Exhibit (c)(8)
FIRST AMENDMENT TO
AGREEMENT AND IRREVOCABLE PROXY
THIS FIRST AMENDMENT TO AGREEMENT AND IRREVOCABLE PROXY (this
"Amendment") dated as of March 21, 1996 by and among MARRIOTT INTERNATIONAL,
INC., a Delaware corporation ("Parent"), FG ACQUISITION CORP., an Indiana
corporation and a subsidiary of Parent ("Purchaser"), FORUM HOLDINGS, L.P.,
a Texas limited partnership ("Shareholder"), and FORUM GROUP, INC., an
Indiana corporation (the "Company"), amends the Agreement and Irrevocable
Proxy dated as of February 15, 1996 (the "Original Agreement"; the Original
Agreement, as amended by this Amendment, the "Agreement") by and among
Parent, Purchaser, Shareholder and the Company.
W I T N E S S E T H:
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WHEREAS, pursuant to the Original Agreement, Shareholder agreed to
exercise the Citicorp Warrants (as defined in the Original Agreement) it
holds and to tender the Citicorp Warrant Shares (as defined in the Original
Agreement) acquired upon such exercise into the Offer (as defined in the
Original Agreement); and
WHEREAS, Shareholder now wishes to sell the Citicorp Warrants to
Purchaser and Purchaser is willing to buy the Citicorp Warrants for an
aggregate purchase price of $3,455,553.26 (the "Citicorp Warrant Purchase
Price"), which is equal to the difference between the aggregate price that
would have been paid for the Citicorp Warrant Shares pursuant to the Offer
and the aggregate exercise price of such Citicorp Warrants.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, covenants and agreements contained herein, the parties hereto,
intending to be legally bound hereby, agree as follows:
1. Capitalized terms used and not defined herein have the
respective meanings ascribed to them in the Original Agreement.
2. Section 2(b) of the Original Agreement is hereby deleted in
its entirety and replaced with the following paragraphs:
"(b) (i) Prior to the expiration of the Offer, Shareholder shall
deliver the Citicorp Warrants to Purchaser pending the acquisition of
such Citicorp Warrants by Purchaser for the Citicorp Warrant Purchase
Price, as set forth in clause (ii) of this Section 2(b).
"(ii) Promptly after First Chicago Trust Company of New
York, as Depositary for the Offer, has issued payment in exchange for
all of the Company Common Stock tendered in the Offer, Purchaser shall
acquire the Citicorp Warrants
by paying the Citicorp Warrant Purchase Price to Shareholder by wire
transfer, provided that instructions for such wire transfer shall have
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been delivered by Shareholder to Purchaser."
3. Section 2(c) of the Original Agreement is hereby deleted in
its entirety and replaced with the following paragraph:
"(c) Prior to the expiration of the Offer, Shareholder shall
deliver the Investor Warrants to Purchaser to be held in escrow pending the
consummation of the Offer. The Company and Shareholder agree that,
notwithstanding any provision of the Investor Warrants or the Acquisition
Agreement to the contrary, upon expiration of the Offer and without any
further action whatsoever, the Investor Warrants held by Shareholder shall
be deemed cancelled and extinguished, for no additional consideration
whatsoever. The Company shall ▇▇▇▇ the Investor Warrants cancelled upon
receipt thereof. Prior to the expiration of the Offer, Shareholder will
neither transfer nor exercise any Investor Warrants for any reason
whatsoever."
4. The following paragraph shall be added as Section 2(e) of the
Agreement:
"(e) Upon payment of the Citicorp Warrant Purchase Price pursuant
to Section 2(b)(ii), the Company shall cause the transfer of the Citicorp
Warrants from Shareholder to Purchaser to be recorded on the record books of
the Company."
5. Miscellaneous.
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(a) The Agreement, as amended hereby, 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) All costs and expenses incurred in connection with this
Amendment 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.
(c) This Amendment 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.
(d) 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 interpretation of this Amendment.
(e) This Amendment 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.
IN WITNESS WHEREOF, Parent, Purchaser, Shareholder and the Company
have caused this Agreement to be duly executed as of the day and year first
above written.
MARRIOTT INTERNATIONAL, INC.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇▇▇▇
Title: Executive Vice President
FG ACQUISITION CORP.
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Vice President
FORUM HOLDINGS, L.P.
By: HRP Management, Ltd.,
Its General Partner
By: HH Genpar Partners,
Its General Partner
By: Hampstead Associates, Inc.,
Its Managing General Partner
By:/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
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Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇▇▇
Title: Vice President
FORUM GROUP, INC.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Chairman and Chief Executive Officer
