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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
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SCHEDULE TO/A
(RULE 14D-100)
TENDER OFFER STATEMENT UNDER SECTION 14(D)(1)
OR SECTION 13(E)(1) OF THE SECURITIES EXCHANGE ACT OF 1934
(AMENDMENT NO. 1)
BROOKDALE LIVING COMMUNITIES, INC.
(Name of Subject Company (Issuer))
FORTRESS BROOKDALE ACQUISITION LLC
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $.O1 PER SHARE
(Title of Class of Securities)
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112462 10 6
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(CUSIP Number of Class of Securities)
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Randal A. Nardone
Fortress Investment Holdings, LLC
1301 Avenue of the Americas
New York, New York 10019
Telephone: (212) 798-6100
(Name, address and telephone number of
person authorized to receive notices
and communications on behalf of filing persons)
Copy to:
J. Gregory Milmoe, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP
Four Times Square
New York, New York 10036
Telephone: (212) 735-3000
CALCULATION OF FILING FEE
Transaction Valuation*: $102,077,140 Amount of Filing Fee: $20,415**
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* Estimated for purposes of calculating the amount of the filing fee only.
This calculation assumes the purchase of all outstanding shares of
Common Stock, par value $.01 per share, of Brookdale Living Communities,
Inc. (the "Company Common Stock" or the "Shares"), at a price per Share
of $15.25 in cash. As of July 31, 2000, there were 9,926,549 Shares
outstanding and 771,384 shares were reserved for issuance upon the
exercise of outstanding options. The amount of the filing fee,
calculated in accordance with Rule 0-11 of the Securities Exchange Act
of 1934, as amended, equals 1/50th of one percent of the value of the
transaction.
** This amount was previously paid in connection with the original filing
of this Schedule TO on August 1, 2000.
|_| Check the box if the filing relates solely to preliminary communications
made before the commencement of a tender offer.
Check the appropriate boxes below to designate any transactions to which
the statement relates:
|X| third-party tender offer subject to Rule 14d-1.
|_| issuer tender offer subject to Rule 13e-4.
|X| going-private transaction subject to Rule 13e-3.
|X| amendment to Schedule 13D under Rule 13d-2.
Check the following box if the filing is a final amendment reporting the
results of the tender offer: |_|
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CUSIP NO. 112462 10 6 13D PAGE 1 OF 1 PAGE
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1 NAMES OF REPORTING PERSONS
I.R.S. IDENTIFICATION NOS. OF ABOVE PERSONS (ENTITIES ONLY)
FORTRESS BROOKDALE ACQUISITION LLC
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2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (a) |_|
(b) |_|
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3 SEC USE ONLY
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4 SOURCE OF FUNDS
WC/AF
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5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO
ITEM 2(d) or 2(e) |_|
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6 CITIZENSHIP OR PLACE OF ORGANIZATION
DELAWARE
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7 SOLE VOTING POWER - 4,004,350 -
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8 SHARED VOTING POWER - 5,479,452 - (Represents
shares of Company Common
Stock issuable upon
NUMBER OF conversion of the
SHARES $100,000,000 principal
BENEFICIALLY amount 5 1/2% Convertible
OWNED BY EACH Note due July 26, 2009
REPORTING which Health Partners is
PERSON WITH contractually obligated to
contribute to the
Reporting Person upon the
expiration or termination
of the Offer described
herein.)
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9 SOLE DISPOSITIVE POWER - 4,004,350 -
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10 SHARED DISPOSITIVE POWER - 5,479,452 -
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11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
- 9,483,802 -
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12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN
SHARES |_|
NOT APPLICABLE
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13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
58.6% (based on 9,926,549 shares of common stock issued and
outstanding as of July 25, 2000, 5,479,452 shares of Company Common
Stock issuable upon conversion of the Convertible Note, and 771,384
Shares of Company Common Stock reserved for issuance upon the
exercise of outstanding options.)
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14 TYPE OF REPORTING PERSON
OO
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This Amendment to the Tender Offer Statement on Schedule TO
relates to the third-party tender offer by Fortress Brookdale Acquisition
LLC, a Delaware limited liability company ("Purchaser") owned by Fortress
Registered Investment Trust, a Delaware Business Trust, and Health Partners,
an affiliate of Capital Z Partners, Ltd., to purchase any and all of the
issued and outstanding shares of common stock, par value $.01 per share
(the "Common Stock" or the "Shares"), of Brookdale Living Communities,
Inc., a Delaware corporation (the "Company"), at a purchase price of $15.25
per Share, net to the seller in cash, without interest thereon, upon the
terms and subject to the conditions set forth in the Offer to Purchase
dated August 1, 2000 and in the related Letter of Transmittal, which
together and as amended or supplemented from time to time, constitute the
"Offer."
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
Item 3 is hereby amended and supplemented to add the following:
(a) Purchaser's business telephone number is (212) 798-6100.
Section 8 titled "Certain Information Concerning Fortress, Purchaser
and Acquisition Sub" is hereby amended and supplemented to add the
following at the end of the third paragraph:
All decisions of any significance including specifically any
decisions relating to the conduct of the Offer and the Merger require
two-thirds consent of the entire Operating Committee.
Section 8 titled "Certain Information Concerning Fortress, Purchaser
and Acquisition Sub" is hereby amended and supplemented to add the
following after the eighth paragraph:
During the last five years, neither of Purchaser, nor, to the best of
Purchaser's knowledge, any of the persons listed in Schedule I to
this Offer to Purchase (i) has been convicted in a criminal
proceeding (excluding traffic violations and similar misdemeanors) or
(ii) was a party to any judicial or administrative proceeding that
resulted in a judgment, decree or final order enjoining the person
from future violations of, or prohibiting activities subject to,
federal or state securities laws, or a finding of any violation of
federal or state securities laws.
ITEM 4. TERMS OF THE TRANSACTION
The first paragraph of Section 13, titled "Certain Conditions to the
Offer" is hereby amended and restated in its entirety as follows:
Notwithstanding any other provision of the Offer, and in addition to
(and not in limitation of) Purchaser's rights to extend and amend the
Offer at any time, prior to the Expiration Date, in its sole
discretion in accordance with and, otherwise subject to, the terms of
the Merger Agreement, Purchaser shall not be required to accept for
payment, or, subject to any applicable rules and regulations of the
SEC, including Rule 14e-1(c) under the Exchange Act, pay for, and may
delay the acceptance for payment of or, subject to the restriction
referred to above, the payment for, any tendered Shares, and may
terminate the Offer and not accept for payment any tendered Shares,
if, at any time, prior to the Expiration Date, any of the following
events shall occur:
ITEM 7. SOURCE AND AMOUNT OF FUNDS OR OTHER CONSIDERATION.
Section 12 titled "Fees and Expenses" is hereby amended and
supplemented to add the following table after the fourth paragraph:
The following table presents the estimated fees and expenses to
be incurred in connection with the Offer and the Merger:
Dealer Manager and Investment Banker Fees.........$ 2,700,000
Legal Fees and Expenses...........................$ 1,225,000
Printing and Mailing..............................$ 100,000
Filing Fee........................................$ 20,415
Accounting Fees...................................$ 100,000
Information and Transfer Agent Fees...............$ 12,000
Miscellaneous.....................................$ 500,000
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Total.......................................$ 4,657,415
ITEM 12. EXHIBITS.
Item 12 is hereby amended and supplemented to add the following
exhibits:
(d)(2) Amended and Restated Limited Liability Company Agreement of
Purchaser, dated as of July 26, 2000, by and among Purchaser,
Fortress Registered Investment Trust and Health Partners.
(d)(3) Contribution Agreement, dated as of July 26, 2000, by and
among Purchaser, Fortress Registered Investment Trust and
Health Partners.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
The second paragraph of the section entitled "SPECIAL FACTORS -
Position of Purchaser Regarding Fairness of the Offer and the Merger" is
hereby amended and restated in its entirety as follows:
In addition to the above factors, as a negative factor
Purchaser recognized that, while consummation of the Offer and the
Merger will result in all stockholders (other than Purchaser) being
entitled to receive $15.25 in cash for each of their Shares, it will
eliminate the opportunity for current stockholders (other than
Purchaser) to participate in the benefit of increases, if any, in the
value of the Company's business following the Merger.
Purchaser believes that the Offer and Merger are procedurally
fair because, among other things: (i) the Company Board established
the Independent Committee which consisted entirely of directors who
had no relationship with Purchaser; (ii) Purchaser's representatives
on the Company Board did not participate in the discussions, or
deliberations of the Independent Committee or its advisors; 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 which gave 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.
Purchaser did not find it practicable to assign, nor did it
assign, relative weights to the individual factors considered in
reaching its conclusion as to the fairness of the Offer. Reference
above to projections of future financial performance refers to
Purchaser's internal projections and was not relied upon for
purposes of determining fairness. Nor did Purchaser consider net book
value or liquidation value in making its fairness determination. In a
business in which real estate forms a significant part of the assets
of the enterprise, Purchaser does not believe that book value, which
under GAAP includes depreciation, is a particularly relevant measure
of value. With respect to liquidation value, because Brookdale is a
"C" corporation it would be required to pay tax on the gain
recognized between the fair market value of its assets and the
depreciated tax basis of such assets if such assets were sold in a
liquidation. Based on a rough calculation, Purchaser believes that
the magnitude of such tax would result in a per share value
substantially lower than $15.25. For this reason and because
Purchaser has no intention to liquidate Brookdale, Purchaser did not
consider or investigate liquidation value in its determination as to
fairness.
The first paragraph in the section "SPECIAL FACTORS - Purpose and
Structure of the Offer and the Merger" is hereby amended to add the
following after the first sentence:
The purpose of increasing ownership of the Company to 100% is, among
other reasons, to gain the flexibility inherent in a private company
by eliminating the Company's fiduciary obligations to minority
stockholders, simplifying the Company's financial reporting and
regulatory requirements and avoiding the expense and public scrutiny
associated therewith, and eliminating fluctuations in value
associated with any publicly traded security particularly at a time
when real estate based companies are not well valued in the market.
Purchaser intends to use the Company as a platform from which to
participate in what it believes will be a consolidation in the
assisted living care sector.
Footnote two in the section "SPECIAL FACTORS - Beneficial Ownership
of Common Stock by Certain Persons" is hereby amended and restated in its
entirety as follows:
(2) Represents shared beneficial ownership of shares of Company
Common Stock issuable upon conversion of the Convertible Note. Health
Partners has agreed to contribute the Convertible Note to Purchaser
upon expiration.
The third paragraph of the section "SPECIAL FACTORS - Interests of
Certain Persons in the Offer and Merger" is hereby amended to add the
following after the first sentence:
Based on information obtained from the Company, the total number of
options with respect to which payments will be made at the Effective
Time of the Merger is 519,209 (308,334 of which are held by officers
and directors of the Company) and the aggregate value of such
payments is approximately $1,669,449. Purchaser does not anticipate
that any payments will be made under existing employment and
severance agreements as a result of the Offer or the Merger because
Purchaser understands that such payments would be required only if
employees were terminated.
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.
FORTRESS BROOKDALE ACQUISITION LLC
By:
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Name: Randal A. Nardone
Title: Secretary of Fortress Brookdale
Acquisition LLC
Date: August [ ], 2000
EXHIBIT INDEX
Exhibit No. Description
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(d)(2) Amended and Restated Limited Liability Company Agreement of
Purchaser, dated as of July 26, 2000, by and among Purchaser,
Fortress Registered Investment Trust and Health Partners.
(d)(3) Contribution Agreement, dated as of July 26, 2000, by and
among Purchaser, Fortress Registered Investment Trust and
Health Partners.
