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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of
the Securities Exchange Act of 1934
Date of Report (Date of earliest event reported): February 1, 1999
(January 31, 1999)
AMERICAN RETIREMENT CORPORATION
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(Exact Name of Registrant as Specified in Its Charter)
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Tennessee 01-13031 62-1674303
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(State or Other Jurisdiction of Incorporation) (Commission File Number) (I.R.S. Employer
Identification No.)
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111 Westwood Place, Suite 402, Brentwood, Tennessee 37027
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(Address of Principal Executive Offices) (Zip Code)
Registrant's telephone number, including area code: (615) 221-2250
Not Applicable
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(Former name or former address, if changed since last report.)
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Item 5. Other Events
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On February 1, 1999, American Retirement Corporation announced the
termination of the Agreement and Plan of Merger, dated November 18, 1998, among
American Retirement Corporation, Pioneer Merger Corporation, and Assisted Living
Concepts, Inc. In connection with the termination of the merger agreement, the
parties entered into a Termination and Release Agreement whereby they have
released each other from any claims relating to the proposed merger. The
Termination and Release Agreement is filed as Exhibit 2.1 to this report.
A copy of the press release issued by American Retirement Corporation
on February 1, 1999 is filed as Exhibit 99.1 to this report.
Item 7. Financial Statements and Exhibits
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(c) Exhibits
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2.1 Termination and Release Agreement, dated January 31, 1999,
among American Retirement Corporation, Pioneer Merger
Corporation, and Assisted Living Concepts, Inc.
99.1 Press release, dated February 1, 1999
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SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934,
the Registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
AMERICAN RETIREMENT CORPORATION
Date: February 1, 1999 By: /s/ W.E. Sheriff
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W.E. Sheriff
Chairman and Chief Executive Officer
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EXHIBIT INDEX
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No Exhibit
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2.1 Termination and Release Agreement, dated January 31,
1999, among American Retirement Corporation, Pioneer
Merger Corporation, and Assisted Living Concepts, Inc.
99.1 Press release, dated February 1, 1999
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Exhibit 2.1
TERMINATION AND RELEASE AGREEMENT
THIS TERMINATION AND RELEASE AGREEMENT (the "Agreement") is made and
entered into this 31st day of January, 1999, by and among American Retirement
Corporation, a Tennessee corporation ("ARC"), Pioneer Merger Corporation, a
Tennessee corporation and a wholly-owned subsidiary of ARC (the "Subsidiary"),
and Assisted Living Concepts, Inc., a Nevada corporation ("ALC").
WITNESSETH:
WHEREAS, ARC, the Subsidiary, and ALC entered into that certain
Agreement and Plan of Merger, dated as of November 18, 1998 (the "Merger
Agreement");
WHEREAS, in connection with the negotiations surrounding the Merger
Agreement, ARC and ALC entered in that certain Confidentiality Agreement, dated
October 19, 1998 (the "Confidentiality Agreement");
WHEREAS, the parties hereto wish to terminate the Merger Agreement and
certain related agreements and release their respective rights, claims,
obligations, and liabilities thereunder.
NOW, THEREFORE, in consideration of the covenants and agreements herein
set forth, the parties agree as follows:
1. TERMINATION OF AGREEMENTS. Effective immediately upon execution of
this Agreement: (i) ARC, the Subsidiary, and ALC agree to mutually terminate the
Merger Agreement pursuant to Section 7.1(a) thereof; (ii) ARC and ALC agree to
terminate the Cross Option Agreement, dated November 18, 1998, among ARC and
ALC; and (iii) ARC and ALC agree that all covenants, undertakings, restrictions,
and limitations contained in the Shareholder Voting Agreements between ARC and
certain shareholders of ALC and between ALC and certain shareholders of ARC are
terminated and waived and shall be of no further force or effect.
Notwithstanding the foregoing, nothing herein shall be deemed to affect the
provisions of the Merger Agreement that, pursuant to the terms of the Merger
Agreement, shall survive the termination of the Merger Agreement.
2. SURVIVAL OF CONFIDENTIALITY AGREEMENT. The Confidentiality Agreement
shall remain in full force and effect in accordance with its terms. In
accordance with Section 3 of the Confidentiality Agreement, ARC and ALC shall
each certify in writing to the other that all "Information" (as defined in the
Confidentiality Agreement) relating to the other consisting of memoranda, notes,
analyses, compilations, studies, or other documents prepared by the receiving
party for its use have been destroyed.
3. EXPENSES. Except as provided in this Agreement, all costs and
expenses incurred in connection with or relating to this Agreement, the Merger
Agreement, and the agreements and transactions contemplated hereby and thereby,
including, without limitation, the fees and disbursements of counsel, financial
advisers, and accountants, shall be paid by the party incurring such costs and
expenses; provided, that all printing expenses incurred by the parties prior to
the date hereof
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in connection with the Merger Agreement shall be divided equally between ARC and
ALC. Accordingly, all charges of Bowne & Co., Inc. in connection with the
preparation of the Joint Proxy Statement Prospectus and the preparation and
filing of the Current Reports on Form 8-K and the Schedule 13Gs filed by each of
ARC and ALC in connection with the proposed transaction shall be paid 50% by ARC
and 50% by ALC.
4. RELEASE AND WAIVER. (a) In consideration of the mutual covenants
herein, and upon execution of this Agreement, ARC hereby fully, finally, and
forever releases, relinquishes, and discharges all Released Claims (as
hereinafter defined) against ALC.
(b) In consideration of the mutual covenants herein, and upon execution
of this Agreement, ALC hereby fully, finally, and forever releases,
relinquishes, and discharges all Released Claims against ARC.
(c) As used in this Agreement, "Released Claims" shall mean all known
and unknown claims, counterclaims, demands, rights, liabilities, obligations,
and causes of action, of every nature and description whatsoever (in equity and
at law), including without limitation any of the foregoing that arise out of or
relate to the Merger Agreement and the transactions and agreements contemplated
thereby. Notwithstanding the foregoing, Released Claims shall not include any
known or unknown claims, counterclaims, demands, rights, liabilities,
obligations, and causes of action, of every nature and description whatsoever
(in equity and at law), arising under or related to the Confidentiality
Agreement or any provision of the Merger Agreement that survives the termination
thereof.
5. 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. ENTIRE AGREEMENT. This Agreement and the Confidentiality Agreement
constitute the entire agreement between the parties and supersede all prior
agreements and understandings, both written and oral, between the parties, or
any of them, with respect to the subject matter hereof.
7. AMENDMENT AND MODIFICATION. This Agreement may be amended, modified,
and supplemented only by a written document executed by the parties hereto.
8. AUTHORIZATION. Each party represents and warrants that the person
executing this Agreement in its behalf is duly authorized and fully competent to
execute this Agreement in its behalf. In entering into this Agreement, the
undersigned represent that they have read all the terms hereof, have discussed
the terms with counsel and that such terms are fully understood and voluntarily
accepted.
9. CONSTRUCTION. This Agreement shall be construed without regard to
the party or parties responsible for its preparation, and it shall be deemed to
have been prepared jointly by both
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parties. Any ambiguity or uncertainty arising herein shall not be interpreted or
construed against any party hereto.
10. 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.
11. 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.
12. ENFORCEMENT. 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.
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IN WITNESS WHEREOF, this Agreement has been duly executed and delivered
by the duly authorized officers of the parties hereto as of the date first
written above.
AMERICAN RETIREMENT CORPORATION
By: /s/ W.E. Sheriff
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Name: W.E. Sheriff
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Title: Chief Executive Officer
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PIONEER MERGER CORPORATION
By: /s/ W.E. Sheriff
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Name: W.E. Sheriff
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Title: Chief Executive Officer
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ASSISTED LIVING CONCEPTS, INC.
By: /s/ William McBride
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Name: William McBride
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Title: Chief Executive Officer
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Exhibit 99.1
FOR IMMEDIATE RELEASE:
AMERICAN RETIREMENT CORPORATION ANNOUNCES TERMINATION OF MERGER
AGREEMENT WITH ASSISTED LIVING CONCEPTS, INC.
NASHVILLE, TENNESSEE (February 1, 1999) - American Retirement Corporation (NYSE:
ACR) announced today that it has been advised by Assisted Living Concepts, Inc.
(AMEX: ALF) that Assisted Living Concepts intends to restate its financial
statements for the 1997 fiscal year and the first three quarters of the 1998
fiscal year. Consequently, American Retirement Corporation and Assisted Living
Concepts have determined that it is in their mutual interests to terminate their
merger agreement. In conjunction with the termination, American Retirement
Corporation and Assisted Living Concepts have entered into a Termination and
Release Agreement whereby they have released each other from any claims relating
to the proposed merger.
Bill Sheriff, Chairman and Chief Executive Officer of American Retirement
Corporation, said "We are disappointed that we were unable to consummate the
merger with Assisted Living Concepts. We believe, however, that, given Assisted
Living Concepts's recent announcement, termination of the merger agreement is in
the best interests of both companies and their respective shareholders. We wish
Assisted Living Concepts success in the future and look forward to pursuing
other opportunities to grow our company."
CONTACT INFORMATION:
Thomas C. Franco at (212) 232-2222
Joseph McDonnell at (212) 232-2222
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