Exhibit 4
EXECUTION COPY
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STOCKHOLDERS' VOTING AGREEMENT
by and among
LAZARD FRERES REAL ESTATE INVESTORS L.L.C.
and
PROMETHEUS ASSISTED LIVING LLC
and
the STOCKHOLDERS listed herein
dated as of
October 29, 1997
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STOCKHOLDERS' VOTING AGREEMENT made this 29th day of
October, 1997, between certain holders of the shares of
outstanding voting Common Stock, no par value per share
("Common Stock"), of the Company (as defined below) set
forth on the signature page hereof (each, a "Stockholder"
and, collectively, the "Stockholders"), and Lazard Freres
Real Estate Investors L.L.C., a New York limited liability
company ("LFREI"), and Prometheus Assisted Living LLC, a
Delaware limited liability company (the "Investor").
Capitalized terms not otherwise defined herein have the
meaning ascribed to them in the Stock Purchase Agreement (as
defined below).
R E C I T A L S
A. Concurrently with the execution of this Agreement, pursuant to an
Amended and Restated Stock and Note Purchase Agreement (the "Stock Purchase
Agreement") dated as of October 29, 1997, among ARV Assisted Living, Inc.,
a California corporation (the "Company"), LFREI and the Investor, the
parties thereto agreed to a series of transactions, including the sale to
the Investor of certain shares of the Company's Common Stock and the
Company Notes (all such transactions between the Company, LFREI and the
Investor are hereinafter collectively referred to as the "Transactions").
B. As a condition to the Stock Purchase Agreement, the Company, the
Investor and LFREI entered into an Amended and Restated Stockholders
Agreement dated as of October 29, 1997, providing for certain rights and
restrictions with respect to the investment in the Company by LFREI and the
Investor.
C. As an additional inducement to LFREI and the Investor to enter
into the Transactions, each of the Stockholders have agreed to vote in
favor of certain matters relating to the Transactions (and constituting an
integral part thereof) on the terms set forth below.
A G R E E M E N T
NOW, THEREFORE, in consideration of the foregoing and for other good
and valuable consideration, the receipt and sufficiency of which is hereby
acknowledged, the parties agree as follows:
1. Voting of Shares. During the term of this Agreement for so long
as such Stockholder shall be the owner of any Shares (as hereinafter
defined), each of the Stockholders covenants and agrees with each other
Stockholder, LFREI and the Investor, to vote (which term shall include
taking action without a meeting by written consent) such number of Shares
that may be voted by such Stockholder in favor of the election of Directors
of the Company (a) nominated by the nominating committee, if any, or the
Board and (b) the Investor Nominees, each as provided in Section 2.1 of the
Stockholders Agreement.
2. Shares. The term "Shares" as used herein shall mean any and all
shares of capital stock of the Company (including Common Stock) which carry
voting rights (including any voting rights which arise by reason of
default) now owned or subsequently acquired by a Stockholder through
purchase, gift, stock splits, stock dividends and exercise of stock
options.
3. Termination. This Agreement shall terminate concurrently with the
termination of the Stockholders Agreement. Each Stockholder hereby agrees
not to sell, transfer or otherwise dispose of any of its Shares until the
earlier of (A) the date of the stockholder meeting at which the vote
contemplated by Section 1 shall have occurred and or (B) April 12, 1998;
provided, a sale, transfer or other disposition pursuant to a margin loan
shall not be deemed to violate the foregoing so long as, in the case of
margin loans made after July 14, 1997, the principal amount of any such
loan and all other outstanding margin loans secured by Shares shall not
exceed 40% of the aggregate value of the Shares pledged to secure such
loans (with all such Shares valued at $11 per Share).
4. No Revocation. The voting agreements contained herein are coupled
with an interest and may not be revoked prior to termination in accordance
with Section 3, except by written consent of the Investor, the Company and
the Stockholders owning a majority of the Shares.
5. General.
(a) Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of California, without
regard to any principles of conflicts of law.
(b) Notices. All notices, requests, demands and other
communications under this Agreement shall be in writing and shall be deemed
given if delivered personally or by facsimile transmission (with subsequent
letter confirmation by mail) or three days after being mailed by certified
or registered mail, postage prepaid, return receipt requested, to the
parties, their successors in interest or their assigns at the following
addresses, or at such other addresses as the parties may designate by
written notice in the manner aforesaid:
If to the Stockholders: ATTN: [Stockholder Name]
c/o ARV Assisted Living, Inc.
000 Xxxxxxx Xxxxxx
Xxxxx Xxxx, XX 00000
Attention: President and
General Counsel
Telecopy: (000) 000-0000
with a copy to: Xxxxxx & Xxxxxxx
000 Xxxx Xxxxxx Xxxxx
00xx Xxxxx
Xxxxx Xxxx, XX 00000
Attention: Xxxxxxx X. Xxxxxxx
Telecopy: (000) 000-0000
If to the Investors: Prometheus Assisted Living LLC
c/o Lazard Freres Real Estate
Investors L.L.C.
00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Attention: Xxxxxx Xxxxxxx, Xxxxx Xxxxx
and Xxxxx Xxxxxxxxxxx
Telecopy: (000) 000-0000
with a copy to: Cravath, Swaine & Xxxxx
000 Xxxxxx Xxxxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxxx, Esq.
(c) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto and supersedes any prior
understandings and agreements, either oral or written, between or among the
parties hereto relating to the subject matter hereof.
(d) Equitable Remedies. In addition to legal remedies, in
recognition of the fact that remedies at law may not be sufficient, the
parties (and their permitted successors and assigns) shall be entitled to
equitable remedies for breaches or defaults hereunder, including, without
limitation, specific performance and injunction.
(e) Amendment. No amendment, modification or termination of any
provision of this Agreement shall be valid unless in writing and signed by
the Investor, the Company and Stockholders owning a majority of the Shares.
(f) Binding Agreement; Successors and Assigns. This Agreement
shall be binding upon the parties hereto and their respective successors
and legal representatives; provided, however, that the rights and
obligations of the Investor under this Agreement shall not be assigned to
any party other than: (i) to an affiliate of the Investor or to any entity
with which the Investor merges or combines; or (ii) with the consent of the
Stockholders owning a majority of the Shares.
(g) Counterparts. This Agreement may be executed in several
counterparts, and as so executed shall constitute one agreement, binding on
all of the parties hereto, notwithstanding that all the parties are not a
signatory to the original or the same counterparts.
(h) No Waiver; Cumulative Remedies. No failure or delay on the
part of any party in exercising any right, power or remedy hereunder shall,
except to the extent expressly provided herein, operate as a waiver hereof;
nor shall any single or partial exercise of any right, power or remedy
preclude any other future exercise thereof or the exercise of any other
right, power or remedy hereunder. The remedies provided herein are
cumulative and not exclusive of any remedies provided by law.
(i) Severability. The provisions of this Agreement are severable,
and if any clause or provision of this Agreement shall be held invalid or
unenforceable in whole or in part in any jurisdiction, then such clause or
provision shall, as to such jurisdiction, be ineffective to the extent of
such invalidity or unenforceability without in
any manner affecting the validity or enforceability of such clause or
provision in any other jurisdiction or the remaining provisions hereof in
any jurisdiction.
(j) By its execution and delivery of this Agreement, each
Stockholder represents and warrants to the Investors that it owns 100% of
the Shares set forth opposite its name on the signature page hereof.
IN WITNESS WHEREOF, this Agreement has been executed by the parties
hereto as of the day and year first above written.
750 /s/ Xxxx X. Booty
---------------------------- ----------------------------------
Name: Xxxx X. Booty
Title: Trustee
107,773 BOOTY-XXXXX FAMILY PARTNERSHIP
----------------------------
by /s/ Xxxx X. Booty
-------------------------------
Name: Xxxx X. Booty
Title: Managing Partner
418,028 BOOTY FAMILY TRUST
----------------------------
by /s/ Xxxx X. Booty
-------------------------------
Name: Xxxx X. Booty
Title: Trustee
by /s/ Xxxx X. Booty
-------------------------------
Name: Xxxx X. Booty
Title: Managing Partner
69,500
---------------------------- XXXXX X. BOOTY CHARITABLE
REMAINDER TRUST
by /s/ Xxxx X. Booty
-------------------------------
Name: Xxxx X. Booty
Title: Trustee
69,500
---------------------------- XXXX X. BOOTY CHARITABLE REMAINDER
UNITRUST
by /s/ Xxxx X. Booty
-------------------------------
Name: Xxxx X. Booty
Title: Trustee
/s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Settlor-Trustee
98,678
---------------------------- D&V XXXXXXX FAMILY LIMITED
PARTNERSHIP
by /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Settlor-Trustee
by /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Settlor-Trustee
408,591
---------------------------- XXXXXXX FAMILY COMMUNITY PROPERTY
TRUST
by /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Settlor-Trustee
by /s/ Xxxxxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxxxxx X. Xxxxxxx
Title: Settlor-Trustee
11,978 XXXXX X. XXXXXXX ANNUITY TRUST
----------------------------
by /s/ Xxxxx X. Xxxxxxx
-------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Trustee
252,552 /s/ Xxxxxx X. Xxxxxx-Xxxxx
---------------------------- ----------------------------------
Name: Xxxxxx X. Xxxxxx-Xxxxx
Title: Chief Financial Officer
and Secretary
LAZARD FRERES REAL ESTATE INVESTORS
L.L.C.
by /s/ Xxxxxx X. Xxxxxxx
------------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
PROMETHEUS ASSISTED LIVING LLC
by Lazard Freres Real Estate
Investors L.L.C.
by /s/ Xxxxxx X. Xxxxxxx
--------------------------
Name: Xxxxxx X. Xxxxxxx
Title: President
