-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, NdTp6oYhaQYOw8sNuInO3j6XR/bfGV6c52CTC6uzh1OLZ59UdVt1I7RG26dmb/eA C5yWFgSLHN+Nhm1M33lVag== 0000911420-00-000188.txt : 20001204 0000911420-00-000188.hdr.sgml : 20001204 ACCESSION NUMBER: 0000911420-00-000188 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 4 CONFORMED PERIOD OF REPORT: 20001128 ITEM INFORMATION: ITEM INFORMATION: FILED AS OF DATE: 20001201 FILER: COMPANY DATA: COMPANY CONFORMED NAME: ILM II SENIOR LIVING INC /VA CENTRAL INDEX KEY: 0000861880 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 061293758 STATE OF INCORPORATION: VA FISCAL YEAR END: 0831 FILING VALUES: FORM TYPE: 8-K SEC ACT: SEC FILE NUMBER: 000-18942 FILM NUMBER: 781932 BUSINESS ADDRESS: STREET 1: 8180 GREENSBORO DRIVE STREET 2: STE 850 CITY: MCLEAN STATE: VA ZIP: 22102 BUSINESS PHONE: 8883573550 MAIL ADDRESS: STREET 1: 1300 CONNECTICUT AVE NW STREET 2: STE 1000 CITY: WASHINGTON STATE: DC ZIP: 20036 FORMER COMPANY: FORMER CONFORMED NAME: PAINE WEBBER INDEPENDENT LIVING MORTGAGE INC II DATE OF NAME CHANGE: 19971103 FORMER COMPANY: FORMER CONFORMED NAME: ILM II SENIOR LIVING INC DATE OF NAME CHANGE: 19970905 FORMER COMPANY: FORMER CONFORMED NAME: PAINEWEBBER INDEPENDENT LIVING MORTGAGE INC II DATE OF NAME CHANGE: 19930511 8-K 1 0001.txt CURRENT REPORT SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 FORM 8-K CURRENT REPORT Pursuant to Section 13 or 15(d) of THE SECURITIES EXCHANGE ACT OF 1934 Date of Report (Date of earliest event reported): November 28, 2000 Commission File Number: 0-18942 ILM II SENIOR LIVING, INC. -------------------------- (Exact name of registrant as specified in its charter) Virginia 06-1293758 - ------------------------ ------------------------ (State of organization) (I.R.S. Employer Identification No.) 1750 Tysons Boulevard, Suite 1200 Tysons Corner, Virginia 22102 - --------------------------------------- ------------------------ (Address of principal executive office) (Zip Code) (888) 257-3550 -------------- (Registrant's telephone number, including area code) (Page 1 of 5 pages) Exhibit Index Appears on Page 5 ITEM 5. OTHER EVENTS ILM II Senior Living, Inc. (the "Company") has extended until March 31, 2001 the outside termination date of its previously announced pending merger (the "Merger") with Capital Senior Living Corporation ("Capital"), as contemplated by the Amended and Restated Agreement and Plan of Merger dated October 19, 1999, as amended on April 18, 2000, by and among the Company, Capital and Capital's wholly owned acquisition subsidiary (the "Merger Agreement"), and that it has entered into with Capital a technical amendment (the "Amendment") to the Merger Agreement providing, among other things, that subject to the Company's Board of Directors' fiduciary duties to shareholders, Capital will have until March 31, 2001 to obtain definitive financing sufficient for Capital to complete its agreed upon Merger previously approved by the Company's shareholders at a special meeting held on June 22, 2000. The Merger was scheduled to be consummated on or prior to September 30, 2000 but has not been consummated to date. Capital had not obtained sufficient financing to complete the Merger by September 30, 2000. In connection with the Amendment, Capital agreed, after March 31, 2001 to a termination of all of its rights of first and last offer it may have with respect to the sale by the Company to a third party of its common stock, its ownership interest in ILM II Holding, Inc. and/or the sale of the Company's senior living properties and assets, and to reduce from $1,858,200 to $1,000,000 the amount of certain termination fees payable by the Company to Capital under certain limited circumstances. All other terms of the Merger Agreement remain in effect. The Merger Agreement provides for consideration of $13.04 per share of outstanding common stock of the Company. In view of the previously announced sale to Capital of the Company's interest in its Santa Barbara, California senior living facility, the Company's Board of Directors intends to distribute on December 15, 2000, the proceeds of such sale on a pro rata basis in the form of a return of invested capital, to shareholders of record as of November 1, 2000. The aggregate cash distribution will be approximately $9,800,000 representing the gross proceeds from sale, less certain built-in gains taxes, and is equivalent to the payment of approximately $1.89 per share of the $13.04 per share of merger consideration. The remaining approximate $11.15 per share would be payable by Capital to the Company's shareholders upon completion of the Merger in accordance with the merger agreement. There can be no assurance that Capital will be able to obtain the requisite financing to complete the Merger or, even if obtained, that the Merger otherwise will be consummated. Additionally, although the Company has not yet declared a dividend, the Company's Board of Directors has reevaluated its dividend policy and intends to resume paying quarterly cash dividends to holders of its common stock beginning in January 2001. (Page 2 of 5 pages) ITEM 7. FINANCIAL STATEMENTS, PRO FORMA FINANCIAL INFORMATION AND EXHIBITS. (a) Not Applicable. (b) Not Applicable. (c) The following Exhibits are filed as part of this Current Report on Form 8-K: 10.1 Second Amendment to Amended and Restated Agreement and Plan of Merger dated November 28, 2000. 10.2 First Amendment to Agreement dated November 28, 2000. 99.1 Press Release of ILM II Senior Living, Inc. dated December 1, 2000. (Page 3 of 5 pages) SIGNATURES Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized. ILM II SENIOR LIVING, INC. By: /s/ J. William Sharman, Jr. ----------------------------- J. William Sharman, Jr. Chairman of the Board of Directors, President and Chief Executive Officer Dated: December 1, 2000 (Page 4 of 5 pages) EXHIBIT INDEX Page No. 10.1 Second Amendment to Amended and Restated Agreement and Plan of Merger dated November 28, 2000. 6 10.2 First Amendment to Agreement dated November 28, 2000. 9 99.1 Press Release of ILM II Senior Living, Inc. dated December 1, 2000. 11 (Page 5 of 5 pages) EX-10.1 2 0002.txt AMENDMENT TO MERGER AGREEMENT EXHIBIT 10.1 SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER SECOND AMENDMENT TO AMENDED AND RESTATED AGREEMENT AND PLAN OF MERGER dated November 28, 2000 (this "Amendment"), among CAPITAL SENIOR LIVING CORPORATION, a Delaware corporation ("CSLC"); CAPITAL SENIOR LIVING ACQUISITION, LLC, a Delaware limited liability company, all of the outstanding membership interests in which are wholly-owned by CSLC ("Sub"); and ILM II SENIOR LIVING, INC., a Virginia finite-life corporation (the "Company"). W I T N E S S E T H: WHEREAS, CSLC, Sub and the Company entered into an Amended and Restated Agreement and Plan of Merger dated October 19, 1999, as amended by the First Amendment thereto dated April 18, 2000 (the "Merger Agreement"); WHEREAS, at a special meeting of the holders of the Company's Common Stock convened on June 22, 2000, the holders of not less than 66-2/3% of such outstanding common stock duly approved the Merger Agreement and the transactions contemplated thereby; WHEREAS, the parties hereto acknowledge that the Merger was not consummated on or prior to September 30, 2000 and the non-satisfaction of the condition set forth in Section 6.3(d) of such Merger Agreement; WHEREAS, pursuant to Section 7.3 and Section 7.4(a) of the Merger Agreement, the parties to the Merger Agreement desire to amend and extend certain terms thereof as hereinafter set forth; NOW, THEREFORE, in consideration of the mutual premises and the representations, warranties, agreements and covenants, herein contained, the parties hereto, intending to be legally bound, hereby agree as follows: 1. Subject to any approval by the holders of the Company's Common Stock or CSLC's Common Stock required by applicable law, the Merger Agreement is hereby amended as follows: (a) the termination fee payable to CSLC upon the terms and subject to the conditions prescribed by Section 5.6(b) of the Merger Agreement is hereby amended by deleting in such Section 5.6(b), each time it appears, the number "$1,858,200" and, in each instance, inserting in lieu and stead thereof, the number "$1,000,000"; (b) Section 7.1(d) of the Merger Agreement is hereby amended by deleting the provisions thereof in their entirety and inserting in lieu and stead thereof: "(d) by either CSLC or the Company, if the Merger shall not have been consummated at or prior to 5:00 p.m., Eastern time, on March 31, 2001."; (c) Section 4.1(b) is hereby amended by the addition at the end thereof of the following sentence: "Notwithstanding anything to the contrary contained in this Section 4.1(b) or elsewhere in this Agreement, the Company shall be permitted at any time to distribute (and such distribution shall not be construed as a breach by the Company of any provision of this Agreement) to its stockholders all or any portion of any proceeds received from CSLC from the sale of the Santa Barbara Property (as that term is defined in Section 5.10(d) hereof), provided that any such distribution shall be considered a partial payment of the Merger Consideration hereunder and shall be treated as a return of invested capital which reduces the original issue price per share for purposes of calculating the ordinary cash dividend limit of 8.5% of original issue price per share set forth in this Section 4.1(b)." (d) All references to the Merger Agreement shall hereafter refer to the Merger Agreement as amended by this Amendment. 2. Except as amended in this Amendment, the Merger Agreement remains in full force and effect. All capitalized terms used in this Amendment which are not otherwise defined in this Amendment shall be as defined in the Merger Agreement. Unless otherwise expressly stated herein, nothing contained in this Amendment shall be deemed to constitute a waiver by any party hereto of any of the provisions contained in the Merger Agreement, or a waiver of any remedies of the parties in respect of the past or future breach or violation thereof, including without limitation, the provisions of Section 5.6(e) of the Merger Agreement. All remedies hereunder and under the Merger Agreement are cumulative and not exclusive of any other remedies provided by law or in equity. 3. This Amendment may be executed in counterparts, all of which, when taken together, constitute but one and the same original agreement. IN WITNESS WHEREOF, CSLC, Sub, and the Company have caused this Amendment to be executed and delivered by their respective officers thereunto duly authorized all on this 28th day of November, 2000. CAPITAL SENIOR LIVING CORPORATION By: /s/ James A. Stroud ------------------------------------ Name: James A. Stroud Title: Chairman of the Company CAPITAL SENIOR LIVING ACQUISITION, LLC By: /s/ Lawrence A. Cohen ------------------------------------ Name: Lawrence A. Cohen Title: Chief Executive Officer ILM II SENIOR LIVING, INC. By: /s/ J. William Sharman, Jr. ------------------------------------ Name: J. William Sharman, Jr. Title: Chairman of the Board of Directors, President and Chief Executive Officer EX-10.2 3 0003.txt AMENDMENT TO AGREEMENT EXHIBIT 10.2 FIRST AMENDMENT TO AGREEMENT This First Amendment to Agreement (the "Amendment") is entered into as of November 28, 2000, by and among ILM II Senior Living, Inc. (formerly known as PaineWebber Independent Living Mortgage Inc. II) ("ILM II"), ILM II Holding, Inc., ("ILM II Holding"), ILM II Lease Corporation ("ILM II Lease Corp.") and Capital Senior Management 2, Inc. ("Manager"). W I T N E S S E T H : WHEREAS, ILM II and Capital Senior Living Corporation, the parent of Manager, entered into that certain Amended and Restated Agreement and Plan of Merger dated October 19, 1999 (as heretofore amended on April 18, 2000, the "Merger Agreement"); WHEREAS, ILM II Lease Corp. and Manager entered into that certain Management Agreement dated as of July 29, 1996 (the "Management Agreement"); WHEREAS, in conjunction with entering into the Management Agreement, ILM II, ILM II Holding, ILM II Lease Corp. and Manager entered into that certain agreement dated as of July 29, 1996 (the "Original Agreement"); WHEREAS, the parties to the Original Agreement desire to amend the Original Agreement; NOW, THEREFORE, the parties hereto agree that the Original Agreement be amended as follows and also agree as follows: 1. If consummation of the transactions contemplated by the Merger Agreement has not occurred by March 31, 2001, without any further action by the parties hereto, Section 2, Right of Offer and all corresponding references thereto, in the Original Agreement automatically shall be deleted and shall become null and void and of no further force or effect. Without limiting the generality of the immediately preceding sentence, nothing contained herein shall be interpreted so as to preclude Manager or any affiliates of Manager from making an offer or offers to purchase one or more of the properties covered by the Management Agreement after March 31, 2001. 2. Except as amended by this Amendment, the Original Agreement remains in full force and effect. 3. This Amendment may be executed in one or more counterparts (including by facsimile transmission), all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by all of the parties hereto and delivered to the other parties, it being hereby understood that all parties need not sign the same counterpart. IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be duly executed as of the date first above written. ILM II SENIOR LIVING, INC. By: /s/ J. William Sharman, Jr. --------------------------- Name: J. William Sharman, Jr. Title: Chairman of the Board of Directors, President and Chief Executive Officer ILM II HOLDING, INC. By: /s/ J. William Sharman, Jr. --------------------------- Name: J. William Sharman, Jr. Title: President ILM II LEASE CORPORATION By: /s/ Jeffry R. Dwyer --------------------------- Name: Jeffry Dwyer Title: President CAPITAL SENIOR MANAGEMENT 2, INC. By: /s/ David R. Brickman --------------------------- Name: David R. Brickman Title: Vice President EX-99.1 4 0004.txt PRESS RELEASE EXHIBIT 99.1 ILM II SENIOR LIVING, INC. ENTERS INTO TECHNICAL AMENDMENT OF PENDING MERGER AGREEMENT WITH CAPITAL SENIOR LIVING CORPORATION, INTENDS TO DISTRIBUTE SANTA BARBARA SALES PROCEEDS TO ITS SHAREHOLDERS AND INTENDS TO RESUME THE PAYMENT OF DIVIDENDS ON SHARES OF ITS COMMON STOCK December 1, 2000, Tyson's Corner, Virginia: ILM II Senior Living, Inc. today announced that it has extended until March 31, 2001 the outside termination date of its pending merger agreement with Capital Senior Living Corporation (NYSE: CSU) and that it has entered into with Capital a technical amendment to the merger agrpeement providing, among other things, that subject to the ILM II Board's fiduciary duties to shareholders, Capital will have until March 31, 2001 to obtain definitive financing sufficient for Capital to complete its merger previously approved by ILM II's shareholders at a special meeting held on June 22, 2000. The merger of ILM II with Capital was scheduled to be consummated on or prior to September 30, 2000 but has not been consummated to date. Capital had not obtained sufficient financing to complete the merger by September 30, 2000. In connection with the amendment, Capital agreed, after March 31, 2001 to a termination of all of its rights of first and last offer it may have with respect to the sale by ILM II to a third party of its common stock, its ownership interest in ILM II Holding, Inc. and/or the sale of ILM II's senior living properties and assets, and to reduce from $1,858,200 to $1,000,000 the amount of certain termination fees payable by ILM II to Capital under certain limited circumstances. All other terms of the merger agreement remain in effect. The pending merger agreement provides for consideration of $13.04 per share of outstanding ILM II common stock. In view of the previously announced sale to Capital of ILM II's interest in the Santa Barbara, California senior living facility, the ILM II Board intends to distribute on December 15, 2000, the proceeds of such sale on a pro rata basis in the form of a return of invested capital, to shareholders of record as of November 1, 2000. The aggregate cash distribution will be approximately $9,800,000 representing the gross proceeds from the sale, less certain built-in gains taxes, and is equivalent to the payment of approximately $1.89 per share of the $13.04 per share of merger consideration. The remaining approximate $11.15 per share would be payable by Capital to ILM II's shareholders upon completion of the merger in accordance with the merger agreement. There can be no assurance that Capital will be able to obtain the requisite financing to complete the merger or, even if obtained, that the merger otherwise will be consummated. ILM II separately announced today that although it has not yet declared a dividend, ILM II's Board of Directors has reevaluated its dividend policy and intends to resume its policy of paying quarterly cash dividends to holders of its common stock, beginning in January 2001. THIS PRESS RELEASE CONTAINS "FORWARD-LOOKING STATEMENTS" BASED ON OUR CURRENT EXPECTATIONS AND PROJECTIONS ABOUT FUTURE EVENTS. THESE FORWARD-LOOKING STATEMENTS ARE SUBJECT TO A NUMBER OF RISKS AND UNCERTAINTIES WHICH COULD CAUSE OUR ACTUAL RESULTS TO DIFFER MATERIALLY FROM HISTORICAL RESULTS OR THOSE ANTICIPATED AND CERTAIN OF WHICH ARE BEYOND OUR CONTROL. THE WORDS "BELIEVE," "EXPECT," "ANTICIPATE" AND SIMILAR EXPRESSIONS IDENTIFY FORWARD-LOOKING STATEMENTS. WE UNDERTAKE NO OBLIGATION TO PUBLICLY UPDATE OR REVISE ANY FORWARD-LOOKING STATEMENTS, WHETHER AS A RESULT OF NEW INFORMATION, FUTURE EVENTS OR OTHERWISE. -----END PRIVACY-ENHANCED MESSAGE-----