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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 4)
SOLICITATION/RECOMMENDATION STATEMENT
PURSUANT TO SECTION 14(d)(4)
OF THE SECURITIES EXCHANGE ACT OF 1934
ARV ASSISTED LIVING, INC.
(NAME OF SUBJECT COMPANY)
ARV ASSISTED LIVING, INC.
(NAME OF PERSON(S) FILING STATEMENT)
COMMON STOCK, NO PAR VALUE
(INCLUDING THE ASSOCIATED SERIES C JUNIOR PARTICIPATING
PREFERRED STOCK PURCHASE RIGHTS)
(TITLE OF CLASS OF SECURITIES)
00204C107
(CUSIP NUMBER OF CLASS OF SECURITIES)
SHEILA M. MULDOON, ESQ.
VICE PRESIDENT, GENERAL COUNSEL AND SECRETARY
ARV ASSISTED LIVING, INC.
245 FISCHER AVENUE, SUITE D-1
COSTA MESA, CA 92626
(714) 751-7400
(NAME, ADDRESS AND TELEPHONE NUMBER OF PERSON AUTHORIZED TO
RECEIVE NOTICES AND COMMUNICATIONS ON BEHALF OF THE PERSON(S)
FILING STATEMENT)
WITH COPIES TO:
WILLIAM J. CERNIUS, ESQ. ALEXANDER F. WILES, ESQ.
LATHAM & WATKINS IRELL & MANELLA LLP
650 TOWN CENTER DRIVE, 1800 AVENUE OF THE STARS,
20TH FLOOR SUITE 900
COSTA MESA, CA 92626 LOS ANGELES, CA 90067
(714) 540-1235 (310) 203-7659
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INTRODUCTION
The Solicitation/Recommendation Statement on Schedule 14D-9 (as amended
through the date hereof, the "Statement"), originally filed on January 5, 1998,
by ARV Assisted Living, Inc., a California corporation (the "Company"), relates
to an offer by EMAC Corp., a Delaware corporation ("EMAC") and a wholly-owned
subsidiary of Emeritus Corporation, a Washington corporation ("Emeritus"), to
purchase all outstanding shares of the Company's common stock, no par value
(including the associated Series C Junior Participating Preferred Stock Purchase
Rights issued pursuant to the Rights Agreement, dated as of July 14, 1997,
between the Company and ChaseMellon Shareholder Services, L.L.C., as Rights
Agent). All capitalized terms used herein without definition have the respective
meanings set forth in the Statement.
ITEM 8. ADDITIONAL INFORMATION TO BE FURNISHED
The response to Item 8 is hereby amended by adding the following after
the final paragraph of Item 8:
On January 12, 1998, the Federal Court issued a Civil Minute Order
Regarding Stay of Proceedings (the "Minute Order"). In the Minute Order, the
Federal Court stays all proceedings in ARV's federal civil suit against
Emeritus pending final resolution of the state case pending in the Orange
County Superior Court (case no. 7887788), while reserving federal
jurisdiction under certain conditions. The Minute Order and the accompanying
formal Order Removing Case From Active Caseload, also issued on January 12,
1998, are filed as Exhibits 16 and 17, respectively, hereto and are
incorporated herein by reference.
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ITEM 9. MATERIALS TO BE FILED AS EXHIBITS
The response to Item 9 is hereby amended by adding the following new
exhibits:
16 Minute Order Re Stay of Proceedings in ARV Assisted Living, Inc.
v. Emeritus Corporation, case no. SA-CV-98-9-LHM (EEx), entered
and filed on January 12, 1998.
17 Order Removing Case From Active Caseload in ARV Assisted Living,
Inc. v. Emeritus Corporation, case no. SA-CV-98-9-LHM (EEx),
entered and filed on January 12, 1998.
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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.
ARV ASSISTED LIVING, INC.
By: /s/ Sheila M. Muldoon
--------------------------------------
Sheila M. Muldoon, Esq.
Vice President, General
Counsel and Secretary
Dated January 14, 1998
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EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE NO.
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16 Minute Order Re Stay of Proceedings in ARV Assisted Living,
Inc. v. Emeritus Corporation, case no. SA-CV-98-9-LHM (EEx),
entered and filed on January 12, 1998.
17 Order Removing Case From Active Caseload in ARV Assisted
Living, Inc. v. Emeritus Corporation, case no.
SA-CV-98-9-LHM (EEx), entered and filed on January 12, 1998.
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EXHIBIT 16
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
CIVIL MINUTES -- GENERAL
------------------------
Case No. SA CV - 98 - 9 - LHM (EEx) Date January 12, 1998
-------------------------- ----------------
Title ARV Assisted Living, Inc. v. Emeritus Corporation, et al.
---------------------------------------------------------
==============================================================================
DOCKET ENTRY
==============================================================================
PRESENT:
HON. Linda H. McLaughlin, Judge
-------------------
Debra Beard None Present
----------------------- ------------------------
Deputy Clerk Court Reporter
ATTORNEYS PRESENT FOR PLAINTIFFS: ATTORNEYS PRESENT FOR DEFENDANTS:
None Present None Present
PROCEEDINGS: ORDER RE STAY OF PROCEEDINGS
IN CHAMBERS:
(1) The Court has received and considered all papers submitted by the parties
in response to its Order to Show Cause Re Stay issued by minute order dated
1/7/98. Further, the Court has read and considered the entire file in this
matter. In addition, the Court has read and considered the Complaint filed
in Orange County Superior Court Case No. 787788, EMERITUS CORPORATION V.
ARV ASSISTED LIVING, INC., ETC., ET AL. (the "state case").
(2) ACTION STAYED: The Court stays all proceedings in the instant action
pending final resolution of the state case and reserves jurisdiction on the
following conditions:
(i) Either side may petition the Court to lift the stay after a
decision in the state case becomes final;
(ii) Either side may petition to lift the stay if any significant
development occurs affecting the federal action;
(iii) Any petition to lift this stay must include the
MINUTES FORM 11 Initials of Deputy Clerk
CIVIL-GEN
D - M
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CIVIL MINUTES - GENERAL
(continued)
Case No. SA CV - 98 - 9 - LEM (EEx) Date January 12, 1998
-------------------------- ----------------
Title ARV Assisted Living, Inc. v. Emeritus Corporation, et al.
---------------------------------------------------------
PROCEEDINGS CONTINUED:
history and current status of all related legal proceedings in
courts and administrative agencies.
(3) Plaintiff ARV Assisted Living, Inc., ("ARV") filed the instant action on
1/6/98 seeking injunctive and declaratory relief against Defendants
Emeritus Corporation ("Emeritus") and EMAC Corporation.
(4) Emeritus had previously filed, on 12/9/97, the state case, seeking
injunctive and declaratory relief against ARV and the individual members
of ARV's Board of Directors.
(5) Based on the principles annunciated in COLORADO RIVER WATER CONSERVATION
DISTRICT V. UNITED STATES, 424 U.S. 800 (1976), as well as the arguments
raised by Emeritus in its Response to the Court's Order to Show Cause, the
Court defers to the current state proceeding between these two parties, and
stays this action pending the final outcome of the state case.
(6) Formal order accompanies this minute order.
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SA CV 98-9-LEM(EEx)
copies to:
Kenneth R. Heitz, et al.
IRELLA [SIC] & MANELLA LLP
1800 Avenue of the Stars Ste 900
Los Angeles, CA 90067-4276
Wayne W. Smith, et al.
GIBSON, DUNN & CRUTCHER
4 Park Plaza, Ste 1400
Irvine, CA 92614-8557
Michael P. Carroll, et al.
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, NY 100017
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EXHIBIT 17
UNITED STATES DISTRICT COURT
CENTRAL DISTRICT OF CALIFORNIA
ARV ASSISTED LIVING, INC., a ) No. SACV 98 - 9 - LHM (EEx)
California corporation, )
)
Plaintiff, ) ORDER REMOVING CASE FROM
)
v. ) ACTIVE CASELOAD
)
EMERITUS CORPORATION, a Washington )
corporation, and EMAC CORPORATION, )
a Delaware Corporation, )
)
Defendants )
)
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IT IS HEREBY ORDERED that this action is removed from this Court's
active caseload pursuant to the Minute Order dated January 12, 1998.
This Court retains full jurisdiction over this action and this Order
shall not prejudice any party to this action.
DATED: 1/12/98 /s/ LINDA H. McLAUGHLIN
-------------- ------------------------------------
LINDA H. McLAUGHLIN
UNITED STATES DISTRICT JUDGE
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SA CV 98-9-LHM(EEx)
copies to:
Kenneth R. Heitz, et al.
IRELLA [SIC] & MANELLA LLP
1800 Avenue of the Stars Ste 900
Los Angeles, CA 90067-4276
Wayne W. Smith, et al.
GIBSON, DUNN & CRUTCHER
4 Park Plaza, Ste 1400
Irvine, CA 92614-8557
Michael P. Carroll, et al.
DAVIS POLK & WARDWELL
450 Lexington Avenue
New York, NY 100017
