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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
SCHEDULE 13D
(Amendment No. 4)
Under the Securities Exchange Act of 1934
ARV Assisted Living, Inc.
(Name of Company)
Common Stock, No Par Value
(Title of Class of Securities)
00204C107
(CUSIP Number)
Lorenzo Lorenzotti
Prometheus Assisted Living LLC
Lazard Freres Real Estate Investors L.L.C.
30 Rockefeller Plaza, 63rd Floor
New York, NY 10020
(212) 632-6000
with a copy to:
Kevin Grehan, Esq.
Cravath, Swaine & Moore
825 Eighth Avenue
New York, NY 10019
(212) 474-1490
----------------------------------------------
(Name, Address and Telephone Number of Person Authorized to
Receive Notices and Communications)
January 16, 1998
(Date of Event which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to
report the acquisition which is the subject of this Schedule 13D, and is
filing this schedule because of Rule 13d-1(b)(3) or (4), check the
following box [ ].
Note: six copies of this statement, including all exhibits, should be filed
with the Commission. See Rule 13d-1(a) for other parties to whom copies are
to be sent.
*The remainder of this cover page shall be filled out for a reporting
person's initial filing on this form with respect to the subject class of
securities, and for any subsequent amendment containing information which
would alter disclosures provided in a prior cover page.
The information required on the remainder of this cover page shall not be
deemed to be "filed" for the purpose of Section 18 of the Securities
Exchange Act of 1934 ("Act") or otherwise subject to the liabilities of
that section of the Act but shall be subject to all other provisions of the
Act (however, see the Notes).
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<PAGE>
SCHEDULE 13D
CUSIP No. 00204C107 Page 2 of 8 Pages
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1 NAME OF REPORTING PERSON
SS OR IRS IDENTIFICATION NO OF ABOVE PERSON
Prometheus Assisted Living LLC
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
AF
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- ---------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 7,295,369
BENEFICIALLY
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING -0-
PERSON WITH
9 SOLE DISPOSITIVE POWER
7,295,369
10 SHARED DISPOSITIVE POWER
-0-
- ---------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,295,369 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46.0%, the number of shares of Common Stock currently owned by
Prometheus (7,295,369) divided by the number of shares of Common
Stock reported by the Company as outstanding on December 5, 1997
(15,868,998).
14 TYPE OF REPORTING PERSON*
OO
- -------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
SCHEDULE 13D
CUSIP No. 00204C107 Page 3 of 8 Pages
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- ---------------------------------------------------------------------------
1 NAME OF REPORTING PERSON
SS OR IRS IDENTIFICATION NO OF ABOVE PERSON
LF Strategic Realty Investors II L.P.
2 CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP* (a) [ ]
(b) [x]
3 SEC USE ONLY
4 SOURCE OF FUNDS*
OO, BK
5 CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS
REQUIRED PURSUANT TO ITEMS 2(d) OR 2(E) [ ]
6 CITIZENSHIP OR PLACE OF ORGANIZATION
Delaware
- -----------------------
NUMBER OF 7 SOLE VOTING POWER
SHARES 7,295,369
BENEFICIALLY
OWNED BY EACH 8 SHARED VOTING POWER
REPORTING -0-
PERSON WITH
9 SOLE DISPOSITIVE POWER
7,295,369
10 SHARED DISPOSITIVE POWER
-0-
- -----------------------
11 AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
7,295,369 shares of Common Stock
12 CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES [ ]
CERTAIN SHARES*
13 PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
46.0%, the number of shares of Common Stock currently owned by
Prometheus (7,295,369) divided by the number of shares of Common Stock
reported by the Company as outstanding on December 5, 1997
(15,868,998).
14 TYPE OF REPORTING PERSON*
PN
- --------------------------------------------------------------------------
*SEE INSTRUCTIONS BEFORE FILLING OUT!
<PAGE>
This Amendment No. 4 to Schedule 13D (this "Amendment") is filed
by LF Strategic Realty Investors II L.P., a Delaware limited partnership
("LFSRI") and Prometheus Assisted Living LLC, a Delaware limited liability
company ("Prometheus", and collectively with LFSRI, the "Reporting
Persons"). As previously reported in the Schedule 13D filed on July 23,
1997, by Lazard Freres Real Estate Investors L.L.C., a New York limited
liability company ("LFREI") and Prometheus (as amended, the "Initial
Schedule 13D"), pursuant to a Stock Purchase Agreement dated as of July 14,
1997, by and between ARV Assisted Living, Inc. (the "Company"), LFREI and
Prometheus (as amended, the "Stock Purchase Agreement"), Prometheus agreed
to purchase certain shares of the common stock, no par value, of the
Company (the "Common Stock") (terms used herein but not defined shall have
the meanings assigned to such terms in the Initial Schedule 13D). On July
23, 1997, Prometheus purchased 1,921,012 shares of Common Stock pursuant to
the Stock Purchase Agreement at a purchase price of $14 per share,
representing an aggregate investment of $26,894,168. Thereafter, the
Company and the Reporting Persons amended the Stock Purchase Agreement by
entering into an Amended and Restated Stock and Note Purchase Agreement
dated as of October 29, 1997, by and between the Company, LFREI and
Prometheus, which provided for the purchase by Prometheus of $60,000,000
aggregate principal amount of the Company's 6.75% Convertible Subordinated
Notes due 2007 (the "Company Notes"). On December 1, 1997, LFREI assigned
its ownership interest in Prometheus to LFSRI. On December 5, 1997, the
Company redeemed the Company Notes for Common Stock pursuant to redemption
provisions set forth in the Indenture and the Note.
This Amendment relates to the purchase of additional shares of
Common Stock by Prometheus on January 16, 1998 and January 20, 1998. The
Initial Schedule 13D is hereby amended as follows:
Item 5. Interest in Securities of the Company
(a) As of January 20, 1998, Prometheus beneficially owned
7,295,369 shares of Common Stock. Such ownership represents 46.0% of the
number of shares of Common Stock reported by the Company to be issued and
outstanding as of December 5, 1997. LFSRI has no ownership interest in the
Company beyond its interest in Prometheus.
(b) Prometheus has the sole power to vote or to direct the vote
of all shares of Common Stock covered by
<PAGE>
this Amendment, subject to the terms and restrictions contained in the
Stockholders Agreement.
(c) Neither the Reporting Persons nor, to the knowledge of the
Reporting Persons, any of the other parties listed on Schedule 1 have
acquired any shares of Common Stock of the Company since the last amendment
to the Initial Schedule 13D was filed, other than the purchases reported
herein.
(d) Prometheus has the sole right to receive or the power to
direct the receipt of dividends from, or the proceeds of sale of, the
shares of Common Stock covered by this Amendment.
(e) Not applicable.
Item 6. Contract, Arrangements, Understandings or
Relationships with Respect to Securities of the
Company
In connection with the January 16, 1998 purchase of 926,131 of
the shares of Common Stock reported in this Amendment, Prometheus (i)
entered into a stock purchase agreement with Davidson Family Partnership, a
California general partnership and Gary L. Davidson Funded Revocable Living
Trust, a California trust (collectively, the "Davidson Seller") and (ii)
received from the Davidson Seller an irrevocable proxy to vote the shares
of Common Stock covered by such stock purchase agreement. In connection
with the January 20, 1998 purchase of 186,000 of the shares of Common Stock
reported in this Amendment, Prometheus (i) entered into a stock purchase
agreement with Furman Selz LLC and certain entities associated therewith
(collectively, the "Furman Selz Seller") and (ii) received from the Furman
Selz Seller an irrevocable proxy to vote the shares of Common Stock covered
by such stock purchase agreement. All references to the stock purchase
agreements and the proxies are qualified in their entirety by the full text
of such documents, copies of which are attached as Exhibits hereto and are
incorporated by reference herein.
Item 7. Material to be Filed as Exhibits
Exhibit 1: Stock Purchase Agreement dated
January 16, 1998, among Prometheus
and the Davidson Seller
Exhibit 2: Irrevocable Proxy dated January 16,
1998, granted to Prometheus by the
Davidson Seller
<PAGE>
Exhibit 3: Stock Purchase Agreement dated
January 20, 1998, among Prometheus
and the Furman Selz Seller
Exhibit 4: Irrevocable Proxy dated January 20,
1998, granted to Prometheus by the
Furman Selz Seller
<PAGE>
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.
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/ Robert P. Freeman
---------------------------------
Name: Robert P. Freeman
Title: President
LF STRATEGIC REALTY INVESTORS II L.P.
by Lazard Freres Real Estate
Investors L.L.C., its general partner,
by /s/ Robert P. Freeman
------------------------------------
Name: Robert P. Freeman
Title: President
<PAGE>
SCHEDULE 1
Officers of Lazard Freres Real Estate Investors L.L.C. The
business address for each of the following persons is 30 Rockefeller Plaza,
63rd Floor, New York, NY 10020.
Name Present and Principal Occupation
Arthur P. Solomon Chairman and Managing Director
of LFREI; Director of American
Apartment Communities II, Inc.,
and Atlantic American Properties
Anthony E. Meyer Senior Vice President and
Managing Director of LFREI;
Member of partnership committee
of DP Operating Partnership LP
Robert P. Freeman President and Managing Director
of LFREI; Director of American
Apartment Communities II, Inc.,
Commonwealth Atlantic Properties
Inc. and Atlantic American
Properties Trust
Klaus P. Kretschmann Senior Vice President of LFREI;
Director American Apartment
Communities II, Inc.
Murry N. Gunty Vice President of LFREI;
Director of Atlantic American
Properties Trust and Member of
partnership committee of DP
Operating Partnership LP
Thomas M. Mulroy Vice President of LFREI
Lorenzo L. Lorenzotti Secretary of LFREI
Henry C. Herms Comptroller of LFREI
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 GARY L. DAVIDSON 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
<PAGE>
2
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, 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.
<PAGE>
3
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 & Moore, 825 Eighth Avenue, New York, New York 10019 (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 & Moore, 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.
<PAGE>
4
(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
<PAGE>
5
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:
Gary L. Davidson
59 Hillsdale Drive
Newport Beach, CA 92660
with a copy to:
Paul, Hastings, Janofsky & Walker LLP
695 Town Center Drive, 17th Floor
Costa Mesa, CA 92626
Attention of Peter J. Tennsyon, Esq.
<PAGE>
6
If to the Purchaser:
Prometheus Assisted Living LLC
c/o Lazard Freres Real Estate Investors LLC
30 Rockefeller Plaza, 63rd Floor
New York, New York 10112
with a copy to:
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention of Kevin J. Grehan, 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.
<PAGE>
7
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/ Robert P. Freeman
---------------------------------
Name: Robert P. Freeman
Title: President
Number of
shares owned:
593,029 DAVIDSON FAMILY PARTNERSHIP
by /s/ Gary L. Davidson
-------------------------------
Name: Gary L. Davidson
Title: General Partner
333,102 GARY L. DAVIDSON FUNDED
REVOCABLE TRUST
by /s/ Gary L. Davidson
---------------------------------
Name: Gary L. Davidson
Title: Trustee
IRREVOCABLE PROXY
As of this 16th day of January 1998, the undersigned has sold to
Prometheus Assisted Living LLC ("Prometheus") that number of shares of
common stock of ARV Assisted Living, Inc., a California corporation, set
forth below (the "Common Stock"). In respect of such shares of Common
Stock, the undersigned hereby grants to Robert P. Freeman and Murry N.
Gunty, both of whom are currently employees of an affiliate of Prometheus
(the "Proxies"), an irrevocable proxy pursuant to the provisions of Section
705(e) of the California General Corporation Law to vote, or to execute and
deliver written consents or otherwise take action with respect to, the
Common Stock as fully, to the same extent and with the same effect as, the
undersigned might or could do under any applicable laws or regulations
governing the rights and powers of shareholders of a California corporation
and such right to vote, or to execute and deliver written consents or
otherwise take action with respect to such Common Stock shall include any
such actions taken in respect of any events or record dates arising at any
time prior to the date hereof. The undersigned hereby affirms that this
proxy is irrevocable and is coupled with an interest. This proxy shall
remain in effect as long as the Common Stock is held by Prometheus or any
of its nominees. In exercising their powers hereunder, the Proxies shall
have full and unreviewable discretion.
Number of
shares owned:
593,029 DAVIDSON FAMILY PARTNERSHIP
by /s/ Gary L. Davidson
---------------------------
Name: Gary L. Davidson
Title: General Partner
333,102 GARY L. DAVIDSON FUNDED
REVOCABLE TRUST
by /s/ Gary L. Davidson
----------------------------
Name: Gary L. Davidson
Title: Trustee
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
<PAGE>
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
<PAGE>
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 & Moore, 825 Eighth Avenue, New York, New York 10019 (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 & Moore, 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:
<PAGE>
(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.
<PAGE>
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:
William Collins
Furman Selz
230 Park Ave.
New York, New York 10169
<PAGE>
If to the Purchaser:
Prometheus Assisted Living LLC
c/o Lazard Freres Real Estate Investors LLC
30 Rockefeller Plaza, 63rd Floor
New York, New York 10112 with a copy to :
Cravath, Swaine & Moore
825 Eighth Avenue
New York, New York 10019
Attention of Kevin J. Grehan, Esq.
Telephone: (212) 474-1490
Fax: (212) 474-3706
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/ Robert P. Freeman
---------------------------------
Name: Robert P. Freeman
Title: President
<PAGE>
Number of
shares owned: Seller
40,700 Taurus Partners Limited Partner LP
by /s/ William Collins
----------------------------------
Name: William Collins
Title: General Partner
12,100 Blackstone Partners Investment Fund
LP
by /s/ William Collins
----------------------------------
Name: William Collins
Title: General Partner
102,800 Taurus Capital International LTD
by /s/ William Collins
----------------------------------
Name: William Collins
Title: General Partner
13,300 Mesirow Event Strategic Fund LP
by /s/ William Collins
----------------------------------
Name: William Collins
Title: General Partner
17,100 Furman Selz LLC
by /s/ William Collins
----------------------------------
Name: William Collins
Title: Executive Vice President
IRREVOCABLE PROXY
As of this 20th day of January 1998, the undersigned have sold to
Prometheus Assisted Living LLC ("Prometheus") that number of shares of
common stock of ARV Assisted Living, Inc., a California corporation, set
forth below (the "Common Stock"). In respect of such shares of Common
Stock, the undersigned hereby grant to Robert P. Freeman and Murry N.
Gunty, both of whom are currently employees of an affiliate of Prometheus
(the "Proxies"), an irrevocable proxy pursuant to the provisions of Section
705(e) of the California General Corporation Law to vote, or to execute and
deliver written consents or otherwise take action with respect to, the
Common Stock as fully, to the same extent and with the same effect as, the
undersigned might or could do under any applicable laws or regulations
governing the rights and powers of shareholders of a California corporation
and such right to vote, or to execute and deliver written consents or
otherwise take action with respect to such Common Stock shall include any
such actions taken in respect of any events or record dates arising at any
time prior to the date hereof. The undersigned hereby affirm that this
proxy is irrevocable and is coupled with an interest. This proxy shall
remain in effect as long as the Common Stock is held by Prometheus or any
of its nominees. In exercising their powers hereunder, the Proxies shall
have full and unreviewable discretion.
Number of
shares sold:
40,700 Taurus Partners Limited Partner LP
by /s/ William Collins
----------------------------------
Name: William Collins
Title: General Partner
12,100 Blackstone Partners Investment Fund
LP
by /s/ William Collins
----------------------------------
Name: William Collins
Title: General Partner
<PAGE>
102,800 Taurus Capital International LTD
by /s/ William Collins
----------------------------------
Name: William Collins
Title: General Partner
13,300 Mesirow Event Strategic Fund LP
by /s/ William Collins
----------------------------------
Name: William Collins
Title: General Partner
17,100 Furman Selz LLC
by /s/ William Collins
----------------------------------
Name: William Collins
Title: Executive Vice President
