1
EXHIBIT 2.3
SHAREHOLDER VOTING AGREEMENT
This SHAREHOLDER VOTING AGREEMENT (the "Agreement") is entered into on
November 18, 1998, by and among the undersigned shareholder ("Shareholder") of
Assisted Living Concepts, Inc., a Nevada corporation ("Trailblazer"), and
American Retirement Corporation, a Tennessee corporation ("Pioneer").
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
Trailblazer Common Stock as set forth on Schedule A attached hereto
(collectively, the "Existing Shares," together with any shares of Trailblazer
Common Stock acquired after the date hereof and prior to the termination hereof,
hereinafter collectively referred to as the "Shares"); and
WHEREAS, Pioneer 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 Trailblazer is sought, and
any transactions contemplated
2
thereby, Shareholder hereby irrevocably makes, constitutes, and appoints Pioneer
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 Pioneer, and Pioneer hereby agrees, to vote all of
the Shares that are entitled to vote at any meeting of the shareholders of
Trailblazer (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, Pioneer 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 Pioneer 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 Pioneer 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
Trailblazer 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).
2
3
(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 PIONEER
3.1 REPRESENTATIONS AND WARRANTIES OF PIONEER. Pioneer represents and
warrants to Shareholder as follows:
(a) Power; Binding Agreement. Pioneer 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 Pioneer will not violate any
other agreement to which Pioneer is a party. This Agreement has been duly
executed and delivered by Pioneer and constitutes a legal, valid, and binding
agreement of Pioneer, 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 Pioneer 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 Pioneer 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 Pioneer 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.
3
4
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 Pioneer; 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
Pioneer promptly of the number of any shares of Trailblazer 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 Pioneer at:
American Retirement Corporation
▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: W.E. Sheriff
Telecopier (▇▇▇) ▇▇▇-▇▇▇▇
4
5
With copies to:
Bass, ▇▇▇▇▇ & ▇▇▇▇ PLC
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
Attention: T. ▇▇▇▇▇▇ ▇▇▇▇▇
Telecopier: (▇▇▇) ▇▇▇-▇▇▇▇
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.
5
6
6.9 AMENDMENT AND MODIFICATION. This Agreement may be amended,
modified, and supplemented only by a written document executed by Pioneer 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]
6
7
IN WITNESS WHEREOF, Pioneer 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.
AMERICAN RETIREMENT CORPORATION
By:
--------------------------------------
Name:
------------------------------------
Title:
-----------------------------------
SHAREHOLDER
-----------------------------------------
Name:
------------------------------------
7
8
SCHEDULE A
1. Shares Owned Beneficially by Shareholder:
Name:
Record Holder: No. of Shares:
--------------------- --------------
Beneficial Holder:
(if different) ----------------
2. Shareholder's Options to Purchase Shares:
Name of Option Holder: No. of Shares:
------------- --------------
8
9
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).
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
--------------------------------------------------------------------------------
9