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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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SCHEDULE 13E-3
RULE 13e-3 TRANSACTION STATEMENT
UNDER SECTION 13(e) OF THE SECURITIES EXCHANGE ACT OF 1934
BROOKDALE LIVING COMMUNITIES, INC.
(Name of the Issuer)
BROOKDALE LIVING COMMUNITIES, INC.
(Name of Person(s) Filing Statement)
Common Stock, Par Value $0.01 Per Share
(Title of Class of Securities)
112462 10 6
(CUSIP Number of Class of Securities)
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Mark J. Schulte
Chairman of the Board and Chief Executive Officer
Brookdale Living Communities, Inc.
330 North Wabash Avenue, Suite 1400
Chicago, Illinois 60611
Telephone Number (312) 977-3700
(Name, Address and Telephone Number of Person Authorized to Receive Notices and
Communications on Behalf of Person(s) Filing Statement)
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Copy to:
Brian T. Black, Esq.
Winston & Strawn
35 West Wacker Drive
Chicago Illinois 60601
(312) 558-5600
This statement is filed in connection with (check the appropriate box):
a. [ ] The filing of solicitation materials or an information statement
subject to Regulation 14A, Regulation 14C or Rule 13e-3(c) under the
Securities Exchange Act of 1934.
b. [ ] The filing of a registration statement under the Securities Act of 1933.
c. [X] A tender offer.
d. [ ] None of the above.
Check the following box if the soliciting materials or information statement
referred to in checking box (a) are preliminary copies: [ ]
CALCULATION OF FILING FEE
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TRANSACTION VALUATION* AMOUNT OF FILING FEE
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$102,077,140 $20,415
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* Determined by multiplying 9,926,549 (but not including the number of
outstanding shares of common stock of Brookdale Living Communities, Inc.
owned by Fortress Brookdale Acquisition LLC) by $15.25 per share.
[X] Check the box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing with which the offsetting fee was
previously paid. Identify the previous filing by registration statement
number, or the Form or Schedule and the date of its filing.
Amount Previously Paid: $20,415 Filing Party: Fortress
Brookdale Acquisition LLC
Form or Registration No.: TO-T/13E-311301A Date Filed: August 1, 2000
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INTRODUCTION
This Rule 13e-3 Transaction Statement on Schedule 13E-3 (this "Schedule
13E-3") is being filed by Brookdale Living Communities, Inc., a Delaware
corporation (the "Company" or "Brookdale"), pursuant to Section 13(e) of the
Securities Exchange Act of 1934, as amended, and Rule 13e-3 thereunder, in
connection with the tender offer by Fortress Brookdale Acquisition LLC
("Purchaser") to purchase any and all of the outstanding shares of common stock,
par value $0.01 per share (the "Shares"), of the Company for $15.25 per Share,
net to the seller in cash, upon the terms and subject to the conditions set
forth in the Offer to Purchase, dated August 1, 2000, as amended (the "Offer to
Purchase") and the related Letter of Transmittal (which together constitute the
"Offer"). In response to the Offer, the Company filed a
Solicitation/Recommendation Statement on Schedule 14D-9, dated August 1, 2000,
as amended (the "Schedule 14D-9"). Pursuant to General Instruction F to Schedule
13E-3, except as otherwise set forth below, information contained in the
Schedule 14D-9 as amended and supplemented by Amendment No. 1 to the Schedule
14D-9 filed on August 28, 2000 and Amendment No. 2 to the Schedule 14D-9 filed
September 6, 2000 is expressly incorporated by reference in response to the
items of this Schedule 13E-3; information contained in the Tender Offer
Statement on Schedule TO (the "Schedule TO") filed by Purchaser with the
Securities and Exchange Commission on August 1, 2000, as amended by Amendment
No. 1 to the Schedule TO filed on August 28, 2000, and Amendment No. 2 to the
Schedule TO filed September 6, 2000 is specifically referenced below.
Capitalized terms used but not defined herein shall have the meanings ascribed
to them in the Offer to Purchase.
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ITEM 1. SUMMARY TERM SHEET.
The information set forth in the "SUMMARY TERM SHEET" in the Offer to
Purchase is incorporated herein by reference.
ITEM 2. SUBJECT COMPANY INFORMATION.
(a) The information set forth in "THE TENDER OFFER--Price
Range of Shares; Dividends" in the Offer to Purchase
is hereby incorporated by reference.
(b) and (c) The information set forth in "SPECIAL
FACTORS--Transactions and Arrangements Concerning the
Shares" in the Offer to Purchase is hereby incorporated by
reference.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
(a) Except as indicated below, the business address of each
executive officer and director of the Company is 330 North
Wabash Avenue, Suite 1400, Chicago, Illinois 60601. The
business address of Wayne D. Boberg, a director of the
Company, is Winston & Strawn, 35 West Wacker Drive,
Chicago, Illinois 60601. The business address of Dr. Bruce
L. Gewertz, a director of the Company, is University of
Chicago, 5841 South Maryland, MC5029, Chicago, Illinois
60637. The business address of Darryl W. Hartley-Leonard,
a director of the Company is c/o PGI, 2200 Wilson
Boulevard, 5th Floor, Arlington, Virginia 22201. The
business addresses of Wesley R. Edens, Paul H. Warren and
William B. Doniger, each a director of the Company, are
set forth in Annex A of the Schedule 14D-9. The business
address of Mark H. Tabak, a director of the Company, is 54
Thompson Street, New York, New York 10012.
(c) During the last five years, neither the Company nor, to
the best knowledge of the Company, any director or
executive officer of the Company, (i) has been convicted
in a criminal proceeding (excluding traffic violations or
similar misdemeanors) or (ii) was party to a civil
proceeding of a judicial or administrative body of
competent jurisdiction and as a result of such proceeding
was or is subject to a judgment, decree or final order
enjoining further violations of, or prohibiting activities
subject to, federal or state securities laws or finding
any violation of such laws.
ITEM 4. TERMS OF THE TRANSACTION.
(a) The information set forth in "INTRODUCTION," "SPECIAL
FACTORS" --Background of the Offer," "SPECIAL
FACTORS--Purpose and Structure of the Transaction,"
"SPECIAL FACTORS--The Merger Agreement," "THE TENDER
OFFER--1. Terms of the Offer," "THE TENDER OFFER--2.
Acceptance for Payment and Payment," "THE TENDER OFFER--3.
Procedures for Tendering Shares," "THE TENDER OFFER--4.
Withdrawal Rights," "THE TENDER OFFER--10. Conditions of
the Offer" and "THE TENDER OFFER--11. Fees and Other
Expenses" in the Offer to Purchase is incorporated by
reference.
(b) The information set forth in "INTRODUCTION," "SPECIAL
FACTORS--Background of the Offer," "SPECIAL
FACTORS--Purpose and Structure of the Transaction,"
"SPECIAL FACTORS--Plans for the Company After the Merger,"
"SPECIAL FACTORS--Recommendation of the Special Committee
and the Board; Fairness of the Transaction," "SPECIAL
FACTORS--Interests of Certain Persons in the Transaction,"
"SPECIAL FACTORS--The Merger Agreement," "SPECIAL
FACTORS--Dissenters Rights" and "SPECIAL FACTORS--Certain
Federal Income Tax Consequences" in the Offer to purchase
is incorporated herein by reference.
(c) Not applicable.
(e) None.
(f) Not applicable.
ITEM 5. PAST CONTACTS, TRANSACTIONS, NEGOTIATIONS AND AGREEMENTS.
The information contained in the sections of the Offer to Purchase
entitled "SPECIAL FACTORS--The Merger Agreement" and "THE TENDER OFFER" is
incorporated by reference.
ITEM 6. PURPOSES OF THE TRANSACTION AND PLANS OR PROPOSALS.
The information contained in the sections of the Offer to Purchase
entitled "SPECIAL FACTORS--Purpose and Structure of the Offer and the Merger;
Reasons for the Offer and the Merger" and "--Plans for the Company After the
Offer and the Merger; Certain Effects of the Offer" is incorporated herein by
reference.
ITEM 8. FAIRNESS OF THE TRANSACTION.
In addition to the information set forth in Item 4 of
the Schedule 14D-9 which is incorporated herein by
reference, the Company includes the following:
The Company believes that the Offer and Merger are
procedurally fair because, among other things: (i) the
Independent Committee, which negotiated the terms of the
Merger Agreement with Purchaser, consisted entirely of
non-management directors who had no relationship with
Purchaser; (ii) the Company Board ensured that Purchaser's
representative's on the Company Board did not participate
in the discussions or deliberations of the Independent
Committee or its advisors, and made certain that Purchaser
was bound by the terms of the Fortress Standstill
Agreement which prohibited it from acquiring or attempting
to acquire additional Shares prior to July 5, 2000 giving
the Independent Committee the opportunity to retain
independent advisors and thoughtfully consider the best
course for the Company; (iii) the Independent Committee
retained and was advised by its own independent legal
counsel; (iv) the Independent Committee retained and was
advised by Merrill Lynch as its independent financial
advisor to assist it in evaluating a potential transaction
with Purchaser and to render a fairness opinion; (v) the
fact that the $15.25 per Share price and the other terms
and conditions of the Merger Agreement resulted from
active arm's-length bargaining between representatives of
the Independent Committee, on the one hand, and
representatives of Purchaser, on the other; (vi) the
Merger Agreement did not impose significant impediments to
prospective competitive bidders; and (vii) the term of the
Offer was longer than 20 business days.
For the reasons set forth in the Schedule 14D-9 the
Company believes that the Offer and Merger are fair to
unaffiliated stockholders.
ITEM 9. REPORTS, OPINIONS, APPRAISALS AND NEGOTIATIONS.
Any report, opinion or appraisal shall be made available for
inspection or copying at the principal executive office of the Company during
its regular business hours by any interested equity security holder of the
Company or his or her representative who has been so designated in writing.
ITEM 10. SOURCE AND AMOUNTS OF FUNDS OR OTHER CONSIDERATION.
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(c) Brookdale, as the subject company, will be responsible for
paying all expenses related to its role in the Offer.
ITEM 13. FINANCIAL STATEMENTS.
(a) Financial information.
The information contained in Item 8 and Exhibit 12 of the
Company's Annual Report on Form 10-K for the year ended
December 31, 1999 and Item 1 of the Company's Quarterly Report
on Form 10-Q for the quarterly period ended June 30, 2000 is
incorporated by reference.
ITEM 16. EXHIBITS.
(a)(1) Offer to Purchase, dated August 1, 2000, as amended August 28,
2000 and further amended on September 6, 2000 (previously
filed).
(a)(2) Letter of Transmittal (previously filed).
(a)(3) Form of Letter to Stockholders of the Company dated as of
August 1, 2000 (previously filed).
(a)(4) Schedule 14D-9 filed by Brookdale Living Communities, Inc. on
August 1, 2000, as amended August 28, 2000 and further
amended on September 6, 2000 (previously filed).
(a)(5) Audited financial statements for the Company's 1998 and 1999
fiscal years, in Item 8 and Exhibit 12 of the Company's Annual
Report on Form 10-K for the fiscal year ended December 31,
2000 (incorporated by reference to the Company's Annual Report
on Form 10-K filed with the SEC on March 30, 2000).
(a)(6) Unaudited financial statements for the six-month period ended
June 30, 2000 in Item 1 of the Company's Quarterly Report on
Form 10-Q for the quarterly period ended June 30, 2000
(incorporated by reference to the Company's Quarterly Report
on Form 10-Q filed with the SEC on August 14, 2000).
(b) Not applicable.
(c)(1) Opinion of Merrill Lynch, Pierce, Fenner & Smith Incorporated
to the Independent Committee and the Company Board, dated July
26, 2000 (previously filed).
(c)(2) Materials presented by Merrill Lynch to the Independent
Committee on May 10, 2000 (dated May 8, 2000) as described in
the Schedule 14D-9.*
(c)(3) Materials presented by Merrill Lynch to the Independent
Committee on May 19, 2000 as described in the Schedule 14D-9.*
(c)(4) Materials presented by Merrill Lynch to the Independent
Committee on June 5, 2000 as described in the Schedule 14D-9.*
(c)(5) Materials presented by Merrill Lynch to the Independent
Committee on June 30, 2000 as described in the Schedule 14D-9.
(d)(1) Agreement and Plan of Merger, dated as of July 26, 2000, by
and among Fortress, Purchaser, Acquisition Sub and the Company
(previously filed).
(f) Description of Dissenters' Rights (the information set forth
in "SPECIAL FACTORS--Dissenters' Rights" in the Offer to
Purchase is incorporated herein by reference).
(g) Not Applicable.
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* To be filed by amendment.
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SIGNATURE
After due inquiry and to the best of my knowledge and belief, I certify
that the information set forth in this statement is true, complete and correct.
BROOKDALE LIVING COMMUNITIES, INC.
By: /s/ Robert J. Rudnik
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Name: Robert J. Rudnik
Title: Executive Vice President,
General Counsel and Secretary
Dated: September 6, 2000
