EXHIBIT 10.4
FORM OF
VOTING AGREEMENT
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This VOTING AGREEMENT (this "Agreement"), dated as of ______, 1997, is made
and entered into by and among BROOKDALE LIVING COMMUNITIES, INC., a Delaware
corporation (the "Company"), THE PRIME GROUP, INC., an Illinois corporation
("Prime"), and PRIME GROUP LIMITED PARTNERSHIP, an Illinois limited partnership
(together with Prime, the "TPG Group").
RECITALS
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WHEREAS, the Company has filed with the Securities and Exchange Commission
a Form S-1 Registration Statement in connection with the Company's proposed
initial public offering (the "Offering") of its Common Stock, $0.01 par value
per share (the "Common Stock");
WHEREAS, pursuant to the terms of that certain Formation Agreement dated
___________, 1997, the Company has issued an aggregate of 2,071,334 shares of
its Common Stock to the TPG Group, representing 27.6% of the outstanding Common
Stock after giving effect to the Offering; and
WHEREAS, in connection with the Offering, the Company and the TPG Group
have agreed to enter into this Agreement.
AGREEMENTS
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NOW, THEREFORE, in consideration of the recitals and the mutual promises
and covenants herein contained and other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
1. Agreement to Vote Shares of Common Stock. The TPG Group agrees that,
from and after the completion of the Offering and until this Agreement
terminates pursuant to Section 2 hereof, it will vote all of the TPG Group's
shares of Common Stock at any meeting at which directors of the Company are
elected in favor of that number of independent directors who are not affiliates
of the TPG Group or employees of the TPG Group (any such directors, "Independent
Directors") so that, if such directors were elected, there would be at least
four (4) Independent Directors who are members of the Board of Directors of the
Company. The parties hereto acknowledge and agree that the agreement contained
in the immediately preceding sentence is not, and shall not be construed as, a
guarantee by the TPG Group, or any member thereof, that any of the Independent
Directors for which the TPG Group votes in favor
of will be elected as a member of the Board of Directors of the Company or that
there will be at least four (4) Independent Directors who are members of the
Board of Directors of the Company.
2. Term. This Agreement will automatically terminate upon the earlier of
(i) three (3) years from the closing date of the Offering or (ii) the date the
TPG Group owns less than ten percent (10%) of the then outstanding Common Stock.
3. Notices. Any notices required or permitted to be sent hereunder shall
be delivered personally or mailed, certified mail, return receipt requested, or
delivered by overnight courier service guaranteeing next business day delivery,
to the following addresses, or such other addresses as shall be given by notice
delivered hereunder, in each case with applicable postage or delivery charges
prepaid, and shall be deemed to have been given upon delivery, if delivered
personally, three business days after mailing, if mailed, or one business day
after delivery to the courier, if delivery by overnight courier service:
If to the Company, to:
Brookdale Living Communities, Inc.
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Attn: President
With a copy to:
Winston & ▇▇▇▇▇▇
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Attn: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
If to the TPG Group or any member thereof, to:
c/o The Prime Group, Inc.
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Attn: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
With a copy to:
The Prime Group, Inc.
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Attn: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
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4. Final Agreement. This Agreement constitutes the final agreement of the
parties concerning the matters referred to herein, and supersedes all prior
agreements and understandings.
5. Severability. Whenever possible, each provision of this Agreement will
be interpreted in such manner as to be effective and valid under applicable law,
but if any provision of this Agreement is held to be prohibited by or invalid
under applicable law, such provision will be ineffective only to the extent of
such prohibition or invalidity, without invalidating the remainder of this
Agreement.
6. Descriptive Headings. The descriptive headings of this Agreement are
inserted for convenience of reference only and do not constitute a part of and
shall not be utilized in interpreting this Agreement.
7. Governing Law. All questions concerning the construction, validity and
interpretation of, and the performance of the obligations imposed by, this
Agreement shall be governed by and construed in accordance with the laws of the
State of Illinois (excluding the choice of law provisions thereof).
8. Amendments. The provisions of this Agreement may be amended or waived
at any time only by the written agreement of the parties hereto.
9. Successors and Assigns. The provisions of this Agreement shall be
binding upon and inure to the benefit of the respective successors, assigns,
heirs, executors and administrators of the parties hereto, whether so expressed
or not.
[signature page follows]
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IN WITNESS WHEREOF, the parties hereto have caused this Voting Agreement to
be duly executed and delivered on their behalf as of the date first above
written.
THE COMPANY:
BROOKDALE LIVING COMMUNITIES, INC.,
a Delaware corporation
By:_____________________________
Name:___________________________
Title:__________________________
THE TPG GROUP:
THE PRIME GROUP, INC.,
an Illinois corporation
By:_____________________________
Name:___________________________
Title:__________________________
PRIME GROUP LIMITED PARTNERSHIP,
an Illinois limited partnership
By:_____________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇,
Managing General Partner
S-1
