UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
SCHEDULE
14C
Information
Statement Pursuant to Section 14(c) of the Securities Exchange Act of
1934
Check the
appropriate box:
o Preliminary
Information Statement
o Confidential,
for Use of the Commission Only (as permitted by Rule 14c-5(d)(2))
þ Definitive
Information Statement
Brookdale
Senior Living Inc.
(Name of
Registrant as Specified in Its Charter)
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fee required.
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computed on table below per Exchange Act Rules 14c-5(g) and
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of each class of securities to which transaction applies:
(2) Aggregate
number of securities to which transaction applies:
(3) Per unit
price or other underlying value of transaction computed pursuant to Exchange Act
Rule 0-11 (set forth the amount on which the filing fee is calculated and
state how it was determined):
(4) Proposed
maximum aggregate value of transaction:
(5) Total
fee paid:
o Fee
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if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee was
paid previously. Identify the previous filing by registration statement number,
or the Form or Schedule and the date of its filing.
(1) Amount
Previously Paid:
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Schedule or Registration Statement No.:
(3) Filing
Party:
(4) Date Filed:
BROOKDALE
SENIOR LIVING INC.
111
Westwood Place, Suite 200
Brentwood,
Tennessee 37027
INFORMATION
STATEMENT
December
10, 2009
WE
ARE NOT ASKING YOU FOR A PROXY
AND
YOU ARE REQUESTED NOT TO SEND US A PROXY.
Our board
of directors has approved an amendment to our Amended and Restated Certificate
of Incorporation (as amended to date, our “Charter”), to effectuate an increase
in the authorized number of directors from not more than eight members to not
more than nine members (the “Charter Amendment”), so that we may offer W.E.
Sheriff, our Chief Executive Officer, the opportunity to join our board of
directors. See “The Charter Amendment.”
On
November 6, 2009, certain stockholders (including funds managed by affiliates of
Fortress Investment Group LLC) who are party to the Stockholders Agreement dated
November 28, 2005, as amended, executed a written consent approving the Charter
Amendment. This consent constituted the consent of a majority of the total
number of shares of our outstanding common stock entitled to vote in the
election of directors and was sufficient to approve the Charter Amendment. As a
result of the consent referred to above, we will not be asking you to take
action on the Charter Amendment.
We are
furnishing this information statement to our stockholders to provide you with
certain information in connection with the Charter Amendment. The Charter Amendment will not be
effected until at least 20 days after we first send this information statement
to stockholders.
This
information statement provides further information about Brookdale and the
Charter Amendment. Please carefully read the information statement in its
entirety. You may also obtain other information about Brookdale from publicly
available documents that have been filed with the Securities and Exchange
Commission. See “Where You Can Find More Information.”
This
information statement is first being mailed to stockholders on or about December
10, 2009.
TABLE OF CONTENTS
Page
For
convenience in this information statement unless indicated otherwise,
“Brookdale,” “we,” “us” and “our” refer to Brookdale Senior Living Inc. and its
consolidated subsidiaries. “Fortress” refers to Fortress Investment Group LLC
and certain of its affiliates.
THE CHARTER AMENDMENT
Our
Amended and Restated Certificate of Incorporation (as amended to date, our
“Charter”) provides for a board of directors comprised of not less than three
and not more than eight directors. The exact number of directors within this
range is determined from time to time by resolution adopted by a majority of the
board of directors then in office. Our board of directors currently has eight
members, the maximum size permitted by our Charter.
On July
31, 2009, our board of directors unanimously approved an amendment to our
Charter to increase the authorized number of directors from not more than eight
members to not more than nine members, so that we may offer W.E. Sheriff, our
Chief Executive Officer, the opportunity to join our board of
directors.
The board
of directors has proposed that the first sentence of Article Twelve of the
Charter be amended and restated in its entirety to read:
“The
number of directors which constitute the whole Board of Directors shall be not
less than three (3) or more than nine (9).”
On
November 6, 2009, certain stockholders (including funds managed by affiliates of
Fortress) who are party to the Stockholders Agreement dated November 28, 2005,
as amended, executed a written consent approving the Charter Amendment. This
consent constituted the consent of a majority of the total number of shares of
our outstanding common stock entitled to vote in the election of directors and
was sufficient to approve the Charter Amendment.
Promptly
following the effective date of the Charter Amendment, the board of directors
intends to approve a corresponding amendment to Article III, Section 2 of our
Amended and Restated Bylaws (the “Bylaw Amendment”). The Charter Amendment and
Bylaw Amendment (along with the amendment to the Stockholders’ Agreement
described below) will enable the board of directors to formally increase the
allowed number of directors to nine and appoint Mr. Sheriff as a Class I
director, to serve until the annual meeting of stockholders to be held in 2011
and until his successor is duly elected and qualified.
Mr.
Sheriff’s appointment to our board of directors has been unanimously recommended
by our Nominating and Corporate Governance Committee. We anticipate
that his appointment to the board of directors will be effective promptly
following the effective date of the Charter Amendment.
Stockholders’ Agreement
Amendment
Upon the
consummation of our initial public offering, we entered into a Stockholders
Agreement with Fortress Brookdale Acquisition LLC, Fortress Investment Trust II,
FIT-ALT Investor LLC and Health Partners (as has been and may be from time to
time amended, the “Stockholders Agreement”). The Stockholders Agreement provides
these stockholders with certain rights with respect to the designation of
directors to our board of directors as well as registration rights for our
securities owned by them. Upon consummation of the merger with American
Retirement Corporation, and the related underwritten public offering, Health
Partners no longer beneficially owned more than 5% of the voting power of the
Company and is no longer a “Stockholder” for purposes of the Stockholders
Agreement.
Prior to
the amendment discussed below, the Stockholders Agreement required that each of
Fortress Brookdale Acquisition LLC, Fortress Investment Trust II, FIT-ALT
Investor LLC, RIC Coinvestment Fund LP and their respective affiliates and
permitted transferees (collectively referred to in this information statement as
the “Fortress Stockholders”) vote or cause to be voted all of our voting stock
beneficially owned by each and take all other reasonably necessary action so as
to maintain a board of not more than eight directors and to elect to our board
of directors, so long as the Fortress Stockholders beneficially own (i) more
than 50% of the voting power of the
Company,
four directors, or, if the board shall be composed of eight members, five
directors, designated by FIG Advisors LLC, an affiliate of Fortress (“FIG
Advisors”), or such other party designated by Fortress; (ii) between 25% and 50%
of the voting power of the Company, three directors designated by FIG Advisors;
(iii) between 10% and 25% of the voting power of the Company, two directors
designated by FIG Advisors; and (iv) between 5% and 10% of the voting power of
the Company, one director designated by FIG Advisors.
In
accordance with the Stockholders Agreement, FIG Advisors has designated Wesley
R. Edens, Tobia Ippolito, Jeffrey R. Leeds, James R. Seward and Frank M.
Bumstead to our board of directors.
In
connection with the Charter Amendment, on November 4, 2009, we and the Fortress
Stockholders entered into Amendment Number Two to the Stockholders
Agreement. Among other things, the amendment amended the Stockholders
Agreement to provide that the board will consist of not more than nine directors
and that FIG LLC, an affiliate of Fortress, will be able to designate four
directors, or if the board is composed of eight or nine directors, five
directors, for so long as the Fortress Stockholders and their permitted
transferees beneficially own more than 35% of the voting power of the Company’s
common stock (as compared to the 50% ownership threshold in place prior to the
amendment).
Anti-Takeover Effects of the Charter
Amendment
The
Charter Amendment could, under certain circumstances, have an anti-takeover
effect, although this was not the intention. For example, in the event of a
hostile attempt to take over control of Brookdale, it may be easier for us to
impede the attempt with a larger board since it would require more directors to
vote in favor of the take-over attempt. The Charter Amendment, therefore, may
have the effect of discouraging unsolicited takeover attempts. By potentially
discouraging initiation of any such unsolicited takeover attempt, the Charter
Amendment may limit the opportunity for our stockholders to dispose of their
shares at the higher price generally available in takeover attempts or that may
be available under a merger proposal. The board of directors is not, however,
aware of any attempt to take control of us and the board of directors has not
presented this proposal with the intent that it be utilized as a type of
anti-takeover device.
The full
text of the Charter Amendment is included in Appendix A to this information
statement. Please refer to Appendix A for a more complete description of the
terms of the Charter Amendment.
Recommendation of the Board of Directors
Our board
of directors has determined that the Charter Amendment is advisable and in the
best interests of Brookdale and all of our stockholders. Accordingly, the board
has unanimously approved the Charter Amendment. In addition, on November 6,
2009, holders of approximately 51% of the total number of shares of our
outstanding common stock entitled to vote in the election of directors executed
a written consent approving the Charter Amendment. As a result, it is not
necessary for us to call a special meeting of stockholders to consider the
Charter Amendment, and your approval is not required and is not being sought.
This proposed amendment to our
Charter will not be effected until at least 20 days after this information
statement has first been sent to stockholders.
ACTION BY WRITTEN CONSENT
Vote Required; Vote Obtained
As of the
November 6, 2009 record date for action by written consent and for determining
the stockholders entitled to receive this information statement for the Charter
Amendment, we had 118,875,224 shares of our common stock outstanding and
entitled to vote. Stockholders as of the record date are entitled to one vote
per share.
Section
228 of the Delaware General Corporation Law (the “DGCL”) and Article II, Section
10 of our Amended and Restated Bylaws provide that the written consent of the
holders of the outstanding shares of voting capital stock having not less than
the minimum number of votes that would be necessary to authorize or take an
action at a meeting at which all shares entitled to vote thereon were present
and voted may be substituted for such a meeting. The holders of approximately
60.9 million shares of common stock have executed a written consent approving
the Charter Amendment. These holders represent approximately 51% of the total
issued and outstanding shares of common stock entitled to vote on the Charter
Amendment. No other series of voting capital stock was entitled to vote.
Accordingly, our stockholders will not be asked to take action on the Charter
Amendment at any future stockholders’ meeting.
Pursuant
to Section 228 of the DGCL and Regulation 14C, as promulgated under the Exchange
Act, we are required to provide certain information with respect to the taking
of corporate action without a meeting by less than unanimous written stockholder
consent to those stockholders who have not consented in writing to such action
or whose consent we have not solicited. Accordingly, we are furnishing this
information statement to our stockholders to provide you with certain
information in connection with the Charter Amendment. The Charter Amendment will not be
effected until at least 20 days after this information statement has first been
sent to stockholders.
We will
pay all costs associated with the distribution of this information statement,
including the costs of printing and mailing. We will reimburse the brokerage
firms and other custodians, nominees and fiduciaries for reasonable expenses
incurred by them in sending this information statement to the beneficial owners
of our common stock.
No Appraisal Rights
Stockholders
do not have dissenters’ rights of appraisal with respect to the transaction
described in this information statement.
Interest of Certain Persons
In
reviewing this information statement, our stockholders should be aware that the
following directors have an interest in the transaction described in this
information statement that may differ from other directors due to their
relationships with Fortress. Wesley R. Edens, the chairman of our board of
directors, is a principal and the chairman of the management committee of
Fortress. Tobia Ippolito, a member of our board of directors, is a managing
director of Fortress. As a result of the Charter Amendment and the amendment to
the Stockholders Agreement, Fortress will generally be able to maintain five
designees on our board of directors (assuming the board consists of eight or
nine members) so long as the Fortress Stockholders beneficially own 35% of the
voting power of the Company (as compared to the 50% ownership threshold in place
prior to the recent amendment to the Stockholders Agreement).
Our board
of directors was aware of this interest and considered it, among other matters,
in making its recommendations. See “- Recommendation of the Board of
Directors” in the discussion of the Charter Amendment.
SECURITY OWNERSHIP OF CERTAIN BENEFICIAL OWNERS AND
MANAGEMENT
The
following table sets forth, as of November 6, 2009, the total number of shares
of our common stock beneficially owned, and the percent so owned, by
(1) each person known by us to own more than 5% of our common stock,
(2) each of our directors and named executive officers and (3) all
directors and executive officers as a group, based on 123,231,336 shares of
our common stock (including all unvested restricted shares) outstanding as of
that date. Unless otherwise indicated, each of the beneficial owners
listed has, to the Company’s knowledge, sole voting and investment power with
respect to the indicated shares of common stock. Unless otherwise
indicated, the address of each person named in the table is c/o Brookdale Senior
Living Inc., 111 Westwood Place, Suite 200, Brentwood, Tennessee
37027.
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Nature
and Amount of
Beneficial
Ownership
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||||||||
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Name
of Beneficial Owner
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Shares
Owned (1)
|
Percentage
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||||||
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Executive
Officers and Directors
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||||||||
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Wesley R. Edens (2)
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61,155,326 | 49.63 | % | |||||
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W.E. Sheriff (3)
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707,404 | * | ||||||
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Mark W.
Ohlendorf
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493,823 | * | ||||||
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John P. Rijos
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515,043 | * | ||||||
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T. Andrew Smith
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277,577 | * | ||||||
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Bryan D.
Richardson
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175,835 | * | ||||||
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Frank M.
Bumstead
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53,444 | * | ||||||
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Jackie M. Clegg
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11,082 | * | ||||||
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Tobia Ippolito
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- | * | ||||||
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Jeffrey R.
Leeds
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31,299 | * | ||||||
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Mark J. Schulte (4)
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596,713 | * | ||||||
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James R. Seward
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75,343 | * | ||||||
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Samuel Waxman (5)
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35,025 | * | ||||||
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All directors and executive
officers as a group (17 persons)
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64,745,365 | 52.54 | % | |||||
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5%
Stockholders
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||||||||
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Fortress Operating Entity I LP
(6)
(7)
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60,875,826 | 49.40 | % | |||||
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FMR LLC (8)
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14,475,288 | 11.75 | % | |||||
* Less
than 1%
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(1)
|
Consists
of shares held, including all restricted shares held (whether or not such
restricted shares have voting restrictions), but excluding unvested
restricted stock units.
|
|
(2)
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Includes
279,500 shares held by Mr. Edens and other ownership as set
forth in Footnote 6.
|
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(3)
|
Includes
434,852 shares held by Mr. Sheriff, 243,552 shares held by Sheriff
Financial, LLC and 29,000 shares held by the W.E. Sheriff Family
Partnership. Excludes 500,000 unvested restricted stock units
held by Mr. Sheriff.
|
|
(4)
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Mr.
Schulte has pledged 115,159 of these shares to the Company as collateral
for a loan made to him in October
2000.
|
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(5)
|
Includes
24,136 shares held by Dr. Waxman and 10,889 shares held by Dr. Waxman’s
defined benefit pension plan.
|
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(6)
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Includes
9,102,708 shares held by FRIT Holdings LLC, 8,215,358 shares held by PRIN
Holding LLC, 23,663,283 shares held by Fort GB Holdings LLC, 1,349,359
shares held by FABP (GAGACQ) LP, 8,793,392 shares held by Fortress RIC
Coinvestment Fund LP, 3,026,435 shares held by Fortress Investment Fund IV
(Fund A) L.P., 1,222,077 shares held by Fortress Investment Fund IV (Fund
B) L.P., 289,968 shares held by Fortress Investment Fund IV (Fund C) L.P.,
1,810,004 shares held by Fortress Investment Fund IV (Fund D) L.P.,
211,916 shares held by Fortress Investment Fund IV (Fund E) L.P., 95,084
shares held by Fortress Investment Fund IV (Fund F) L.P., 114,081 shares
held by Fortress Investment Fund IV (Fund G) L.P., 790,673 shares held by
Fortress Investment Fund IV (Coinvestment Fund A) L.P., 492,823 shares
held by Fortress Investment Fund IV (Coinvestment Fund B) L.P., 98,164
shares held by Fortress Investment Fund IV (Coinvestment Fund C) L.P.,
473,183 shares held by Fortress Investment Fund IV (Coinvestment Fund D)
L.P., 40,635 shares held by Fortress Investment Fund IV (Coinvestment Fund
F) L.P., 135,391 shares held by Fortress Investment Fund IV (Coinvestment
Fund G) L.P., 826,292 shares held by FBIF Holdings LLC,
12,500
|
|
|
shares
held by Drawbridge OSO Securities LLC, and 112,500 shares held by
Drawbridge DSO Securities LLC. FRIT Holdings LLC is wholly-owned by
Fortress Investment Fund Sister Company LLC. Fortress Fund MM LLC is the
managing member of Fortress Investment Fund Sister Company LLC. PRIN
Holding LLC is managed by FIG LLC and its members are Wesley R. Edens,
Randal A. Nardone and Robert I. Kauffman. Fortress (GAGACQ) LLC
is the managing member of Fort GB Holdings LLC. Fortress Fund
MM II LLC is the managing member of Fortress (GAGACQ) LLC and is the
general partner of FABP (GAGACQ) LP. FIG LLC is the managing
member of Fortress Fund MM LLC and Fortress Fund MM II LLC. FIG
LLC is the investment manager of Fortress RIC Coinvestment Fund LP,
Fortress Investment Fund IV (Fund A) L.P., Fortress Investment Fund IV
(Fund B) L.P., Fortress Investment Fund IV (Fund C) L.P., Fortress
Investment Fund IV (Fund D) L.P., Fortress Investment Fund IV (Fund E)
L.P., Fortress Investment Fund IV (Fund F) L.P., Fortress Investment Fund
IV (Fund G) L.P., Fortress Investment Fund IV (Coinvestment Fund A) L.P.,
Fortress Investment Fund IV (Coinvestment Fund B) L.P., Fortress
Investment Fund IV (Coinvestment Fund C) L.P., Fortress Investment Fund IV
(Coinvestment Fund D) L.P., Fortress Investment Fund IV (Coinvestment Fund
F) L.P., and Fortress Investment Fund IV (Coinvestment Fund G)
L.P. FIG Advisors LLC is a wholly-owned subsidiary of FIG
LLC. FIG Advisors LLC is the investment manager of FBIF
Holdings LLC. Drawbridge DSO Securities LLC is a wholly-owned
subsidiary of Drawbridge Special Opportunities Fund LP (“Drawbridge
LP”). Drawbridge OSO Securities LLC is a wholly-owned
subsidiary of Drawbridge Special Opportunities Fund Ltd. (“Drawbridge
Ltd”). Drawbridge Special Opportunities Advisors LLC is the
investment manager of Drawbridge LP and Drawbridge Ltd. FIG LLC is the
100% owner of Drawbridge Special Opportunities Advisors
LLC. Fortress Operating Entity I LP (“FOE I”) is the sole
managing member of FIG LLC. FIG Corp. is the general partner of
FOE I. FIG Corp. is a wholly-owned subsidiary of Fortress Investment Group
LLC (“Fortress”). By virtue of his ownership interests in
Fortress and certain of its affiliates, Wesley R. Edens, our Chairman, may
be deemed to beneficially own the shares listed as beneficially owned by
Fortress and/or certain of its affiliates. Mr. Edens disclaims beneficial
ownership of such shares. The address for each of Fortress and
the affiliates of Fortress listed above is 1345 Avenue of the Americas,
46th Floor, New York, New York
10105.
|
|
(7)
|
Various
funds managed by affiliates of Fortress disposed of an aggregate of
18,205,000 of these shares in a secondary public offering on November 13,
2009.
|
|
(8)
|
Information
regarding FMR LLC (“FMR”) is based solely on an amended Schedule 13G filed
with the SEC on February 17, 2009. According to such Schedule
13G, FMR, a parent holding company, reported that it has sole voting power
with respect to 139,900 shares and sole dispositive power with respect to
14,475,288 shares. Members of the Edward C. Johnson 3d family
together own approximately 49% of the voting power of
FMR. Edward C. Johnson 3d is the Chairman of
FMR. Fidelity Management & Research Company, a wholly-owned
subsidiary of FMR and an investment adviser registered under Section 203
of the Investment Advisers Act of 1940, is the beneficial owner of
14,315,388 shares. Pyramis Global Advisors Trust Company, an
indirect wholly-owned subsidiary of FMR and a bank as defined in Section
3(a)(6) of the Exchange Act, is the beneficial owner of 159,900
shares. The address for each of FMR and Fidelity Management
& Research Company is 82 Devonshire Street, Boston, Massachusetts
02109. The address for Pyramis Global Advisors Trust Company is
53 State Street, Boston, Massachusetts
02109.
|
WHERE YOU CAN FIND MORE
INFORMATION
We are
subject to the informational requirements of the Exchange Act and, in accordance
with the Exchange Act, we file annual, quarterly and current reports, proxy and
information statements and other information with the SEC. References in this
information statement to any of our contracts, agreements or other documents are
not necessarily complete, and you should refer to the exhibits attached to our
reports filed with the SEC under the Exchange Act, for copies of the actual
contracts, agreements or documents. You may read and copy such reports, the
related exhibits and other material we file with the SEC at the SEC’s public
reference room at 100 F Street, N.E., Washington, D.C. 20549. Please
call the SEC at (800) SEC-0330 for further information on the public
reference room. Our SEC filings are also available to the public from commercial
document retrieval services and on the web site maintained by the SEC at
www.sec.gov. Such information will also be furnished upon written request to
Brookdale Senior Living Inc., 111 Westwood Place, Suite 200, Brentwood,
Tennessee 37027, Attention: Secretary, and can also be accessed through our
website at www.brookdaleliving.com.
______________________
The SEC
has adopted rules that permit companies and intermediaries such as brokers to
satisfy delivery requirements for proxy statements and information statements
with respect to two or more stockholders sharing the same address by delivering
a single proxy statement or information statement addressed to those
stockholders. This process, which is commonly referred to as “householding,”
potentially provides extra convenience for stockholders and cost savings for
companies. The Company and some brokers household these materials, delivering a
single proxy statement or information statement to multiple stockholders sharing
an address unless contrary instructions have been received from the affected
stockholders.
Once you
have received notice from your broker or the Company that they or the Company
will be householding materials to your address, householding will continue until
you are notified otherwise or until you revoke your consent. If, at any time,
you no longer wish to participate in householding and would prefer to receive a
separate proxy statement or information statement, please notify your broker if
your shares are held in a brokerage account or the Company if you hold
registered shares. You can notify the Company by sending a written request to
Brookdale Senior Living Inc., 111 Westwood Place, Suite 200, Brentwood,
Tennessee 37027, Attention: Secretary or by calling our Secretary at (615)
221-2250. We will undertake to deliver promptly, upon written or oral
request to our Secretary, a separate copy of this information statement to a
stockholder at a shared address to which a single copy of this information
statement was delivered. Additionally, if current stockholders with a
shared address received multiple copies of this information statement and would
prefer us to mail one copy of future mailings to stockholders at the shared
address, notification of that request may also be made by mail or telephone to
our Secretary at the address or number listed above.
______________________
Our
principal executive office is located at 111 Westwood Place, Brentwood,
Tennessee. Our main telephone number is (615) 221-2250.
Appendix
A
CERTIFICATE
OF AMENDMENT
TO
THE
AMENDED AND RESTATED CERTIFICATE OF INCORPORATION
OF
BROOKDALE
SENIOR LIVING INC.
Pursuant
to Section 242
of the
General Corporation Law
of the
State of Delaware
Brookdale Senior Living Inc., a
corporation organized and existing under the laws of the State of Delaware (the
“Corporation”),
does hereby certify as follows:
FIRST: The first
sentence of Article Twelve of the Corporation’s Amended and Restated Certificate
of Incorporation, as amended to date, is hereby amended to read in its entirety
as set forth below:
“The number of directors which
constitute the whole Board of Directors shall be not less than three (3) or more
than nine (9).”
SECOND: The
foregoing amendment has been duly adopted in accordance with Section 228 and
Section 242 of the General Corporation Law of the State of
Delaware.
IN WITNESS WHEREOF, the
Corporation has caused this Certificate of Amendment to be executed in its
corporate name by the undersigned duly authorized officer as of this ___ day of
____________, 2009.
|
By:
|
||||||
|
Name:
|
T.
Andrew Smith
|
|||||
|
Title:
|
Executive
Vice President, General Counsel and Secretary
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