsidiaries of Ventas as Landlord (incorporated by reference to Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q filed on August 10, 2020 (File No.

001-32641)).† †

Amendment No.

3 effective as of May 1, 2019 to Master Lease by and between certain affiliates of the Company named therein as Tenant and certain affiliates of Ventas, Inc.

named therein as landlord (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q filed on November 5, 2019 (File No.

Amendment No.

4 effective as of September 26, 2019 to Master Lease by and between certain affiliates of the Company named therein as Tenant and certain affiliates of Ventas, Inc.

named therein as landlord (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q filed on November 5, 2019 (File No.

Amended and Restated Guaranty dated as of July 26, 2020 by and among the Company as Guarantor, certain subsidiaries of the Company as Tenant, and Ventas and certain of its subsidiaries (incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q filed on August 10, 2020 (File No.

001-32641)).† †

Amendment No.

5 effective as of December 9, 2019 to Master Lease by and between certain affiliates of the Company named therein as Tenant and certain affiliates of Ventas, Inc.

named therein as landlord.

Guaranty of Master Lease dated as of April 26, 2018 by and between the Company and certain of its affiliates named therein and Ventas, Inc.

and certain of its affiliates named therein (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q filed on August 7, 2018 (File No.

Warrant dated July 26, 2020 by and between the Company and Ventas (incorporated by reference to Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q filed on August 10, 2020 (File No.

001-32641)) .

Fifth Amended and Restated Credit Agreement dated as of December 5, 2018, among certain subsidiaries of the Company, Capital One, National Association, as administrative agent, lender and swingline lender, and the other lenders from time to time parties thereto (incorporated by reference to Exhibit 10.1 to the Company's Current Report on Form 8-K filed on December 11, 2018 (File No.

First Amendment to Credit Agreement and Other Credit Documents dated August 16, 2019 by and among the Company as Guarantor, certain subsidiaries of the Company as Borrowers, Capital One, National Association, as Administrative Agent, Lender and Swingline Lender, and the other Lenders party thereto (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on November 5, 2019 (File No.

Registration Rights Agreement dated as of July 26, 2020 by and between the Company and Ventas (incorporated by reference to Exhibit 10.5 to the Company's Quarterly Report on Form 10-Q filed on August 10, 2020 (File No.

10.2 Master Credit Facility Agreement (Senior Housing) dated as of August 31, 2017, by and between Jones Lang LaSalle Multifamily, LLC and the Company's subsidiaries named as borrowers therein (incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q filed on November 7, 2017 (File No.

7 unchanged sentences

Amendment No.

1 to Omnibus Incentive Plan effective February 12, 2020.*

Form of Restricted Share Agreement under the Omnibus Incentive Plan (Time-Vesting Form for Executive Committee Members) (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q filed on May 10, 2016 (File No.

001-32641)).*

Form of Restricted Share Agreement under the Omnibus Incentive Plan (Time-Vesting Form for Executive Vice Presidents) (incorporated by reference to Exhibit 10.2 to the Company's Quarterly Report on Form 10-Q filed on May 10, 2016 (File No.

001-32641)).*

Form of Restricted Share Agreement under the Omnibus Incentive Plan (Performance-Vesting Form for Executive Committee Members) (incorporated by reference to Exhibit 10.3 to the Company's Quarterly Report on Form 10-Q filed on May 10, 2016 (File No.

001-32641)).*

Form of Restricted Share Agreement under the Omnibus Incentive Plan (Performance-Vesting Form for Executive Vice Presidents) (incorporated by reference to Exhibit 10.4 to the Company's Quarterly Report on Form 10-Q filed on May 10, 2016 (File No.

1 to Omnibus Incentive Plan effective February 12, 2020 (incorporated by reference to Exhibit 10.6.2 to the Company’s Annual Report on Form 10-K filed on February 19, 2020 (File No.

001-32641)).*

30 unchanged sentences

001-32641)).*

10.16 Form of Restricted Stock Unit Agreement under the Omnibus Incentive Plan (2020 Time-Based Form for Executive Officers) (incorporated by reference to Exhibit 10.29 to the Company’s Amendment No.

1 to Annual Report on Form 10-K/A filed on April 29, 2020 (File No.

001-32641)).*

10.17 Form of Restricted Stock Unit Agreement under the Omnibus Incentive Plan (2020 Performance-Based Form for Executive Officers) (incorporated by reference to Exhibit 10.30 to the Company’s Amendment No.

1 to Annual Report on Form 10-K/A filed on April 29, 2020 (File No.

001-32641)).*

10.18 Form of Outside Director Restricted Stock Unit Agreement under the Omnibus Incentive Plan (incorporated by reference to Exhibit 10.1 to the Company's Quarterly Report on Form 10-Q filed on August 9, 2016 (File No.

001-32641)).*

Form of 2019 Outside Director Restricted Share Agreement under the Omnibus Incentive Plan.*

10.19 Form of Outside Director Restricted Share Agreement under the Omnibus Incentive Plan (incorporated by reference to Exhibit 10.23 to the Company’s Annual Report on Form 10-K filed on February 19, 2020 (File No.

001-32641)).*

Brookdale Senior Living Inc.

3 unchanged sentences

001-32641)).*

Second Amendment to Associate Stock Purchase Plan effective as of February 13, 2020.*

Second Amendment to Associate Stock Purchase Plan effective as of February 13, 2020 (incorporated by reference to Exhibit 10.24.3 to the Company’s Annual Report on Form 10-K filed on February 19, 2020 (File No.

001-32641)).*

Amended and Restated Tier I Severance Pay Policy dated April 15, 2018 (incorporated by reference to Exhibit 10.52 to the Company's Amendment No.

2 unchanged sentences

Amendment No.

1 to Amended and Restated Tier I Severance Pay Policy.*

Form of Severance Letter Under the Amended and Restated Tier I Severance Pay Policy (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q filed on August 6, 2010 (File No.

1 to Amended and Restated Tier I Severance Pay Policy (incorporated by reference to Exhibit 10.25.2 to the Company’s Annual Report on Form 10-K filed on February 19, 2020 (File No.

001-32641)).*

Severance Letter Agreement dated September 25, 2019 by and between the Company and Todd Kaestner.*

10.22 Form of Indemnification Agreement for Directors and Officers (incorporated by reference to Exhibit 10.16 to the Company's Annual Report on Form 10-K filed on February 28, 2011 (File No.

16 unchanged sentences

* Management Contract or Compensatory Plan

† Schedules and exhibits have been omitted pursuant to Item 601 of Regulation S-K.

The Company hereby undertakes to furnish supplementally a copy of any of the omitted schedules and exhibits upon request by the Securities and Exchange Commission

†† Portions of this exhibit have been omitted pursuant to Item 601(b)(10)(iv) of Regulation S-K.

Portions of this exhibit have been omitted pursuant to a request for confidential treatment, which has been granted by the SEC.

Form 10-K Summary

5 unchanged sentences

Pursuant to the requirements of the Securities Exchange Act of 1934, this report has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

Non-Executive Chairman of the Board

February 19, 2020

Signature Title Date

Sansone Non-Executive Chairman of the Board February 25, 2021

/s/ Lucinda M.

President, Chief Executive Officer and Director

February 19, 2020

(Principal Executive Officer)

Baier President, Chief Executive Officer and Director February 25, 2021

Baier (Principal Executive Officer)

/s/ Steven E.

Executive Vice President and Chief Financial Officer

February 19, 2020

(Principal Financial Officer)

Senior Vice President and Chief Accounting Officer

February 19, 2020

(Principal Accounting Officer)

Swain Executive Vice President and Chief Financial Officer February 25, 2021

Swain (Principal Financial Officer)

Kussow Senior Vice President and Chief Accounting Officer February 25, 2021

Kussow (Principal Accounting Officer)

/s/ Jordan R.

Asher Director February 25, 2021

/s/ Marcus E.

February 19, 2020

Bromley Director February 25, 2021

Bumstead Director February 25, 2021

/s/ Victoria L.

February 19, 2020

/s/ Rita Johnson-Mills

February 19, 2020

Freed Director February 25, 2021

/s/ Rita Johnson-Mills Director February 25, 2021

Rita Johnson-Mills

/s/ Denise W.

February 19, 2020

Warren Director February 25, 2021

Wielansky Director February 25, 2021

Compared sentence by sentence after normalising whitespace, quotation marks, case and digits, so re-formatting and restated figures do not read as changed language. Wording changes appear as one removal and one addition. The current filing and the prior one are authoritative.

What changed 10-K

Item 9A. Controls and Procedures