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Item 9A. Controls and Procedures

2024-02-21 compared with 2023-02-22 · 49 added, 49 removed, 161 unchanged (38% of the section changed)

11 unchanged sentences

Management reviewed the results of their assessment with our Audit Committee.

The effectiveness of our internal control over financial reporting as of December 31, 2022 has been audited by Ernst & Young LLP, the independent registered public accounting firm that audited our consolidated financial statements included in this Annual Report on Form 10-K, as stated in their report which is included in Item 8 of this Annual Report on Form 10-K and incorporated herein by reference.

The effectiveness of our internal control over financial reporting as of December 31, 2023 has been audited by Ernst & Young LLP, the independent registered public accounting firm that audited our consolidated financial statements included in this Annual Report on Form 10-K, as stated in their report which is included in "Item 8.

Financial Statements and Supplementary Data" of this Annual Report on Form 10-K and incorporated herein by reference.

Internal Control Over Financial Reporting

1 unchanged sentence

Other Information

On February 15, 2023, 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 $1,806,667 represented approximately 36.1% of her target long-term incentive compensation awarded for 2023, and the remaining approximately 63.9% was awarded in the form of time-based restricted stock units and performance-based restricted stock units under the Plan generally consistent with the prior year, such that 50% of her aggregate 2023 long-term incentive compensation awards consisted of time-based restricted stock units and the remaining 50% of her aggregate 2023 long-term incentive compensation awards consisted of a combination of performance-based restricted stock units and the performance-based cash Award.

With respect to Ms.

Baier's target Award, approximately 65.4% is eligible to vest on February 27, 2026 and approximately 34.6% is eligible to vest on February 27, 2027, such that, in the aggregate, 75% of Ms.

Baier’s target 2023 performance-based restricted stock unit award and performance-based cash Award is eligible to vest on February 27, 2026 and 25% is eligible to vest on February 27, 2027, 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, 2026 is divided into three equal tranches, each of which are subject to year-over-year same community RevPAR growth for 2023, 2024 and 2025, respectively.

The portion of the target Award eligible to vest on February 27, 2027 is subject to a relative total stockholder return performance goal for the three year period ending December 31, 2025.

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.

Insider Adoption or Termination of Trading Arrangements

During the fiscal year ended December 31, 2023, none of our directors or officers adopted or terminated a "Rule 10b5-1 trading arrangement" or "non-Rule 10b5-1 trading arrangement," as each term is defined in Item 408(a) of Regulation S-K.

Disclosure Regarding Foreign Jurisdictions that Prevent Inspections

1 unchanged sentence

Directors, Executive Officers and Corporate Governance

To the extent not set forth herein, the information required by this item is incorporated by reference from the discussions under the headings "Election of Directors," "Corporate Governance," and "Executive Officers" in our Definitive Proxy Statement for the 2023 Annual Meeting of Stockholders, to be filed with the SEC by May 1, 2023.

To the extent not set forth herein, the information required by this item is incorporated by reference from the discussions under the headings "Election of Directors," "Corporate Governance," and "Executive Officers" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.

Our Board of Directors has adopted a Code of Business Conduct and Ethics that applies to all employees, directors, and officers, including our principal executive officer, our principal financial officer, our principal accounting officer or controller, or persons performing similar functions, as well as a Code of Ethics for Chief Executive and Senior Financial Officers, which applies to our President and Chief Executive Officer, Chief Financial Officer, Chief Accounting Officer, and Treasurer, both of which are available on our website at www.brookdaleinvestors.com.

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Executive Compensation

The information required by this item is incorporated by reference from the discussions under the headings "Director Compensation" and "Executive Compensation" in our Definitive Proxy Statement for the 2023 Annual Meeting of Stockholders, to be filed with the SEC by May 1, 2023.

The information required by this item is incorporated by reference from the discussions under the headings "Director Compensation" and "Executive Compensation" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.

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 "Stock Ownership Information" in our Definitive Proxy Statement for the 2023 Annual Meeting of Stockholders, to be filed with the SEC by May 1, 2023.

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 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.

The following table provides certain information as of December 31, 2023 with respect to our equity compensation plans (after giving effect to shares issued and/or vesting on such date).

7 unchanged sentences

(1) The table above includes 141,817 shares issuable pursuant to vested restricted stock units and 6,919,988 shares potentially issuable pursuant to unvested restricted stock units, including 658,877 shares that may be issued for performance achievement in excess of target.

Pursuant to SEC guidance, the table above excludes an aggregate of 422,542 shares of unvested restricted stock that were outstanding under our 2014 Omnibus Incentive Plan as of December 31, 2022.

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.

1 unchanged sentence

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

Under the 2022 compensation program for the members of our Board of Directors, each non-employee director had the opportunity to elect to receive either immediately vested shares or restricted stock units in lieu of up to 50% of his or her quarterly cash

compensation.

Any immediately vested shares that were elected to be received were able to be issued pursuant to the Director Stock Purchase Plan.

Under the director compensation program, all cash amounts are payable quarterly in arrears, with payments to be made on April 1, July 1, October 1 and January 1.

Each non-employee director has the opportunity to elect to receive either immediately vested shares (issued pursuant to the Director Stock Purchase Plan) in lieu of up to 50%, or restricted stock units (issued pursuant to the 2014 Omnibus Incentive Plan) in lieu of up to 100%, of his or her quarterly cash compensation.

Under the director compensation program, all cash amounts are

payable quarterly in arrears, with payments to be made on April 1, July 1, October 1 and January 1.

Any immediately vested shares that a director elected to receive under the Director Stock Purchase Plan were to be issued at the same time that cash payments are made.

1 unchanged sentence

Fractional amounts were to be paid in cash.

Beginning in 2023, each non-employee director has the opportunity to elect to receive either immediately vested shares (issued pursuant to the Director Stock Purchase Plan) in lieu of up to 50%, or restricted stock units in lieu of up to 100%, of his or her quarterly cash compensation, consistent with the terms previously described.

In addition, beginning with cash compensation to be earned for 2023 service, each non-employee director will have the opportunity to elect to defer up to 100% of his or her quarterly cash compensation pursuant to the Brookdale Senior Living Inc.

Non-Employee Director Deferred Compensation Plan, which became effective December 12, 2022.

In addition, each non-employee director has the opportunity to elect to defer up to 100% of his or her quarterly cash compensation pursuant to the Brookdale Senior Living Inc.

Non-Employee Director Deferred Compensation Plan.

The Board of Directors initially reserved 100,000 shares of our common stock for issuance under the Director Stock Purchase Plan.

Certain Relationships and Related Transactions, and Director Independence

The information required by this item is incorporated by reference from the discussions under the headings "Certain Relationships and Related Transactions" and "Director Independence" in our Definitive Proxy Statement for the 2023 Annual Meeting of Stockholders, to be filed with the SEC by May 1, 2023.

The information required by this item is incorporated by reference from the discussions under the headings "Certain Relationships and Related Transactions" and "Director Independence" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.

Principal Accountant Fees and Services

The information required by this item is incorporated by reference from the discussion under the heading "Ratification of Appointment of Independent Registered Public Accounting Firm for 2023" in our Definitive Proxy Statement for the 2023 Annual Meeting of Stockholders, to be filed with the SEC by May 1, 2023.

The information required by this item is incorporated by reference from the discussion under the heading "Ratification of Appointment of Independent Registered Public Accounting Firm for 2024" in our Definitive Proxy Statement for the 2024 Annual Meeting of Stockholders, to be filed with the SEC by April 29, 2024.

Exhibits and Financial Statement Schedules

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333-127372)).

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.

4.2 Description of the Company's securities (incorporated by reference to Exhibit 4.2 to the Company's Quarterly Report on Form 10- Q filed on May 9, 202 3 (File No.

001-32641)) .

1 unchanged sentence

4.4 Form of 2.00% Convertible Senior Notes due 2026 (included in Exhibit 4.3).

4.5 Indenture, dated as of November 21, 2022, between the Company and American Stock Transfer & Trust Company, LLC, as t rustee (incorporated by reference to Exhibit 4.4 to the Company’s Current Report on Form 8-K filed on November 22, 2022 (File No.

4.6 First Supplemental Indenture, dated as of November 21, 2022, between the Company and American Stock Transfer & Trust Company, LLC, as t rustee (incorporated by reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K filed on November 22, 2022 (File No.

4.7 Form of 10.25 % Sen ior Amortizing Note s due 2025 (included in Exhibit 4.

4.8 Purchase Contract Agreement dated as of November 21 , 2022, between the Company and American Stock Transfer & Trust Company, LLC, as p urchase c ontract a gent, as attorney-in-fact for holders of the purchase contracts referred to therein and as trustee under the indenture referred to therein (incorporated by reference to Exhibit 4.

1 to the Company’s Current Report on Form 8-K filed on November 22, 2022 (File No.

4.9 Form of 7.

0 0% Tangible Equity Unit s (included in Exhibit 4.

4.10 Form of Purchase Contract s (included in Exhibit 4.

4.11 Description of the Company’s 7.00% Tangible Equity Units (including Purchase Contracts and Senior Amortizing Notes).

4.5 Indenture, dated as of November 21, 2022, between the Company and American Stock Transfer & Trust Company, LLC, as trustee (incorporated by reference to Exhibit 4.4 to the Company’s Current Report on Form 8-K filed on November 22, 2022 (File No.

4.6 First Supplemental Indenture, dated as of November 21, 2022, between the Company and American Stock Transfer & Trust Company, LLC, as trustee (incorporated by reference to Exhibit 4.5 to the Company’s Current Report on Form 8-K filed on November 22, 2022 (File No.

4.7 Form of 10.25% Senior Amortizing Notes due 2025 (included in Exhibit 4.6).

4.8 Purchase Contract Agreement dated as of November 21, 2022, between the Company and American Stock Transfer & Trust Company, LLC, as purchase contract agent, as attorney-in-fact for holders of the purchase contracts referred to therein and as trustee under the indenture referred to therein (incorporated by reference to Exhibit 4.1 to the Company’s Current Report on Form 8-K filed on November 22, 2022 (File No.

4.9 Form of 7.00% Tangible Equity Units (included in Exhibit 4.8).

4.10 Form of Purchase Contracts (included in Exhibit 4.8).

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.

15 unchanged sentences

001-32641)).†

Amendment No.

4 dated effective October 23, 2023 to Amended and Restated Master Lease and Security Agreement by and between certain affiliates of the Company as Tenant and certain subsidiaries of Ventas as Landlord.††

10.2.1 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.

10.2.2 Amendment No.

1 to Master Credit Facility Agreement (Senior Housing) dated as of November 1, 2018, by and between Jones Lang LaSalle Multifamily LLC and the Company's subsidiaries named as borrowers therein.

10.2.3 Reaffirmation, Joinder and Second Amendment to Master Credit Facility Agreement (Seniors Housing) dated as of December 15, 2023, by and between JLL Real Estate Capital, LLC, Fannie Mae and the Company's subsidiaries named as borrowers therein.

10.3 Amended and Restated Employment Agreement dated November 3, 2021 by and between the Company and Lucinda M.

10 unchanged sentences

001-32641)).*

10.5 Form of Restricted Share Agreement under the Omnibus Incentive Plan (2019 Time-Based Vesting Form for Executive Officers) (incorporated by reference to Exhibit 10.37 to the Company's Amendment No.

1 to Annual Report on Form 10-K/A on April 29, 2019 (File No.

001-32641)).*

10.6 Form of Restricted Share Agreement under the Omnibus Incentive Plan (2019 Performance-Based Vesting Form for Executive Officers) (incorporated by reference to Exhibit 10.38 to the Company's Amendment No.

1 to Annual Report on Form 10-K/A on April 29, 2019 (File No.

001-32641)).*

10.5 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.

23 unchanged sentences

001-32641)).*

10.18 Offer Letter Agreement dated as of September 13, 2021 by and between the Company and Kevin Bowman (incorporated by reference to Exhibit 10.

18 to the Company's Annual Report on Form 10- K filed on February 15 , 20 22 (File No.

10.16 Restricted Stock Unit Agreement under the Omnibus Incentive Plan dated as of February 15, 2023, by and between the Company and Lucinda M.

Baier (incorporated by reference to Exhibit 10.1 to the Company’s Quarterly Report on Form 10-Q filed on May 9, 2023 (File No.

001-32641)).*

10.17 Form of Restricted Stock Unit Agreement under the Omnibus Incentive Plan (2023 Time-Based Form for Executive Officers other than CEO) (incorporated by reference to Exhibit 10.2 to the Company’s Quarterly Report on Form 10-Q filed on May 9, 2023 (File No.

001-32641)).*

10.18 Performance-Based Restricted Stock Unit Agreement under the Omnibus Incentive Plan dated as of February 15, 2023, by and between the Company and Lucinda M.

Baier (incorporated by reference to Exhibit 10.3 to the Company’s Quarterly Report on Form 10-Q filed on May 9, 2023 (File No.

001-32641)).*

10.19 Form of Restricted Stock Unit Agreement under the Omnibus Incentive Plan (2023 Performance-Based Form for Executive Officers other than CEO) (incorporated by reference to Exhibit 10.4 to the Company’s Quarterly Report on Form 10-Q filed on May 9, 2023 (File No.

001-32641)).*

10.20 Performance-Based Cash Award Agreement dated as of February 15, 2023, by and between the Company and Lucinda M.

Baier (incorporated by reference to Exhibit 10.5 to the Company’s Quarterly Report on Form 10-Q filed on May 9, 2023 (File No.

001-32641)).*

10.21 Offer Letter Agreement dated as of January 12, 2023 by and between the Company and Dawn L.

Kussow (incorporated by reference to Exhibit 10.6 to the Company’s Quarterly Report on Form 10-Q filed on May 9, 2023 (File No.

001-32641)).*

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.

3 unchanged sentences

333-160354)).*

10.21 Non-Employee Director Deferred Compensation Plan dated December 12, 2022.*

10.24 Non-Employee Director Deferred Compensation Plan dated December 12, 2022 (incorporated by reference to Exhibit 10.21 to the Company's Annual Report on Form 10-K filed on February 22, 2023 (File No.

001-32641)).*

19 Brookdale Senior Living Inc.

Insider Trading Policy.

21 Subsidiaries of the Registrant.

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Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002.

97 Brookdale Senior Living Inc.

Clawback and Forfeiture Policy.

Inline XBRL Taxonomy Extension Schema Document.

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Baier (Principal Executive Officer)

/s/ Steven E.

Swain Executive Vice President and Chief Financial Officer February 22, 2023

Swain (Principal Financial Officer)

Kussow Senior Vice President and Chief Accounting Officer February 22, 2023

Kussow (Principal Accounting Officer)

Kussow Executive Vice President and Chief Financial Officer February 21, 2024

Kussow (Principal Financial and Accounting Officer)

/s/ Jordan R.

9 unchanged sentences

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