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EXHIBIT 2.3
SHAREHOLDER VOTING AGREEMENT
This SHAREHOLDER VOTING AGREEMENT (the "Agreement") is entered into on
November __, 1998, by and among the undersigned shareholder ("Shareholder") of
American Retirement Corporation, a Tennessee corporation ("Pioneer"), and
Assisted Living Concepts, Inc., a Nevada corporation ("Trailblazer").
WITNESSETH:
WHEREAS, concurrently with the execution of this Agreement, Pioneer,
Pioneer Merger Corporation, a Tennessee corporation and a wholly-owned
subsidiary of Pioneer ("Merger Sub"), and Trailblazer are entering into an
Agreement and Plan of Merger of even date herewith (the "Merger Agreement")
(capitalized terms used but not defined herein shall have the same meaning
assigned to such terms in the Merger Agreement), pursuant to which Pioneer
proposes to combine with Trailblazer by means of a merger (the "Merger") of
Merger Sub with and into Trailblazer in which (a) each issued and outstanding
share of common stock, par value $.01 per share, of Merger Sub shall be
converted into one fully paid and nonassessable share of common stock of the
Surviving Corporation; (b) each issued and outstanding share of common stock,
par value $.01 per share, of Trailblazer (the "Trailblazer Common Stock"), other
than shares of Trailblazer Common Stock that are owned by Trailblazer as
treasury stock and shares of Trailblazer Common Stock, if any, that are owned by
Pioneer, shall automatically be converted into the right to receive 0.85 shares
(the "Exchange Ratio") of common stock, par value $.01 per share, of Pioneer
(the "Pioneer Common Stock"); and (c) each 6.0% Convertible Subordinated
Debenture due 2002 and each 5.625% Convertible Subordinated Debenture due 2003
of Trailblazer (collectively, the "Trailblazer Debentures"), each option to
purchase Trailblazer Common Stock, and each grant of Trailblazer Restricted
Stock outstanding as of the Effective Time shall be assumed by Pioneer as
provided in Section 5.7 of the Merger Agreement;
WHEREAS, Shareholder owns, as of the date hereof, the shares of Pioneer
Common Stock as set forth on Schedule A attached hereto (collectively, the
"Existing Shares," together with any shares of Pioneer Common Stock acquired
after the date hereof and prior to the termination hereof, hereinafter
collectively referred to as the "Shares"); and
WHEREAS, Trailblazer has entered into the Merger Agreement in reliance
on Shareholder's representations, warranties, covenants, and agreements
hereunder.
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
PROXY
1.1 PROXY. (a) With respect to the Merger Agreement or any Third Party
Transaction for which approval of the shareholders of Pioneer is sought, and any
transactions contemplated
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thereby, Shareholder hereby irrevocably makes, constitutes, and appoints
Trailblazer to act as Shareholder's true and lawful proxy and attorney-in-fact
in the name and on behalf of Shareholder, with full power to appoint a
substitute or substitutes, to vote the Shares in the name of and as proxy for
the undersigned. Shareholder further directs Trailblazer, and Trailblazer hereby
agrees, to vote all of the Shares that are entitled to vote at any meeting of
the shareholders of Pioneer (whether annual or special and whether or not an
adjourned meeting), or by written consent, in the place and stead of Shareholder
in favor of the Merger as set forth in the Merger Agreement and against any
Third Party Transaction. By giving this proxy, Shareholder hereby revokes any
other proxy relating to the Merger Agreement or any Third Party Proposal granted
by the Shareholder at any time with respect to the Shares and no subsequent
proxies will be given with respect thereto by Shareholder relating to the Merger
Agreement or any Third Party Transaction.
(b) All power and authority hereby conferred is coupled with an
interest and is irrevocable, shall not be terminated by any act of Shareholder
or by operation of law, by lack of appropriate power of authority, or by the
occurrence of any other event or events, and shall be binding upon all
beneficiaries, heirs at law, legatees, distributees, successors, assigns, and
legal representatives of Shareholder. If after the execution of this Agreement
Shareholder shall cease to have appropriate power or authority, or if any other
such event or events shall occur, Trailblazer is nevertheless authorized and
directed to vote the Shares in accordance with the terms of this Agreement as if
such lack of appropriate power or authority or other event or events had not
occurred and regardless of any notice thereof.
(c) Shareholder shall perform such further acts and execute such
further documents as may be required to vest in Trailblazer the sole power to
vote the Shares in accordance herewith during the term of the proxy granted
herein.
(d) The proxy granted herein shall expire on the date of termination of
this Agreement.
ARTICLE II
REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER
2.1 REPRESENTATIONS AND WARRANTIES OF SHAREHOLDER. Shareholder
represents and warrants to Trailblazer as follows:
(a) Ownership of Shares. On the date of this Agreement, the Existing
Shares are all of the Shares currently beneficially owned by Shareholder.
Shareholder does not have any rights to acquire any additional shares of Pioneer
Common Stock other than as set forth on Schedule A attached hereto. Other than
as set forth on Schedule B attached hereto, Shareholder currently has good,
valid, and marketable title to the Shares, free and clear of all liens,
encumbrances, restrictions, options, warrants, rights to purchase, and claims of
every kind (other than the encumbrances created by this Agreement and other than
restrictions on transfer under applicable federal and state securities laws).
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(b) Power; Binding Agreement. Shareholder has the full legal right,
power, and authority to enter into and perform all of Shareholder's obligations
under this Agreement. The execution and delivery of this Agreement by
Shareholder will not violate any other agreement to which Shareholder is a
party, including, without limitation, any voting agreement, shareholders
agreement, or voting trust. This Agreement has been duly executed and delivered
by Shareholder and constitutes a legal, valid, and binding agreement of
Shareholder, enforceable in accordance with its terms, except as the enforcement
thereof may be limited by bankruptcy, insolvency, reorganization, moratorium,
and similar laws, now or hereafter in effect affecting creditors' rights and
remedies generally or general principles of equity. Neither the execution or
delivery of this Agreement nor the consummation by Shareholder of the
transactions contemplated hereby will (i) require any consent or approval of or
filing with any person or entity or (ii) constitute a violation of, or conflict
with or constitute a default under, any contract, commitment, agreement,
understanding, arrangement, or other restriction of any kind to which
Shareholder is a party or by which Shareholder is bound.
ARTICLE III
REPRESENTATIONS AND WARRANTIES OF TRAILBLAZER
3.1 REPRESENTATIONS AND WARRANTIES OF TRAILBLAZER. Trailblazer
represents and warrants to Shareholder as follows:
(a) Power; Binding Agreement. Trailblazer has full legal right, power,
and authority to enter into and perform all of its obligations under this
Agreement. The execution and delivery of this Agreement by Trailblazer will not
violate any other agreement to which Trailblazer is a party. This Agreement has
been duly executed and delivered by Trailblazer and constitutes a legal, valid,
and binding agreement of Trailblazer, enforceable in accordance with its terms,
except as the enforcement thereof may be limited by bankruptcy, insolvency,
reorganization, moratorium, and similar laws, now or hereafter in effect,
affecting creditors' rights and remedies generally or general principles of
equity. Neither the execution of this Agreement nor the consummation by
Trailblazer of the transactions contemplated hereby will (i) require any consent
or approval of or filing with any person or entity or (ii) constitute a
violation of, or conflict with or constitute a default under, any contract,
commitment, agreement, understanding, arrangement, or other restriction of any
kind to which Trailblazer is a party or by which it is bound.
ARTICLE IV
TERMINATION
4.1 TERMINATION. This Agreement (other than the provisions of Section
6.8) shall terminate on the earlier of (i) the date on which Trailblazer and
Shareholder mutually consent in writing to terminate this Agreement; (ii) the
date of the Closing (as defined in the Merger Agreement); or (iii) the
termination of the Merger Agreement in accordance with the terms thereof.
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ARTICLE V
CERTAIN COVENANTS OF SHAREHOLDER
5.1 CERTAIN COVENANTS OF SHAREHOLDER.
(a) Except in accordance with the provisions of this Agreement,
Shareholder agrees, while this Agreement is in effect, not to, directly or
indirectly:
(i) Sell, transfer, pledge, encumber, assign, or otherwise dispose
of, or enter into any contract, option, or other arrangement or
understanding with respect to the sale, transfer, pledge, encumbrance,
assignment, or other disposition of, any of the Shares unless the
party to whom such Shares are (or are to be) sold, pledged, assigned,
or otherwise transferred shall have executed an acknowledgment and
ratification of the grant of proxy effected by this Agreement, in such
form and substance as are reasonably acceptable to Trailblazer; or
(ii) Grant any proxy, deposit any Shares into a voting trust, or
enter into a voting agreement with respect to any of the Shares.
(b) Shareholder agrees, while this Agreement is in effect, to notify
Trailblazer promptly of the number of any shares of Pioneer Common Stock
acquired by such Shareholder after the date hereof.
ARTICLE VI
MISCELLANEOUS
6.1 NOTICES. All notices or other communications required or permitted
hereunder shall be in writing (except as otherwise provided herein) and shall be
deemed duly given when received by delivery in person, by telecopy, telex, or
telegram or by certified mail, postage prepaid, or by an overnight courier
service, addressed to Shareholder at the address(es) set forth on the signature
page hereof and to Trailblazer at:
Assisted Living Concepts, Inc.
0000 XX Xxxxxxxxxx, Xxxxx 000
Xxxxxxxx, XX 00000
Attention: Xxxxxxx XxXxxxx III
Telecopier (000) 000-0000
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With copies to:
Xxxxxx & Xxxxxxx
000 X. Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, XX 00000
Attention: Xxxx Xxxxx
Telecopier: (000) 000-0000
6.2 ENTIRE AGREEMENT. This Agreement, together with the documents
expressly referred to herein, constitute the entire agreement among the parties
hereto with respect to the subject matter contained herein and supersede all
prior agreements and understandings among the parties with respect to such
subject matter.
6.3 ASSIGNS. This Agreement shall be binding upon and inure to the
benefit of the parties hereto and their respective successors, assigns, and
personal representatives, but neither this Agreement nor any of the rights,
interests, or obligations hereunder shall be assigned by any of the parties
hereto without the prior written consent of the other parties.
6.4 GOVERNING LAW. This Agreement, and all matters relating hereto,
shall be governed by, and construed in accordance with the laws of the State of
Tennessee applicable to contracts to be made and performed wholly within such
state without reference to the conflict of laws principles thereof.
6.5 COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which shall be deemed to be an original and all of which
together shall constitute one and the same document.
6.6 SEVERABILITY. Any term or provision of this Agreement that is
invalid or unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such invalidity or unenforceability without
rendering invalid or unenforceable the remaining terms and provisions of this
Agreement or affecting the validity or enforceability of any of the terms or
provisions of this Agreement in any other jurisdiction. If any provision of this
Agreement is so broad as to be unenforceable, such provision shall be
interpreted to be only so broad as is enforceable.
6.7 FURTHER ASSURANCES. Each party hereto shall execute and deliver
such additional documents as may be necessary or desirable to consummate the
transactions contemplated by this Agreement.
6.8 LEGAL EXPENSES. In the event any legal proceeding is commenced by
any party to this Agreement to enforce or recover damages for any breach of the
provisions hereof, the prevailing party in such legal proceeding shall be
entitled to recover in such legal proceeding from the losing party such
prevailing party's costs and expenses incurred in connection with such legal
proceedings, including reasonable attorney's fees.
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6.9 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified, and supplemented only by a written document executed by Trailblazer
and Shareholder.
6.10 SPECIFIC PERFORMANCE. The parties agree that in the event of a
breach of any provision of this Agreement, irreparable damage would occur, the
aggrieved party would be without an adequate remedy at law, and damages would be
difficult to determine. The parties therefore agree that in the event of a
breach of any provision of this Agreement, the aggrieved party may elect to
institute and prosecute proceedings in any court of competent jurisdiction to
enforce specific performance or to enjoin the continuing breach of such
provision. By seeking or obtaining such relief, the aggrieved party will not be
precluded from seeking or obtaining any other relief to which it may be entitled
at law or in equity.
[Signature Page Follows]
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IN WITNESS WHEREOF, Trailblazer has caused this Agreement to be
executed by its duly authorized officers and Shareholder has executed this
Agreement, each as of the date set forth above.
ASSISTED LIVING CONCEPTS, INC.
By:
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Name:
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Title:
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SHAREHOLDER
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Name:
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SCHEDULE A
1. Shares Owned Beneficially by Shareholder:
Name:
Record Holder: No. of Shares:
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Beneficial Holder:
(if different) ----------------------
2. Shareholder's Options to Purchase Shares:
Name of Option Holder: No. of Shares:
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SCHEDULE B
Please list below any liens, encumbrances, restrictions, options,
warrants, rights to purchase, and/or claims of any kind (other than the
encumbrances created by this Agreement and/or other restrictions on transfer
upon applicable federal and state securities laws (if there are none, please so
state).
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