<PAGE>
AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON OCTOBER 2, 1997
REGISTRATION NO. 333-35409
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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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AMENDMENT NO. 1
TO
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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ASSISTED LIVING CONCEPTS, INC.
(EXACT NAME OF REGISTRANT AS SPECIFIED IN ITS CHARTER)
<TABLE>
<CAPTION>
NEVADA 93-1148702
<S> <C>
(STATE OR OTHER JURISDICTION (IRS EMPLOYER
<CAPTION>
OF INCORPORATION OR ORGANIZATION) IDENTIFICATION NUMBER)
</TABLE>
9955 S.E. WASHINGTON, SUITE 201, PORTLAND, OREGON 97216
(503) 252-6233
(ADDRESS, INCLUDING ZIP CODE, AND TELEPHONE NUMBER, INCLUDING AREA CODE, OF
REGISTRANT'S PRINCIPAL EXECUTIVE OFFICES)
STEPHEN GORDON
CHIEF FINANCIAL OFFICER
9955 S.E. WASHINGTON, SUITE 201, PORTLAND, OREGON 97216
(503) 252-6233
(NAME, ADDRESS, INCLUDING ZIP CODE, TELEPHONE NUMBER, INCLUDING AREA CODE, OF
AGENT FOR SERVICE)
COPIES TO:
GARY OLSON, ESQ.
LATHAM & WATKINS
633 WEST FIFTH STREET--SUITE 4000, LOS ANGELES, CALIFORNIA 90071
(213) 485-1234
APPROXIMATE DATE OF COMMENCEMENT OF PROPOSED SALE TO THE PUBLIC: From time
to time after this Registration Statement becomes effective, depending on
market conditions.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box. [_]
If any of the securities being registered on this form are to be offered on
a delayed or continuous basis pursuant to Rule 415 under the Securities Act of
1933, other than securities offered only in connection with dividend or
interest reinvestment plans, check the following box. [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [_]
If this form is a post-effective amendment filed pursuant to Rule 462(c)
under the Securities Act, check the following box and list the Securities Act
registration statement number of the earlier effective registration statement
for the same offering. [_]
If delivery of the prospectus is expected to be made pursuant to Rule 434,
please check the following box. [_]
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THE REGISTRANT HEREBY AMENDS THIS REGISTRATION STATEMENT ON SUCH DATE OR
DATES AS MAY BE NECESSARY TO DELAY ITS EFFECTIVE DATE UNTIL THE REGISTRANT
SHALL FILE A FURTHER AMENDMENT WHICH SPECIFICALLY STATES THAT THIS
REGISTRATION STATEMENT SHALL THEREAFTER BECOME EFFECTIVE IN ACCORDANCE WITH
SECTION 8(A) OF THE SECURITIES ACT OF 1933 OR UNTIL THE REGISTRATION STATEMENT
SHALL BECOME EFFECTIVE ON SUCH DATE AS THE SECURITIES AND EXCHANGE COMMISSION,
ACTING PURSUANT TO SAID SECTION 8(A), MAY DETERMINE.
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<PAGE>
PROSPECTUS
SECURITIES
ASSISTED LIVING CONCEPTS, INC.
Assisted Living Concepts, Inc., a Nevada Corporation (the "Company"), may
offer from time to time, in one or more series, its debt securities (the "Debt
Securities"), shares of its preferred stock, $.01 par value per share (the
"Preferred Stock"), and shares of its common stock, $.01 par value per share
(the "Common Stock"). The Debt Securities, Preferred Stock and Common Stock
are collectively referred to herein as the "Securities." The Securities will
have an aggregate offering price of up to $150,000,000 and will be offered on
terms to be determined at the time of the offering.
In the case of Debt Securities, the specific title, the aggregate principal
amount, the ranking, the purchase price, the maturity, the rate and time of
payment of any interest, any redemption or sinking fund provisions, any
conversion provisions and any other specific term of the Debt Securities will
be set forth in an accompanying supplement to this Prospectus (the "Prospectus
Supplement"). In the case of Preferred Stock, the specific number of shares,
designation, stated value per share, liquidation preference per share,
issuance price, dividend rate (or method of calculation), dividend payment
dates, any redemption or sinking fund provisions, any conversion rights and
other specific terms of the series of Preferred Stock will be set forth in an
accompanying Prospectus Supplement. In the case of Common Stock, the specific
number of shares and issuance price per share will be set forth in an
accompanying Prospectus Supplement. The Prospectus Supplement will also
disclose whether the Securities will be listed on a national securities
exchange and, if they are not to be listed, the possible effects thereof on
their marketability.
The Securities may be sold: (i) directly by the Company; (ii) through
underwriting syndicates represented by one or more managing underwriters, or
through one or more underwriters without a syndicate; and (iii) through agents
designated from time to time. The names of any underwriters or agents of the
Company involved in the sale of the Securities in respect of which this
Prospectus is being delivered and any applicable commissions or discounts will
be set forth in an accompanying Prospectus Supplement. See "Plan of
Distribution." The net proceeds to the Company from such sale will be set
forth in the Prospectus Supplement.
The Company's Common Stock is traded on the American Stock Exchange (the
"AMEX") under the symbol "ALF." On October 1, 1997, the closing sale price of
the Common Stock on the AMEX was $15.75 per share.
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND
EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION
PASSED UPON THE ACCURACY OR ADEQUACY OF THIS PROSPECTUS. ANY
REPRESENTATION TO THE CONTRARY IS A CRIMINAL OFFENSE.
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THIS PROSPECTUS MAY NOT BE USED TO CONSUMMATE SALES OF SECURITIES UNLESS
ACCOMPANIED BY A PROSPECTUS SUPPLEMENT.
The date of this Prospectus is October 2, 1997.
<PAGE>
AVAILABLE INFORMATION
The Company is subject to the informational reporting requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and, in
accordance therewith, files reports, proxy statements and other information
with the Securities and Exchange Commission (the "Commission"). Such reports,
proxy statements and other information filed by the Company may be inspected
and copied at the public reference facilities of the Commission located at
Judiciary Plaza, 450 Fifth Street, N.W., Washington, D.C. 20549, at the New
York Regional Office of the Commission, Seven World Trade Center, Suite 1300,
New York, New York 10048, and at the Chicago Regional Office of the
Commission, Citicorp Center, 500 West Madison Street, Suite 1400, Chicago,
Illinois 60661. Copies of such material can also be obtained at prescribed
rates from the Public Reference Section of the Commission at 450 Fifth Street,
N.W., Washington, D.C. 20549. Such reports and other information may also be
inspected at the offices of the American Stock Exchange, 86 Trinity Place, New
York, New York 10006. The Commission also maintains a World Wide Web Site that
contains reports, proxy and information statements and other information
regarding registrants, including the Company, that file electronically with
the Commission, at http://www.sec.gov.
The Company has filed with the Commission a Registration Statement on Form
S-3 (the "Registration Statement") under the Securities Act of 1933, as
amended (the "Securities Act"), with respect to the Securities offered hereby.
The Prospectus and any accompanying Prospectus Supplement do not contain all
of the information included in the Registration Statement, certain parts of
which are omitted in accordance with the rules and regulations of the
Commission. For further information with respect to the Company and the
Securities, reference is hereby made to the Registration Statement including
the exhibits and schedules thereto. Statements contained in this Prospectus
and any accompanying Prospectus Supplement concerning the provisions or
contents of any contract, agreement or any other document referred to herein
are not necessarily complete. With respect to each such contract, agreement or
document filed as an exhibit to the Registration Statement, reference is made
to such exhibit for a more complete description of the matters involved, and
each such statement shall be deemed qualified in its entirety by such
reference to the copy of the applicable document filed with the Commission.
The Registration Statement including the exhibits and schedules thereto, may
be inspected without charge at the Commission's principal office at 450 Fifth
Street, N.W., Washington, D.C. and copies of it or any part thereof may be
obtained from such office, upon payment of the fees prescribed by the
Commission.
INCORPORATION OF CERTAIN DOCUMENTS BY REFERENCE
The following documents, which have been filed by the Company with the
Commission, are incorporated herein by reference: (i) the Company's Annual
Report on Form 10-K for the fiscal year ended December 31, 1996, (ii) the
Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 1997,
(iii) the Company's Quarterly Report on Form 10-Q for the quarter ended June
30, 1997, (iv) the Company's Current Report on Form 8-K dated July 24, 1997,
(v) the Company's Current Report on Form 8-K dated October 2, 1997 and (vi)
the description of the Company's Capital Stock contained in the Company's
Registration Statement on Form 8-A dated November 17, 1994. In addition, each
document filed by the Company pursuant to Sections 13(a), 13(c), 14 or 15(d)
of the Exchange Act subsequent to the date of this Prospectus and prior to
termination of the offering of Securities offered hereby shall be deemed to be
incorporated by reference into this Prospectus and to be a part hereof from
the date such document is filed with the Commission.
Any statement contained herein, or any document, all or a portion of which
is incorporated or deemed to be incorporated by reference herein, shall be
deemed to be modified or superseded for purposes of the Registration Statement
and this Prospectus to the extent that a statement contained herein, or in any
subsequently filed document that also is or is deemed to be incorporated by
reference herein, or in any subsequently filed document that also is or is
deemed to be incorporated by reference
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<PAGE>
herein, modifies or supersedes such statement. Any such statement so modified
or superseded shall not be deemed, except as so modified or superseded, to
constitute part of the Registration Statement or this Prospectus. All
information appearing in this Prospectus is qualified in its entirety by the
information and financial statements (including notes thereto) appearing in
the documents incorporated herein by reference. This Prospectus incorporates
documents by reference which are not presented herein or delivered herewith.
These documents (other than exhibits to such documents which are not
specifically incorporated by reference into such documents) are available
without charge, upon written or oral request by any person to whom this
Prospectus has been delivered, from Stephen Gordon, Chief Financial Officer,
9955 S.E. Washington, Suite 201, Portland, Oregon 97216.
3
<PAGE>
THE COMPANY
Assisted Living Concepts, Inc. (the "Company") develops, owns, leases and
operates assisted living residences, an increasingly popular form of housing
for senior citizens who, although generally ambulatory, need help with the
activities of daily living. In addition to housing, the Company provides
personal care and support services, and makes available routine nursing
services (as permitted by applicable government regulations) designed to meet
the needs of its residents. The Company believes that this combination of
housing, personal care and support services provides a cost-efficient
alternative and provides an independent lifestyle for individuals who do not
require the broader array of medical services that nursing facilities are
required by law to provide.
The Company is a Nevada corporation and its principal executive offices are
located at 9955 S.E. Washington, Suite 201, Portland, Oregon 97216, telephone
number (503) 252-6233.
RATIO OF EARNINGS TO FIXED CHARGES
Set forth below is the ratio of earnings to fixed charges for the Company
and its predecessor for the periods indicated:
<TABLE>
<CAPTION>
PREDECESSOR THE COMPANY
------------------------- -------------------------------------
YEARS ENDED ELEVEN MONTHS YEARS ENDED SIX MONTHS
DECEMBER 31, ENDED MONTH ENDED DECEMBER 31, ENDED
----------- NOVEMBER 30, DECEMBER 31, ------------- JUNE 30,
1992 1993 1994 1994 1995 1996 1997
----- ----- ------------- ------------ ------ ------ ----------
<C> <C> <S> <C> <C> <C> <C>
1.08x 1.74x 1.71x (2) (2) (2) (2)
</TABLE>
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(1) The earnings do not include Preferred Stock dividends as no shares of
Preferred Stock were outstanding for the periods presented.
(2) For the one month period ended December 31, 1994, the years ended December
31, 1995 and 1996 and the six months ended June 30, 1997 fixed charges
exceeded earnings by $64,000, $1,152,000, $2,051,000 and $845,000,
respectively.
4
<PAGE>
USE OF PROCEEDS
Unless otherwise specified in the Prospectus Supplement which accompanies
this Prospectus, the net proceeds from the sale of the Securities offered from
time to time hereby will be used for repayment of outstanding amounts under
the Company's temporary construction financing arrangements and the
development, construction and acquisition of additional health care
facilities.
DESCRIPTION OF THE COMPANY'S CAPITAL STOCK
The summary of the terms of the capital stock of the Company set forth below
does not purport to be complete and is subject to and qualified in its
entirety by reference to the Articles of Incorporation (the "Charter") and By-
Laws of the Company, copies of which have been filed as exhibits to the
Registration Statement of which this Prospectus is a part. See "Available
Information."
GENERAL
The Company's Charter authorizes 80,000,000 shares of Common Stock, par
value $.01 per share, and 1,000,000 shares of Preferred Stock, par value $.01
per share. As of July 31, 1997, the Company had 11,043,512 shares of Common
Stock issued and outstanding and no outstanding shares of Preferred Stock.
COMMON STOCK
Each holder of Common Stock is entitled to one vote for each share owned of
record on all matters voted upon by stockholders, and a majority vote is
required for all action to be taken by stockholders. Cumulative voting of
shares is prohibited. Accordingly, the holders of a majority of the voting
power of the shares voting for the election of directors can elect all of the
directors if they choose to do so. The Common Stock bears no preemptive
rights, and is not subject to redemption, sinking fund or conversion
provisions. The shares of Common Stock offered hereby will be, when issued and
paid for, fully paid and non-assessable.
Holders of Common Stock are entitled to receive dividends if, as and when
declared by the Company's Board of Directors out of funds legally available
therefor, subject to the dividend and liquidation rights of any preferred
stock that may be issued (and subject to any dividend restriction contained in
any credit facility which the Company may enter into in the future) and
distributed pro rata in accordance with the number of shares of Common Stock
held by each stockholder. See "Risk Factors--Dividend Policy."
The Common Stock is listed on the American Stock Exchange. The transfer
agent and registrar for the Common Stock is American Stock Transfer & Trust
Company.
PREFERRED STOCK
Shares of Preferred Stock may be issued from time to time by the Board of
Directors of the Company, without stockholder approval, in such series and
with such preferences, conversion or other rights, voting powers,
restrictions, limitations as to dividends, qualifications or other provisions,
as may be fixed by the Board of Directors when designating any such series.
The Preferred Stock and the variety of characteristics available for it
offers the Company flexibility in financing and acquisition transactions. An
issuance of Preferred Stock could dilute the book value or adversely affect
the relative voting power of the Common Stock. The issuance of such shares
could be used to enable the holder to block such a transaction. Although the
Board of Directors is required
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when issuing such stock to act based on its judgment as to the best interests
of the stockholders of the Company, the Board could act in a manner which
would discourage or prevent a transaction some stockholders might believe is
in the Company's best interests or in which stockholders could or would
receive a premium for their shares of Common Stock over the market price.
The Company's Board of Directors has authority to classify or reclassify
authorized but unissued shares of Preferred Stock by setting or changing the
preferences, conversion and other rights, voting powers, restrictions and
limitations as to dividends, qualifications and terms and conditions of
redemption of stock.
RIGHTS PLAN
On June 12, 1997, the Board of Directors of the Company declared a dividend
of one preferred share purchase right (each a "Right" and collectively the
"Rights") on each outstanding share of Common Stock, payable to stockholders
of record on June 30, 1997. Each Right will entitle the holder thereof after
the Rights become exercisable and until June 30, 2007 (or the earlier
redemption, exchange of termination of the Rights), to buy one one-hundredth
of a share of Series A Junior Participating Preferred Stock (the "Series A
Preferred Stock") at an exercise price of $54.00, subject to certain anti-
dilution adjustments (the "Purchase Price"). The Rights will be represented by
the Common Stock certificates and will not be exercisable or transferable
apart from the Common Stock until the earlier of (i) the tenth day after the
public announcement that a Person (defined as any individual or entity) or
group has become an Acquiring Person (a Person who has acquired, or obtained
the right to acquire, beneficial ownership of 15% or more of the Common Stock)
or (ii) the tenth day after a Person or group commences, or announces an
intention to commence, a tender or exchange offer, the consummation of which
would result in the beneficial ownership by a Person or group of 15% or more
of the Common Stock (the earlier of (i) and (ii) is referred to herein the
"Distribution Date"). Prior to the Distribution Date, the Company's Board of
Directors has the power, under certain circumstances, to postpone the
Distribution Date. Separate certificates representing the Rights will be
mailed to holders of the Common Stock as of the Distribution Date. The Rights
will first become exercisable on the Distribution Date, unless earlier
redeemed or exchanged, and may then begin trading separately from the Common
Stock. The Rights will at no time have any voting rights.
In the event that a Person becomes an Acquiring Person (except pursuant to
certain cash offers for all outstanding Common Stock approved by the Board of
Directors of the Company) or if the Company were the surviving corporation in
a merger and its Common Stock were not changed or exchanged, each holder of a
Right, other than Rights that are or were acquired or beneficially owned by
the Acquiring Person (which Rights will thereafter be void), will thereafter
have the right to receive upon exercise that number of shares of Common Stock
having a market value of two times the then-current exercise price of one
Right. With certain exceptions, in the event that (i) the Company were
acquired in a merger or other business combination transaction in which the
Company is not the surviving corporation or its Common Stock is changed or
exchanged (other than a merger which follows certain cash offers for all
outstanding Common Stock approved by the Board of Directors of the Company) or
(ii) more than 50% of the Company's assets or earning power were sold, proper
provision shall be made so that each holder of a Right (except Rights which
previously have been voided as set forth above) shall thereafter have the
right to receive, upon exercise thereof, that number of shares of common stock
of the acquiring company which at the time of such transaction would have a
market value of two times the then-current exercise price of one Right.
At any time after a Person has become an Acquiring Person and prior to the
acquisition of 50% or more of the then-outstanding Common Stock by such
Acquiring Person, the Board of Directors of the Company may cause the Company
to acquire the Rights (other than Rights owned by an Acquiring
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Person which have become void), in whole or in part, in exchange for that
number of shares of Common Stock having an aggregate value equal to the excess
of the value of the Common Stock issuable upon exercise of a Right after a
Person becomes an Acquiring Person over the Purchase Price.
The Rights are redeemable at $0.01 per Right prior to the first date of
public announcement that a Person or group has become an Acquiring Person.
Prior to the expiration of the period during which the Rights may be redeemed,
the Board of Directors of the Company has the power, under certain
circumstances, to extend the redemption period. The Rights will expire on June
12, 2007 (unless earlier redeemed or exchanged). American Stock Transfer &
Trust Company is the Rights Agent. Under certain circumstances set forth in
the Rights Agreement, the decision to redeem or to lengthen or shorten the
redemption period shall require the concurrence of a majority of the
Continuing Directors (as defined below).
The term "Continuing Directors" means any member of the Board of Directors
of the Company who was a member of the Board of Directors prior to the time
that any Person becomes an Acquiring Person, and any person who is
subsequently elected to the Board of Directors if such person is recommended
or approved by a majority of the Continuing Directors. Continuing Directors do
not include an Acquiring Person, or an affiliate or associate of an Acquiring
Person, or any representative of the foregoing.
The Purchase Price payable, and the number of shares of Series A Preferred
Stock or other securities or property issuable upon exercise of the Rights are
subject to adjustment from time to time to prevent dilution (i) in the event
of a stock dividend on, or a subdivision, combination or reclassification of,
the Series A Preferred Stock, (ii) upon the grant to holders of the Series A
Preferred Stock of certain rights or warrants to subscribe for or purchase the
Series A Preferred Stock or convertible securities at less than the current
market price of the Series A Preferred Stock or (iii) upon the distribution to
holders of the Series A Preferred Stock of evidences of indebtedness, cash,
securities or assets (excluding regular periodic cash dividends at a rate not
in excess of 125% of the last regular periodic cash dividend theretofore paid,
or in case regular periodic dividends have not theretofore been paid, at a
rate not in excess of 50% of the average net income per share of the Company
for the four quarters ended immediately prior to the payment of such dividend,
or dividends payable in the Series A Preferred Stock) or of subscription
rights or warrants (other than those referred to above). No adjustments in the
Purchase Price will be required until cumulative adjustments require an
adjustment of at least 1% in such Purchase Price.
As of June 30, 1997, after giving effect to the stock split described above,
there were 11,043,512 shares of Common Stock outstanding. One Right was
distributed to stockholders of the Company for each share of Common Stock
owned of record by them on June 30, 1997 after giving effect to the stock
split described above. As long as the Rights are attached to the Common Stock,
the Company will issue one Right with each new share of Common Stock so that
all such shares will have attached Rights. The Company has reserved 800,000
shares of Series A Preferred Stock for issuance upon exercise of the Rights.
The Rights have certain anti-takeover effects. The Rights will cause
substantial dilution to a person or group that attempts to acquire the Company
on terms not approved by the Board of Directors, except pursuant to an offer
conditioned on a substantial number of Rights being acquired. The Rights
should not interfere with any merger or other business combination approved by
the Board of Directors prior to the time that a Person or group has become an
Acquiring Person, as the Rights may be redeemed by the Company at $.01 per
Right prior to such time.
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RESTRICTIONS ON BUSINESS COMBINATIONS AND CORPORATE CONTROL
The Nevada General Corporation Law ("NGCL") contains provisions restricting
the ability of a corporation to engage in business combinations with an
"interested stockholder." Under the NGCL, except under certain circumstances,
business combinations are not permitted for a period of three years following
the date such stockholder became an interested stockholder. The NGCL defines
an "interested stockholder," generally, as a person who beneficially owns 10%
or more of the outstanding shares of a corporation's voting stock.
In addition the NGCL generally disallows the exercise of voting rights with
respect to "control shares" of an "issuing corporation" (as defined in the
NGCL). "Control shares" are the voting shares of an issuing corporation
acquired in connection with the acquisition of a "controlling interest."
"Controlling interest" is defined in terms of threshold levels of voting share
ownership, which, when crossed, trigger application of the voting bar with
respect to the newly acquired shares. The NGCL also permits directors to
resist a change or potential change in control of the corporation if the
directors determine that such a change is opposed to or not in the best
interest of the corporation.
LIMITATIONS ON DIRECTORS LIABILITY
The Charter limits the liability of directors and officers to the Company or
its stockholders to the fullest extent permitted by the NGCL. The inclusion of
this provision in the Charter may have the effect of reducing the likelihood
of derivative litigation against directors and may discourage or deter
stockholders or management from bringing a lawsuit against directors for
breach of their duty of care, even though such an action, if successful, might
otherwise have benefited the Company and its stockholders.
DESCRIPTION OF DEBT SECURITIES
The Debt Securities are to be issued under an indenture (the "Indenture") to
be executed by the Company and Harris Trust and Savings Bank, as trustee (the
"Trustee"), a form of which has been filed as an exhibit to the Registration
Statement. The following summaries of certain provisions of the Indenture and
the Debt Securities do not purport to be complete. These summaries are
qualified in their entirety by reference to all of the provisions of the
Indenture to which reference is hereby made for a full description of such
provisions, including the definitions therein of certain terms and other
information regarding the Debt Securities. Whenever particular sections or
defined terms of the Indenture are referred to, it is intended that such
sections or defined terms shall be incorporated herein by reference. Copies of
the form of the Indenture are available for inspection during normal business
hours at the principal executive offices of the Company, 9955 SE Washington,
Suite 201, Portland, Oregon 97216.
GENERAL
The Indenture does not limit the aggregate principal amount of Debt
Securities that may be issued thereunder and provides that Debt Securities may
be issued from time to time in one or more series. The Prospectus Supplement
will describe certain terms of any Debt Securities offered thereby, including
(i) the title of such Debt Securities; (ii) any limit on the aggregate
principal amount of such Debt Securities and their purchase price; (iii) the
date or dates on which such Debt Securities will mature; (iv) the rate or
rates per annum (or manner in which interest is to be determined) at which
such Debt Securities will bear interest, if any, and the date from which such
interest, if any, will accrue; (v) the dates on which such interest, if any,
on such Debt Securities will be payable and the regular record dates for such
interest payment dates; (vi) any mandatory or optional sinking fund or
analogous provisions; (vii) additional provisions, if any, for the defeasance
of such Debt Securities; (viii) the date, if any, after which and the price or
prices at which such Debt Securities may, pursuant to any optional
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or mandatory redemption or repayment provisions, be redeemed and the other
detailed terms and provisions of any such optional or mandatory redemption or
repayment provisions; (ix) whether such Debt Securities are to be issued in
whole or in part in registered form represented by one or more registered
global securities (a "Registered Global Security") and, if so, the identity of
the depository for such Registered Global Security or Debt Securities; (x)
certain applicable United States federal income tax consequences; (xi) any
provisions relating to security for payments due under such Debt Securities;
(xii) any provisions relating to the conversion or exchange of such Debt
Securities into or for shares of Common Stock or Debt Securities of another
series; (xiii) any provisions relating to the ranking of such Debt Securities
in right of payment as compared to other obligations of the Company; (xiv) the
denominations in which such Debt Securities are authorized to be issued; (xv)
the place or places where principal of, premium, if any, and interest, if any,
on such Debt Securities will be payable; and (xvi) any other specific term of
such Debt Securities, including any additional events of default or covenants
provided for with respect to such Debt Securities, and any terms that may be
required by or advisable under applicable laws or regulations.
CONVERSION RIGHTS
The terms, if any, on which Debt Securities of any series may be exchanged
for or converted into shares of Common Stock or Debt Securities of another
series will be set forth in the Prospectus Supplement relating thereto.
The conversion price will be subject to adjustment under certain conditions,
including (i) the payment of dividends (and other distributions) in shares of
Common Stock on any class of capital stock of the Company; (ii) subdivisions,
combinations and reclassifications of the Common Stock; (iii) the issuance to
all or substantially all holders of Common Stock of rights or warrants
entitling them to subscribe for or purchase shares of Common Stock at a price
per share (or having a conversion price per share) less than the then current
market price; and (iv) distributions to all or substantially all holders of
shares of Common Stock of evidences of indebtedness or assets (including
securities, but excluding those rights, warrants, dividends and distributions
referred to above and dividends and distributions not prohibited under the
terms of the Indenture) of the Company, subject to the limitation that all
adjustments by reason of any of the foregoing would not be made until they
result in a cumulative change in the conversion price of at least 1%. No
adjustments in the conversion price of the Debt Securities will be made for
regular quarterly or other periodic or recurring cash dividends or
distributions. In the event the Company shall effect any capital
reorganization or reclassification of its shares of Common Stock or shall
consolidate or merge with or into any trust or corporation (other than a
consolidation or merger in which the Company is the surviving entity) or shall
sell or transfer substantially all of its assets to any other trust or
corporation, the holders of the Debt Securities of any series shall, if
entitled to convert such Debt Securities at any time after such transaction,
receive upon conversion thereof, in lieu of each share of Common Stock into
which the Debt Securities of such series would have been convertible prior to
such transaction, the same kind and amount of stock and other securities, cash
or property as shall have been issuable or distributable in connection with
such transaction with respect to each share of Common Stock.
A conversion price adjustment made according to the provisions of the Debt
Securities of any series (or the absence of provisions for such an adjustment)
might result in a constructive distribution to the holders of Debt Securities
of such series or holders of shares of Common Stock that would be subject to
taxation as a dividend. The Company may, at its option, make such reductions
in the conversion price, in addition to those set forth above, as the Board of
Directors of the Company deems advisable to avoid or diminish any income tax
to holders of shares of Common Stock resulting from any dividend or
distribution of shares of Common Stock (or rights to acquire shares of Common
Stock) or from any event treated as such for income tax purposes or for any
other reason. The Board of Directors will also have the power to resolve any
ambiguity or correct any error in the adjustments made pursuant to these
provisions and its actions in so doing shall be final and conclusive.
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Fractional shares of Common Stock will not be issued upon conversion but, in
lieu thereof, the Company will pay a cash adjustment based upon market price.
The Holders of Debt Securities of any series at the close of business on an
interest payment record date shall be entitled to receive the interest payable
on such Debt Securities on the corresponding interest payment date
notwithstanding the conversion thereof. However, Debt Securities surrendered
for conversion during the period from the close of business on any record date
for the payment of interest to the opening of business on the corresponding
interest payment date must be accompanied by payment of an amount equal to the
interest payable on such interest payment date. Holders of Debt Securities of
any series who convert Debt Securities of such series on an interest payment
date will receive the interest payable by the Company on such date and need
not include payment in the amount of such interest upon surrender of such Debt
Securities for conversion. Except as aforesaid, no payment or adjustment is to
be made on conversion for interest accrued on the Debt Securities of any
series or for dividends on shares of Common Stock.
OPTIONAL REDEMPTION
The Debt Securities of any series may be subject to redemption as permitted
or required by the terms of such Debt Securities on at least 30 days' prior
notice by mail. The Indenture does not contain any provision requiring the
Company to repurchase the Debt Securities of any series at the option of the
Holders thereof in the event of a leveraged buyout, recapitalization or
similar restructuring of the Company, even though the Company's
creditworthiness and the market value of the Debt Securities may decline
significantly as a result of such transaction. The Indenture does not protect
Holders of the Debt Securities of any series against any decline in credit
quality, whether resulting from any such transaction or from any other cause.
The Company may at any time buy Debt Securities of any series on the open
market.
SUBORDINATION
The indebtedness evidenced by the Debt Securities of any series may be
subordinated and junior in right of payment to the extent set forth in the
Indenture to the prior payment in full of amounts then due or thereafter
created on all Senior Indebtedness (as defined). The terms, if any, on which
the Debt Securities of any series may be subordinated and junior in right of
payment to the prior payment in full of amounts then due or thereafter created
on all Senior Indebtedness will be set forth in the Prospectus Supplement
relating thereto. No payment shall be made by the Company on account of
principal of (or premium, if any) or interest on the Debt Securities of any
series or on account of the purchase or other acquisition of Debt Securities
of any series, if there shall have occurred and be continuing a default with
respect to any Senior Indebtedness permitting the holders to accelerate the
maturity thereof or with respect to the payment of any Senior Indebtedness,
and such default shall be the subject of a judicial proceeding or the Company
shall have received notice of such default from any holder of Senior
Indebtedness, unless and until such default or event of default shall have
been cured or waived or shall have ceased to exist. By reason of these
provisions, in the event of default on any Senior Indebtedness, whether now
outstanding or hereafter issued, payment of principal of (and premium, if any)
and interest on the Debt Securities of any series may not be permitted to be
made until such Senior Indebtedness is paid in full, or the event of default
on such Senior Indebtedness is cured or waived.
Upon any acceleration of the principal of the Debt Securities or any
distribution of assets of the Company upon any receivership, dissolution,
winding-up, liquidation, reorganization, or similar proceedings of the
Company, whether voluntary or involuntary, or in bankruptcy or insolvency, all
amounts due or to become due upon all Senior Indebtedness must be paid in full
before the holders of the Debt Securities of any series or the Trustee are
entitled to receive or retain any assets so
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distributed in respect of the Debt Securities. By reason of this provision, in
the event of insolvency, holders of the Debt Securities of any series may
recover less, ratably, than holders of Senior Indebtedness.
"Senior Indebtedness" is defined to mean the principal, premium, if any,
unpaid interest (including interest accruing on or after the filing of any
petition in bankruptcy or for reorganization relating to the Company whether
or not a claim for post-filing interest is allowed in such proceedings), fees,
charges, expenses, reimbursement and indemnification obligations, and all
other amounts payable under or in respect of Indebtedness (as defined) of the
Company for money borrowed, whether any such Indebtedness exists as of the
date of the Indenture or is created, incurred, assumed or guaranteed after
such date. There is no limit on the amount of Senior Indebtedness that the
Company may incur.
"Indebtedness" with respect to any Person is defined to mean:
(i) all indebtedness for money borrowed whether or not evidenced by a
promissory note, draft or similar instrument;
(ii) that portion of obligations with respect to leases that is properly
classified as a liability on a balance sheet in accordance with generally
accepted accounting principles;
(iii) notes payable and drafts accepted representing extensions of
credit;
(iv) any balance owed for all or any part of the deferred purchase price
or services which purchase price is due more than six months from the date
of incurrence of the obligation in respect thereof (except any such balance
that constitutes (a) a trade payable or an accrued liability arising in the
ordinary course of business or (b) a trade draft or note payable issued in
the ordinary course of business in connection with the purchase of goods or
services), if and to the extent such debt would appear as a liability upon
a balance sheet of such person prepared in accordance with generally
accepted accounting principles; and
(v) any deferral, amendment, renewal, extension, supplement or refunding
of any liability of the kind described in any of the preceding clauses (i)
through (iv); provided, however, that, in computing the "Indebtedness" of
any Person, there shall be excluded any particular indebtedness if, upon or
prior to the maturity thereof, there shall have been deposited with a
depositary in trust money (or evidence of indebtedness if permitted by the
instrument creating such indebtedness) in the necessary amount to pay,
redeem or satisfy such indebtedness as it becomes due, and the amount so
deposited shall not be included in any computation of the assets of such
Person.
DIVIDENDS, DISTRIBUTIONS AND ACQUISITIONS OF COMMON STOCK
The Company will not (i) declare or pay any dividend, or make any
distribution on its Common Stock to its stockholders (other than dividends or
distributions payable in Common Stock of the Company) or (ii) purchase,
redeem, or otherwise acquire or retire for value any of its Common Stock, or
any warrants, rights, or options to purchase or acquire any shares of its
Common Stock (other than the Debt Securities of any series or any other
convertible indebtedness of the Company that is neither secured nor
subordinated to the Debt Securities of any series), if at the time of such
action an Event of Default has occurred and is continuing or would exist
immediately after such action. The foregoing, however, will not prevent (i)
the payment of any dividend within 60 days after the date of declaration when
the payment would have complied with the foregoing provision on the date of
declaration; or (ii) the Company's retirement of any of its Common Stock by
exchange for, or out of the proceeds of the substantially concurrent sale of,
other Common Stock.
ADDITIONAL COVENANTS
Any additional covenants of the Company with respect to a series of the Debt
Securities will be set forth in the Prospectus Supplement relating thereto.
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MODIFICATION OF THE INDENTURE
Under the Indenture, with certain exceptions, the rights and obligations of
the Company with respect to any series of Debt Securities and the rights of
Holders of such series may only be modified by the Company and the Trustee
with the consent of the Holders of at least a majority in principal amount of
the outstanding Debt Securities of such series. However, without the consent
of each Holder of any Debt Securities affected, an amendment, waiver or
supplement may not (i) reduce the principal of, or rate of interest on, any
Debt Securities; (ii) change the stated maturity date of the principal of, or
any installment of interest on, any Debt Securities; (iii) waive a default in
the payment of the principal amount of, or the interest on, or any premium
payable on redemption of, any Debt Securities; (iv) change the currency for
payment of the principal of, or premium or interest on, any Debt Securities;
(v) impair the right to institute suit for the enforcement of any such payment
when due; (vi) adversely affect any right to convert any Debt Securities;
(vii) reduce the amount of outstanding Debt Securities necessary to consent to
an amendment, supplement or waiver provided for in the Indenture; or
(viii) modify any provisions of the Indenture relating to the modification and
amendment of the Indenture or waivers of past defaults, except as otherwise
specified.
EVENTS OF DEFAULT, NOTICE AND WAIVER
Except as otherwise set forth in the accompanying Prospectus Supplement, the
following is a summary of certain provisions of the Indenture relating to
events of default, notice and waiver.
The following are Events of Default under the Indenture with respect to any
series of Debt Securities: (i) default in the payment of interest on the Debt
Securities of such series when due and payable, which continues for 30 days;
(ii) default in the payment of principal of (and premium, if any) on the Debt
Securities when due and payable, at maturity, upon redemption or otherwise,
which continues for five Business Days; (iii) failure to perform any other
covenant of the Company contained in the Indenture or the Debt Securities of
such series which continues for 60 days after written notice as provided in
the Indenture; (iv) default under any bond, debenture or other Indebtedness
(as defined in the Indenture) of the Company or any subsidiary if (a) either
(x) such event of default results from the failure to pay any such
Indebtedness at maturity or (y) as a result of such event of default, the
maturity of such Indebtedness has been accelerated prior to its expressed
maturity and such acceleration shall not be rescinded or annulled or the
accelerated amount paid within 10 days after notice to the Company of such
acceleration, or such Indebtedness having been discharged, and (b) the
principal amount of such Indebtedness, together with the principal amount of
any other such Indebtedness in default for failure to pay principal or
interest thereon, or the maturity of which has been so accelerated, aggregates
$5,000,000 or more; and (v) certain events of bankruptcy, insolvency or
reorganization relating to the Company.
If an Event of Default occurs and is continuing with respect to the Debt
Securities of any series, either the Trustee or the Holders of a majority in
aggregate principal amount of the outstanding Debt Securities of such series
may declare the Debt Securities due and payable immediately.
The Company will not declare or pay any dividends or make any distribution
to holders of its capital stock (other than dividends or distributions payable
in capital stock of the Company) if at the time any of the aforementioned
Events of Default has occurred and is continuing or would exist immediately
after giving effect to such action, except for (i) the payment of any dividend
within 60 days after the date of declaration when the payment would have
complied with the foregoing provisions on the date of declaration; or (ii) the
retirement of any share of the Company's capital stock by exchange for, or out
of the proceeds of the substantially concurrent sale (other than to a
subsidiary) of, other shares of its capital stock.
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The Indenture provides that the Trustee will, within 90 days after the
occurrence of any Default or Event of Default with respect to the Debt
Securities of any series, give to the Holders of Debt Securities notice of all
uncured Defaults and Events of Default known to it, but the Trustee will be
protected in withholding such notice if it in good faith determines that the
withholding of such notice is in the interest of such Holders, except in the
case of a default in the payment of the principal of (or premium, if any) or
interest on any of the Debt Securities of such series.
The Indenture provides that the Holders of a majority in aggregate principal
amount of the Debt Securities of any series then outstanding may direct the
time, method and place of conducting any proceedings for any remedy available
to the Trustee or exercising any trust or power conferred on the Trustee with
respect to the Debt Securities of such series. The right of a Holder to
institute a proceeding with respect to the Indenture is subject to certain
conditions precedent including notice and indemnity to the Trustee, but the
Holder has an absolute right to receipt of principal of (and premium, if any)
and interest on such Holder's Debt Securities on or after the respective due
dates expressed in the Debt Securities, and to institute suit for the
enforcement of any such payments.
The Holders of a majority in principal amount of the outstanding Debt
Securities of any series then outstanding may on behalf of the Holders of all
Debt Securities of such series waive certain past defaults, except a default
in payment of the principal of (or premium, if any) or interest on any Debt
Securities of such series or in respect of certain provisions of the Indenture
which cannot be modified or amended without the consent of the Holder of each
outstanding Debt Security of such series affected thereby.
The Company will be required to furnish to the Trustee annually a statement
of certain officers of the Company stating whether or not they know of any
Default or Events of Default (as defined in the Indenture) and, if they have
knowledge of a Default or Event of Default, a description of the efforts to
remedy the same.
CONSOLIDATION, MERGER, SALE OR CONVEYANCE
The Indenture provides that the Company may merge or consolidate with, or
sell or convey all, or substantially all, of its assets to any other trust or
corporation, provided that (i) either the Company shall be the continuing
entity, or the successor entity (if other than the Company) shall be any
entity organized and existing under the laws of the United States or a state
thereof or the District of Columbia (although it may, in truth, be owned by a
foreign entity) and such entity shall expressly assume by supplemental
indenture all of the obligations of the Company under the Debt Securities of
any series and the Indenture; (ii) immediately after giving effect to such
transactions, no Default or Event of Default shall have occurred and be
continuing; and (iii) the Company shall have delivered to the Trustee an
Officers' Certificate and opinion of counsel, stating that the transaction and
supplemental indenture comply with the Indenture.
GLOBAL SECURITIES
The Debt Securities may be issued in whole or in part in global form (the
"Global Securities"). The Global Securities will be deposited with a
depository (the "Depository"), or with a nominee for a Depository, identified
in the Prospectus Supplement. In such case, one or more Global Securities will
be issued in a denomination or aggregate denominations equal to the portion of
the aggregate principal amount of outstanding Debt Securities to be
represented by such Global Security or Securities. Unless and until it is
exchanged in whole or in part for Debt Securities in definitive form, a Global
Security may not be transferred except as a whole by the Depository for such
Global Security to a nominee of such Depository or by a nominee of such
Depository to such Depository or another nominee of such Depository or by such
Depository or any such nominee to a successor for such Depository or a nominee
of such successor.
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The specific material terms of the depository arrangement with respect to
any portion of a series of Debt Securities to be represented by a Global
Security will be described in the Prospectus Supplement. The Company
anticipates that the following provisions will apply to all depository
arrangements.
So long as the Depository for a Global Security, or its nominee, is the
registered owner of such Global Security, such Depository or such nominee as
the case may be, will be considered the sole owner or Holder of the Debt
Securities represented by such Global Security for all purposes under the
Indenture; provided, however, that for purposes of obtaining any consents or
directions required to be given by the Holders of the Debt Securities, the
Company, the Trustee and its agents will treat a person as the holder of such
principal amount of Debt Securities as specified in a written statement of the
Depository.
Principal, premium, if any, and interest payments, if any, on Debt
Securities represented by a Global Security registered in the name of a
Depository or its nominee will be made directly to the owners of beneficial
interests of such Global Security, except as may be limited by the terms of
the resolution of the Board of Directors of the Company that authorizes such
series of Debt Securities.
The Company expects that the depository for any Debt Securities represented
by a Global Security, upon receipt of any payment of principal, premium, if
any, or interest will immediately credit participants' accounts with payments
in amounts proportionate to their respective beneficial interests in the
principal amount of such Global Security as shown on the records of such
Depository. The Company also expects that payments by participants will be
governed by standing instructions and customary practices, as is now the case
with the securities held for the accounts of customers registered in "street
names," and will be the responsibility of such participants.
If the Depository for any Debt Securities represented by a Global Security
is at any time unwilling or unable to continue as Depository and a successor
Depository is not appointed by the Company within 90 days, the Company will
issue each Debt Security in definitive form to the beneficial owners thereof
in exchange for such Global Security. In addition, the Company may at any time
and in its sole discretion determine not to have any of the Debt Securities of
a series represented by one or more Global Securities and, in such event, will
issue Debt Securities of such series in definitive form in exchange for all of
the Global Security or Securities representing such Debt Securities.
GOVERNING LAW
The Indenture and the Debt Securities will be governed by and construed in
accordance with the laws of the State of New York.
DESCRIPTION OF PREFERRED STOCK
The following description of the terms of the Preferred Stock sets forth
certain general terms and provisions of the Preferred Stock to which any
Prospectus Supplement may relate. Certain other terms of any series of the
Preferred Stock offered by any Prospectus Supplement will be described in such
Prospectus Supplement. The description of certain provisions of the Preferred
Stock set forth below and in any Prospectus Supplement does not purport to be
complete and is subject to and qualified in its entirety by reference to the
Charter and the Board of Directors' resolution relating to each series of the
Preferred Stock which will be filed with the Commission and incorporated by
reference to the Registration Statement of which this Prospectus is a part at
or prior to the time of the issuance of such series of Preferred Stock.
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GENERAL
The authorized capital stock of the Company consists of 80,000,000 shares of
Common Stock, $.01 par value per share, and 1,000,000 shares of Preferred
Stock, $.01 par value per share. See "Description of the Company's Capital
Stock."
Under the Charter, the Board of Directors of the Company is authorized to
establish and issue, from time to time, up to 1,000,000 shares of Preferred
Stock, in one or more series, with such dividend rights, dividend rate,
conversion rights, voting rights, rights and terms of redemption (including
sinking fund provisions), the redemption price or prices, and the liquidation
preference as shall be stated in the resolution providing for the issue of a
series of such stock, adopted, at any time or from time to time, by the Board
of Directors of the Company.
The Preferred Stock shall have the dividend, liquidation, redemption and
voting rights set forth below unless otherwise provided in a Prospectus
Supplement relating to a particular series of the Preferred Stock. Reference
is made to the Prospectus Supplement relating to the particular series of the
Preferred Stock offered thereby for specific terms, including: (i) the
designation and stated value per share of such Preferred Stock and the number
of shares offered; (ii) the amount of liquidation preference per share; (iii)
the initial public offering price at which such Preferred Stock will be
issued; (iv) the dividend rate (or method of calculation), the dates on which
dividends shall be payable and the dates from which dividends shall commence
to cumulate, if any; (v) any redemption or sinking fund provisions; (vi) any
conversion rights; and (vii) any additional voting, dividend, liquidation,
redemption, sinking fund and other rights, preferences, privileges,
limitations and restrictions.
The Preferred Stock will, when issued, be fully paid and nonassessable and
will have no preemptive rights. Unless otherwise stated in a Prospectus
Supplement relating to a particular series of the Preferred Stock, each series
of the Preferred Stock will rank on a parity as to dividends and distributions
of assets with each other series of the Preferred Stock. The rights of the
holders of each series of the Preferred Stock will be subordinate to those of
the Company's general creditors.
CERTAIN PROVISIONS OF THE CHARTER
See "Description of the Company's Capital Stock" for a description of
certain provisions of the Charter, including provisions which may have certain
anti-takeover effects.
DIVIDEND RIGHTS
Holders of shares of the Preferred Stock of each series will be entitled to
receive, when, as and if declared by the Board of Directors of the Company,
out of funds of the Company legally available therefor, cash dividends on such
dates and at such rates as will be set forth in, or as are determined by the
method described in the Prospectus Supplement relating to such series of the
Preferred Stock. Such rate may be fixed or variable or both. Each such
dividend will be payable to the holders of record as they appear on the stock
books of the Company on such record dates, fixed by the Board of Directors of
the Company, as specified in the Prospectus Supplement relating to such series
of Preferred Stock.
Such dividends may be cumulative or noncumulative, as provided in the
Prospectus Supplement relating to such series of Preferred Stock. If the Board
of Directors of the Company fails to declare a dividend payable on a dividend
payment date on any series of Preferred Stock for which dividends are
noncumulative, then the holders of such series of Preferred Stock will have no
right to receive a dividend in respect of the dividend period ending on such
dividend payment date, and the Company shall have no obligation to pay the
dividend accrued for such period, whether or not dividends on such series are
declared payable on any future dividend payment dates. Dividends on the shares
of each
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series of Preferred Stock for which dividends are cumulative will accrue from
the date on which the Company initially issues shares of such series.
So long as the shares of any series of the Preferred Stock shall be
outstanding, unless (i) full dividends (including if such Preferred Stock is
cumulative, dividends for prior dividend periods) shall have been paid or
declared and set apart for payment on all outstanding shares of the Preferred
Stock of such series and all other classes and series of Preferred Stock
(other than Junior Stock, as defined below) and (ii) the Company is not in
default or in arrears with respect to the mandatory or optional redemption or
mandatory repurchase or other mandatory retirement of, or with respect to any
sinking or other analogous fund for, any shares of Preferred Stock of such
series or any shares of any other Preferred Stock of any class or series
(other than Junior Stock), the Company may not declare any dividends on any
shares of Common Stock or any other stock of the Company ranking as to
dividends or distributions of assets junior to such series of Preferred Stock
(the Common Stock and any such other stock being herein referred to as "Junior
Stock"), or make any payment on account of, or set apart money for, the
purchase, redemption or other retirement of, or for a sinking or other
analogous fund for, any shares of Junior Stock or make any distribution in
respect thereof, whether in cash or property or in obligations or stock of the
Company, other than Junior Stock which is neither convertible into, nor
exchangeable or exercisable for, any securities of the Company other than
Junior Stock.
LIQUIDATION PREFERENCE
In the event of any liquidation, dissolution or winding up of the Company,
voluntary or involuntary, the holders of each series of the Preferred Stock
will be entitled to receive out of the assets of the Company available for
distribution to stockholders, before any distribution of assets or payment is
made to the holders of Common Stock or any other shares of stock of the
Company ranking junior as to such distribution or payment to such series of
Preferred Stock, the amount set forth in the Prospectus Supplement relating to
such series of the Preferred Stock. Upon any voluntary or involuntary
liquidation, dissolution or winding up of the Company, the Preferred Stock of
such series and such other shares of Preferred Stock will share ratably in any
such distribution of assets of the Company in proportion to the full
respective preferential amounts to which they are entitled. After payment to
the holders of the Preferred Stock of each series of the full preferential
amounts of the liquidating distribution to which they are entitled, the
holders of each such series of the Preferred Stock will be entitled to no
further participation in any distribution of assets by the Company.
If such payment shall have been made in full to all holders of shares of
Preferred Stock, the remaining assets of the Company shall be distributed
among the holders of any other classes of stock ranking junior to the
Preferred Stock upon liquidation, dissolution or winding up, according to
their respective rights and preferences and in each case according to their
respective number of shares. For such purposes, the consolidation or merger of
the Company with or into any other corporation, or the sale, lease or
conveyance of all or substantially all of the property or business of the
Company, shall not be deemed to constitute a liquidation, dissolution or
winding up of the Company.
REDEMPTION
A series of the Preferred Stock may be redeemable, in whole or from time to
time in part, at the option of the Company, and may be subject to mandatory
redemption pursuant to a sinking fund or otherwise, in each case upon terms,
at the times and at the redemption prices set forth in the Prospectus
Supplement relating to such series. Shares of the Preferred Stock redeemed by
the Company will be restored to the status of authorized but unissued shares
of preferred stock of the Company.
In the event that fewer than all of the outstanding shares of a series of
the Preferred Stock are to be redeemed, whether by mandatory or optional
redemption, the number of shares to be redeemed
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will be determined by lot or pro rata (subject to rounding to avoid fractional
shares) as may be determined by the Company or by any other method as may be
determined by the Company in its sole discretion to be equitable. From and
after the redemption date (unless the Company defaults in the payment of the
redemption price plus accumulated and unpaid dividends, if any), dividends
shall cease to accumulate on the shares of the Preferred Stock called for
redemption and all rights of the holders thereof (except the right to receive
the redemption price plus accumulated and unpaid dividends, if any) shall
cease.
So long as any dividends on shares of any series of the Preferred Stock or
any other series of preferred stock of the Company ranking on a parity as to
dividends and distributions of assets with such series of the Preferred Stock
are in arrears, no shares of any such series of the Preferred Stock or such
other series of preferred stock of the Company will be redeemed (whether by
mandatory or optional redemption) unless all such shares are simultaneously
redeemed, and the Company will not purchase or otherwise acquire any such
shares; provided, however, that the foregoing will not prevent the purchase or
acquisition of such shares of Preferred Stock of such series or of shares of
such other series of preferred stock pursuant to a purchase or exchange offer
made on the same terms to holders of all outstanding shares of Preferred Stock
of such series and, unless the full cumulative dividends on all outstanding
shares of any cumulative Preferred Stock of such series and any other stock of
the Company ranking on a parity with such series as to dividends and upon
liquidation shall have been paid or contemporaneously are declared and paid
for all past dividend periods, the Company shall not purchase or otherwise
acquire directly or indirectly any shares of Preferred Stock of such series
(except by conversion into or exchange for stock of the Company ranking junior
to the Preferred Stock of such series as to dividends and upon liquidation).
Notice of redemption will be mailed at least 30 days but not more than 60
days before the redemption date to each holder of record of shares of
Preferred Stock to be redeemed at the address shown on the stock transfer
books of the Company. After the redemption date, dividends will cease to
accrue on the shares of Preferred Stock called for redemption and all rights
of the holders of such shares will terminate, except the right to receive the
redemption price without interest.
CONVERSION RIGHTS
The terms, if any, on which shares of Preferred Stock of any series may be
exchanged for or converted (mandatorily or otherwise) into shares of Common
Stock or another series of Preferred Stock will be set forth in the Prospectus
Supplement relating thereto.
VOTING RIGHTS
Except as indicated below or in a Prospectus Supplement relating to a
particular series of the Preferred Stock, or except as required by applicable
law, the holders of the Preferred Stock will not be entitled to vote for any
purpose.
So long as any shares of Preferred Stock remain outstanding, the Company
shall not, without the consent or the affirmative vote of the holders of a
majority of the shares of each series of Preferred Stock outstanding at the
time given in person or by proxy, either in writing or at a meeting (such
series voting separately as a class) (i) authorize, create or issue, or
increase the authorized or issued amount of, any class or series of stock
ranking prior to such series of Preferred Stock with respect to payment of
dividends, or the distribution of assets on liquidation, dissolution or
winding up or reclassifying any authorized stock of the Company into any such
shares, or create, authorize or issue any obligation or security convertible
into or evidencing the right to purchase any such shares and (ii) to repeal,
amend or otherwise change any of the provisions applicable to the Preferred
Stock of such series in any manner which materially and adversely affects the
powers, preferences, voting power or other rights or privileges of such series
of the Preferred Stock or the holders thereof; provided, however, that any
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increase in the amount of the authorized Preferred Stock or the creation or
issuance of other series of Preferred Stock, or any increase in the amount of
authorized shares of such series or of any other series of Preferred Stock, in
each case ranking on a parity with or junior to the Preferred Stock of such
series, shall not be deemed to materially and adversely affect such rights,
preferences, privileges or voting powers.
The foregoing voting provisions will not apply if, at or prior to the time
when the act with respect to which such vote would otherwise be required shall
be effected, all outstanding shares of the Preferred Stock shall have been
redeemed or called for redemption and sufficient funds shall have been
deposited in trust to effect such redemption.
TRANSFER AGENT AND REGISTRAR
The transfer agent, dividend and redemption price disbursement agent and
registrar for shares of each series of the Preferred Stock will be set forth
in the Prospectus Supplement relating thereto.
PLAN OF DISTRIBUTION
The Company may sell Securities in any of three ways: (i) through
underwriting syndicates represented by one or more managing underwriters, or
by one or more underwriters without a syndicate; (ii) through agents
designated from time to time; and (iii) directly to investors. The names of
any underwriters or agents of the Company involved in the sale of the
Securities in respect of which this Prospectus is being delivered and any
applicable commissions or discounts will be set forth in the Prospectus
Supplement. The net proceeds to the Company from each such sale will also be
set forth in the Prospectus Supplement.
Agents and underwriters may be entitled under agreements entered into with
the Company to indemnification by the Company against certain civil
liabilities, including liabilities under the Securities Act, or to
contribution with respect to payments which the agents or underwriters may be
required to make in respect thereof. Agents and underwriters may engage in
transactions with or perform services for the Company in the ordinary course
of business.
LEGAL MATTERS
The validity of the Securities offered hereby will be passed upon for the
Company by Latham & Watkins, Los Angeles, California.
EXPERTS
The financial statements of Assisted Living Concepts Group (the predecessor
of the Company) for the eleven months ended November 30, 1994 and of the
Company for the one month ended December 31, 1994, incorporated in this
Prospectus by reference to the Annual Report on Form 10-K for the year ended
December 31, 1996 of the Company have been so incorporated by reference in
reliance on the report of Price Waterhouse LLP, independent accountants, given
on the authority of said firm as experts in auditing and accounting.
The consolidated financial statements of Assisted Living Concepts, Inc. as
of December 31, 1996 and 1995 and for the years then ended have been
incorporated by reference herein and in the Registration Statement in reliance
upon the report of KPMG Peat Marwick LLP, independent certified public
accountants, incorporated by reference herein, and upon the authority of said
firm as experts in accounting and auditing.
18
<PAGE>
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- -------------------------------------------------------------------------------
NO DEALER, SALESPERSON OR OTHER INDIVIDUAL HAS BEEN AUTHORIZED TO GIVE ANY
INFORMATION OR TO MAKE ANY REPRESENTATIONS, OTHER THAN THOSE CONTAINED IN THIS
PROSPECTUS, IN CONNECTION WITH THE OFFERING COVERED BY THIS PROSPECTUS. IF
GIVEN OR MADE, SUCH INFORMATION OR REPRESENTATIONS MUST NOT BE RELIED UPON AS
HAVING BEEN AUTHORIZED BY THE COMPANY OR ANY OTHER PERSON. THIS PROSPECTUS
DOES NOT CONSTITUTE AN OFFER TO SELL OR THE SOLICITATION OF AN OFFER TO BUY,
ANY OF THE SECURITIES IN ANY JURISDICTION WHERE, OR TO ANY PERSON TO WHOM, IT
IS UNLAWFUL TO MAKE SUCH OFFER OR SOLICITATION. NEITHER THE DELIVERY OF THIS
PROSPECTUS OR ANY SALE MADE HEREUNDER SHALL, UNDER ANY CIRCUMSTANCES, CREATE
AN IMPLICATION THAT THERE HAS NOT BEEN ANY CHANGE IN THE FACTS SET FORTH IN
THIS PROSPECTUS OR IN THE AFFAIRS OF THE COMPANY SINCE THE DATE HEREOF.
-----------------
TABLE OF CONTENTS
<TABLE>
<CAPTION>
PAGE
----
<S> <C>
Available Information...................................................... 2
Incorporation of Certain Documents By Reference............................ 2
The Company................................................................ 4
Ratio of Earnings to Fixed Charges......................................... 4
Use of Proceeds............................................................ 5
Description of the Company's Capital Stock................................. 5
Description of Debt Securities............................................. 8
Description of Preferred Stock............................................. 14
Plan of Distribution....................................................... 18
Legal Matters.............................................................. 18
Experts.................................................................... 18
</TABLE>
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
ASSISTED LIVING
CONCEPTS, INC.
SECURITIES
-----------------
PROSPECTUS
-----------------
OCTOBER 2 , 1997
- -------------------------------------------------------------------------------
- -------------------------------------------------------------------------------
<PAGE>
PART II
INFORMATION NOT REQUIRED IN PROSPECTUS
ITEM 14. OTHER EXPENSES OF ISSUANCE AND DISTRIBUTION.
Set forth below is an estimate of the fees and expenses to be incurred in
connection with the issuance and distribution of the Securities registered
hereby.
<TABLE>
<S> <C>
Securities and Exchange Commission Registration Fee................ $ 45,450
American Stock Exchange Listing Fee................................ 15,000
Blue Sky Fees and Expenses......................................... 5,000
Legal Fees and Expenses............................................ 100,000
Accounting Fees.................................................... 35,000
Printing and Engraving Costs....................................... 40,000
Trustee's Fees and Expenses........................................ 20,000
Miscellaneous Expenses............................................. 14,550
--------
Total............................................................ $275,000
========
</TABLE>
All of the costs identified above will be paid by the Company.
ITEM 15. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Company's Articles of Incorporation provide that a director or officer
of the Company shall not be personally liable to the Company or its
stockholders for damages for any breach of fiduciary duty as a director or
officer, except for liability for (i) acts or omissions which involve
intentional misconduct, fraud or a knowing violation of law, or (ii) the
payment of distributions in violation of Nevada Revised Statutes 78.300. In
addition, Nevada Revised Statutes 78.751 and Article III, Section 13 of the
Company's By-Laws, under certain circumstances, provide for the
indemnification of the Company's officers, directors, employees, and agents
against liabilities which they may incur in such capacities. A summary of the
circumstances in which such indemnification is provided for is contained
herein, but that description is qualified in its entirety by reference to
Article III, Section 13 of the Company's By-Laws.
In general, any officer, director, employee or agent shall be indemnified
against expenses including attorneys' fees, fines, settlements, or judgments
which were actually and reasonably incurred in connection with a legal
proceeding, other than one brought by or on behalf of the Company, to which he
was a party as a result of such relationship, if he acted in good faith, and
in the manner he believed to be in or not opposed to the Company's best
interest and, with respect to any criminal action or proceeding, had no
reasonable cause to believe his conduct was unlawful. If the action or suit is
brought by or on behalf of the Company, the person to be indemnified must have
acted in good faith and in a manner he reasonably believed to be in or not
opposed to the Company's best interest. No indemnification will be made in
respect of any claim, issue or matter as to which such person shall have been
adjudged by a court of competent jurisdiction, after exhaustion of all appeals
therefrom, to be liable to the Company or for amounts paid in settlement to
the Company, unless and only to the extent that the court in which the action
or suit was brought or other court of competent jurisdiction, determines upon
application that in view of all the circumstances of the case, the person is
fairly and reasonably entitled to indemnity for such expenses which such court
shall deem proper.
Any indemnification under the previous paragraphs, unless ordered by a court
or advanced as provided in the succeeding paragraph, must be made by the
Company only as authorized in the specific case upon a determination that
indemnification of the director, officer, employee or agent is proper in the
circumstances. The determination must be made (i) by the stockholders, (ii) by
the Board of Directors by a majority vote of a quorum consisting of directors
who were not parties to the act, suit or proceeding, (iii) if a majority vote
of a quorum of directors who were not parties to the act, suit or proceeding
so orders, by independent legal counsel in a written
II-1
<PAGE>
opinion or (iv) if a quorum consisting of directors who were not parties to
the act, suit or proceeding cannot be obtained, by independent legal counsel
in a written opinion. To the extent that a director, officer, employee or
agent of the Company has been successful on the merits or otherwise in defense
of any action, suit or proceeding referred to in the previous paragraph, or in
defense of any claim, issue or matter therein, he must be indemnified by the
Company against expenses, including attorneys' fees, actually and reasonably
incurred by him in connection with the defense.
Expenses incurred by an officer or director in defending a civil or criminal
action, suit or proceeding must be paid by the Company as they are incurred
and in advance of the final disposition of the action, suit or proceeding,
upon receipt of an undertaking by or on behalf of the director or officer to
repay the amount if it is ultimately determined by a court of competent
jurisdiction that he is not entitled to be indemnified by the Company as
authorized by the By-Laws. Such expenses incurred by other employees and
agents may be so paid upon such terms and conditions, if any, as the Board of
Directors deems appropriate.
The indemnification and advancement of expenses authorized in or ordered by
a court as provided in the foregoing paragraphs does not exclude any other
rights to which a person seeking indemnification or advancement of expenses
may be entitled under the Articles of Incorporation or any bylaw, agreement,
vote of stockholders or disinterested directors or otherwise, for either an
action in his official capacity or an action in another capacity while holding
his office, except that indemnification, unless ordered by a court as
described in the third preceding paragraph or for advancement of expenses made
as described in the next preceding paragraph, may not be made to or on behalf
of any director or officer if a final adjudication establishes that his acts
or omissions involved intentional misconduct, fraud or a knowing violation of
the law and was material to the cause of action. If a claim for
indemnification or payment of expenses under Article III, Section 13 of the
By-Laws is not paid in full within ninety (90) days after a written claim
therefor has been received by the Company, the claimant may file suit to
recover the unpaid amount of such claim, if successful in whole or in part,
shall be entitled to be paid the expense of prosecuting such claim. In any
such action, the Company shall have the burden of proving that the claimant
was not entitled to the requested indemnification or payment of expenses under
applicable law.
The Board of Directors may authorize, by a vote of a majority of a quorum of
the Board of Directors, the Company to purchase and maintain insurance on
behalf of any person who is or was a director, officer, employee or agent of
the Company, or is or was serving at the request of the Company as a director,
officer, employee or agent of another corporation, partnership, joint venture,
trust or other enterprise against any liability asserted against him and
incurred by him in any such capacity, or arising out of his status as such,
whether or not the Company would have the power to indemnify him against such
liability under the provisions of Article III, Section 13 of the By-Laws. The
Board of Directors may authorize the Company to enter into a contract with any
person who is or was a director, officer, employee or agent of the Company or
is or was serving at the request of the Company as a director, officer,
employee or agent of another partnership, joint venture, trust or other
enterprise providing for indemnification rights equivalent to or, if the Board
of Directors so determines, greater than those provided for in Article III,
Section 13 of the By-Laws.
The Company has also purchased insurance for its directors and officers for
certain losses arising from claims or charges made against them in their
capacities as directors and officers of the Company.
II-2
<PAGE>
ITEM 16. EXHIBITS AND FINANCIAL STATEMENT SCHEDULES.
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT
----------- ----------------------
<C> <S>
1.1 Form of Underwriting Agreement (previously filed).
2.1 Merger Agreement between the Company and CCL Sub, Inc.
(incorporated by reference to the same titled exhibit to the
Company's Registration Statement on Form S-1, File No. 33-83938).
2.2 Agreement and Plan of Corporate Separation and Reorganization
between Concepts In Community Living, Inc. and Keren Wilson
(Incorporated by reference to the same titled exhibit to the
Company's Registration Statement on Form S-1, File No. 33-83938).
2.3 Assignment, Bill of Sale, License, and Assumption Agreement
between Concepts In Community Living, Inc., and CCL Sub, Inc.
(Incorporated by reference to the same titled exhibit to the
Company's Registration Statement on Form S-1, File No. 33-83938).
2.4 Purchase Agreement between the Company and Lincoln City Limited
Partnership (Incorporated by reference to the same titled exhibit
to the Company's Registration Statement on Form S-1, File No. 33-
83938).
2.5 Letter Purchase Agreement between the Company and Madras Senior
Residence, LRW partners, Keren Brown Wilson and Joseph Hughes
(Incorporated by reference to the same titled exhibit to the
Company's Registration Statement on Form S-1, File No. 33-83938).
3.1 Articles of Incorporation of the Company (Incorporated by
reference to the same titled exhibit to the Company's
Registration Statement on Form S-1, File No. 33-83938).
3.2 By laws of the Company (Incorporated by reference to the same
titled exhibit to the Company's Registration Statement on Form S-
1, File No. 33-83938).
4.1 Indenture, dated as of August 15, 1995, between the Company and
Harris Trust and Savings Bank, as Trustee, in respect of the
Company's 7.0% Convertible Subordinated Debentures due 2005.
(Incorporated by reference to the same titled exhibit to the
Company's Quarterly Report on Form 10-Q for the period ended
September 30, 1995, File No. 1-83938).
4.2 Form of 7.0% Convertible Subordinated Debentures due 2005
(Incorporated by reference to the same titled exhibit to the
Company Quarterly Report on Form 10-Q for the period ended
September 30, 1995, File No. 1-83938).
4.3 Registration Rights Agreement dated August 2, 1995 between the
Company and the Purchasers of its 7% Convertible Subordinated
Debentures due 2005 (Incorporated by reference to the same titled
exhibit to the Company's Quarterly Report on Form 10-Q for the
period ended September 30, 1995, File No. 1-83938).
4.4 Form of Indenture between the Company and Harris Trust and Savings
Bank with respect to the Debt Securities that are, among other
things, the subject of this Registration Statement (previously
filed).
4.5 Rights Agreement dated as of June 12, 1997, between Assisted
Living Concepts, Inc. and American Stock Transfer & Trust
Company, as Rights Agent, which includes the form of Certificate
of Resolution Establishing Designations, Preferences and Rights
of Series A Junior Participating Preferred Stock of Assisted
Living Concepts, Inc. as Exhibit A, the form of Right Certificate
as Exhibit B and the Summary of Rights to Purchase Preferred
Shares as Exhibit C (Incorporated by reference to the same titled
exhibit to the Company's Current Report on Form 8-K, dated July
24, 1997, File No. 1-83938).
5.1 Opinion of Latham & Watkins regarding legality (previously filed).
12.1 Computation of Ratio of Earnings to Fixed Charges (previously
filed).
23.1 Consent of Latham & Watkins with respect to opinion on legality
(previously filed).
23.2 Consent of Price Waterhouse LLP (filed herewith).
23.3 Consent of KPMG Peat Marwick LLP (filed herewith).
24.1 Power of Attorney (previously filed).
25.1 Form T-1 Statement of Eligibility and Qualification under the
Trust Indenture Act of 1939 of the Trustee (previously filed).
</TABLE>
II-3
<PAGE>
ITEM 17. UNDERTAKINGS.
(a) Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
registrant pursuant to the foregoing provisions, or otherwise, the registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the registrant of expenses incurred or
paid by a director, officer or controlling person of the registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities
being registered, the registrant will, unless in the opinion of its counsel
the matter has been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification by it is
against public policy as expressed in the Securities Act and will be governed
by the final adjudication of such issue.
(b) The undersigned registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Securities Exchange Act of 1934 (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of the
Securities and Exchange Act of 1934) that is incorporated by reference in the
registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona fide offering
thereof.
(c) The undersigned Registrant hereby undertakes that:
(1) For purposes of determining any liability under the Securities Act,
the information omitted from the form of prospectus filed as part of this
registration statement in reliance upon Rule 430A and contained in a form
of prospectus filed by the registrant pursuant to Rule 424(b)(1) or (4) or
497(h) under the Securities Act shall be deemed to be part of this
Registration Statement as of the time it was declared effective.
(2) For the purpose of determining any liability under the Securities
Act, each post-effective amendment that contains a form of prospectus shall
be deemed to a new registration statement relating to the securities
offered therein, and the offering of such securities at that time shall be
deemed to be the initial bona fide offering thereof.
(d) The undersigned registrant hereby undertakes to deliver or caused to be
delivered with the Prospectus, to each person to whom the Prospectus is sent
or given, the latest annual report, to security holders that is incorporated
by reference in the Prospectus and furnished pursuant to and meeting the
requirement of Rule 14a-3 or Rule 14c-3 under the Securities Exchange Act of
1934; and, where interim financial information required to be presented by
Article 3 of Regulation S-X is not set forth in the Prospectus, to deliver, or
cause to be delivered to each person to whom the Prospectus is sent or given,
the latest quarterly report that is specifically incorporated by reference in
the Prospectus to provide such interim financial information.
(e) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a
post-effective amendment to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the
Securities Act of 1993;
(ii) To reflect in the prospectus any facts or events arising after
the effective date of the registration statement (or the most recent
post- effective amendment thereof) which, individually or in the
aggregate, represent a fundamental change in the information set forth
in the registration statement. Notwithstanding the foregoing, any
increase or decrease in volume of securities offered (if the total
dollar value of securities offered would not exceed that which was
registered) and any deviation from the low or high end of the estimated
maximum offering range may be reflected in the form of prospectus filed
with the Commission pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a 20 percent change
in the maximum aggregate offering price set forth in the "Calculation
of Registration Fee" table in the effective registration statement;
II-4
<PAGE>
(iii) To include any material information with respect to the plan of
distribution not previously disclosed in the registration statement or
any material change to such information in the registration statement;
Provided, however, that paragraphs (e)(1)(i) and (e)(1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by
those paragraphs is contained in periodic reports filed with or
furnished to the Commission by the registrant pursuant to Section 13 or
Section 15(d) of the Securities Exchange Act of 1934 that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability under the
Securities Act, each such post-effective amendment shall be deemed to be a
new registration statement relating to the securities offered therein, and
the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment
any of the securities being registered which remain unsold at the
termination of the offering.
II-5
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the Registrant
certifies that it has reasonable grounds to believe that it meets all of the
requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned thereunto duly
authorized in the City of Portland, State of Oregon on the 2nd day of October
1997.
ASSISTED LIVING CONCEPTS, INC.
/s/ Stephen Gordon
By: _________________________________
Stephen Gordon
Chief Administrative Officer and
Chief Financial Officer
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement has been signed by the following persons in the
capacities and as of the dates indicated:
<TABLE>
<CAPTION>
SIGNATURE TITLE DATE
--------- ----- ----
<S> <C> <C>
/s/ * Chairman of the Board of October 2, 1997
____________________________________ Directors
William McBride III
/s/ * Director, President October 2, 1997
____________________________________ (Principal Executive
Keren B. Wilson Officer)
/s/ Stephen Gordon Chief Administrative Officer October 2, 1997
____________________________________ and Chief Financial Officer
Stephen Gordon
/s/ * Chief Accounting Officer and October 2, 1997
____________________________________ Controller
Rhonda S. Marsh
/s/ * Director October 2, 1997
____________________________________
Gloria Cavanaugh
/s/ * Director October 2, 1997
____________________________________
Richard C. Ladd
/s/ * Director October 2, 1997
____________________________________
Bradley C. Razook
</TABLE>
*By
/s/ Stephen Gordon
-----------------------------
Stephen Gordon
Attorney-in-fact
II-6
<PAGE>
EXHIBITS INDEX
<TABLE>
<CAPTION>
EXHIBIT NO. DESCRIPTION OF EXHIBIT PAGE
----------- ---------------------- ----
<C> <S> <C>
1.1 Form of Underwriting Agreement (previously filed).
2.1 Merger Agreement between the Company and CCL Sub, Inc.
(incorporated by reference to the same titled exhibit to
the Company's Registration Statement on Form S-1, File No.
33-83938).
2.2 Agreement and Plan of Corporate Separation and
Reorganization between Concepts In Community Living, Inc.
and Keren Wilson (Incorporated by reference to the same
titled exhibit to the Company's Registration Statement on
Form S-1, File No. 33-83938).
2.3 Assignment, Bill of Sale, License, and Assumption Agreement
between Concepts In Community Living, Inc., and CCL Sub,
Inc. (Incorporated by reference to the same titled exhibit
to the Company's Registration Statement on Form S-1, File
No. 33-83938).
2.4 Purchase Agreement between the Company and Lincoln City
Limited Partnership (Incorporated by reference to the same
titled exhibit to the Company's Registration Statement on
Form S-1, File No. 33-83938).
2.5 Letter Purchase Agreement between the Company and Madras
Senior Residence, LRW partners, Keren Brown Wilson and
Joseph Hughes (Incorporated by reference to the same
titled exhibit to the Company's Registration Statement on
Form S-1, File No. 33-83938).
3.1 Articles of Incorporation of the Company (Incorporated by
reference to the same titled exhibit to the Company's
Registration Statement on Form S-1, File No. 33-83938).
3.2 By laws of the Company (Incorporated by reference to the
same titled exhibit to the Company's Registration
Statement on Form S-1, File No. 33-83938).
4.1 Indenture, dated as of August 15, 1995, between the Company
and Harris Trust and Savings Bank, as Trustee, in respect
of the Company's 7.0% Convertible Subordinated Debentures
due 2005. (Incorporated by reference to the same titled
exhibit to the Company's Quarterly Report on
Form 10-Q for the period ended September 30, 1995, File
No. 1-83938).
4.2 Form of 7.0% Convertible Subordinated Debentures due 2005
(Incorporated by reference to the same titled exhibit to
the Company Quarterly Report on Form 10-Q for the period
ended September 30, 1995, File No. 1-83938).
4.3 Registration Rights Agreement dated August 2, 1995 between
the Company and the Purchasers of its 7% Convertible
Subordinated Debentures due 2005 (Incorporated by
reference to the same titled exhibit to the Company's
Quarterly Report on Form 10-Q for the period ended
September 30, 1995, File No. 1-83938).
4.4 Form of Indenture between the Company and Harris Trust and
Savings Bank with respect to the Debt Securities that are,
among other things, the subject of this Registration
Statement (previously filed).
4.5 Rights Agreement dated as of June 12, 1997, between
Assisted Living Concepts, Inc. and American Stock Transfer
& Trust Company, as Rights Agent, which includes the form
of Certificate of Resolution Establishing Designations,
Preferences and Rights of Series A Junior Participating
Preferred Stock of Assisted Living Concepts, Inc. as
Exhibit A, the form of Right Certificate as Exhibit B and
the Summary of Rights to Purchase Preferred Shares as
Exhibit C (Incorporated by reference to the same titled
exhibit to the Company's Current Report on Form 8-K, dated
July 24, 1997, File No. 1-83938).
5.1 Opinion of Latham & Watkins regarding legality (previously
filed).
12.1 Computation of Ratio of Earnings to Fixed Charges
(previously filed).
23.1 Consent of Latham & Watkins with respect to opinion on
legality (previously filed).
23.2 Consent of Price Waterhouse LLP (filed herewith).
23.3 Consent of KPMG Peat Marwick LLP (filed herewith).
24.1 Power of Attorney (previously filed).
25.1 Form T-1 Statement of Eligibility and Qualification under
the Trust Indenture Act of 1939 of the Trustee (previously
filed).
</TABLE>
<PAGE>
EXHIBIT 23.2
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in the Prospectus
constituting part of this Registration Statement on Form S-3 of our reports
dated March 17, 1995, which appear on pages 30 and 31 of Assisted Living
Concepts, Inc.'s Annual Report on Form 10-K for the year ended December
31, 1996 relating to the financial statements of Assisted Living Concepts
Group (which is comprised of Assisted Living Facilities, Inc., a subchapter
S Corporation, Madras Elder Care (dba Aspen Court), a general partnership,
and Lincoln City Partners, a general partnership) for the eleven months
ended November 30, 1994, and of Assisted Living Concepts, Inc. for the one
month period ended December 31, 1994. We also consent to the reference to
us under the heading "Experts" in such Prospectus.
/s/ Price Waterhouse LLP
- --------------------------
PRICE WATERHOUSE LLP
PORTLAND, OREGON
October 2, 1997
<PAGE>
EXHIBIT 23.3
CONSENT OF INDEPENDENT AUDITORS
The Board of Directors and Shareholders
Assisted Living Concepts, Inc.:
We consent to the use of our report incorporated herein by reference and to the
reference to our firm under the heading "Experts" in the prospectus.
/s/ KPMG Peat Marwick LLP
Portland, Oregon
October 2, 1997
