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SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
SCHEDULE 14D-9
(AMENDMENT NO. 1)
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 (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 4. THE SOLICITATION OR RECOMMENDATION
The response to Item 4 is hereby amended by adding the following after
the final paragraph of Item 4:
On January 7, 1998, the Company issued press releases announcing the
filing of the Federal Complaint (as defined under Item 8 below) and responding
to certain comments of the Company's former Chairman Gary L. Davidson. Copies of
such press releases are filed as Exhibits 7 and 8 hereto and are incorporated
herein by reference.
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 6, 1998, the Company filed a complaint (the "Federal
Complaint") in the United States District Court for the Central District of
California (the "Federal Court") against Emeritus and EMAC, seeking, among other
things, to obtain a preliminary and permanent injunction to prevent Emeritus
from pursuing the Emeritus Tender Offer and from soliciting proxies from ARV's
shareholders or taking any other steps to attempt to replace the current Board
until such time as Emeritus waives the conditions to the Emeritus Tender Offer
(the "Federal Action"). The Federal Complaint alleges violations of federal
securities laws and California law prohibiting unfair competition and breach of
fiduciary duty. On that same day, and in connection with the Federal Action, the
Company filed with the Federal Court an Ex Parte Application for Leave to
Conduct Expedited Discovery and an Order Shortening Time for a Hearing on
Plaintiff's Motion for a Preliminary Injunction (the "Ex Parte Application").
Copies of the Federal Complaint and the Ex Parte Application are filed as
Exhibits 9 and 10 hereto, respectively, and are incorporated herein by
reference.
ITEM 9. MATERIALS TO BE FILED AS EXHIBITS
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The response to Item 9 is hereby amended by adding the following new
exhibits:
7. Text of Press Release issued by the Company dated
January 7, 1998.
8. Text of Press Release issued by the Company dated January 7,
1998.
9. Complaint in ARV Assisted Living, Inc. v. Emeritus Corporation,
et al., case no. SA-CV-98-9-LHM (EEX).
10. Ex Parte Application for Leave to Conduct Expedited Discovery and
an Order Shortening Time for a Hearing on Plaintiff's Motion for
a Preliminary Injunction, dated January 6, 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
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Sheila M. Muldoon
Vice President, General
Counsel and Secretary
Dated January 7, 1998
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EXHIBIT INDEX
EXHIBIT DESCRIPTION PAGE NO.
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7. Text of Press Release issued by the
Company dated January 7, 1998
8. Text of Press Release issued by the
Company dated January 7, 1998
9. Complaint in ARV Assisted Living, Inc.
v. Emeritus Corporation, et al., case
no. SA-CV-98-9-LHM (EEX)
10. Ex Parte Application for Leave to
Conduct Expedited Discovery and an
Order Shortening Time for a Hearing on
Plaintiff's Motion for a Preliminary
Injunction, dated January 6, 1998
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