SHARE PURCHASE AGREEMENT (this "Agreement") made and entered
into this 20th day of January 1998, by and among PROMETHEUS
ASSISTED LIVING LLC, a Delaware limited liability company (the
"Purchaser"), and the other entities set forth on the signature
line hereto (collectively, the "Seller").
W I T N E S S E T H :
WHEREAS the Seller beneficially owns 186,000 shares (the
"Shares") of common stock of ARV Assisted Living, Inc., a California
corporation, in such amount as set forth across from the signature line
hereto; and
WHEREAS the Purchaser desires to purchase from the Seller, and
the Seller desires to sell to the Purchaser, the Shares.
NOW, THEREFORE, in consideration of the premises and mutual
agreements hereinafter contained, the parties hereto do hereby agree as
follows:
1. Representations, Warranties and Agreements of the Seller. The
Seller represents and warrants to, and agrees with, the Purchaser that:
(a) Each Seller is duly organized, validly existing and in good
standing under the laws of its jurisdiction of organization. Each
Seller has the power and authority to enter into this Agreement and
the proxy delivered by the Seller to Purchaser in connection with the
shares covered hereby (the "Proxy") and to sell, assign, transfer and
deliver the Shares in accordance herewith.
(b) This Agreement and the Proxy have been duly authorized,
executed and delivered by each Seller and constitute a valid and
legally binding obligation of the Seller, enforceable in accordance
with their terms, subject, as to enforcement, to bankruptcy,
insolvency, reorganization and other laws of general applicability
relating to or affecting creditors' rights and to general equity
principles.
(c) Neither the execution nor the delivery of this Agreement and
the Proxy nor the sale of the Shares
nor each Seller's performance of any of its covenants and agreements
hereunder or thereunder will, directly or indirectly, (i) contravene,
conflict with, or result in a violation of the charter or by-laws, or
other governing instruments, of the Seller; (ii) contravene, conflict
with, or result in a violation of any law, rule, or regulation
applicable to the Seller, (iii) contravene, conflict with, or result
in a violation or breach of, or give any person the right to exercise
any remedy under, or accelerate the maturity or performance of, or
cancel, terminate or modify any agreement or instrument to which the
Seller is a party or by which the Seller is bound or to which any of
its properties are subject, or (iv) give any person the right to
prevent, delay, or otherwise interfere with any of the transactions
contemplated hereby.
(d) No consent, approval, authorization or order of, or filing
with, any person, court or governmental agency or body is required for
the consummation of the transactions contemplated by this Agreement
and the Proxy.
(e) Immediately prior to the Closing (as defined below), each
Seller will have good and valid title to the Shares, free and clear of
all liens, encumbrances, equities or claims (other than pursuant to
this Agreement); and, upon delivery of the Shares and payment
therefore pursuant hereto, good and valid title to the Shares, free
and clear of all liens, encumbrances, equities or claims will pass to
the Purchaser.
2. Representations and Warranties of the Purchaser. The Purchaser
represents and warrants to, and agrees with, the Seller that:
(a) The Purchaser is duly organized, validly existing and in good
standing under the laws of the state of its organization. The
Purchaser has the power and authority to enter into this Agreement and
to purchase the Shares in accordance herewith.
(b) This Agreement has been duly executed and delivered by the
Purchaser and constitutes a valid and legally binding obligation of
the Purchaser, enforce able in accordance with its terms, subject, as
to enforcement, to bankruptcy, insolvency, reorganization and other
laws of general applicability relating to or
affecting creditors' rights and to general equity principles.
3. Purchase and Sale of Shares. (a) Subject to the terms and
conditions set forth in this Agreement, the Seller agrees to sell to the
Purchaser, and the Purchaser agrees to purchase from the Seller, the Shares
at a purchase price of $15.50 per Share (the "Purchase Price").
(b) Certificates evidencing the Shares will be made available for
inspection by the Purchaser at 3:00 p.m., New York time, on the business
day prior to the Closing Date (as defined below), at the offices of
Cravath, Swaine & ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (such
meeting, the "Pre-Closing").
(c) Certificates evidencing the Shares, together with appropriate
instruments for the transfer thereof to the Purchaser, shall be delivered
by the Seller to the Purchaser against payment by the Purchaser of the
Purchase Price therefor by wire transfer of immediately available funds to
the account of the Seller. Such delivery shall take place at the offices of
Cravath, Swaine & ▇▇▇▇▇, or at such other location as the Seller and the
Purchaser may agree to in writing. The time and date of payment and
delivery shall be 9:30 a.m., New York time, on January 23, 1998, or such
other time and date as the Seller and the Purchaser may agree to in
writing. The purchase of the Shares for the Purchase Price therefor is
herein referred to as the "Closing". The date on which such Closing occurs
is herein referred to as the "Closing Date".
4. Covenants of the Seller. Each Seller covenants to, and agrees
with, the Purchaser that:
(a) On the Closing Date, each Seller shall surrender to the
Purchaser a certificate evidencing the Shares together with such
instruments of transfer as the Purchaser may reasonably request.
(b) The Seller shall take such other actions as Purchaser
reasonably requests in order to confirm and assure the Purchaser's
title to the Shares.
5. Conditions to Closing of the Purchaser. The obligation of the
Purchaser to accept and pay for the Shares is subject to the following
conditions:
(a) The representations and warranties of the Seller contained
herein shall be true and correct when made and as of the Closing Date.
(b) The Seller shall have performed and complied with all
agreements on its part to be performed or complied with prior to or on
the Closing Date pursuant hereto.
6. Conditions to Closing of the Seller. The obligation of the
Seller to deliver the Shares is subject to the following conditions:
(a) The representations and warranties of the Purchaser contained
herein shall be true and correct when made and as of the Closing Date.
(b) The Purchaser shall have performed and complied with all
agreements on its part to be performed or complied with prior to or on
the Closing Date pursuant hereto.
7. Acknowledgment. Each of the Purchaser and Seller acknowledges
that the other may possess material information which the other does not
and that each (i) has made its own independent decision with respect to the
purchase and sale of the Shares and (ii) will not make any claim against
the other in respect of such material information possessed by the other.
8. Expenses. The Seller agrees with the Purchaser that the Seller
will pay or cause to be paid (a) all of its own costs and expenses,
including the fees, disbursements and expenses of counsel to the Seller in
connection with the transactions contemplated by this Agreement and (b) all
other expenses incurred by or imposed on the Seller incident to the sale
and delivery of the Shares. The Purchaser will pay all of its own costs and
expenses, including the fees, disbursements and expenses of its counsel.
9. Specific Performance. The parties hereto each acknowledge that
in view of the uniqueness of the subject matter hereof they would not have
an adequate remedy at law for money damages in the event that this
Agreement was not performed in accordance with its terms, and therefore
agree that the parties shall be entitled to specific enforcement of the
terms hereof in addition to any other remedy to which the parties hereto
may be entitled at law or in equity.
10. Survival of Agreements, etc. All representations,
warranties, covenants and agreements made herein or in connection with the
transactions contemplated hereby shall survive the execution and delivery
of this Agreement and the Closing of the purchase and sale of the Shares.
11. Nonassignability and Successors. This Agreement and the
rights and obligations hereunder may not be assigned, delegated or
otherwise transferred by the Seller and any such assignment, delegation or
other transfer in violation of this Section 11 shall be null and void. This
Agreement shall be binding upon, and inure solely to the benefit of, the
Purchaser, the Seller, and their respective successors and permitted
assigns, and no other person shall acquire or have any right under or by
virtue of this Agreement.
12. Headings. The headings in this Agreement are for purposes of
reference only and shall not limit or other wise affect the meaning hereof.
13. Amendments. This Agreement cannot be modified, amended or
terminated except by an instrument in writing signed by the Purchaser and
the Seller; provided, however, that any provision of this Agreement may be
waived only by the party to be charged with the waiver but only by a duly
executed writing.
14. Time of Essence. Time shall be of the essence in this
Agreement.
15. Applicable Law. This Agreement shall be governed by and
construed in accordance with the internal laws of the State of New York.
16. Notices. All notices and other communications hereunder
shall be in writing and shall be sent by facsimile with a hard copy to
follow by overnight courier as follows:
If to the Seller:
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇▇.
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
If to the Purchaser:
Prometheus Assisted Living LLC
c/o Lazard Freres Real Estate Investors LLC
▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ with a copy to :
Cravath, Swaine & ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention of ▇▇▇▇▇ ▇. ▇▇▇▇▇▇, Esq.
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Fax: (▇▇▇) ▇▇▇-▇▇▇▇
17. Entire Agreement. This Agreement embodies the entire
agreement and understanding between the Purchaser, on the one hand, and
the Seller, on the other hand, and supersedes all prior agreements and
understandings relating to the subject matter hereof.
18. Counterparts. This Agreement may be executed in any number of
counterparts, each of which shall be an original, but such counterparts
shall together constitute one and the same instrument.
19. Confidentiality. Except as otherwise required by law, each
party hereto agrees to keep the terms of this Agreement confidential.
IN WITNESS WHEREOF, the Purchaser and the Seller have executed
this Agreement as of the day and year first above written.
Purchaser
PROMETHEUS ASSISTED LIVING LLC
by LF Strategic Realty Investors II
L.P., as sole member,
by Lazard Freres Real Estate
Investors L.L.C., its general
partner,
by /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: President
Number of
shares owned: Seller
40,700 Taurus Partners Limited Partner LP
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Partner
12,100 Blackstone Partners Investment Fund
LP
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Partner
102,800 Taurus Capital International LTD
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Partner
13,300 Mesirow Event Strategic Fund LP
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: General Partner
17,100 ▇▇▇▇▇▇ ▇▇▇▇ LLC
by /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President