Exhibit 4.4
STOCKHOLDERS AND VOTING AGREEMENT
BY AND AMONG
BROOKDALE SENIOR LIVING INC.,
FIT-ALT INVESTOR LLC
EMERITUS CORPORATION
and
NW SELECT LLC
----------
Dated as of June 29, 2005
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms................................................. 1
ARTICLE II
TRANSFER
Section 2.1 Restrictions on Transfer...................................... 4
Section 2.2 Binding Effect on Transferees................................. 5
Section 2.3 Additional Purchases.......................................... 5
Section 2.4 Legend........................................................ 5
ARTICLE III
VOTING
Section 3.1 Voting of Company Securities.................................. 5
Section 3.2 Irrevocable Proxy............................................. 6
ARTICLE IV
TAG-ALONG AND DRAG-ALONG RIGHTS
Section 4.1 Tag-Along Rights.............................................. 6
Section 4.2 Drag-Along Rights............................................. 8
ARTICLE V
REPRESENTATIONS OF EACH STOCKHOLDER
Section 5.1 Due Organization, Authorization............................... 9
Section 5.2 Enforceability, Etc........................................... 9
Section 5.3 No Conflicts.................................................. 10
Section 5.4 Governmental Approvals........................................ 10
Section 5.5 Litigation.................................................... 10
Section 5.6 Title to the Shares........................................... 10
ARTICLE VI
MISCELLANEOUS
Section 6.1 Effective Time of Agreement................................... 10
Section 6.2 Further Actions; Additional Agreements........................ 10
Section 6.3 Headings...................................................... 11
Section 6.4 Entire Agreement.............................................. 11
Section 6.5 Further Actions; Cooperation.................................. 11
Section 6.6 Notices....................................................... 11
Section 6.7 Applicable Law; Venue......................................... 13
Section 6.8 Severability.................................................. 14
Section 6.9 Successors and Assigns........................................ 14
Section 6.10 Amendments................................................... 14
Section 6.11 Waiver....................................................... 14
Section 6.12 Counterparts................................................. 14
Section 6.13 Injunctive Relief............................................ 14
Section 6.14 Recapitalizations, Exchanges, Etc. Affecting the Shares of
Common Stock; New Issuances............................... 15
Section 6.15 Termination.................................................. 15
ii
THIS STOCKHOLDERS AND VOTING AGREEMENT (this "Agreement") is made as
of June 29, 2005 and effective as of the date set forth in Section 6.1 hereof,
by and among Brookdale Senior Living Inc., a Delaware corporation (the
"Company"), FIT-ALT Investor LLC, a Delaware limited liability company
("FIT-ALT"), Emeritus Corporation, a Washington corporation ("Emeritus"), and NW
Select LLC, a Washington limited liability company ("NW Select"). Emeritus and
NW Select are referred to herein individually as an "Initial Stockholder" and
collectively referred to herein as the "Initial Stockholders." Certain
capitalized terms used in this Agreement are defined in Article I. Unless
otherwise indicated, references to articles and sections shall be to articles
and sections of this Agreement.
WHEREAS, each Initial Stockholder and FIT-ALT are parties to the
Amended and Restated Limited Liability Company Agreement of FEBC-ALT Investors
LLC ("FEBC-ALT"), dated the date hereof;
WHEREAS, it is contemplated that subsequent to the date of this
Agreement, each of the Initial Stockholders will receive shares of Common Stock
(as hereinafter defined) in exchange for their respective membership interests
in FEBC-ALT;
WHEREAS, prior to the Expiration Date (as hereinafter defined) the
Company desires to regulate the sale, assignment, transfer, encumbrance or other
disposition of Company Securities (as hereinafter defined) and to provide for
certain rights and obligations in respect thereto as hereinafter provided; and
WHEREAS, the Stockholders (as hereinafter defined) deem it in their
best interests to provide for certain arrangements with respect to the voting of
certain securities of the Company.
NOW, THEREFORE, in consideration of the foregoing and of the mutual
covenants and agreements set forth herein and for good and valuable
consideration, the receipt and sufficiency of which is hereby acknowledged, the
parties hereto hereby agree as follows:
ARTICLE I
DEFINITIONS
Section 1.1 Defined Terms. For purposes of this Agreement, the terms
defined other than in this Article I shall have the meanings indicated and the
following terms shall have the following meanings:
(a) "Affiliate" shall have the meaning set forth in Rule 12b-2
promulgated under the Exchange Act; provided that no Stockholder shall be deemed
an Affiliate of any other Stockholder solely by reason of any investment in the
Company.
(b) "Approved Sale" shall have the meaning set forth in Section
4.2(a).
(c) A Person shall be deemed to "Beneficially Own" securities if
such Person is deemed to be a "beneficial owner" within the meaning of Rules
13d-3 and 13d-5 under the Exchange Act as in effect on the date of this
Agreement.
(d) "Common Stock" shall mean the Company's common stock, par
value $0.01 per share and any and all securities of any kind whatsoever of the
Company which may be issued and outstanding on or after the date hereof in
respect of, in exchange for, or upon conversion of shares of Common Stock
pursuant to a merger, consolidation, stock split, stock dividend,
recapitalization of the Company or otherwise.
(e) "Company Securities" shall mean (i) any Common Stock and (ii)
any other securities of the Company entitled to vote generally in the election
of directors of the Company.
(f) "Exchange Act" shall mean the Securities Exchange Act of
1934, as amended.
(g) "Expiration Date" shall mean the date of the consummation of
the Initial Public Offering.
(h) "Fortress Entity" shall collectively mean FIT-ALT or any
Affiliate to which it has Transferred all of its Company Securities.
(i) "Initial Public Offering" shall mean the initial public
offering by the Company of Common Stock pursuant to an effective registration
statement under the Securities Act.
(j) "Liens" shall have the meaning set forth in Section 4.1(a).
(k) "Membership Interest Purchase Agreement" shall mean the
Membership Interest Purchase Agreement, dated as of June 29, 2005, by and among
the Initial Stockholders and FIT-ALT Investor LLC.
(l) "Other Stockholders" shall have the meaning set forth in
Section 4.1(a).
(m) "Participating Stockholder" shall have the meaning set forth
in Section 4.1(b).
(n) "Permitted Transferee" shall mean, with respect to each
Stockholder, (i) any other Stockholder, (ii) such Stockholder's Affiliates and
(iii) in the case of any Stockholder, (A) any general or limited partner or
member of such Stockholder, (B) any corporation, partnership, limited liability
company or other entity that is an Affiliate of such Stockholder or any general
or limited partner of such Stockholder (collectively, "Stockholder Affiliates"),
(C) any investment funds managed
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directly or indirectly by such Stockholder or any Stockholder Affiliates (a
"Stockholder Fund"), (D) any general or limited partner of any Stockholder Fund,
(E) any managing director, general partner, director, limited partner, officer
or employee of any Stockholder Affiliate, or any spouse, lineal descendant,
sibling, parent, heir, executor, administrator, testamentary trustee, legatee or
beneficiary of any of the foregoing persons described in this clause (E)
(collectively, "Stockholder Associates") or (F) any trust, the beneficiaries of
which, or any corporation, limited liability company or partnership, the
stockholders, members or general or limited partners of which consist solely of
any one or more of such Stockholder, any general or limited partner of such
Stockholder, any Stockholder Affiliates, any Stockholder Fund, any Stockholder
Associates, their spouses or their lineal descendants.
(o) "Person" shall mean any individual, firm, corporation,
partnership, limited liability company or other entity, and shall include any
successor (by merger or otherwise) of such entity.
(p) "Proxy" shall have the meaning set forth in Section 3.2.
(q) "Reorganization Transaction" shall have the meaning assigned
to it in the Amended and Restated Limited Liability Company Agreement of
FEBC-ALT Investors LLC dated as of June 29, 2005.
(r) "Securities Act" shall mean the Securities Act of 1933, as
amended, and the rules and regulations promulgated thereunder.
(s) "Stockholders" shall mean (i) the Initial Stockholders and
(ii) each Permitted Transferee (as defined above) who becomes a party to or
bound by the provisions of this Agreement in accordance with the terms hereof or
Permitted Transferee thereof who is entitled to enforce the provisions of this
Agreement in accordance with the terms hereof.
(t) "Tag-Along Notice" shall have the meaning set forth in
Section 4.1(b).
(u) "Tag-Along Notice Period" shall have the meaning set forth in
Section 4.1(b).
(v) "Third Party" shall mean any Person other than the Fortress
Entity and its Affiliates.
(w) "Third Party Offer" shall have the meaning set forth in
Section 4.1(a).
(x) "Third Party Notice" shall have the meaning set forth in
Section 4.1(a).
(y) "Transfer" shall mean, with respect to any Company
Securities, (i) when used as a verb, to sell, assign, dispose of, exchange,
pledge,
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encumber, hypothecate or otherwise transfer such Company Securities or any
participation or interest therein, whether directly or indirectly, or agree or
commit to do any of the foregoing and (ii) when used as a noun, a direct or
indirect sale, assignment, disposition, exchange, pledge, encumbrance,
hypothecation, or other transfer of such Company Securities or any participation
or interest therein or any agreement or commitment to do any of the foregoing.
ARTICLE II
TRANSFER
Section 2.1 Restrictions on Transfer. (a) Except as set forth in
Section 4.1 of the Membership Interest Purchase Agreement and in Article IV
hereof, prior to the earlier of (i) the Expiration Date and (ii) the date that
is the six-month anniversary of the date hereof, each Stockholder agrees that it
shall not Transfer any Company Securities. If the Expiration Date shall not have
occurred prior to the date that is the six-month anniversary of the date hereof,
each Stockholder agrees that, until the Expiration Date, it shall not Transfer
any Company Securities except for any Transfer from any Stockholder to one or
more of its respective Permitted Transferees. The exception in the forgoing
sentence is subject to the condition that any Permitted Transferee execute the
agreement referred to in Section 2.2. The provisions of this Agreement shall be
applied to the Company Securities acquired by any Permitted Transferee of a
Stockholder in the same manner and to the same extent as such provisions were
applicable to such Company Securities in the hands of such Stockholder. Any
reference in this Agreement to the Stockholders shall be deemed to include each
Stockholder and its respective Permitted Transferees.
(b) Prior to the Expiration Date, each Stockholder agrees that it
will not, directly or indirectly, Transfer any Company Securities unless such
Transfer is made (i) pursuant to an effective registration statement under the
Securities Act and is qualified under applicable state securities or blue sky
laws or (ii) without registration under the Securities Act and qualification
under applicable state securities or blue sky laws, as a result of the
availability of an exemption from registration and qualification under such
laws, and such Stockholder shall have furnished to the other Stockholders, with
a copy to the Company, a certificate to that effect.
(c) Any purported Transfer of any Company Securities or any
economic benefit or interest therein in violation of this Agreement shall be
null and void ab initio, and shall not create any obligation or liability of the
issuer of such Company Securities to the purported transferee, and any Person
purportedly acquiring any Company Securities or any economic benefit or interest
therein transferred in violation of this Agreement shall not be entitled to be
recognized as a holder of such Company Securities and shall have no rights under
this Agreement. In the case of an attempted Transfer of any Company Securities
or any economic benefit or interest therein in violation of this Agreement, the
parties engaging or attempting to engage in such Transfer shall indemnify and
hold harmless the issuer of such Company Securities and the other Investors from
all cost, liability and damage that any of such indemnified
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persons may incur (including incremental tax liability and attorneys' fees and
expenses) as a result of such attempted Transfer or Transfer and the enforcement
of this indemnity.
Section 2.2 Binding Effect on Transferees. Prior to the Transfer by a
Stockholder of Company Securities to a Permitted Transferee, the transferring
Stockholder shall cause the transferee to execute an agreement on the same terms
and conditions set forth herein, providing that such transferee shall be bound
by and shall fully comply with the terms of this Agreement (including the
provisions of Section 3.2 with respect to the execution of a Proxy and the
provisions of Articles IV and V with respect to the Company Securities being
transferred to such transferee) and shall become a Stockholder hereunder.
Section 2.3 Additional Purchases. Any Company Securities owned by a
Stockholder on or after the date of this Agreement shall be subject to the terms
and conditions of this Agreement.
Section 2.4 Legend. Each certificate representing Company Securities
issued to a Stockholder shall be stamped or otherwise imprinted with a legend in
substantially the following form:
"The shares represented by this certificate are subject to the
transfer restrictions and other provisions (including provisions with
respect to the voting of the shares represented by this certificate)
contained in the Stockholders and Voting Agreement dated as of June
29, 2005 among the stockholders of the Corporation named therein."
ARTICLE III
VOTING
Section 3.1 Voting of Company Securities.
(a) Each Stockholder hereby agrees that, from and after the date
hereof and until the Expiration Date, at every meeting of the stockholders of
the Company, however called (with or without support or the recommendation of
the Board of Directors of the Company) and at every adjournment thereof, and in
every action by consent of the stockholders of the Company, each Stockholder
shall, provided that such Stockholder has not received notice from the Fortress
Entity (which notice may be delivered at any such meeting) stating the Fortress
Entity's intention to exercise the Proxy (as defined below) at such meeting,
appear at any such meeting or otherwise cause the Company Securities
Beneficially Owned by it to be counted as present for purposes of establishing a
quorum, and shall vote or consent (or cause to be voted or consented) such
Company Securities: (i) in favor of the approval and adoption of any
transactions contemplated in connection with the Reorganization Transaction in
such manner as may
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be necessary to consummate the Reorganization transaction; and (ii) otherwise as
directed in writing by the Fortress Entity.
(b) If a Stockholder fails for any reason to vote the Company
Securities Beneficially Owned by it as required by Section 3.1(a), the holder of
the Proxy shall have the right to vote such Company Securities at any meeting of
the Company's shareholders and in any action by written consent of the Company's
shareholders in accordance with Section 3.1(a) and the Proxy. The vote of a
holder of the Proxy shall control in any conflict between a vote of the Company
Securities by a holder of the Proxy and a vote of the Company Securities by a
Stockholder.
(c) Each Stockholder hereby agrees that it shall not, prior to
the Expiration Date, enter into any agreement or understanding with any person
or entity with respect to the Company Securities owned by it, the effect of
which would be inconsistent with or violative of any provision contained in this
Article III.
Section 3.2 Irrevocable Proxy. Concurrently with the execution of this
Agreement, each Stockholder has executed and delivered a proxy in the form
attached as Exhibit A hereto (the "Proxy"), which Stockholder agrees shall be
irrevocable to the fullest extent permissible by applicable law, with respect to
any Company Securities Beneficially Owned by it.
ARTICLE IV
TAG-ALONG AND DRAG-ALONG RIGHTS
Section 4.1 Tag-Along Rights.
(a) If a Fortress Entity intends to Transfer all of the Company
Securities then owned by or in the name of such Fortress Entity to a Third Party
(each, a "Third Party Offer"), the Fortress Entity shall promptly, acting in
good faith (i) cause the Third Party Offer to be reduced to writing, which shall
identify the Third Party, the Company Securities proposed to be transferred to
the Third Party by the Fortress Entity, the price to be paid in cash by the
Third Party and all other material terms and conditions of the Third Party Offer
and (ii) provide written notice (the "Third Party Notice") of such Third Party
Offer to each of the Stockholders (the Stockholders receiving a Third Party
Notice pursuant to this sentence being collectively referred to herein as the
"Other Stockholders"), which Third Party Notice shall (x) contain an offer by
such Third Party to purchase or otherwise acquire from each Other Stockholder
such Other Stockholder's Company Securities (to the extent such Third Party
Offer shall be allocable to such Other Stockholder pursuant to Section 4.1(c)
hereof) on the same terms and conditions as the Third Party Offer (except that
the only representation and warranty that such Other Stockholder shall be
required to make in connection with any such Transfer is a warranty with respect
to his or its own ownership of the Company Securities to be sold by him or it
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and his or its ability to convey title thereto free and clear of any and all
liens, mortgages, pledges, security interests or other restrictions or
encumbrances (collectively, "Liens")) and (y) be accompanied by a true and
correct copy of the Third Party Offer.
(b) Each Other Stockholder desiring to accept the offer (each, a
"Participating Stockholder") set forth in the Third Party Notice shall, within
ten (10) Business Days after the date the Third Party Notice is received by such
Other Stockholder (as such period may be extended pursuant to Section 4.1(d)
hereof, (each, a "Tag-Along Notice Period"), deliver a written notice to the
Transferring Stockholder (each, a "Tag-Along Notice"), which notice shall (i)
specify the amount of Company Securities which such Participating Stockholder
wishes to Transfer pursuant to the Third Party Offer and (ii) constitute a firm
acceptance by such Other Stockholder of the Third Party Offer, except as
otherwise provided in Sections 4.1(c) and (d) hereof.
(c) If one or more Other Stockholders give the Fortress Entity a
timely Tag-Along Notice, then the Fortress Entity shall use all reasonable
efforts to cause the Third Party to agree to acquire all Company Securities
identified in all Tag-Along Notices that are timely given to the Fortress
Entity, upon the same terms and conditions as are applicable to the Fortress
Entity's Company Securities. If such Third Party is unwilling or unable to
acquire all of such additional Company Securities upon such terms, then the
Fortress Entity may elect to either cancel such proposed Transfer or allocate
the maximum Company Securities that such Third Party is willing to purchase
among the Fortress Entity and the Participating Stockholders, with (i) each
Participating Stockholder permitted to sell Company Securities corresponding to
the respective percentage of all Company Securities held by such Participating
Stockholder and (ii) the Fortress Entity permitted to sell Company Securities
equal to the remaining Company Securities that such Third Party is willing to
purchase.
(d) In the event that the terms and conditions of any Third Party
Offer shall be modified in any way prior to the consummation of the respective
Transfers of Company Securities contemplated by such Third Party Offer, the
Transferring Stockholder shall send a copy of the amended Third Party Offer to
each of the Participating or Other Stockholders. Any Other Stockholder desiring
to Transfer Company Securities pursuant to the amended Third Party Offer, or any
Participating Stockholder desiring to amend or withdraw its Tag-Along Notice may
do so by delivering notice within three (3) Business Days after receipt of such
amended Third Party Offer to the Transferring Stockholder. If such notice is not
timely delivered, such Other Stockholder shall be deemed to have elected not to
participate in the Third Party Offer, or such Participating Stockholder, as the
case may be, shall be deemed to have elected to participate in such Third Party
Offer under the same terms and conditions that such Participating Stockholder
shall have originally elected to Transfer its Company Securities.
(e) Within three (3) Business Days after the termination of the
Tag-Along Notice Period (including any extension thereof) with respect to any
Third Party Offer, the Fortress Entity, after review of the Tag-Along Notices
received, and notices of withdrawal, if any, shall give written notice to each
Participating Stockholder
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of the time and place of the closing, which shall occur not fewer than two (2)
Business Days and not more than sixty (60) Business Days from the date such
notice is given. At the closing, each Participating Stockholder shall, and
hereby covenants to, Transfer such Participating Stockholder's Company
Securities to be sold to such Third Party free and clear of any and all Liens
against payment of the purchase price for such Company Securities. If such Third
Party does not purchase such Company Securities from all Participating
Stockholders on the same terms and conditions applicable to the Fortress Entity,
then the entire proposed Transfer by the Fortress Entity to such Third Party
shall be invalid.
(f) If at the termination of the Tag-Along Notice Period (and any
extension thereof) any Other Stockholder shall not have accepted the offer
contained in the Third Party Notice, such Other Stockholder shall be deemed to
have waived any and all of his or its rights under this Section 4.1 to Transfer
his or its Company Securities to such Third Party on the terms specified in the
Third Party Offer.
Section 4.2 Drag-Along Rights.
(a) If (i) the board of directors of the Company (the "Board of
Directors") approves a sale of the Company or substantially all of its assets to
a Third Party, whether by way of merger, consolidation, sale of interests or
assets, or otherwise or (ii) if the Fortress Entity shall agree to sell all of
its Company Securities to a Third Party (either of clauses (i) or (ii), an
"Approved Sale"), all Stockholders shall consent to and raise no objections
against the Approved Sale, and if the Approved Sale is structured as (i) a
merger or consolidation of the Company, or a sale of all or substantially all of
the Company's assets, each Stockholder shall waive any dissenters rights,
appraisal rights or similar rights in connection with such merger, consolidation
or asset sale, or (ii) a sale of Company Securities, the Stockholders shall
agree to sell their Company Securities on the terms and conditions approved by
the Board of Directors or on the terms and conditions agreed to by the Fortress
Entity, as applicable, in accordance with the terms hereof. The Stockholders
shall take all necessary and desirable actions approved by the Board of
Directors or the Fortress Entity, as applicable, in connection with the
consummation of the Approved Sale, including the execution of such agreements
and such instruments and other actions reasonably necessary (i) to provide the
representations, warranties, indemnities, covenants, conditions, escrow
agreements and other provisions and agreements relating to such Approved Sale,
to the extent reasonably customary in similar transactions, and (ii) to
effectuate the allocation and distribution of the aggregate consideration upon
the Approved Sale as set forth below.
(b) The obligations of the Stockholders pursuant to this Section
4.2 are subject to the following conditions:
(i) upon consummation of the Approved Sale, each Stockholder
shall receive from the Approved Sale the same amount of consideration with
respect to each of its Company Securities that all other holders of such Company
Security participating in such Approved Sale shall receive with respect to such
Company Security;
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(ii) if any holder of a Company Security is given an option
as to the form and amount of consideration to be received, all Stockholders will
be given the same option;
(iii) no Stockholder shall be obligated to make any
out-of-pocket expenditure prior to the consummation of the Approved Sale
(excluding modest expenditures for postage, copies, etc.) and no Stockholder
shall be obligated to pay more than his or its pro rata share (based upon the
amount of consideration received) of reasonable expenses incurred in connection
with a consummated Approved Sale to the extent such costs are incurred for the
benefit of all Stockholders and are not otherwise paid by the Company or the
acquiring party, provided that a Stockholder's liability for such expenses shall
be capped at the total purchase price received by such Stockholder for his or
its Company Securities; and
(iv) in the event that the Stockholders are required to
provide any representations or indemnities in connection with the Approved Sale
(other than representations and indemnities concerning each Stockholder's valid
ownership of his or its Company Securities, free and clear of any and all Liens,
each Stockholder's authority, power and right to enter into and consummate such
purchase or merger agreement without violating any other agreement and other
representations and indemnities which are individual to each Stockholder), then
no Stockholder shall be liable for more than his or its pro rata share (based
upon the Company Securities held and not the amount of consideration received)
of any liability for misrepresentation or indemnity and such liability shall not
exceed the total purchase price received by such Stockholder for his or its
Company Securities; provided, however, that this Section 4.2(b)(iv) shall not
limit a Stockholder's liability with respect to any misrepresentation made by
such Stockholder as a result of such Stockholder's bad faith, willful misconduct
or gross negligence.
ARTICLE V
REPRESENTATIONS OF EACH STOCKHOLDER Each Stockholder hereby represents and
warrants to each other Stockholder as of the date hereof and as of the Effective
Date (unless otherwise specified herein) as follows:
Section 5.1 Due Organization, Authorization. Such Stockholder is
either (a) duly organized, validly existing and in good standing under the laws
of its jurisdiction of organization or (b) a natural person that is competent
and has legal capacity to execute, deliver and perform its obligations under
this Agreement. The execution, delivery and performance by such Stockholder of
this Agreement, if not a natural person, and the consummation by such
Stockholder of the transactions contemplated hereby, have been duly authorized
by all necessary corporate and other action on its part.
Section 5.2 Enforceability, Etc. This Agreement has been duly executed
and delivered by such Stockholder. This Agreement constitutes a legal, valid and
binding obligation of such Stockholder, enforceable against such Stockholder in
accordance with its terms, subject to any limitations imposed by bankruptcy,
insolvency, or other laws of
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general application relating to enforcement of creditors' rights or general
equity principles.
Section 5.3 No Conflicts. The execution, delivery and performance of
this Agreement by such Stockholder and the consummation by such Stockholder of
the transactions contemplated hereby will not (a) result in a violation of, be
in conflict with or constitute a default (with or without notice or lapse of
time or both) under (i) any law applicable to such Stockholder or any of its
assets, (ii) any provision of its organizational documents, if such Stockholder
is not a natural person, (iii) any order or judgment of any court or other
agency of government applicable to such Stockholder or any of its assets or (iv)
any contractual restriction binding on or affecting such Stockholder or any of
its assets or (b) result in the creation or imposition of any Lien upon any of
such Stockholder's assets, including any Company Securities.
Section 5.4 Governmental Approvals. No consent, approval, order or
authorization of, or registration, declaration or filing with, any court,
administrative agency or commission or other governmental authority or
instrumentality, including under federal or state law or otherwise, is required
to be obtained or made by or with respect to such Stockholder in connection with
its execution and delivery of this Agreement or the consummation of the
transactions contemplated hereby by such Stockholder (other than those which are
not material).
Section 5.5 Litigation. There is no lawsuit, claim, proceeding or
investigation pending or threatened by or against such Stockholder or any of its
properties, assets, operations, businesses or prospects, which relates to the
transactions contemplated by this Agreement.
Section 5.6 Title to the Shares. As of the Effective Date, such
Stockholder owns the Company Securities Beneficially Owned by it free and clear
of any Liens.
ARTICLE VI
MISCELLANEOUS
Section 6.1 Effective Time of Agreement.
This Agreement, without any further action required by the parties
hereto, shall become effective immediately upon the receipt by the Initial
Stockholders of shares of Common Stock in exchange for each Initial
Stockholders' membership interests in FEBC-ALT.
Section 6.2 Further Actions; Additional Agreements.
Each Stockholder shall promptly execute and deliver, or shall cause to
be executed and delivered, such documents and other papers and shall take, or
shall cause to
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be taken, such further actions as may be reasonably required to carry out the
provisions of this Agreement and give effect to the transactions contemplated by
this Agreement, including the consummation of the Initial Public Offering. Not
in limitation of the preceding sentence but subject to Section 4.1(a) of the
Membership Interest Purchase Agreement, each Stockholder shall promptly execute
and deliver, or shall cause to be executed and delivered, customary agreements
and take such other actions as the Company or the underwriters reasonably
request in connection with the Initial Public Offering, including, without
limitation, (i) the execution and delivery of any underwriting agreement, power
of attorney, custody agreement, stock power or medallion guarantee, (ii) the
delivery of an opinion of counsel and officers' certificate to the underwriters
with respect to any Company Securities to be sold in the Initial Public Offering
by such Stockholder and (iii) the execution and delivery of an agreement
restricting the Transfer of any Company Securities owned by a Stockholder as may
be required by underwriters to facilitate the marketing of the securities in the
Initial Public Offering (so long as such restrictions on Transfer are no greater
than the restrictions contained in a similar agreement with the underwriters
with respect to the Company Securities of the Fortress Entity).
Section 6.3 Headings. The headings in this Agreement are for
convenience of reference only and shall not control or effect the meaning or
construction of any provisions hereof.
Section 6.4 Entire Agreement. This Agreement, the Membership Interest
Purchase Agreement and the Registration Rights Agreement (as such term is
defined in the Membership Interest Purchase Agreement) constitute the entire
agreement and understanding of the parties hereto in respect of the subject
matter contained herein, and there are no restrictions, promises,
representations, warranties, covenants, conditions or undertakings with respect
to the subject matter hereof, other than those expressly set forth or referred
to herein. This Agreement supersedes all prior agreements and understandings
between the parties hereto with respect to the subject matter hereof.
Section 6.5 Further Actions; Cooperation. Each of the Stockholders
agrees to use its reasonable efforts to take, or cause to be taken, all actions
and to do, or cause to be done, and to assist and cooperate with the other
parties in doing, all things necessary, proper or advisable to give effect to
the transactions contemplated by this Agreement.
Section 6.6 Notices. All notices, requests, consents and other
communications hereunder to any party shall be deemed to be sufficient if
contained in a written instrument delivered in person or sent by telecopy,
nationally recognized overnight courier or first class registered or certified
mail, return receipt requested, postage prepaid, addressed to such party at the
address set forth below or such other address as may hereafter be designated on
the signature pages of this Agreement or in writing by such party to the other
parties:
(a) If to the Company:
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Brookdale Senior Living Inc.
000 X. Xxxxxx, Xxxxx 0000
Xxxxxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxxx X. Xxxxxx, Esq.
with a copy (which shall not constitute notice) to:
Fortress Investment Group, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Coco, Esq.
(b) If to Emeritus:
Emeritus Corporation
0000 Xxxxxx Xxxxxx
Xxxxx 000
Xxxxxxx, Xxxxxxxxxx 00000
Fax: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxxxxxx
with a copy (which shall not constitute notice) to:
Xxxxxxx Coie
0000 Xxxxx Xxxxxx
Xxxxxxx, XX 00000
Fax: 000-000-0000
Attn: Xxxxxxx X. Xxxxxxxxx
(c) If to FIT-ALT:
c/o Fortress Investment Group, LLC
0000 Xxxxxx xx xxx Xxxxxxxx, 00xx Xxxxx
Xxx Xxxx, XX 00000
Fax: (000) 000-0000
Attn: Xxxxxx X. Xxxxxxx
12
and
Skadden, Arps, Slate, Xxxxxxx & Xxxx LLP
0 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000-0000
Fax: (000) 000-0000
Attn: Xxxxxx X. Coco, Esq.
(d) If to NW Select:
NW Select LLC
000 Xxxxxxxxxx Xxxxxx, Xxxxx 0000
Xxxxxxx, Xxxxxxxxxx 00000
Attention: Xxxxxx X Xxxx
Facsimile number: (000) 000-0000
All such notices, requests, consents and other communications shall be deemed to
have been given or made if and when received (including by overnight courier) by
the parties at the above addresses or sent by electronic transmission, with
confirmation received, to the telecopy numbers specified above (or at such other
address or telecopy number for a party as shall be specified by like notice).
Any notice delivered by any party hereto to any other party hereto shall also be
delivered to each other party hereto simultaneously with delivery to the first
party receiving such notice.
Section 6.7 Applicable Law; Venue. The substantive laws of the State
of Delaware shall govern the interpretation, validity and performance of the
terms of this Agreement, without regard to conflicts of law doctrines. Any legal
action or proceeding with respect to this Agreement and any action for
enforcement of any judgment in respect thereof may be brought in the courts of
the State of New York or of the United States of America for the Southern
District of New York and, by execution and delivery of this Agreement, each
party hereto hereby accepts for itself and in respect of its property, generally
and unconditionally, the non-exclusive jurisdiction of the aforesaid courts and
the appellate courts thereof. Each party hereto irrevocably consents to the
service of process out of any of the aforementioned courts in any such action or
proceeding by the mailing of copies thereof by registered or certified mail,
postage prepaid, to such party at the address for notices set forth herein. Each
party hereto hereby irrevocably waives any objection which it may now or
hereafter have to the laying of venue of any of the aforesaid actions or
proceedings arising out of or in connection with this Agreement brought in the
courts referred to above and hereby further irrevocably waives and agrees not to
plead or claim in any such court that any such action or proceeding brought in
any such court has been brought in an inconvenient forum. EACH PARTY HERETO
HEREBY IRREVOCABLY WAIVES ALL RIGHT TO TRIAL BY JURY IN ANY PROCEEDING (WHETHER
BASED IN CONTRACT, TORT OR OTHERWISE) ARISING OUT OF OR RELATING TO THIS
AGREEMENT OR ANY TRANSACTION OR AGREEMENT CONTEMPLATED HEREBY OR THE
13
ACTIONS OF ANY PARTY HERETO IN THE NEGOTIATION, ADMINISTRATION, PERFORMANCE OR
ENFORCEMENT HEREOF.
Section 6.8 Severability. The invalidity, illegality or
unenforceability of one or more of the provisions of this Agreement in any
jurisdiction shall not affect the validity, legality or enforceability of the
remainder of this Agreement, including any such provisions, in any other
jurisdiction, it being intended that all rights and obligations of the parties
hereunder shall be enforceable to the fullest extent permitted by law.
Section 6.9 Successors and Assigns. Except as otherwise provided
herein, all the terms and provisions of this Agreement shall be binding upon,
shall inure to the benefit of and shall be enforceable by the respective
successors and permitted assigns of the parties hereto. No Stockholder may
assign any of its rights hereunder to any Person other than a Permitted
Transferee that has complied in all respects with the requirements of this
Agreement (including, without limitation, Section 2.2). Except as otherwise
provided in Section 2.2, each Permitted Transferee of any Stockholder, shall be
subject to all of the terms of this Agreement, and by taking and holding such
shares such Person shall be entitled to receive the benefits of and be
conclusively deemed to have agreed to be bound by and to comply with all of the
terms and provisions of this Agreement; provided, however, no transfer of rights
permitted hereunder shall be binding upon or obligate the Company unless and
until the Company shall have received notice and such transfer.
Section 6.10 Amendments. This Agreement may not be amended, modified
or supplemented unless such amendment, modification or supplement is in writing
and signed by each of the Stockholders, FIT-ALT and the Company.
Section 6.11 Waiver. The failure of a party hereto at any time or
times to require performance of any provision hereof shall in no manner affect
its right at a later time to enforce the same. No waiver by a party of any
condition or of any breach of any term, covenant, representation or warranty
contained in this Agreement shall be effective unless in a writing signed by the
party against whom the waiver is to be effective, and no waiver in any one or
more instances shall be deemed to be a further or continuing waiver of any such
condition or breach in other instances or a waiver of any other condition or
breach of any other term, covenant, representation or warranty.
Section 6.12 Counterparts. This Agreement may be executed in two or
more counterparts, each of which shall be deemed an original but all of which
shall constitute one and the same Agreement.
Section 6.13 Injunctive Relief. The parties hereto acknowledge and
agree that it will be impossible to measure in money the damages that would be
suffered if any party hereto violates any of the terms of this Agreement and
that any such violation will cause an aggrieved party irreparable injury for
which an adequate remedy at law is not available. Therefore, the parties hereto
shall be entitled (in addition to any other remedy to which they may be entitled
in law or in equity) to specific performance or an injunction, restraining order
or other equitable relief from any court of competent
14
jurisdiction, restraining any party hereto from committing any violations of the
provisions of this Agreement, and none of the parties hereto shall raise the
defense that there is an adequate remedy at law or request that any bond be
posted in connection with seeking such equitable relief.
Section 6.14 Recapitalizations, Exchanges, Etc. Affecting the Shares
of Common Stock; New Issuances. The provisions of this Agreement shall apply, to
the full extent set forth herein with respect to Company Securities and to any
and all equity or debt securities of the Company or any successor or assign of
the Company (whether by merger, consolidation, sale of assets, or otherwise)
which may be issued in respect of, in exchange for, or in substitution of, such
Company Securities and shall be appropriately adjusted for any stock dividends,
splits, reverse splits, combinations, reclassifications, recapitalizations,
reorganizations and the like occurring after the date hereof.
Section 6.15 Termination. This Agreement shall terminate upon the
earlier to occur of (i) the Expiration Date and (ii) the mutual consent of all
of the parties hereto; provided, however, that the provisions of Section 6.7 and
this Section 6.15 shall survive the termination of this Agreement.
[Remainder of page left blank intentionally]
15
IN WITNESS WHEREOF, the parties have caused this Agreement to be
executed and delivered by their respective officers thereunto duly as of the
date first above written.
BROOKDALE SENIOR LIVING INC.
By: /s/ Xxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxx X. Xxxxxxx
----------------------------------
Title:
---------------------------------
FIT-ALT INVESTOR LLC
By: /s/ Xxxxxxx Xxxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxxx
----------------------------------
Title:
---------------------------------
EMERITUS CORPORATION
By: /s/ Xxxxxxx X. Xxxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxxx
----------------------------------
Title: Vice President of Finance
---------------------------------
NW SELECT LLC
By: /s/ Xxxxxx X. Xxxx
------------------------------------
Name: Xxxxxx X. Xxxx
----------------------------------
Title: Manager
---------------------------------
Stockholders and Voting Agreement
EXHIBIT A
IRREVOCABLE PROXY
The undersigned stockholder ("Stockholder") of Brookdale Senior Living
Inc., a Delaware corporation (the "Company"), hereby irrevocably appoints Xxxxxx
Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx, and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all Company Securities owned by Stockholder as of the date hereof and
of which Stockholder acquires ownership after the date hereof (collectively, the
"Shares") in accordance with the terms of this Proxy until the Expiration Date.
Upon the undersigned's execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date.
This Proxy is irrevocable (to the fullest extent permitted by applicable
law), is coupled with an interest and made for the benefit of third parties and
is granted pursuant to that certain Stockholders Agreement of even date herewith
by and among the Company, Stockholder and Emeritus Corporation (the
"Stockholders Agreement"), and is granted in consideration of FIT-ALT Investor
LLC entering into that certain Membership Interest Purchase Agreement, dated
June 29, 2005. Terms not defined herein shall have the meaning assigned to them
in the Stockholders Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents and be counted as present for purposes of establishing a
quorum) at every meeting of the shareholders of the Company, however called, and
at every adjournment thereof, and in every action by consent of the shareholders
of the Company, as follows: (i) in favor of the approval and adoption of any
transactions contemplated in connection with the Reorganization Transaction in
such manner as may be necessary to consummate the Reorganization Transaction;
and (ii) otherwise as directed in writing by the Fortress Entity.
All authority herein conferred shall survive the death or incapacity of the
undersigned to the extent permitted by law, and any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned.
This Proxy is irrevocable (to the fullest extent permitted by applicable
law). This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: ____________, _____
Signature of Stockholder: /s/ Xxxxxx X. Xxxx
------------------
Print Name of Stockholder: Xxxxxx X. Xxxx
--------------
Manager
NW Select Proxy
IRREVOCABLE PROXY
The undersigned stockholder ("Stockholder") of Brookdale Senior Living
Inc., a Delaware corporation (the "Company"), hereby irrevocably appoints Xxxxxx
Xxxxx, Xxxxxx Xxxxxxx and Xxxxxxx Xxxxxxx, and each of them, as the sole and
exclusive attorneys and proxies of the undersigned, with full power of
substitution and resubstitution, to vote and exercise all voting and related
rights (to the full extent that the undersigned is entitled to do so) with
respect to all Company Securities owned by Stockholder as of the date hereof and
of which Stockholder acquires ownership after the date hereof (collectively, the
"Shares") in accordance with the terms of this Proxy until the Expiration Date.
Upon the undersigned's execution of this Proxy, any and all prior proxies given
by the undersigned with respect to any Shares are hereby revoked and the
undersigned agrees not to grant any subsequent proxies with respect to the
Shares until after the Expiration Date.
This Proxy is irrevocable (to the fullest extent permitted by applicable
law), is coupled with an interest and made for the benefit of third parties and
is granted pursuant to that certain Stockholders Agreement of even date herewith
by and among the Company, Stockholder and NW Select LLC (the "Stockholders
Agreement"), and is granted in consideration of FIT-ALT Investor LLC entering
into that certain Membership Interest Purchase Agreement, dated June 29, 2005.
Terms not defined herein shall have the meaning assigned to them in the
Stockholders Agreement.
The attorneys and proxies named above, and each of them, are hereby
authorized and empowered by the undersigned, at any time prior to the Expiration
Date, to act as the undersigned's attorney and proxy to vote the Shares, and to
exercise all voting, consent and similar rights of the undersigned with respect
to the Shares (including, without limitation, the power to execute and deliver
written consents and be counted as present for purposes of establishing a
quorum) at every meeting of the shareholders of the Company, however called, and
at every adjournment thereof, and in every action by consent of the shareholders
of the Company, as follows: (i) in favor of the approval and adoption of any
transactions contemplated in connection with the Reorganization Transaction in
such manner as may be necessary to consummate the Reorganization Transaction;
and (ii) otherwise as directed in writing by the Fortress Entity.
All authority herein conferred shall survive the death or incapacity of the
undersigned to the extent permitted by law, and any obligation of the
undersigned hereunder shall be binding upon the successors and assigns of the
undersigned.
This Proxy is irrevocable (to the fullest extent permitted by applicable
law). This Proxy shall terminate, and be of no further force and effect,
automatically upon the Expiration Date.
Dated: ____________, _____
Signature of Stockholder: /s/ Xxxxxxx X. Xxxxxxxxxx
-------------------------
Print Name of Stockholder: Xxxxxxx X. Xxxxxxxxxx
-------------------------
Vice President of Finance
Emeritus Proxy
