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. 2)
BROOKDALE LIVING COMMUNITIES, INC.
(Name of Subject Company (Issuer))
FORTRESS BROOKDALE ACQUISITION LLC
FORTRESS REGISTERED INVESTMENT TRUST
FORTRESS INVESTMENT FUND LLC
FORTRESS INVESTMENT GROUP LLC
HEALTH PARTNERS
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.
CAPITAL Z PARTNERS L.P.
(Names of Filing Persons (Offerors))
COMMON STOCK, PAR VALUE $.01 PER SHARE
(Title of Class of Securities)
112462 10 6
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(CUSIP Number of Class of Securities)
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Randal A. Nardone David A. Spuria, Esq.
Fortress Investment Holdings LLC Health Partners
1301 Avenue of the Americas 54 Thompson Street
New York, New York 10019 New York, New York 10012
Telephone: (212) 798-6100 Telephone: (212) 965-0800
(Name, address and telephone number of
persons authorized to receive notices
and communications on behalf of filing persons)
Copy to:
J. Gregory Milmoe, Esq. Paul Lovejoy, Esq.
Skadden, Arps, Slate, Meagher & Flom LLP Weil, Gotshal & Manges LLP
Four Times Square 767 Fifth Avenue
New York, New York 10036 New York, New York 10153
Telephone: (212) 735-3000 Telephone: (212) 310-8000
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.
|_| 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: |_|
This second amendment to the joint Tender Offer Statement on
Schedule TO and Schedule 13E-3 (as amended, the "Schedule TO") relates to
the third-party tender offer by Fortress Brookdale Acquisition LLC, a
Delaware limited liability company ("Purchaser") 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" or "Brookdale"), 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." By virtue of their direct or indirect
relationship with Purchaser, each of Fortress Investment Trust, a Delaware
business trust ("Fortress"), Fortress Investment Fund LLC, a Delaware
limited liability company ("Fortress Investment"), Fortress Investment
Group LLC, a Delaware limited liability company ("FIG"), Health Partners, a
Bermuda exempted partnership ("Health Partners"), Capital Z Financial
Services Fund II, L.P., a Bermuda limited partnership ("Capital Z Fund II")
and Capital Z Partners, L.P., a Bermuda limited partnership ("Capital Z," and
collectively with Fortress, Fortress Investment, FIG, Health Partners and
Capital Z Fund II the "Co-Bidders") may be deemed to be bidders within the
meaning of Rule 14d-1(g)(2). While the Co-Bidders do not believe that they
should be deemed to be bidders within the meaning of such rule, they are
nonetheless joining Purchaser as filing persons with respect to the
Schedule TO.
ITEM 1. SUMMARY TERM SHEET
The information set forth in the Offer to Purchase in the Summary Term
Sheet is hereby amended by adding the following question and answer:
Q. What is your position on the fairness of the offer?
Purchaser and each of the Co-Bidders believe that the offer of $15.25
per share is fair to all unaffiliated stockholders of Brookdale from
both a financial and procedural point of view based on the
consideration of the factors discussed in the section "SPECIAL FACTORS
- Position of Purchaser Regarding Fairness of the Offer and the
Merger." Those factors include the fact that the offer price represents
a premium of approximately 42% over the reported closing price on the
last full trading day prior to the public announcement that Fortress
intended to purchase 4,004,350 shares in a privately negotiated
transaction at $15 per share, and approximately a 17% premium to the
average trading price over the last twelve months; that Brookdale
formed an independent committee of directors which in turn hired
financial and legal advisors; and that after arms' length negotiations
the independent committee was able to increase the purchase price of
the shares.
The information set forth in the Offer to Purchase in the Summary Term
Sheet under the question "WHAT DOES BROOKDALE'S BOARD OF DIRECTORS THINK OF
THE OFFER?" is hereby amended to add the word "unaffiliated" before the
word stockholders in the fourth line to clarify that the Company Board
determined the Offer and the Merger to be fair to and in the best interests
of Brookdale's unaffiliated stockholders.
ITEM 3. IDENTITY AND BACKGROUND OF FILING PERSON.
Item 3 is hereby amended and supplemented to add the following:
(a) The business address and telephone number for Fortress, Fortress
Investment and FIG is 1301 Avenue of the Americas, New York, New York
10019, telephone: (212) 798-6100. The business address and telephone number
for Health Partners, Capital Z Fund II, and Capital Z Partners is 54
Thompson Street, New York, New York 10012, telephone number (212) 965-0800.
(b) Fortress is a registered investment company approximately 99% of
the equity of which is owned by Fortress Investment a private investment
fund owned directly and through intermediaries by institutional investors.
FIG directly and through intermediaries manages the affairs of Fortress and
Fortress Investment. The principal business of Fortress, Fortress
Investment and FIG is to make investments principally in the real estate
industry and related businesses. Health Partners invests in the securities
of healthcare services companies and related businesses. Capital Z Fund II
is a private equity fund formed to engage in the investment in securities
of financial services entities and serves as a general partner of Health
Partners. Capital Z is a business entity which serves as the general
partner of the general partner of Capital Z Fund II.
(c) Section 8 titled "Certain Information Concerning Fortress,
Purchaser and Acquisition Sub" is hereby amended and supplemented as
follows:
The fifth, seventh and eighth paragraphs of Section 8 are amended and
restated in their entireties to include references to the Co-Bidders as
follows:
The name, citizenship, business address, principal occupation or
employment and five-year employment history for each of the directors, and
executive officers or persons who serve as their equivalents of Purchaser,
Acquisition Sub and each of the Co-Bidders are set forth in Schedule I
hereto.
Except as described in this Offer to Purchaser, (i) none of Purchaser,
or any Co-Bidder nor, to the best knowledge of Fortress or any Co-Bidder,
any of the persons listed in Schedule I to this Offer to Purchase or any
associate or majority-owned subsidiary of Purchaser or any Co-Bidder or any
of the persons so listed beneficially owns or has any right to acquire,
directly or indirectly, any Shares and (ii) none of Purchaser or any
Co-Bidder, nor, to the best knowledge of Purchaser or any Co-Bidder any of
the persons or entities referred to above nor any director, executive
officer or subsidiary of any of the foregoing has effected any transaction
in the Shares during the past 60 days.
Except as provided in the Merger Agreement or as otherwise described in
this Offer to Purchase, neither Purchaser or any Co-Bidder, nor, to the
best knowledge of Purchaser or any Co-Bidder, any of the persons listed in
Schedule I to this Offer to Purchase, has any contract, arrangement,
understanding or relationship with any other person with respect to any
securities of the Company, including, but not limited to, any contract,
arrangement, understanding or relationship concerning the transfer or
voting of such securities, finder's fees, joint ventures, loan or option
arrangements, puts or call, guarantees of loans, guaranties against loss,
guaranties of profits, division of profits or loss or the giving or
withholding of proxies. Except as set forth in this Offer to Purchase,
neither Purchaser or any Co-Bidder, nor, to the best knowledge of Purchaser
or any Co-Bidder, any of the persons listed on Schedule I hereto, has had
any business relationship or transaction with the Company or any of its
executive officers, directors or affiliates that is required to be reported
under the rules and regulations of the SEC applicable to the Offer. Except
as set forth in this Offer to Purchase, there have been no contacts,
negotiations or transactions between Purchaser, or any Co-Bidder or any of
their subsidiaries or, to the best knowledge of Purchaser or any Co-Bidder
any of the persons listed in Schedule I to this Offer to Purchase, on the
one hand, and the Company or its affiliates, on the other hand, concerning
a merger, consolidation or acquisition, tender offer or other acquisition
of securities, an election of directors or a sale or other transfer of a
material amount of assets.
During the last five years, none of the Co-Bidders, or the persons
listed in the Amended 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.
Schedule I is further amended to add the following at the end of the
Schedule:
2. OTHER GENERAL PARTNERS OF HEALTH PARTNERS:
Capital Z Financial Services Private Fund II, L.P. ("Private Fund II"),
a Bermuda limited partnership that was formed to engage in the
investment in securities of financial service entities, is a general
partner of Health Partners. The principal business address of Private
Fund II is 54 Thompson Street, New York, New York 10012, and its
telephone number is (212) 965-0800.
International Managed Care Advisors, Inc. ("IMCA"), a Delaware
corporation that was formed to invest in and advise healthcare services
companies, is a general partner of Health Partners. The principal
business address of IMCA is 54 Thompson Street, New York, New York
10012, and its telephone number is (212) 965-0800.
3. NAME, BUSINESS ADDRESS AND PRESENT PRINCIPAL OCCUPATION OR
EMPLOYMENT OF THE DIRECTORS AND EXECUTIVE OFFICERS OF CAPITAL Z
PARTNERS LTD., THE ULTIMATE PARENT OF HEALTH PARTNERS, CAPITAL Z
FINANCIAL SERVICES FUND II, L.P. AND CAPITAL Z PARTNERS, L.P., AND
WHO ALSO SERVE AS OFFICERS OR THEIR EQUIVALENTS FOR HEALTH PARTNERS,
CAPITAL Z FINANCIAL SERVICES FUND II, L.P. AND CAPITAL Z PARTNERS, L.P.:
Steven M. Gluckstern
Chairman of the Board
54 Thompson Street
New York, New York 10012
Robert A. Spass
Deputy Chairman of the Board
54 Thompson Street
New York, New York 10012
Laurence W. Cheng
President and Director
54 Thompson Street
New York, New York 10012
Bradley E. Cooper
Senior Vice President and Director
54 Thompson Street
New York, New York 10012
Mark K. Gormley
Senior Vice President and Director
54 Thompson Street
New York, New York 10012
Adam M. Mizel
Senior Vice President and Director
54 Thompson Street
New York, New York 10012
Paul H. Warren
Senior Vice President and Director
54 Thompson Street
New York, New York 10012
Scott M. Delman
Senior Vice President and Director
54 Thompson Street
New York, New York 10012
David A. Spuria
General Counsel, Vice President of Administration and Secretary
54 Thompson Street
New York, New York 10012
Roland V. Bernardon
Chief Financial Officer, Treasurer and Assistant Secretary
54 Thompson Street
New York, New York 10012
ITEM 12. EXHIBITS.
Item 12 is hereby amended and supplemented to add the following
exhibit:
(a)(1)(I) Text of press release issued by Purchaser announcing the
extension of the Offer, dated September 6, 2000.
ITEM 13. INFORMATION REQUIRED BY SCHEDULE 13E-3.
The second sentence of the fourth paragraph of the section entitled
"SPECIAL FACTORS - Background of the Offer" is hereby amended and restated
in its entirety as follows:
In early March, following a period of due diligence, Fortress and
Prime mutually agreed to terminate discussions regarding an
investment by Fortress in Prime because they could not, from
Fortress' perspective, agree on the valuation of Prime as a whole
or on governance issues with respect to a joint venture. However,
Fortress and Prime agreed to continue discussions regarding the
acquisition of certain investments owned by Prime.
The section entitled "SPECIAL FACTORS - Position of Purchaser Regarding
Fairness of the Offer and the Merger" is hereby amended to add the
following before the last paragraph:
Purchaser believes that providing unaffiliated stockholders with
all cash consideration for their Shares affords them greater
liquidity than if part of the consideration consisted of securities
which would reasonably be expected to have a thin float.
Purchase did not consider the "going concern value" of Brookdale
material to its determination that the Offer was fair to the
unaffiliated stockholders of Brookdale. Going concern value is
generally regarded as the excess of fair market value over book
value. As noted above, Purchaser did not attribute significance to
book value in its determination and therefore did not view the
premium represented by the excess of the $15.25 Offer Price over
the $8.75 book value per share which might be equated with going
concern value to be meaningful. Purchaser also noted that the
public trading markets have not in recent history accorded
Brookdale or other companies in the assisted living industry much
credit for going concern value.
Each of the Co-Bidders believes the Offer is fair to the
unaffiliated stockholders of Brookdale from both a financial and
procedural point of view. Each of the Co-Bidders relied on the
conclusions and analyses of the Purchaser in forming this
determination and accordingly each of them expressly adopts the
factors considered by Purchaser in reaching 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 at the end of the paragraph:
None of the Co-Bidders has any purpose for the Offer other than the
purposes expressed by Purchaser.
The fourth paragraph in the section "SPECIAL FACTORS - Plans for the
Company After the Offer and the Merger; certain effects of the Offer" is
hereby amended to add the following at the end of the fourth paragraph:
None of the Co-Bidders has any plans for the Company after the
Offer and the Merger other than the plans for the Company
articulated by Purchaser.
Footnote one in the section "SPECIAL FACTORS - Beneficial Ownership of
Common Stock by Certain Persons" is hereby amended to add the following at
the end:
By virtue of their status as Co-Bidders and their direct and
indirect interests in Purchaser, Fortress, Fortress Investment and
FIG and/or each of the natural persons identified as directors,
executive officers or their equivalents for such entities on
Schedule I to the Offer to Purchase may be deemed to have indirect
shared beneficial ownership of Shares beneficially owned by
Purchaser. Each of these entities and natural persons disclaims
such shared indirect beneficial ownership.
Footnote two in the section "SPECIAL FACTORS - Beneficial Ownership of
Common Stock by Certain Persons" is hereby amended to add the following at
the end:
By virtue of their status as Co-Bidders and their direct and
indirect interests in Purchaser, Health Partners, Capital Z Fund II
and Capital Z and/or each of the natural persons identified as
directors, executive officers or their equivalents for such
entities on Schedule I to the Offer to Purchase may be deemed to
have indirect shared beneficial ownership of Shares beneficially
owned by Purchaser. Each of these entities and natural persons
disclaims such shared indirect beneficial ownership.
The third paragraph of the section "SPECIAL FACTORS - Transactions and
Arrangement Concerning the Shares" is hereby amended to add the following
at the end of the paragraph:
Other than as disclosed in the Offer to Purchase, none of the
Co-Bidders has engaged in any transactions or arrangements concerning
the Shares.
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.
Date: September 6, 2000
FORTRESS BROOKDALE ACQUISITION LLC
By: /s/ Randal A. Nardone
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Name: Randal A. Nardone
Title: Secretary and Member of
the Operating Committee
of Fortress Brookdale
Acquisition LLC
SIGNATURE
After reasonable 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.
September 6, 2000
FORTRESS REGISTERED INVESTMENT TRUST
By: /s/ Randal A. Nardone
-------------------------------
Randal A. Nardone
as Vice President, Chief
Operating Officer and
Secretary
SIGNATURE
After reasonable 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.
September 6, 2000
FORTRESS INVESTMENT FUND LLC
By: /s/ Randal A. Nardone
---------------------------
Randal A. Nardone
as Chief Operating Officer
and Secretary of Fortress
Fund MM, LLC, managing
member of Fortress
Investment Fund LLC
SIGNATURE
After reasonable 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.
September 6, 2000
FORTRESS INVESTMENT GROUP LLC
By: /s/ Randal A. Nardone
-------------------------
Randal A. Nardone
as Chief Operating Officer
SIGNATURE
After reasonable 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.
September 6, 2000
HEALTH PARTNERS
By: Capital Z Financial Services Fund II,
L.P., its General Partner
By: Capital Z Partners, L.P., its General
Partner
By: Capital Z Partners, Ltd., its General
Partner
By: /s/ David A. Spuria
-------------------------
Name: David A. Spuria
Title: General Counsel, Vice President of
Administration and Secretary
SIGNATURE
After reasonable 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.
September 6, 2000
CAPITAL Z FINANCIAL SERVICES FUND II, L.P.
By: Capital Z Partners, L.P., its General
Partner
By: Capital Z Partners, Ltd., its General
Partner
By: /s/ David A. Spuria
-----------------------------------------
Name: David A. Spuria
Title: General Counsel, Vice President of
Administration and Secretary
SIGNATURE
After reasonable 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.
September 6, 2000
CAPITAL Z PARTNERS, L.P.
By: Capital Z Partners, Ltd.,
its General Partner
By: /s/ David A. Spuria
-----------------------------------------
Name: David A. Spuria
Title: General Counsel, Vice President of
Administration and Secretary
EXHIBIT INDEX
Exhibit No. Description
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(a)(1)(I) Text of press release issued by Purchaser announcing the
extension of the Offer, dated September 6, 2000.
