EXHIBIT 11
AGREEMENT
THIS AGREEMENT (this "Agreement"), dated as of February 15, 1996, is
by and among MARRIOTT INTERNATIONAL, INC., a Delaware corporation ("PARENT"), FG
ACQUISITION CORP., an Indiana corporation and a subsidiary of Parent
("PURCHASER"), and FORUM/CLASSIC, L.P., a Delaware limited partnership
("SHAREHOLDER").
W I T N E S S E T H:
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WHEREAS, simultaneously with the execution of this Agreement, Parent,
Purchaser and Forum Group Inc., an Indiana corporation, (the "COMPANY") have
entered into an Agreement and Plan of Merger (as such Agreement may hereafter be
amended from time to time, the "MERGER AGREEMENT"), pursuant to which (i)
Purchaser has agreed, among other things, to commence a cash tender offer (as
such tender offer may hereafter be amended from time to time in accordance with
the Merger Agreement, the "OFFER") to purchase all shares of common stock, no
par value, of the Company (the "COMPANY COMMON STOCK") and (ii) Purchaser will
be merged with and into the Company (the "MERGER");
WHEREAS, as of the date hereof, Shareholder is the beneficial owner
of, and has the sole right to vote and dispose of, 2,550,554 shares of Company
Common Stock; and
WHEREAS, as an inducement and a condition to its entering into the
Merger Agreement and incurring the obligations set forth therein, including the
Offer and the Merger, Parent has required that Shareholder enter into this
Agreement;
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained herein
and in the Merger Agreement, the parties hereto, intending to be legally bound
hereby, agree as follows:
1. Certain Definitions. Capitalized terms used and not defined
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herein have the respective meanings ascribed to them in the Merger Agreement. In
addition, for purposes of this Agreement:
"AFFILIATE" means, with respect to any specified Person, any Person
that directly, or indirectly through one or more intermediaries, controls, or is
controlled by, or is under common control with, the Person specified. As used
herein, "CONTROL" means the ownership of fifty percent (50%) or more of the
voting securities of a Person. For purposes of this Agreement, with respect to
Shareholder, "AFFILIATE" shall not include (i) the Company and the Persons that
directly, or indirectly through one or more intermediaries, are controlled by
the Company or (ii) any Person in which Shareholder has a material direct or
indirect ownership interest that is an operating company or otherwise is not in
the business of making direct or indirect equity and/or debt investments in
other Persons.
"BENEFICIALLY OWN," "BENEFICIAL OWNER" or "BENEFICIAL OWNERSHIP" with
respect to any securities means having "BENEFICIAL OWNERSHIP" of such securities
(as determined pursuant to Rule 13d-3 under the Exchange Act ). Without
duplicative counting of the same securities by the same holder, securities
Beneficially Owned by a Person shall include securities Beneficially Owned by
all other Persons with whom such Person would constitute a "GROUP" within the
meaning of Section 13(d) of the Exchange Act and the rules promulgated
thereunder.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as amended.
"OWNED SHARES" means the shares of Company Common Stock owned by
Shareholder (either of record or through a nominee), together with any other
shares of Company Common Stock and any securities convertible into or
exercisable or exchangeable for such securities (whether or not subject to
contingencies with respect to any matter or proposal submitted for the vote or
consent of shareholders of the Company) now or hereafter Beneficially Owned by
Shareholder.
"PERSON" means an individual, corporation, partnership, joint venture,
association, trust, unincorporated organization or other entity.
"TRANSFER" means, with respect to a security, the sale, transfer,
pledge, hypothecation, encumbrance, assignment or disposition of such security
or the Beneficial Ownership thereof, the offer to make such a sale, transfer or
other disposition, and each option, agreement, arrangement or understanding,
whether or not in writing, to effect any of the foregoing. As a verb,
"TRANSFER" shall have a correlative meaning.
2. Tender of Shares.
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So long as the per share price in the Offer is not less than $13 in
cash (net to the seller), Shareholder hereby agrees to tender and not withdraw
all Owned Shares (or cause the record owner thereof to tender and not withdraw
such Owned Shares), pursuant to and in accordance with the terms of the Offer.
Shareholder hereby acknowledges and agrees that Parent's and Purchaser's
obligation to accept for payment and pay for shares of Company Common Stock in
the Offer, including any Owned Shares tendered by Shareholder, is subject to the
terms and conditions of the Offer. The parties agree that Shareholder will, for
all Owned Shares tendered by Shareholder in the Offer and accepted for payment
and paid for by Purchaser, receive the same per share consideration paid to
other shareholders who have tendered into the Offer.
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3. Restrictions on Transfer and Proxies; No Solicitation.
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(a) So long as the per share price in the Offer is not less than $13
in cash (net to the seller), Shareholder shall not directly or indirectly: (i)
except as provided in Section 2 hereof, Transfer (including the Transfer of any
securities of an Affiliate which is the record holder of Owned Shares if, as the
result of such Transfer, such Person would cease to be an Affiliate of
Shareholder) to any Person any or all Owned Shares; (ii) grant any proxies or
powers of attorney, deposit any Owned Shares into a voting trust or enter into a
voting agreement, understanding or arrangement with respect to such Owned
Shares; or (iii) take any action that would make any representation or warranty
of Shareholder contained herein untrue or incorrect or would result in a breach
by Shareholder of its obligations under this Agreement.
(b) Shareholder shall, and shall cause its Affiliates and its and
their officers, directors, employees, representatives and agents (the "Covered
Persons") to, immediately cease any existing discussions or negotiations with
any parties conducted heretofore with respect to any Acquisition Proposal.
Shareholder will not, and will cause the Covered Persons not to, (i) solicit,
directly or through an intermediary, any inquiries with respect to, or the
making of, any Acquisition Proposal, or (ii) engage in negotiations or
discussions with, or furnish any confidential information relating to the
Company or its Subsidiaries to, any Third Party relating to an Acquisition
Proposal; provided, that nothing in this Agreement shall prohibit Shareholder or
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any Covered Person in their capacities as officers, directors, employees,
representatives and agents of the Company from taking or omitting to take any
action permitted to be taken or omitted to be taken by the Company under Section
6.2 of the Merger Agreement.
4. Representations and Warranties of Shareholder. Shareholder
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hereby represents, warrants and covenants to Parent and Purchaser as follows:
(a) Shareholder has all necessary partnership power and authority
to execute and deliver this Agreement and perform its obligations hereunder. The
execution and delivery by Shareholder of this Agreement and the performance by
Shareholder of its obligations hereunder have been duly and validly authorized
by the requisite partnership action on the part of Shareholder, and no other
partnership proceedings on the part of Shareholder are necessary to authorize
the execution, delivery or performance of this Agreement by Shareholder or the
consummation of the transactions contemplated hereby by Shareholder.
(b) This Agreement has been duly and validly executed and delivered
by Shareholder and constitutes the valid and binding agreement of Shareholder,
enforceable against Shareholder in accordance with its terms except to the
extent (i) such enforcement may be limited by applicable bankruptcy, insolvency
or similar laws affecting creditors rights and (ii) the remedy of specified
performance and injunctive and other forms of equitable relief may be subject to
equitable defenses and to the discretion of the court before which any
proceeding therefor may be brought.
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(c) Shareholder is the Beneficial Owner of 2,550,544 shares of
Company Common Stock and has the right to tender such shares as contemplated by
this Agreement so that, upon the consummation of the Offer, Purchaser will own
such shares free and clear of all liens, claims, options, proxies, voting
agreements, security interests, charges and encumbrances. Except for the Owned
Shares, the Citicorp Warrants and the Investor Warrants (and the shares of
Company Common Stock purchasable upon exercise of such warrants), neither
Shareholder nor any of its Affiliates Beneficially Owns any shares of Company
Common Stock or any securities convertible into Company Common Stock.
Shareholder has sole power to vote and to dispose of the Owned Shares, and sole
power to issue instructions with respect to the Owned Shares to the extent
appropriate in respect of the matters set forth in this Agreement, sole power to
demand appraisal rights and sole power to agree to all of the matters set forth
in this Agreement, in each case which respect to all of the Owned Shares, with
no limitations, qualifications or restrictions on such rights, subject to
applicable securities laws and the terms of this Agreement.
(d) Except for filings, authorizations, consents and approvals as
may be required under, and other applicable requirements of the Hart-Scott-
Rodino Antitrust Improvements Act of 1976 (the "HSR ACT") and the Exchange Act,
in each case as amended, (i) no filing will, and no permit, authorization,
consent or approval of, any state or federal governmental body or authority is
necessary for the execution of this Agreement by Shareholder and the
consummation by Shareholder of the transactions contemplated hereby and (ii)
none of the execution and delivery of this Agreement by Shareholder, the
consummation by Shareholder of the transactions contemplated hereby or
compliance by Shareholder with any of the provisions hereof shall (A) conflict
with or result in any breach of the partnership agreement or other
organizational documents of Shareholder, (B) result in a violation or breach of,
or constitute (with or without notice or lapse of time or both) a default (or
give rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Shareholder is a party or by which Shareholder
or any of its properties or assets (including the Owned Shares) may be bound, or
(C) violate any order, writ, injunction, decree, judgment, statute, rule or
regulation applicable to Shareholder or any of its properties or assets. As of
immediately prior to the execution of this Agreement, no litigation is pending
or, to the knowledge of Shareholder, threatened involving Shareholder relating
in any way to this Agreement, the Merger Agreement or any transactions
contemplated hereby or thereby.
(e) Shareholder understands and acknowledges that Parent is
entering into, and causing the Purchaser to enter into, the Merger Agreement,
and is incurring the obligations set forth therein, in reliance upon
Shareholder's execution and delivery of this Agreement.
(f) Shareholder agrees with and covenants to Parent that
Shareholder shall not request that the Company or Parent, as the case may be,
register the Transfer (book-entry
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or otherwise) of any certificated or uncertificated interest representing any of
the securities of the Company or of Parent, as the case may be, unless such
Transfer is made in compliance with this Agreement.
5. Representations and Warranties of Parent and Purchaser.
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Parent and Purchaser hereby represent, warrant and covenant to Shareholder as
follows:
(a) Parent is a corporation duly organized and validly existing
under the laws of the State of Delaware, and Purchaser is a corporation duly
organized and validly existing under the laws of the State of Delaware and each
of them is in good standing under the laws of the state of its incorporation.
Parent and Purchaser have all necessary corporate power and authority to execute
and deliver this Agreement and perform their respective obligations hereunder.
The execution and delivery by Parent and Purchaser of this Agreement and the
performance by Parent and Purchaser of their respective obligations hereunder
have been duly and validly authorized by the Board of Directors of each of
Parent and Purchaser and no other corporate proceedings on the part of Parent or
Purchaser are necessary to authorize the execution, delivery or performance of
this Agreement or the consummation of the transactions contemplated hereby.
(b) This Agreement has been duly and validly executed and delivered
by Parent and Purchaser and constitutes a valid and binding agreement each of
Parent and Purchaser, enforceable against each of them in accordance with its
terms except to the extent (i) such enforcement may the limited by applicable
bankruptcy, insolvency or similar laws affecting creditors rights and (ii) the
remedy of specific performance and injunctive and other forms of equitable
relief may be subject to equitable defenses and to the discretion of the court
before which any proceeding therefor may be brought.
(c) Except for filings, authorizations, consents and approvals as
may be required under, and other applicable requirements of the HSR Act and the
Exchange Act, (i) no filing with, and no permit, authorization, consent or
approval of, any state or federal public body or authority is necessary for the
execution of this Agreement by Parent or Purchaser and the consummation by
Parent or Purchaser of the transactions contemplated hereby and (ii) none of the
execution and delivery of this Agreement by Parent or Purchaser, the
consummation by Parent or Purchaser of the transactions contemplated hereby or
compliance by Parent or Purchaser with any of the provisions hereof shall (A)
conflict with or result in any breach of the certificate of incorporation or by-
laws of Parent or Purchaser, or (B) result in a violation or breach of, or
constitute (with or without notice or lapse of time or both) a default (or give
rise to any third party right of termination, cancellation, material
modification or acceleration) under any of the terms, conditions or provisions
of any note, loan agreement, bond, mortgage, indenture, license, contract,
commitment, arrangement, understanding, agreement or other instrument or
obligation of any kind to which Parent or Purchaser is a party or by which
Parent or Purchaser or any of their respective properties or assets may be
bound, or violate any order, writ, injunction, decree, judgment, statute, rule
or regulation applicable to Parent or Purchaser or any of their respective
properties or assets. As of immediately prior to
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the execution of this Agreement, no litigation is pending or, to the knowledge
of Parent and Purchaser, threatened involving Parent or Purchaser relating in
any way to this Agreement, the Merger Agreement or any transactions contemplated
hereby or thereby.
6. Termination. This Agreement (and all covenants of Shareholder
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hereunder) shall terminate on the earliest of (i) the purchase by Purchaser of
the Owned Shares pursuant to the Offer, (ii) termination of the Merger Agreement
pursuant to and in conformity with Article VIII of the Merger Agreement;
provided that this Agreement shall not terminate based on a termination under
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Section 7.1(f) of the Merger Agreement if Parent and Purchaser are challenging
the ability of the Company to terminate the Merger Agreement pursuant to such
Section 7.1(f), and (iii) July 16, 1996.
7. Miscellaneous.
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(a) This Agreement constitutes the entire agreement among the
parties with respect to the subject matter hereof and supersedes all other prior
agreements and understandings, both written and oral, among the parties with
respect to the subject matter hereof.
(b) Shareholder agrees that this Agreement and the respective
rights and obligations of Shareholder hereunder shall attach to any shares of
Company Common Stock, and any securities convertible into such shares, that may
become Beneficially Owned by Shareholder.
(c) All costs and expenses incurred in connection with this
Agreement and the transactions contemplated hereby shall be paid by the party
incurring such expenses, and each of Parent and Purchaser, on the one hand, and
Shareholder, on the other hand, shall indemnify and hold the other harmless from
and against any and all claims, liabilities or obligations with respect to any
brokerage fees, commissions or finders' fees asserted by any person on the basis
of any act or statement alleged to have been made by such party or its
Affiliates.
(d) This Agreement and all of the provisions hereof shall be
binding upon and inure to the benefit of the parties and their respective
successors and permitted assigns, but neither this Agreement nor any of the
rights, interests or obligations hereunder shall be assigned or delegated by any
party (whether by operation of Law or otherwise) without the prior written
consent of the other parties; provided, that Purchaser may assign or delegate
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its rights and obligations hereunder to Parent or any Subsidiary of Parent, but
no such assignment or delegation shall relieve Purchaser of its obligations
hereunder. This Agreement shall be binding upon and inure solely to the benefit
of each party hereto, and nothing in this Agreement, express or implied, is
intended to or shall confer upon any other Person any rights, benefits or
remedies of any nature whatsoever under or by reason of this Agreement.
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(e) This Agreement may not be amended, changed, supplemented, or
otherwise modified or terminated, except upon the execution and delivery of a
written agreement executed by each of the parties hereto. The parties may waive
compliance by the other parties hereto with any representation, agreement or
condition otherwise required to be complied with by such other party hereunder,
but any such waiver shall be effective only if in writing executed by the
waiving party.
(f) All notices and other communications hereunder shall be in
writing and shall be deemed given upon (a) transmitter's confirmation of a
receipt of a facsimile transmission, (b) confirmed delivery by a standard
overnight carrier or when delivered by hand or (c) on receipt, unless receipt
fails to occur because of a refusal to accept delivery or inability to effect
delivery because of a change of address of which no notice was given, in which
case notice shall be deemed given upon the expiration of five business days
after the day when mailed by certified or registered mail, postage prepaid,
addressed at the following addresses (or at such other address for a party as
shall be specified by like notice):
If to Shareholder:
Forum/Classic, L.P.
Suite 3900
200 West Madison
Chicago, Illinois 60606
Telephone No.: (312) 750-8103
Telecopy No.: (312) 750-8566
Attention: Kenneth R. Posner
copy to:
Forum/Classic, L.P.
Suite 3900
200 West Madison
Chicago, Illinois 60606
Telephone No.: (312) 750-8415
Telecopy No.: (312) 750-8597
Attention: John Kevin Poorman
If to Parent or
Purchaser:
Marriott International, Inc.
10400 Fernwood Road
Bethesda, Maryland 20817
Telephone No.: (301) 380-9555
Telecopy No.: (301) 380-8150
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Attention: General Counsel
copy to:
O'Melveny & Myers
555 13th Street, NW
Washington, D.C. 20004
Telephone No.: (202) 383-5300
Telecopy No.: (202) 383-5414
Attention: Jeffrey J. Rosen
David G. Pommerening
(g) Each of the parties hereto acknowledges and agrees that in the
event of any breach of this Agreement, each non-breaching party would be
irreparably and immediately harmed and could not be made whole by monetary
damages. It is accordingly agreed that the parties hereto (a) will waive, in
any action for specific performance, the defense of adequacy of a remedy at law
and (b) shall be entitled, in addition to any other remedy to which they may be
entitled at law or in equity, to compel specific performance of this Agreement
in any action instituted in any state or federal court sitting in Delaware. The
parties hereto consent to personal jurisdiction in any such action brought in
any state or federal court sitting in Delaware and to service of process upon it
in the manner set forth in Section 7(f) hereof.
(h) All rights, powers and remedies provided under this Agreement
or otherwise available in respect hereof at law or in equity shall be cumulative
and not alternative, and the exercise of any thereof by any party shall not
preclude the simultaneous or later exercise of any other such right, power or
remedy by such party. The failure of any party hereto to exercise any right,
power or remedy provided under this Agreement or otherwise available in respect
hereof at law or in equity, or to insist upon compliance by any other party
hereto with its obligations hereunder, and any custom or practice of the parties
at variance with the terms hereof, shall not constitute a waiver by such party
of its right to exercise any such or other right, power or remedy or to demand
such compliance.
(i) This Agreement shall be governed and construed in accordance
with the Laws of the State of Delaware (regardless of the Laws that might
otherwise govern under applicable principles of conflict of laws) as to all
matters, including matters of validity, construction, effect, performance and
remedies.
(j) The descriptive headings used herein are inserted for
convenience of reference only and are not intended to be part of or to affect
the meaning or inter pretation of this Agreement. "Include," "includes" and
"including" shall be deemed to be followed by "without limitation" whether or
not they are in fact followed by such words or words of like import.
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(k) This Agreement may be executed in counterparts, each of which
shall be deemed to be an original, but all of which, taken together, shall
constitute one and the same instrument.
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IN WITNESS WHEREOF, Parent, Purchaser and Shareholder have caused this
Agreement to be duly executed as of the day and year first above written.
MARRIOTT INTERNATIONAL, INC.
By: /s/ WILLIAM J. SHAW
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Name: William J. Shaw
Title: Executive Vice President
FG ACQUISITION CORP.
By: /s/ WILLIAM J. SHAW
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Name: William J. Shaw
Title: Vice President
FORUM/CLASSIC, L.P.
By: FORUM/CLASSIC GP CO., its general
partner
By: /s/ JOHN KEVIN POORMAN
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Name: John Kevin Poorman
Title: Vice President
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