1
EXHIBIT 9.1
--------------------------------------------------------------------------------
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
--------------------------------------------------------------------------------
2
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.
2
3
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.
3
4
(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.
4
5
(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.
5
6
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
------- ------------------------------------
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
6
7
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
------- ----------------------------------
Xxxxxx X. Xxxxxx-Xxxxx
7
8
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
8
