EXECUTION COPY
------------------------------------------------
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
July 14, 1997
------------------------------------------------
STOCKHOLDERS' VOTING AGREEMENT made this 14
day of July, 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").
R E C I T A L S
A. Concurrently with the execution of this Agreement, pursuant to
a Stock Purchase Agreement (the "Stock Purchase Agreement") dated as
of July 14, 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
certain of the Investors of certain shares of the Company's Common
Stock (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 a Stockholders Agreement dated as
of July 14, 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 the Transactions 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 (i) the Transactions and (ii) the election of Directors of the
Company (a) nominated by the Nominating Committee of 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 on which the Investor Nominees (as
defined in the Stockholders Agreement) first become members of the
Board of Directors of the Company or (B) if the Stockholder Approval
(as defined in the Stock Purchase Agreement) vote fails or does not
occur by December 31, 1997, the earlier of the date of the stockholder
meeting at which the Stockholder Approval failed or December 31, 1997;
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 the date hereof, 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
Investors, 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: Xxxx X. Xxxxxxxx
Xxxxxx Xxxxxxx
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 Investors, 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 Investors under this Agreement
shall not be assigned to any party other than: (i) to an affiliate of
the Investors or to any entity with which the Investors 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.
/s/ Xxxx X. Xxxxxxxx
----------------------------
Xxxx X. Xxxxxxxx
593,029 DAVIDSON FAMILY PARTNERSHIP
/s/ Xxxx X. Xxxxxxxx
by ----------------------
Name: Xxxx X. Xxxxxxxx
Title: Partner
343,102 XXXX X. XXXXXXXX FUNDED REVOCABLE
LIVING TRUST
/s/ Xxxx X. Xxxxxxxx
by ----------------------
Name: Xxxx X. Xxxxxxxx
Title: Trustee
750 /s/ Xxxx X. Booty
---------------------------
Xxxx X. Booty
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
Name:
Title:
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
------------------------------
Xxxxx X. Xxxxxxx
98,678 D&V XXXXXXX FAMILY LIMITED
PARTNERSHIP
by /s/ Xxxxx X. Xxxxxxx
-----------------------
Name: Xxxxx X. Xxxxxxx
Title: 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: Settlor-trustee
252,552 /s/ Xxxxxx X. Xxxxxx-Xxxxx
------------------------------
Xxxxxx X. Xxxxxx-Xxxxx
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
