AGREEMENT AND IRREVOCABLE PROXY
THIS AGREEMENT AND IRREVOCABLE PROXY (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"), APOLLO FG PARTNERS, L.P., a Delaware limited
partnership ("SHAREHOLDER") and, solely for the purpose of Section 2(c) hereof,
FORUM GROUP, INC., an Indiana corporation (the "COMPANY").
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 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, 9,079,568 shares of Company
Common Stock; and
WHEREAS, as of the date hereof, Shareholder holds warrants (the
"CITICORP WARRANTS") exercisable into 350,072 shares of Company Common Stock
(the "CITICORP WARRANT SHARES"); and
WHEREAS, as of the date hereof, Shareholder holds warrants (the
"INVESTOR WARRANTS"), issued pursuant to an Acquisition Agreement dated as of
April 18, 1993 (the "ACQUISITION AGREEMENT"), which Investor Warrants are not
currently exercisable into any 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. 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 (other than Investor Warrants)
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; Exercise of Warrants.
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(a) 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
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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.
(b) Prior to the expiration of the Offer, Shareholder will exercise
all of the Citicorp Warrants. Upon exercise of the Citicorp Warrants, and the
purchase of the Citicorp Warrant Shares in accordance with the terms thereof,
the Citicorp Warrant Shares shall be deemed to be Owned Shares, and Shareholder
agrees to tender (and not withdraw) such Warrant Shares pursuant to the Offer in
accordance with Section 2(a) hereof.
(c) In order to induce Parent and Purchaser to enter into the
Merger Agreement, the Company and the holders of the Investor Warrants agree
that, notwithstanding any provision of the Investor Warrants or the Acquisition
Agreement to the contrary, immediately prior to the purchase of Shares pursuant
to the Offer and without further action, each Investor Warrant then outstanding
will be cancelled and extinguished for no additional consideration whatsoever.
Shareholder will not exercise any Investor Warrants for any reason whatsoever.
(d) Shareholder will take all actions necessary to terminate,
immediately prior to the consummation of the Offer, the Shareholders' Agreement,
dated as of June 14, 1993, and amended and restated as of July 28, 1995, by and
between Shareholder and another shareholder of the Company.
3. Voting of Owned Shares; Irrevocable Proxy. At the request of
-----------------------------------------
Parent, Shareholder, in furtherance of the transactions contemplated hereby and
by the Merger Agreement, and in order to secure the performance by Shareholder
of its duties under this Agreement, shall promptly execute and deliver to
Purchaser an irrevocable proxy in the form of Exhibit A hereto.
4. Restrictions on Transfer and Proxies; No Solicitation.
-----------------------------------------------------
(a) 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) except as provided in Section 3 of this
Agreement, 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
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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.
5. Representations and Warranties of Shareholder. Shareholder 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.
(c) Shareholder is the Beneficial Owner of 9,079,568 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. Shareholder holds
warrants for the purchase of 350,072 Citicorp Warrant Shares. Upon exercise of
the Citicorp Warrants and purchase of the Citicorp Warrant Shares in accordance
with the terms thereof, Shareholder will be the Beneficial Owner of the Citicorp
Warrant Shares and will have the right to tender such shares as contemplated by
this
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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. Except as
provided in this Agreement or referred to in Schedule 4.2(b) to the Merger
Agreement, 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 Xxxx-Xxxxx-
Xxxxxx Antitrust Improvements Act of 0000 (xxx "XXX XXX") 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 or the
Company relating in any way, 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
5
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.
6. Representations and Warranties of Parent and Purchaser. Parent
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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
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Parent or Purchaser or any of their respective properties or assets. As of
immediately prior to 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.
7. Termination. This Agreement (and all covenants of Shareholder
-----------
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
--------
Section 8.1(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 8.1(f) and (iii) July 16, 1996.
8. Miscellaneous.
-------------
(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
--------
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) 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:
Apollo FG Partners, L.P.
0000 Xxxxxx xx xxx Xxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxxx
copy to:
Xxxxxx X. Xxxxxxxx
Xxxxx, Day, Xxxxxx & Xxxxx
000 Xxxxxxxxx Xxxxxx, 00x Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
If to Parent or
Purchaser:
Marriott International, Inc.
00000 Xxxxxxxx Xxxx
Xxxxxxxx, Xxxxxxxx 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: General Counsel
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copy to:
O'Melveny & Xxxxx
000 00xx Xxxxxx, XX
Xxxxxxxxxx, X.X. 00000
Telephone No.: (000) 000-0000
Telecopy No.: (000) 000-0000
Attention: Xxxxxxx X. Xxxxx
Xxxxx X. Xxxxxxxxxxx
(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 8(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.
9
(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.
10
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/ XXXXXXX X. XXXX
-------------------------------
Name: Xxxxxxx X. Xxxx
Title: Executive Vice President
FG ACQUISITION CORP.
By: /s/ XXXXXXX X. XXXX
------------------------
Name: Xxxxxxx X. Xxxx
Title: President
APOLLO FG PARTNERS, L.P.
By: Apollo Advisors, L.P.,
Its Managing General Partner
By: Apollo Capital Management, Inc.,
Its General Partner
By: /s/ XXXXX XXXXXX
--------------------------
Name: Xxxxx Xxxxxx
Title: Vice President
Solely for the purpose of Section 2(c) hereof:
FORUM GROUP, INC.
By: /s/ XXXX XXXXXX
--------------------------
Name: Xxxx Xxxxxx
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Title: Chairman and Chief Executive
Officer
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EXHIBIT A
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IRREVOCABLE PROXY
-----------------
The undersigned hereby revokes any previous proxies and appoints
Marriott International, Inc. ("PARENT"), Xxxxxxx X. Xxxx and Xxxx X. Xxxxxxx,
Xx., and each of them, with full power of substitution, as attorney and proxy of
the undersigned (this "PROXY") to attend any and all meetings of shareholders of
Forum Group, Inc., an Indiana corporation (the "COMPANY") (and any adjournments
or postponements thereof), to vote all shares of Common Stock, no value, of the
Company that the undersigned is then entitled to vote, and to represent and
otherwise to act for the undersigned in the same manner and with the same effect
as if the undersigned were personally present, with respect to all matters
specified herein. This is the proxy referred to in Section 3 of the Agreement
and Irrevocable Proxy (the "AGREEMENT") dated as of February 15, 1996, by and
among Parent, Purchaser, the undersigned and the Company. Capitalized terms
used and not defined herein have the respective meanings ascribed to them in, or
as prescribed by, the Agreement.
So long as the Merger Price is at least $13.00 in cash (net to the
seller), the undersigned hereby agrees that at any meeting (whether annual or
special, and whether or not an adjourned or postponed meeting) of the Company's
shareholders, however called, or in connection with any written consent of the
Company's shareholders, subject to the absence of a preliminary or permanent
injunction or other final order by any United States federal court or state
court barring such action, the undersigned shall vote (or cause to be voted) all
Owned Shares: (i) in favor of the Merger, the execution and delivery by the
Company of the Merger Agreement and the Agreement and the approval and adoption
of the Merger Agreement and the Agreement and the terms thereof and each of the
other actions contemplated by the Merger Agreement and the Agreement and any
actions required in furtherance thereof; (ii) against any action or agreement
that would (A) result in a breach of any covenant, representation or warranty or
any other obligation or agreement of the Company under the Merger Agreement or
of the Company or the undersigned under the Agreement or (B) impede, interfere
with, delay, postpone or adversely affect the Offer, the Merger or the
transactions contemplated thereby or by the Agreement; and (iii) except as
otherwise agreed to in writing in advance by Parent, against the following
actions (other than the Merger and the transactions contemplated by the Merger
Agreement, the Agreement and this Proxy: (A) any extraordinary corporate
transaction, such as a merger, consolidation or other business combination
involving the Company or any of its Subsidiaries (including any Acquisition
Proposal or any Third Party Transaction); (B) any sale, lease or transfer of a
substantial portion of the assets or business of the Company or its
Subsidiaries, or reorganization, restructuring, recapitalization, special
dividend, dissolution or liquidation of the Company or its Subsidiaries; or (C)
any change in the present capitalization of the Company including any proposal
to sell any equity interest in the Company or any of its Subsidiaries. The
undersigned shall not enter into any binding
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agreement, arrangement or understanding with any Person the effect of which
would be inconsistent or violative of the provisions and agreements contained in
this Proxy.
The undersigned acknowledges and agrees that this Proxy (w) shall be
coupled with an interest, (x) shall constitute, among other things, an
inducement for Parent to enter into the Agreement and the Merger Agreement, (y)
shall be irrevocable and (z) shall not terminate (by operation of law or
otherwise), except upon the termination of the Agreement pursuant to and in
conformity with Section 7 thereof.
The undersigned authorizes such attorney and proxy to substitute any
other person to act hereunder, to revoke any substitution and to file this Proxy
and any substitution or revocation with the Secretary of the Company.
Dated: February 15, 1996
APOLLO FG PARTNERS, L.P.
By: Apollo Advisors, L.P.,
Its Managing General Partner
By: Apollo Capital Management, Inc.,
Its General Partner
By:_______________________________
Name:
Title:
Exhibit A-1
