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EXHIBIT 99.4
SHARE PURCHASE AGREEMENT (this "Agreement") made and entered into
this 16th day of January 1998, by and among DAVIDSON FAMILY
PARTNERSHIP, a California general partnership and XXXX X.
XXXXXXXX FUNDED REVOCABLE LIVING TRUST, a California trust
(collectively, the "Seller"), and PROMETHEUS ASSISTED LIVING LLC,
a Delaware limited liability company (the "Purchaser").
W I T N E S S E T H :
WHEREAS the Seller beneficially owns 926,131 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) The Seller is duly organized, validly existing and in good standing
under the laws of its jurisdiction of organization. The Seller has the
power and authority to enter into this Agreement and to sell, assign,
transfer and deliver the Shares in accordance herewith.
(b) This Agreement has been duly authorized, executed and delivered by
the Seller and constitutes a valid and legally binding obligation of
the Seller, enforceable 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.
(c) Neither the execution nor the delivery of this Agreement nor the
sale of the Shares nor the Seller's performance of any of its covenants
and
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agreements hereunder 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.
(e) Immediately prior to the Closing (as defined below), the 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,
enforceable 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.
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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 & Xxxxx, 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx, 00000 (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 & Xxxxx, 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 22, 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. The Seller covenants to, and agrees with, the
Purchaser that:
(a) On the Closing Date, the 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.
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(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. Acknowledgement. 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
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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 otherwise 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:
Xxxx X. Xxxxxxxx 00 Xxxxxxxxx Xxxxx Xxxxxxx Xxxxx, XX 00000
with a copy to:
Paul, Hastings, Xxxxxxxx & Xxxxxx LLP 000 Xxxx Xxxxxx Xxxxx, 00xx Xxxxx
Xxxxx Xxxx, XX 00000 Attention of Xxxxx X. Tennsyon, Esq.
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If to the Purchaser:
Prometheus Assisted Living LLC c/o Lazard Freres Real Estate Investors
LLC 00 Xxxxxxxxxxx Xxxxx, 00xx Xxxxx Xxx Xxxx, Xxx Xxxx 00000
with a copy to:
Cravath, Swaine & Xxxxx 000 Xxxxxx Xxxxxx, Xxx Xxxx, Xxx Xxxx 00000
Attention of Xxxxx X. Xxxxxx, Esq.
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.
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IN WITNESS WHEREOF, the Purchaser and the Seller have executed this Agreement
as of the day and year first above written.
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/ Xxxxxx X. Xxxxxxx
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Name: Xxxxxx X. Xxxxxxx
Title: President
Number of
shares owned:
593,029 DAVIDSON FAMILY PARTNERSHIP
by /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: General Partner
333,102 XXXX X. XXXXXXXX FUNDED
REVOCABLE TRUST
by /s/ Xxxx X. Xxxxxxxx
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Name: Xxxx X. Xxxxxxxx
Title: Trustee
