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Exhibit 9.1
VOTING AGREEMENT
VOTING AGREEMENT, dated as of October 8, 1999 (this
"Agreement"), by and among IPC Advisors S.A.R.L., a Luxemburg corporation
("Purchaser") and the stockholders of Balanced Care Corporation, a Delaware
corporation (the "Company") listed on the signature pages hereto (each, a
"Shareholder" and, collectively, the "Shareholders").
WHEREAS, the Company and Purchaser propose to enter into an
Subscription Agreement, dated as of the date hereof (the "Subscription
Agreement"), which provides for, among other things, the purchase by the
Purchaser from the Company of 13,400,000 shares of common stock, par value $.001
per share (the "Company Common Stock") of the Company (the "Issuance");
WHEREAS, as of the date hereof, the Shareholders are holders
of record or Beneficially Own (as defined herein) shares of Company Common
Stock; and
WHEREAS, as a condition to the willingness of Purchaser to
enter into the Subscription Agreement, Purchaser has required that each
Shareholder agrees, and in order to induce Purchaser to enter into the
Subscription Agreement, each Shareholder has agreed, severally and not jointly,
to enter into this Agreement with respect to all of the shares of Company Common
Stock now held of record or Beneficially Owned and which may hereafter be
acquired by such Shareholder (collectively, the "Shares").
NOW, THEREFORE, in consideration of the foregoing and the
mutual covenants and agreements contained herein, and intending to be legally
bound hereby, the parties hereto hereby agree as follows:
ARTICLE I
CERTAIN DEFINITIONS
Section I.1 General. Capitalized terms used and not defined
herein have the respective meanings ascribed to them in the Subscription
Agreement.
Section I.2 Beneficial Ownership. For purposes of this
Agreement, "Beneficially Own" or "Beneficial Ownership" with respect to any
securities shall mean "beneficial ownership" of such securities (as determined
pursuant to Rule 13d-3 under the Securities Exchange Act of 1934, as amended
(the "Exchange Act")), including pursuant to any agreement, arrangement or
understanding, whether or not in writing.
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ARTICLE II
Section II.1 Voting Agreement. Each of the Shareholders hereby
agrees as follows:
(a) to appear, or cause the holder of record on any
applicable record date with respect to any Shares Beneficially Owned by such
Shareholder (the "Record Holder") to appear, in person or by proxy, for the
purpose of obtaining a quorum at any annual or special meeting of stockholders
of the Company and at any adjournment or postponement thereof at which matters
relating to the Issuance, the Subscription Agreement or any transaction
contemplated thereby are considered; and
(b) at any meeting of the stockholders of the Company,
however called, and in any action by consent of the stockholders of the Company,
to vote, or cause to be voted by the Record Holder, in person or by proxy, the
Shares held of record or Beneficially Owned by such Shareholder: (i) in favor of
the adoption and approval of the Issuance pursuant to the Subscription Agreement
and (ii) as directed by the Purchaser on any other matter.
Section II.2 No Ownership Interest. Except as set forth in
Section 2.1, nothing contained in this Agreement shall be deemed to vest in
Purchaser any direct or indirect ownership or incidence of ownership of or with
respect to any Shares. All rights, ownership and economic benefits of and
relating to the Shares shall remain and belong to the Shareholders, and
Purchaser shall have no authority to exercise any power or authority to direct
the Shareholders in the voting of any of the Shares except as otherwise provided
herein.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE SHAREHOLDERS
Each of the Shareholders hereby represents and warrants,
severally and not jointly, to Purchaser as follows:
Section III.1 Authority Relative to This Agreement. Such
Shareholder has all necessary power and authority to execute and deliver this
Agreement, to perform its obligations hereunder and to consummate the
transactions contemplated hereby. Where such Shareholder is a corporation,
partnership or other entity, the execution and delivery of this Agreement by
such Shareholder and the consummation by such Shareholder of the transactions
contemplated hereby have been duly and validly authorized by the board of
directors or other governing body of such Shareholder, and no other proceedings
on the part of such Shareholder are necessary to authorize this Agreement or to
consummate such transactions and where such Shareholder is an individual, such
individual has the capacity to enter into this Agreement. This
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Agreement has been duly and validly executed and delivered by such Shareholder
and, assuming the due authorization, execution and delivery by the other parties
hereto, constitutes a legal, valid and binding obligation of such Shareholder,
enforceable against such Shareholder in accordance with its terms, except to the
extent enforceability may be limited by bankruptcy, insolvency, moratorium or
other similar laws affecting creditors' rights generally or by general
principles governing the availability of equitable remedies.
Section III.2 No Conflict. (a) The execution and delivery of
this Agreement by such Shareholder does not, and the performance of this
Agreement by such Shareholder shall not, (i) where such Shareholder is a
corporation, partnership or other entity, conflict with or violate the
organizational documents of such Shareholder, (ii) conflict with or violate any
agreement, arrangement, law, rule, regulation, order, judgment or decree to
which such Shareholder is a party or by which such Shareholder (or the Shares
held of record or Beneficially Owned by such Shareholder) is bound or affected
or (iii) result in any breach of or constitute a default (or an event that with
notice or lapse or time or both would become a default) under, or give to others
any rights of termination, amendment, acceleration or cancellation of, or result
in the creation of a lien or encumbrance on any of the Shares held of record or
Beneficially Owned by such Shareholder pursuant to any note, bond, mortgage,
indenture, contract, agreement, lease, license, permit, franchise or other
instrument or obligation to which such Shareholder is a party or by which such
Shareholder (or the Shares held of record or Beneficially Owned by such
Shareholder) is bound or affected, except, in the case of clauses (ii) and (iii)
of this Section 3.2, for any such conflicts, violations, breaches, defaults or
other occurrences which would not prevent the performance by such Shareholder of
its obligations under this Agreement.
(b) The execution and delivery of this Agreement
by such Shareholder does not, and the performance of this Agreement by such
Shareholder shall not, require any consent, approval, authorization or permit
of, or filing with or notification to, any Authority except for applicable
requirements, if any, of federal or state securities and antitrust laws and
except where the failure to obtain such consents, approvals, authorizations or
permits, or to make such filings or notifications, would not prevent the
performance by such Shareholder of its obligations under this Agreement.
Section III.3 Title to the Shares. As of the date hereof,
such Shareholder is the record or Beneficial Owner of the Shares listed opposite
the name of such Shareholder on such Shareholder's signature page hereto. The
Shares listed opposite the name of such Shareholder on such Shareholder's
signature page hereto are all the securities of the Company either held of
record or Beneficially Owned by such Shareholder. Such Shareholder has not
appointed or granted any proxy, which appointment or grant is still effective,
with respect to the Shares held of record or Beneficially Owned by such
Shareholder. The Shares listed opposite the name of such Shareholder on such
Shareholder's signature page hereto are owned free and clear of all security
interests, liens, claims, pledges, options, rights of first refusal, limitations
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on such Shareholder's voting rights, charges and other encumbrances of any
nature whatsoever other than Encumbrances under applicable Law.
ARTICLE IV
COVENANTS OF THE SHAREHOLDER
Section IV.1 No Inconsistent Agreements. Each Shareholder
hereby represents, warrants, covenants and agrees that, except as contemplated
by this Agreement and the Subscription Agreement, such Shareholder has not and
shall not, and will use its reasonable best efforts to not permit any Person
under such Shareholder's control (including any Record Holder) to, enter into
any voting agreement or grant a proxy or power of attorney with respect to the
Shares held of record or Beneficially Owned by such Shareholder which, in either
case, is inconsistent with this Agreement.
Section IV.2 Transfer of Title. Each Shareholder hereby
covenants and agrees that such Shareholder will not, prior to the termination of
this Agreement, either directly or indirectly, offer or otherwise agree to sell,
assign, pledge, hypothecate, transfer, exchange, or dispose of any Shares or
options, warrants or other convertible securities to acquire or purchase Company
Common Stock (collectively "Derivative Securities"), owned either directly or
indirectly by such Shareholder or with respect to which such Shareholder has the
power of disposition, whether now or hereafter acquired, without the prior
written consent of Purchaser (provided nothing contained herein will be deemed
to restrict the exercise or conversion of Derivative Securities outstanding on
the date hereof), unless the Person to whom Shares or Derivative Securities have
been sold, assigned, pledged, hypothecated, transferred, exchanged or disposed
agrees to be bound by this Agreement as if a party hereto. Each Shareholder
hereby agrees and consents to the entry of stop transfer instructions by the
Company against the transfer of any Shares inconsistent with the terms of this
Section 4.2.
ARTICLE V
MISCELLANEOUS
Section V.1 No Solicitation. From the date hereof until
the consummation of the Issuance or, if earlier, the payment of both the Put
Purchase Payment under the Certificate of Designations for the Series C
Preferred Stock, in the event the Purchaser exercises the Put Right thereunder,
and the Non-Completion Fee pursuant to Section 6.8 the Subscription Agreement,
the Shareholders (a) shall not have, or shall immediately terminate any
discussions with, any third party concerning a Material Transaction and (b)
shall not, and shall not permit any officer, director, employee, controlled
Affiliate, investment banker or other agent (in such agency
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capacity), of the Shareholder to, directly or indirectly, (i) solicit, engage in
discussions or negotiate with any Person (whether such discussions or
negotiations are initiated by the Shareholder or otherwise) or take any other
action intended or designed to facilitate the efforts of any Person, other than
Purchaser, relating to a Material Transaction, (ii) provide information with
respect to the Company or any of its subsidiaries to any Person, other than
Purchaser, relating to a possible Material Transaction by any person other than
Purchaser, (iii) enter into an agreement with any person, other than Purchaser,
providing for a possible Material Transaction, or (iv) make or authorize any
statement, recommendation or solicitation in support of any possible Material
Transaction by any Person, other than by Purchaser.
Section V.2 Further Assurances. Each Shareholder shall use
reasonable commercial efforts to assist the Company in fulfilling its
obligations pursuant to Section 6.6 of the Subscription Agreement.
Section V.3 Termination. This Agreement shall terminate
following the occurrence of the annual or special meeting of the stockholders of
the Company at which the Issuance is voted on by the stockholders. Upon such
termination, no party shall have any further obligations or liabilities
hereunder; provided, however, that nothing in this Agreement shall relieve any
party from liability for the breach of any of its representations, warranties,
covenants and agreements set forth in this Agreement prior to such termination.
Section V.4 Additional Shares. If, after the date hereof,
a Shareholder acquires the right to vote any additional shares of Company Common
Stock (any such shares shall be referred to herein as "Additional Shares"),
including, without limitation, upon exercise or conversion of any Derivative
Security or through any stock dividend or stock split, the provisions of this
Agreement applicable to the Shares shall be applicable to such Additional Shares
as if such Additional Shares had been outstanding Shares as of the date hereof.
The provisions of the immediately preceding sentence shall be effective with
respect to Additional Shares without action by any Person immediately upon the
acquisition by a Shareholder of record or Beneficial Ownership of such
Additional Shares.
Section V.5 Specific Performance. The parties hereto agree
that irreparable damage would occur in the event any provision of this Agreement
was not performed in accordance with the terms hereof and that the parties shall
be entitled to specific performance of the terms hereof, in addition to any
other remedy at law or in equity.
Section V.6 Entire Agreement. This Agreement constitutes
the entire agreement between Purchaser and the Shareholders with respect to the
subject matter hereof and supersedes all prior agreements and understandings,
both written and oral, between Purchaser and the Shareholders with respect to
the subject matter hereof.
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Section V.7 Amendment. This Agreement may not be amended
except by an instrument in writing signed by the parties hereto.
Section V.8 Severability. If any term or other provision
of this Agreement is invalid, illegal or incapable of being enforced by any rule
or law, or public policy, all other conditions and provisions of this Agreement
shall nevertheless remain in full force and effect so long as the economic or
legal substance of this Agreement is not affected in any manner materially
adverse to any party. Upon such determination that any term or other provision
is invalid, illegal or incapable of being enforced, the parties hereby shall
negotiate in good faith to modify this Agreement so as to effect the original
intent of the parties as closely as possible to the fullest extent permitted by
applicable law in a mutually acceptable manner in order that the terms of this
Agreement remain as originally contemplated.
Section V.9 Notices. Any notice, consent, waiver,
approval or other communication required or permitted to be given hereunder
shall be in writing and shall be given by prepaid first-class mail, by facsimile
or other means of electronic communication or by hand delivery as hereinafter
provided. Any such notice, consent, waiver, approval or other communication, if
mailed by prepaid first-class mail at any time other than during a general
discontinuance of postal service due to strike, lock-out or otherwise shall be
deemed to have been received on the fourth (4th) Business Day after the
post-marked date thereof, or if sent by facsimile or other means of electronic
communication, shall be deemed to have been received on the Business Day
following the sending, or if delivery by hand shall be deemed to have been
received at the time it is delivered to the applicable address noted below
either to the individual designated below or to an individual at such address
having apparent authority to accept deliveries on behalf of the addressee.
Notice of change of address shall also be governed by this section. In the event
of a general discontinuance of postal service due to strike, lockout or
otherwise, notices or other communications shall be delivered by hand or sent by
facsimile or other means of electronic communication and shall be deemed to have
been received in accordance with this section. Notices and other communications
shall be addressed as follows:
If to a Shareholder to the address set forth on such
Shareholder's signature page hereto.
If to Purchaser, to:
IPC Advisors S.A.R.L.
c/o Unsworth & Associates
Xxxxxxxxxx 000
0000 XX
Xxxxxxxxx
Xxxxxxxxx: Xxxx Unswroth
Fax: 000-00-00-000-0000
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with a copy to:
Central Park Lodges
000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx X. Xxxx
Fax: (000) 000-0000
with another copy to:
Xxxxxxx Xxxxxxxx & Xxxxxxxx
000 Xxxxx Xxxxxx
Xxxxx 0000
Xxxxxxx, Xxxxxxx X0X 0X0
Attention: Xxxxxxx Xxxxxx
Fax: (000) 000-0000
Section V.10 Governing Law. This Agreement shall be
governed by and construed in accordance with the laws of the State of Delaware
applicable to agreements made and to be performed entirely within such state.
Section V.11 Obligations of Shareholders. The obligations
of the Shareholders hereunder shall be "several" and not "joint" or "joint and
several." Without limiting the generality of the foregoing, under no
circumstances will any Shareholder have any liability or obligation with respect
to any misrepresentation or breach of covenant of any other Shareholder.
Section V.12 Counterparts. This Agreement may be executed
in one or more counterparts, each of which shall be an original and all of
which, when taken together, shall constitute one and the same instrument.
IN WITNESS WHEREOF, each of the Shareholders and Purchaser
have caused this Agreement to be duly executed on the date hereof.
IPC Advisors S.A.R.L.
By: ____________________________________
Name:
Title:
Xxxx X. Xxxxxxxxx
Number of Shares: 779,463
Address: Balanced Care Corporation
0000 Xxxxx Xxxxx
0
0
Xxxxxxxxxxxxx, Xxxxxxxxxxxx
00000
Xxxxx X. Xxxxxx
Number of Shares: 71,554
Address: Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx
00000
Xxxxxx Xxxxxx
Number of Shares: 433,838
Address: Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx
00000
Xxxxx Xxxxxx
Number of Shares: 64,054
Address: Balanced Care Corporation
0000 Xxxxx Xxxxx
Xxxxxxxxxxxxx, Xxxxxxxxxxxx
00000
Xxxx X. Xxxxxx, Xx.
Number of Shares: 767,412
Address: Xxxxxx Health Care Group
000 Xxxxx Xxxxxxxxx
Xxxxxxxxxxx, XX
00000-0000
Xxxx Xxxxxxx
Number of Shares: 1,049,051
Address: 00000 Xxxx Xxxx
Xxxxxxxxxxx, XX
00000
Xxxxxxx X. Croco (by Power of Attorney)
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Number of Shares: 41,554
Address: 0000 Xxxx Xxxxx
Xxxxx, Xxxxxxxx
00000
Xxxxxx Xxxxx (by Power of Attorney)
Xxxxx Xxxxx (by Power of Attorney)
Number of Shares: 36,353
Address: 000 Xxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxx
00000
Xxxxx Xxxxxx (by Power of Attorney)
Number of Shares: 306,100
Address: 0000 Xxxxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx
00000
Xxxxx Xxxxxxx (by Power of Attorney)
Number of Shares: 190,852
Address: 000 Xxxxxxx Xxxxx
Xxxxxxxxxx, Xxxxxxxxxxxx
00000
F. Xxxxx Xxxx (by Power of Attorney)
Number of Shares: 115,661
Address: 0000 Xxxxxxxx Xxxxxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxxxx
00000
Acknowledged:
BALANCED CARE CORPORATION
By: ____________________________
Name:
Title:
