EXHIBIT 99.3
SUPPORT AGREEMENT
EXECUTION COPY
SUPPORT AGREEMENT dated as of April 19, 1998, between KAPSON
SENIOR QUARTERS CORP., a Delaware corporation ("Parent"), KA
ACQUISITION CORP., a Delaware corporation ("Sub"), and the
individuals and other parties listed on Schedule A hereto (each,
a "Stockholder" and, collectively, the "Stockholders").
WHEREAS, Parent, Sub and Atria Communities, Inc., a Delaware
corporation (the "Company"), propose to enter into an Agreement and Plan of
Merger dated as of the date hereof (as the same may be amended or supplemented,
the "Merger Agreement"; capitalized terms used but not defined herein shall have
the meanings set forth in the Merger Agreement) providing for the merger of Sub
with and into the Company; and
WHEREAS each Stockholder owns the number of shares of Common Stock set
forth opposite his, her or its name on Schedule A hereto (such shares of Common
Stock, together with any other shares of capital stock of the Company acquired
by such Stockholder after the date hereof and during the term of this Agreement,
being collectively referred to herein as the "Subject Shares" of such
Stockholder); and
WHEREAS, as a condition to its willingness to enter into the Merger
Agreement, Parent has requested that each Stockholder enter into this Agreement.
NOW, THEREFORE, the parties hereto agree as follows:
SECTION 1. Representations and Warranties of each Stockholder. Each
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Stockholder hereby, severally and not jointly, represents and warrants to Parent
and Sub as of the date hereof in respect of himself, herself or itself as
follows:
(a) Authority; Execution and Delivery; Enforceability. The
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Stockholder has all requisite power and authority to execute this Agreement and
to consummate the transactions contemplated hereby. The Stockholder has duly
executed and delivered this Agreement, and this Agreement constitutes the legal,
valid and binding obligation of the Stockholder, enforceable against the
Stockholder in accordance with its terms (subject to applicable bankruptcy,
insolvency, reorganization, moratorium, fraudulent transfer and other similar
laws affecting creditors' rights generally from time to time in effect and to
general principles of equity, including, without limitation, concepts of
materiality, reasonableness, good faith and fair dealing, regardless of whether
considered in a proceeding in equity or at law). The execution and delivery of
this Agreement does not, and the consummation of the transactions contemplated
hereby and compliance with the provisions of this Agreement will not, conflict
with, or result in any violation of, or default (with or without notice or lapse
of time, or both) under, or give rise to a right of
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termination, cancelation or acceleration of any obligation or to loss of a
material benefit under, or result in the creation of any Lien upon any of the
properties or assets of the Stockholder or any of its subsidiaries under, (i)
any loan or credit agreement, note, bond, mortgage, indenture, lease or other
agreement, instrument, permit, concession, franchise or license applicable to
the Stockholder or any of its subsidiaries or their respective properties or
assets or (ii) subject to the governmental filings and other matters referred to
in the following sentence, any judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to the Stockholder or any of its subsidiaries or
their respective properties or assets, other than, in the case of clauses (ii)
and (iii), any such conflicts, violations, defaults, rights, losses or Liens
that individually or in the aggregate would not (x) have a Material Adverse
Effect on the Stockholder, (y) impair the ability of the Stockholder to perform
their respective obligations under this Agreement or (z) prevent the
consummation of any of the Transactions. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to the Stockholder or any of its
subsidiaries in connection with the execution and delivery of this Agreement by
the Stockholder or the consummation by the Stockholder of transactions
contemplated hereby, except for the filing with the SEC of such reports under
Section 13(d) and 16(a) of the Exchange Act as may be required in connection
with the Agreement and the transactions contemplated hereby. If the Stockholder
is married and the Subject Shares of the Stockholder constitute community
property or otherwise need spousal or other approval to be legal, valid and
binding, this Agreement has been duly authorized, executed and delivered by, and
constitutes a valid and binding agreement of, the Stockholder's spouse,
enforceable against such spouse in accordance with its terms. No trust of which
the Stockholder is a trustee requires the consent of any beneficiary to the
execution and delivery of this Agreement or to the consummation of the
transactions contemplated hereby. The Stockholder will execute a power of
attorney in favor of at least two other Stockholders with respect to the matters
covered by Sections 3(a) and 3(b) in the event of incapacity of the Stockholder.
(b) The Subject Shares. The Stockholder is the record and beneficial
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owner of, or is the trustee of a trust that is the record holder of, and whose
beneficiaries are the beneficial owners of, and has good and marketable title
to, the Subject Shares set forth opposite his, her or its name on Schedule A
attached hereto, free and clear of any Liens. The Stockholder does not own, of
record or beneficially, any shares of capital stock of the Company other than
the Subject Shares set forth opposite his or its name on Schedule A attached
hereto. The Stockholder has the sole right to vote such Subject Shares, and
none of such Subject Shares is subject to any voting trust or other agreement,
arrangement or restriction with respect to the voting of such Subject Shares,
except as contemplated by this Agreement.
SECTION 2. Representations and Warranties of Parent. Parent and Sub
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hereby represent and warrant to each Stockholder as follows: Parent and Sub
have all requisite corporate power and authority to enter into this Agreement
and to consummate
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the Transactions. The execution and delivery of this Agreement and the
consummation of the Transactions have been duly authorized by all necessary
corporate action on the part of Parent and Sub. This Agreement has been duly
executed and delivered by Parent and Sub and constitutes a valid and binding
obligation of such party, enforceable against such party in accordance with its
terms (subject to applicable bankruptcy, insolvency, reorganization, moratorium,
fraudulent transfer and other similar laws affecting creditors' rights generally
from time to time in effect and to general principles of equity, including,
without limitation, concepts of materiality, reasonableness, good faith and fair
dealing, regardless of whether considered in a proceeding in equity or at law).
The execution and delivery of the Operative Agreements do not, and the
consummation of the Transactions and compliance with the provisions of the
Operative Agreements will not, conflict with, or result in any violation of, or
default (with or without notice or lapse of time, or both) under, or give rise
to a right of termination, cancelation or acceleration of any obligation or to
loss of a material benefit under, or result in the creation of any Lien upon any
of the properties or assets of Parent or Sub under, (i) the certificate of
incorporation or by-laws (or other comparable organizational documents) of
Parent or Sub, (ii) any loan or credit agreement, note, bond, mortgage,
indenture, lease or other agreement, instrument, permit, concession, franchise
or license applicable to Parent or Sub or their respective properties or assets
or (iii) subject to the governmental filings and other matters referred to in
the following sentence, any judgment, order, decree, statute, law, ordinance,
rule or regulation applicable to Parent or Sub, other than, in the case of
clauses (ii) and (iii), any such conflicts, violations, defaults, rights, losses
or Liens that individually or in the aggregate would not (x) have a Material
Adverse Effect on Parent, (y) impair the ability of Parent and Sub to perform
their respective obligations under this Agreement or (z) prevent the
consummation of any of the Transactions. No consent, approval, order or
authorization of, or registration, declaration or filing with, any Governmental
Entity is required by or with respect to Parent or Sub in connection with the
execution and delivery of this Agreement or the consummation by Parent or Sub,
as the case may be, of any of the Transactions, except for (i) the filing with
the SEC of the Proxy Materials and such reports under Sections 13 and 16(a) of
the Exchange Act as may be required in connection with the Operative Agreement
and the Transactions, (ii) the filing of the Certificate of Merger with the
Delaware Secretary of State and appropriate documents with the relevant
authorities of other states in which the Company is qualified to do business,
(iii) such filings as may be required in connection with the taxes described in
Section 6.10 of the Merger Agreement and (iv) such other consents, approvals,
orders, authorizations, registrations, declarations and filings as may be
required under the "takeover" or "blue sky" laws of various states.
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SECTION 3. Covenants of each Stockholder. Subject to Section 5
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hereof, each Stockholder, severally and not jointly, covenants and agrees as
follows:
(a) The Stockholder hereby permits the Company, Parent and Sub to
publish and disclose in the Proxy Materials (including all documents and
schedules filed with the SEC) its identity and ownership of the Subject Shares
and the nature of its commitments, arrangements and understandings under this
Agreement.
(b) (1) At any meeting of the stockholders of the Company called to
seek the approval of the Merger Agreement and the Merger (the "Company
Stockholder Approval") or in any other circumstances upon which a vote, consent
or other approval with respect to the Merger Agreement, any other Operative
Agreement, the Merger or any other Transaction is sought, the Stockholder shall
vote (or cause to be voted) the Subject Shares of the Stockholder in favor of
granting the Company Stockholder Approval.
(2) The Stockholder hereby irrevocably grants to, and appoints,
Parent Xxxxxx X. Xxxxxxx and Xxxxx X. Xxxxx, or any of them, and any individual
designated in writing by any of them, and each of them individually, as the
Stockholder's proxy and attorney-in-fact (with full power of substitution), for
and in the name, place and stead of the Stockholder, to vote the Subject Shares
of the Stockholder, or grant a consent or approval in respect of the Subject
Shares of the Stockholder in a manner consistent with this Section 3. The
Stockholder understands and acknowledges that Parent is entering into the Merger
Agreement in reliance upon the Stockholder's execution and delivery of this
Agreement. The Stockholder hereby affirms that the irrevocable proxy set forth
in this Section 3(b) is given in connection with the execution of the Merger
Agreement, and that such irrevocable proxy is given to secure the performance of
the duties of the Stockholder under this Agreement. The Stockholder hereby
further affirms that the irrevocable proxy is coupled with an interest and may
under no circumstances be revoked, except as provided herein. The Stockholder
hereby ratifies and confirms all that such irrevocable proxy may lawfully do or
cause to be done by virtue hereof. Such irrevocable proxy is executed and
intended to be irrevocable in accordance with the provisions of Section 212(e)
of the DGCL. The irrevocable proxy granted hereunder shall automatically
terminate upon the termination of Sections 3(b) and 3(c).
(c) At any meeting of stockholders of the Company or at any
adjournment thereof or in any other circumstances upon which the Stockholder's
vote, consent or other approval is sought, the Stockholder shall vote (or cause
to be voted) the Subject Shares against (i) any merger agreement or merger
(other than the Merger Agreement and the Merger), consolidation, combination,
sale of substantial assets, reorganization, recapitalization, dissolution,
liquidation or winding up of or by Company, (ii) any takeover proposal (as
defined in the Merger Agreement) and (iii) any amendment of the certificate of
incorporation or by-laws of the Company or other proposal or transaction
involving the Company or any of its subsidiaries, which amendment or other
proposal or transaction
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would in any manner impede, frustrate, prevent or nullify any provision of any
Operative Agreement, the Merger or any other Transaction or change in any manner
the voting rights of any class of capital stock of the Company. The Stockholder
shall not commit or agree to take any action inconsistent with the foregoing.
(d) Other than this Agreement, the Stockholder shall not (i) sell,
transfer, pledge, assign or otherwise dispose of (including by gift)
(collectively, "Transfer"), or enter into any Contract, option or other
arrangement (including any profit sharing arrangement) with respect to the
Transfer of, any Subject Shares to any person other than pursuant to the Merger
or (ii) enter into any voting arrangement, whether by proxy, voting agreement or
otherwise, with respect to any Subject Shares and shall not commit or agree to
take any of the foregoing actions.
(e) The Stockholder shall not, nor shall it authorize or permit any
employee of, or any investment banker, attorney or other adviser or
representative of, the Stockholder to, (i) directly or indirectly solicit,
initiate or encourage the submission of, any takeover proposal, (ii) enter into
any agreement with respect to any takeover proposal or (iii) directly or
indirectly participate in any discussions or negotiations regarding, or furnish
to any person any information with respect to, or take any other action to
facilitate any inquiries or the making of any proposal that constitutes, or may
reasonably be expected to lead to, any takeover proposal. The Stockholder
promptly shall advise Parent orally and in writing of any takeover proposal or
inquiry made to the Stockholder with respect to or that could reasonably be
expected to lead to any takeover proposal and the material terms of any such
takeover proposal or inquiry.
(f) The Stockholder shall 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 consummate and make effective, in the most expeditious manner
practicable, the Merger and the other Transactions.
(g) The Stockholder hereby consents to and approves the actions taken
by the Board of Directors of the Company in approving the Merger Agreement, the
Merger and the other Transactions. The Stockholder hereby waives, and agrees
not to exercise or assent, any appraisal rights under Section 262 in connection
with the Merger.
SECTION 4. [Intentionally Omitted]
SECTION 5. Termination. This Agreement shall terminate upon the
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earliest of (i) the Effective Time, (ii) the termination of the Merger
Agreement in accordance with its terms and (iii) the Outside Date, other than
with respect to the liability of any party for breach hereof prior to such
termination.
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SECTION 6. Additional Matters. (a) Each Stockholder shall, from
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time to time, execute and deliver, or cause to be executed and delivered, such
additional or further consents, documents and other instruments as Parent may
reasonably request for the purpose of effectively carrying out the transactions
contemplated hereby.
(b) Concurrently with the Closing of the Merger, each of J. Xxxxxxx
Xxxxxx, Xxxx X. Xxxxxxx, W. Xxxxxxx Xxxxxx, XX, and Parent shall enter into the
Shareholders and Registration Rights Agreement, in the form attached as Exhibit
A hereto.
(c) No Stockholder shall be deemed to make any agreement or
understanding herein in his or her capacity as a director or officer of the
Company. Each Stockholder signs solely in his, her or its capacity as the
record holder and beneficial owner of, or the trustee of a trust whose
beneficiaries are the beneficial owners of, such Stockholder's Subject Shares
and nothing herein shall limit or affect any actions taken by any Stockholder in
his capacity as an officer or director of the Company (to the extent not
specifically prohibited by the Merger Agreement).
SECTION 7. General Provisions.
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(a) Amendments. This Agreement may not be amended except by an
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instrument in writing signed by each of the parties hereto and consented to by
the Company.
(b) Notice. All notices and other communications hereunder shall be
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in writing and shall be deemed given if delivered personally or sent by
overnight courier (providing proof of delivery) to Parent in accordance with
Section 9.02 of the Merger Agreement and to the Stockholders at their respective
addresses set forth on Schedule A hereto (or at such other address for a party
as shall be specified by like notice).
(c) Interpretation. When a reference is made in this Agreement to
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Sections, such reference shall be to a Section to this Agreement unless
otherwise indicated. The headings contained in this Agreement are for reference
purposes only and shall not affect in any way the meaning or interpretation of
this Agreement. Wherever the words "include", "includes" or "including" are
used in this Agreement, they shall be deemed to be followed by the words
"without limitation".
(d) Severability. If any term or other provision of this Agreement
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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
the transactions contemplated hereby 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
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parties hereto shall negotiate in good faith to modify this Agreement so as to
effect the original intent of the parties as closely as possible in an
acceptable manner to the end that transactions contemplated hereby are fulfilled
to the extent possible.
(e) Counterparts. This Agreement may be executed in one or more
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counterparts, all of which shall be considered one and the same agreement. This
Agreement shall become effective against Parent when one or more counterparts
have been signed by Parent and delivered to each Stockholder. This Agreement
shall become effective against any Stockholder when one or more counterparts
have been executed by such Stockholder and delivered to Parent. Each party
need not sign the same counterpart.
(f) Entire Agreement; No Third-Party Beneficiaries. This Agreement
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(i) constitutes the entire agreement and supersedes all prior agreements and
understandings, both written and oral, among the parties with respect to the
subject matter hereof and (ii) is not intended to confer upon any person other
than the parties hereto (and, with respect to Section 7(a) and (h) only, the
Company) any rights or remedies hereunder.
(g) Governing Law. This Agreement shall be governed by, and
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construed in accordance with, the laws of the State of Delaware regardless of
the laws that might otherwise govern under applicable principles of conflicts of
law thereof.
(h) Assignment. Neither this Agreement nor any of the rights,
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interests or obligations under this Agreement shall be assigned, in whole or in
part, by operation of law or otherwise, (i) by Parent or Sub without the prior
written consent of the Stockholder and the Company (except that Parent or Sub
may assign, in its sole discretion, its rights and obligations hereunder to any
affiliate of Parent, but no such assignment shall relieve Parent or Sub of its
obligations hereunder without the consent of the Stockholder and the Company) or
(ii) by any Stockholder without the prior written consent of Parent and the
Company, and any purported assignment without such consent shall be void.
Subject to the preceding sentences, this Agreement will be binding upon, inure
to the benefit of, and be enforceable by, the parties and their respective
successors and permitted assigns.
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(i) Enforcement. The parties agree that irreparable damage would
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occur in the event that any of the provisions of this Agreement were not
performed in accordance with their specific terms or were otherwise breached.
It is accordingly agreed that the parties shall be entitled to an injunction or
injunctions to prevent breaches of this Agreement and to enforce specifically
the terms and provisions of this Agreement in any New York state court, any
Federal court located in the State of New York or the State of Delaware or in
any Delaware state court, this being in addition to any other remedy to which
they are entitled at law or in equity. In addition, each of the parties hereto
(i) consents to submit itself to the personal jurisdiction of any New York state
court, any Federal court located in the State of New York or the State of
Delaware or any Delaware state court in the event any dispute arises out of this
Agreement or any Transaction, (ii) agrees that it will not attempt to deny or
defeat such personal jurisdiction by motion or other request for leave from any
such court, (iii) agrees that it will not bring any action relating to this
Agreement or any Transaction in any court other than a New York state court, any
Federal court sitting in the State of New York or the State of Delaware or any
Delaware state court and (iv) waives any right to trial by jury with respect to
any claim or proceeding related to or arising out of this Agreement or any
transaction contemplated hereby.
IN WITNESS WHEREOF, each party has duly executed this Agreement, all
as of the date first written above.
KAPSON SENIOR QUARTERS CORP.,
by /s/ Xxxx X. Xxxxxx
___________________________________
Name: Xxxx X. Xxxxxx
Title: President
KA ACQUISITION CORP.,
by /s/ Xxxx X. Xxxxxx
__________________________________
Name: Xxxx X. Xxxxxx
Title: President
Signature Page to Support Agreement dated as of April 19, 1998
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STOCKHOLDERS:
/s/ Xxxxxx Xxxxxx Xxxxxx
______________________________________
Xxxxxx Xxxxxx Austin
/s/ Xxxxxxx X. Xxxxxxx Xx.
______________________________________
Xxxxxxx X. Xxxxxxx Xx.
/s/ Xxxxx X. Xxxx
______________________________________
Xxxxx X. Xxxx
/s/ Xxxxxx X. Xxxx
______________________________________
Xxxxxx X. Xxxx
/s/ W. Xxxxx Xxxxxxxx
______________________________________
W. Xxxxx Xxxxxxxx
/s/ W. Xxxxxxx Xxxxxx, XX
______________________________________
W. Xxxxxxx Xxxxxx, XX
/s/ Xxxx X. Xxxxxxx
______________________________________
Xxxx X. Xxxxxxx
/s/ R. Xxxx Xxxxx
______________________________________
R. Xxxx Xxxxx
/s/ J. Xxxxxxx Xxxxxx
______________________________________
J. Xxxxxxx Xxxxxx
SCHEDULE A
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Number of Shares of
Name and Address of Stockholder Common Stock Owned
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Xxxxxx Xxxxxx Xxxxxx 5,000
*
Xxxxxxx X. Xxxxxxx Xx. 20,500(1)
*
Xxxxx X. Xxxx 5,000
*
Xxxxxx X. Xxxx 15,035(2)
*
W. Xxxxx Xxxxxxxx 70,000(3)
*
W. Xxxxxxx Xxxxxx, XX 34,805(4)
*
Xxxx X. Xxxxxxx 636,487
*
R. Xxxx Xxxxx 65,000
*
J. Xxxxxxx Xxxxxx 6,500
*
* c/o Atria Communities, Inc.
000 Xxxx Xxxxxx Xxxxxx
Xxxxx 0000
Xxxxxxxxxx, XX 00000
(1) Includes 11,000 shares held as a custodian.
(2) Includes 35 shares held as a custodian, but excludes 2,000 shares held by a
partnership in which he is a general partner and 6,000 shares held by an
estate of which he is the executor.
(3) Includes 10,000 shares held as a custodian.
(4) Includes 380 shares held as a custodian.
