As filed with the Securities and Exchange Commission on November 7, 1994
Registration No. 33-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
--------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
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FORUM GROUP, INC.
Indiana 8900 Keystone Crossing, Suite 200 61-0703072
(State of Indianapolis, Indiana 46240-0498 (I.R.S. Employer
Incorporation) (317) 846-0700 Identification No.)
FORUM GROUP, INC. EQUITY INCENTIVE PLAN
------------------
JOHN H. SHARPE, Esq.
Vice President, Secretary
and General Counsel
Forum Group, Inc.
8900 Keystone Crossing, Suite 200
Indianapolis, Indiana 46240-0498
(317) 846-0700
(Agent for Service)
With copies to:
ROBERT A. PROFUSEK, Esq.
Jones, Day, Reavis & Pogue
599 Lexington Avenue
New York, New York 10022
(212) 326-3939
------------------
CALCULATION OF REGISTRATION FEE
==============================================================================
| | Proposed | Proposed |
| Proposed | Maximum | Maximum | Amount of
| Amount | Offering | Aggregate | Registration
Title of Securities | to be | Price | Offering | Fee
to Be Registered | Registered | Per Share | Price |
- ---------------------+------------+-----------+-------------+-----------------
Common Stock, without| 2,250,000 | $6.625 |$14,906,250 | $5,140.12
par value | shares | (1) | (1) |
==============================================================================
(1) Estimated solely for the purpose of computing the registration fee in
accordance with Rule 457(h)(1).
Page 1 of 59
Exhibit Index Appears on Page 7 1
<PAGE>
PART II
Item 3. Incorporation of Documents by Reference
The following documents (or, as applicable, the portions thereof
specified below) filed by Forum Group, Inc. (the "Company") with the
Securities and Exchange Commission (the "Commission") are
incorporated by reference, as of their respective dates, into this
Registration Statement:
(a) The Company's Annual Report on Form 10-K (the "Form 10-K") for
the fiscal year ended March 31, 1994, filed pursuant to Section
13(a) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act"), as amended by the Form 10-K/A-1 filed by the
Company on July 29, 1994; and
(b) The Company's Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 1994, and all other reports, if any, filed by
the Company pursuant to Section 13(a) or 15(d) of the Exchange Act
since the end of the fiscal year ended March 31, 1994; and
(c) The description of the Common Stock contained in the Company's
Registration Statement filed pursuant to Section 12 of the Exchange
Act, and all amendments and reports, if any, filed by the Company
for purposes of updating that description.
In addition, all documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Exchange Act
prior to the filing of a post-effective amendment which indicates
that all securities offered have been sold or which deregisters all
such securities then remaining unsold shall be deemed to be
incorporated by reference in this Registration Statement and to be a
part hereof from the date of filing of such documents.
Item 6. Indemnification of Directors and Officers
The Indiana Business Corporation Law (the "IBCL") authorizes a
corporation to indemnify its directors, officers, employees and
agents against expenses in certain proceedings provided the
indemnified person (i) acted in good faith, (ii) reasonably
believes, if acting in an official capacity, that his or her conduct
was in the best interest of the corporation or, in all other cases,
that his or her conduct was at least not opposed to the best
interest of the corporation, and (iii) in the case of criminal
proceedings, had reasonable cause to believe that his or her conduct
was lawful or had no reasonable cause to believe that his or her
conduct was unlawful. The IBCL provides that a corporation must
indemnify its directors, officers, employees and agents who are
wholly successful, on the merits or otherwise, against expenses in
the defense of such proceedings. The IBCL provides, however, that
this indemnification is not exclusive of any other indemnification
rights provided by the articles of incorporation, by-laws,
resolution or other authorization adopted by a majority vote of the
voting shares then issued and outstanding.
Under the IBCL, a corporation may purchase and maintain insurance
on behalf of any person who is or was a director, officer, employee
or agent of the corporation, or is or was serving at the request of
the corporation as a director, officer, employee or agent of another
enterprise, against any liability asserted against him or her and
incurred by him or her in any such capacity, or arising out of his
or her status as such, whether or not the corporation would have the
power to indemnify him or her against the liability under the
provisions of the IBCL. The Company has purchased such insurance.
Under the Company's Amended and Restated Articles of Incorporation
(the "Amended and Restated Articles of Incorporation"), each person
who is or was or had agreed to become a director or officer of the
Company, and each such person who is or was serving or had agreed to
serve at the request of the Board of Directors of the Company or an
officer of the Company as an employee or agent of the Company or as
a director, officer, employee or agent of another enterprise, will
be indemnified by the Company to the full extent permitted by the
IBCL or any other applicable law and will be entitled to advancement
of expenses in connection therewith. Such right of indemnification
and of advancement of expenses (i) is not exclusive of any other
rights to which any person seeking indemnification or advancement of
expenses under the Amended and Restated Articles
2 2
<PAGE>
of Incorporation may otherwise be entitled, including without limitation
pursuant to any contract approved by a majority of the entire Board of
Directors of the Company and (ii) is applicable to matters otherwise within
the scope of indemnification provisions of the Amended and Restated
Articles of Incorporation whether or not such matters arose or arise
before or after the adoption of such provisions. Under the Amended
and Restated Articles of Incorporation, (i) the Company may adopt
by-laws or enter into one or more agreements with any person, which
provide for indemnification and/or advancement of expenses greater
or different than that provided in the IBCL and (ii) in the event
that the Company enters into an agreement with any person providing
for indemnification and/or advancement of expenses, in respect of
the retention of counsel to represent the indemnified person, the
provisions of such agreement will exclusively govern the Company's
obligations in respect of the indemnification for and advancement of
fees of counsel. Under the Amended and Restated Articles of
Incorporation, no amendment or repeal of, or adoption of any
provision inconsistent with, the indemnification provisions of the
Amended and Restated Articles of Incorporation will adversely affect
any right or protection existing thereunder, or arising out of facts
occurring prior to such amendment, repeal or adoption and no such
amendment, repeal or adoption will affect the legality, validity or
enforceability of any contract entered into or right granted prior
to the effective date of such amendment, repeal or adoption.
As authorized by the IBCL and the Amended and Restated Articles of
Incorporation, the Company has entered into an indemnification
agreement with each of its directors. These indemnification
agreements provide for, among other things, (i) the indemnification
by the Company of the indemnitees thereunder to the full extent
permitted by the IBCL, (ii) the advancement of attorneys' fees and
other expenses, and (iii) the establishment, upon approval by the
Board of Directors of the Company, of trusts or other funding
mechanisms to fund the Company's indemnification obligations
thereunder.
Item 8. Exhibits
4.1 -- Forum Group, Inc. Equity Incentive Plan
4.2 -- Form of Stock Option Agreement
4.3 -- Amended and Restated Articles of Incorporation
of the Company
4.4 -- Amended and Restated Code of By-Laws of the
Company (incorporated by reference to Exhibit 3.2
to the Form 10-K)
5 -- Opinion of John H. Sharpe, Esq.
23.1 -- Consent of KPMG Peat Marwick LLP
23.2 -- Consent of John H. Sharpe, Esq. (included in
Exhibit 5)
24 -- Powers of Attorney
Item 9. Undertakings
A. The Company hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this Registration
Statement; (i) to include any prospectus required by Section
10(a)(3) of the Securities Act of 1933, as amended (the
"Securities Act"), unless the information required to be
included in such post-effective amendment is contained in
periodic reports filed by the Company pursuant to Section 13 or
Section 15(d) of the Exchange Act and incorporated herein by
reference; (ii) to reflect in the prospectus any facts or events
arising after the effective date of this Registration Statement
(or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change
3 3
<PAGE>
in the information set forth in this Registration Statement
unless the information required to be included in such
post-effective amendment is contained in periodic reports filed
by the Company pursuant to Section 13 or Section 15(d) of the
Exchange Act and incorporated herein by reference; and (iii) to
include any material information with respect to the plan of
distribution not previously disclosed in this Registration
Statement or any material change to such information in this
Registration Statement;
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective amendment
shall be deemed to be a new registration statement relating to
the securities offered therein, and the offering of such
securities at that time shall be deemed to be the initial bona
fide offering thereof; and
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
B. The Company hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of
the Company's annual report pursuant to Section 13(a) or Section
15(d) of the Exchange Act (and, where applicable, each filing of an
employee benefit plan's annual report pursuant to Section 15(d) of
the Exchange Act) that is incorporated by reference in this
Registration Statement shall be deemed to be a new registration
statement relating to the securities offered therein, and the
offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
C. Insofar as indemnification for liabilities arising under
the Securities Act may be permitted to directors, officers and
controlling persons of the Company pursuant to the foregoing
provisions, or otherwise, the Company has been advised that in the
opinion of the Commission such indemnification is against public
policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification
against such liabilities (other than the payment by the Company of
expenses incurred or paid by a director, officer or controlling
person of the Company in the successful defense of any action, suit
or proceeding) is asserted by such director, officer, or controlling
person in connection with the securities being registered, the
Company will, unless in the opinion of its counsel the matter has
been settled by controlling precedent, submit to a court of
appropriate jurisdiction the question whether such indemnification
by it is against public policy as expressed in the Securities Act
and will be governed by the final adjudication of such issue.
4 4
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Company certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing this Registration Statement
on Form S-8 and has duly caused this Registration Statement on Form
S-8 to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Indianapolis, State of Indiana, on this
7th day of November, 1994.
FORUM GROUP, INC.
By: /s/ John H. Sharpe
-----------------------------
John H. Sharpe
Vice President, Secretary and
General Counsel
Pursuant to the requirements of the Securities Act of 1933, this
Registration Statement on Form S-8 has been signed by the following
persons in the capacities and on the date(s) indicated.
Signature Title Date
--------- ----- ----
* President, Chief Executive November 7, 1994
-------------------- Officer and Director
Mark L. Pacala (principal executive officer)
* Senior Vice President, Treasurer November 7, 1994
-------------------- and Chief Financial Officer
Paul A. Shively (principal financial and
accounting officer)
* Director November 7, 1994
--------------------
Peter P. Copses
* Director November 7, 1994
--------------------
Daniel A. Decker
* Director November 7, 1994
--------------------
James A. Eden
* Director November 7, 1994
--------------------
Asher O. Pacholder
* Director November 7, 1994
--------------------
William G. Petty, Jr.
5 5
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* Director November 7, 1994
--------------------
Antony P. Ressler
* Director November 7, 1994
--------------------
D. Ellen Shuman
* Director November 7, 1994
--------------------
Eric P. Siegel
* Director November 7, 1994
--------------------
Merlin C. Spencer
* Director November 7, 1994
--------------------
Robert A. Whitman
* Director November 7, 1994
--------------------
George D. Woodard
* By /s/ John H. Sharpe
------------------------
John H. Sharpe,
Pursuant to a Power of
Attorney contemporaneously
filed with the Commission
as Exhibit 24 hereto.
6 6
<PAGE>
INDEX TO EXHIBITS
-----------------
Sequentially
Exhibit Numbered
No. Exhibit Page
- ------- ------- ------------
4.1 Forum Group, Inc. Equity Incentive Plan 8
4.2 Form of Stock Option Agreement 21
4.3 Amended and Restated Articles of 27
Incorporation of the Company
4.4 Amended and Restated Code of By-Laws of the --
Company (incorporated by reference to
Exhibit 3.2 to the Form 10-K)
5 Opinion of John H. Sharpe, Esq. 42
23.1 Consent of KPMG Peat Marwick LLP 44
23.2 Consent of John H. Sharpe, Esq. (included in --
Exhibit 5)
24 Powers of Attorney 46
7 7
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EXHIBIT 4.1
Forum Group, Inc. Equity Incentive Plan
8
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FORUM GROUP, INC.
EQUITY INCENTIVE PLAN
1. Purpose. The purpose of this Plan is to attract and
retain qualified officers and other salaried employees of Forum
Group, Inc. (the "Corporation") and its Subsidiaries and to provide
such persons with appropriate incentives.
2. Definitions. As used in this Plan,
"Appreciation Right" means a right granted pursuant to
Section 5 of this Plan, including a Free-standing Appreciation Right
and a Tandem Appreciation Right.
"Base Price" means the price to be used as the basis for
determining the Spread upon the exercise of a Free-standing
Appreciation Right.
"Board" means the Board of Directors of the Corporation.
"Code" means the Internal Revenue Code of 1986, as amended from
time to time.
"Committee" means the committee described in Section 14(a) of
this Plan.
"Common Shares" means (i) shares of the Common Stock, without
par value, of the Corporation and (ii) any security into which
Common Shares may be converted by reason of any transaction or event
of the type referred to in Section 10 of this Plan.
"Date of Grant" means the date specified by the Committee on
which a grant of Option Rights, Appreciation Rights or Performance
Shares or Performance Units or a grant or sale of Restricted Shares
of Deferred Shares shall become effective, which shall not be
earlier than the date on which the Committee takes action with
respect thereto.
"Deferral Period" means the period of time during which
Deferred Shares are subject to deferral limitations under Section 7
of this Plan.
"Deferred Shares" means an award pursuant to Section 7 of this
Plan of the right to receive Common Shares at the end of a specified
Deferral Period.
"Free-standing Appreciation Right" means an Appreciation Right
granted pursuant to Section 5 of this Plan that is not granted in
tandem with an Option Right or similar right.
"Incentive Stock Option" means an Option Right that is intended
to qualify as an "incentive stock option" under Section 422 of the
Code or any successor provision thereto.
9
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"Management Objectives" means the achievement of performance
objectives established pursuant to this Plan for Participants who
have received grants of Performance Shares or Performance Units or,
when so determined by the Committee, Restricted Shares.
"Market Value per Share" means the fair market value of the
Common Shares as determined by the Committee from time to time.
"Nonqualified Option" means an Option Right that is not
intended to qualify as a Tax-qualified Option.
"Optionee" means the person so designated in an agreement
evidencing an outstanding Option Right.
"Option Price" means the purchase price payable upon the
exercise of an Option Right.
"Option Right" means the right to purchase Common Shares from
the Corporation upon the exercise of a Nonqualified Option or a
Tax-qualified Option granted pursuant to Section 4 of this Plan.
"Participant" means a person who is selected by the Committee
to receive benefits under this Plan and (i) is at that time an
officer, including without limitation an officer who may also be a
member of the Board, or other salaried employee of or a consultant
to the Corporation or any Subsidiary or (ii) has agreed to commence
serving in any such capacity.
"Performance Period" means, in respect of a Performance Share
or Performance Unit, a period of time established pursuant to
Section 8 of this Plan within which the Management Objectives
relating thereto are to be achieved.
"Performance Share" means a bookkeeping entry that records the
equivalent of one Common Share awarded pursuant to Section 8 of this
Plan.
"Performance Unit" means a bookkeeping entry that records a
unit equivalent of $1.00 awarded pursuant to Section 8 of this Plan.
"Reload Option Rights" means additional Option Rights
automatically granted to an Optionee upon the exercise of Option
Rights pursuant to Section 4(f) of this Plan.
"Restricted Shares" means Common Shares granted or sold
pursuant to Section 6 of this Plan as to which neither the
substantial risk of forfeiture nor the restrictions on transfer
referred to in Section 6 hereof has expired.
"Rule 16b-3" means Rule 16b-3, as promulgated and amended from
time to time by the Securities and Exchange Commission under the
Securities Exchange Act of 1934, or any successor rule to the same
effect.
2 10
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"Spread" means, in the case of a Free-standing Appreciation
Right, the amount by which the Market Value per Share on the date
when the Appreciation Right is exercised exceeds the Base Price
specified therein or, in the case of a Tandem Appreciation Right,
the amount by which the Market Value per Share on the date when the
Appreciation Right is exercised exceeds the Option Price specified
in the related Option Right.
"Subsidiary" means a corporation, partnership, joint venture,
unincorporated association or other entity in which the Corporation
has a direct or indirect ownership or other equity interest;
provided, however, for purposes of determining whether any person
may be a Participant for purposes of any grant of Incentive Stock
Options, "Subsidiary" means any corporation in which the Corporation
owns or controls directly or indirectly more than 50% of the total
combined voting power represented by all classes of stock issued by
such corporation at the time of the grant.
"Tandem Appreciation Right" means an Appreciation Right granted
pursuant to Section 5 of this Plan that is granted in tandem with an
Option Right or any similar right granted under any other plan of
the Corporation.
"Tax-qualified Option" means an Option Right that is intended
to qualify under particular provisions of the Code, including
without limitation an Incentive Stock Option.
3. Shares and Performance Units Available under the Plan.
(a) Subject to adjustment as provided in Section 10 of this Plan,
the number of Common Shares issued or transferred and covered by
outstanding awards granted under this Plan shall not in the
aggregate exceed 2,250,000 Common Shares, which may be Common Shares
of original issuance or Common Shares held in treasury or a
combination thereof. For the purposes of this Section 3(a):
(i) Upon payment in cash of the benefit provided by any
award granted under this Plan, any Common Shares that were
covered by that award shall again be available for issuance or
transfer hereunder.
(ii) Common Shares covered by any award granted under this
Plan shall be deemed to have been issued or transferred, and
shall cease to be available for future issuance or transfer in
respect of any other award granted hereunder, at the earlier
of the time when they are actually issued or transferred or
the time when dividends or dividend equivalents are paid
thereon; provided, however, that Restricted Shares shall be
deemed to have been issued or transferred at the earlier of
the time when they cease to be subject to a substantial risk
of forfeiture or the time when dividends are paid thereon.
(b) Notwithstanding anything in Section 3(a) hereof, or
elsewhere in this Plan, to the contrary, the aggregate number of
Common Shares actually issued or transferred by the Corporation upon
the exercise of the Incentive Stock Options shall not exceed
2,250,000 Common Shares.
3 11
<PAGE>
4. Option Rights. The Committee may from time to time
authorize grants to Participants of options to purchase Common
Shares upon such terms and conditions as the Committee may determine
in accordance with the following provisions:
(a) Each grant shall specify the number of Common Shares
to which it pertains; provided, however, that no participant
shall be granted Option Rights for more than 1,000,000 Common
Shares during any one fiscal year, subject to adjustment as
provided in Section 10 of this Plan.
(b) Each grant shall specify an Option Price per Common
Share, which shall be equal to or greater or less than the
Market Value per Share on the Date of Grant.
(c) Each grant shall specify the form of consideration to
be paid in satisfaction of the Option Price and the manner of
payment of such consideration, which may include (i) cash in
the form of currency or check or other cash equivalent
acceptable to the Corporation, (ii) nonforfeitable,
unrestricted Common Shares, which are already owned by the
Optionee, (iii) any other legal consideration that the
Committee may deem appropriate, including without limitation
any form of consideration authorized under Section 4(d) below,
or such basis as the Committee may determine in accordance
with this Plan and (iv) any combination of the foregoing.
(d) Any grant of a Nonqualified Option may provide that
payment of the Option Price may also be made in whole or in
part in the form of Restricted Shares or other Common Shares
that are subject to risk of forfeiture or restrictions on
transfer. Unless otherwise determined by the Committee on or
after the Date of Grant, whenever any Option Price is paid in
whole or in part by means of any of the forms of consideration
specified in this Section 4(d), the Common Shares received by
the Optionee upon the exercise of the Nonqualified Option
shall be subject to the same risks of forfeiture or
restrictions on transfer as those that applied to the
consideration surrendered by the Optionee; provided, however,
that such risks of forfeiture and restrictions on transfer
shall apply only to the same number of Common Shares received
by the Optionee as applied to the forfeitable or restricted
Common Shares surrendered by the Optionee.
(e) Any grant may provide for deferred payment of the
Option Price from the proceeds of sale through a broker of
some or all of the Common Shares to which the exercise
relates.
(f) Any grant may provide for the automatic grant to the
Optionee of Reload Option Rights upon the exercise of Option
Rights, including Reload Option Rights, for Common Shares or
any other noncash consideration authorized under Sections 4(c)
and (d) above; provided, however, that the term of any Reload
Option Right shall not extend beyond the term of the Option
Right originally exercised.
(g) Successive grants may be made to the same Optionee
regardless of whether any Option Rights previously granted to
the Optionee remain unexercised.
4 12
<PAGE>
(h) Each grant shall specify the period or periods of
continuous employment, or continuous engagement of the
consulting services, of the Optionee by the Corporation or any
Subsidiary that are necessary before the Option Rights or
installments thereof shall become exercisable, and any grant
may provide for the earlier exercise of the Option Rights in
the event of a change in control of the Corporation or other
similar transaction or event.
(i) Option Rights granted pursuant to this Section 4 may
be Nonqualified Options or Tax-qualified Options or
combinations thereof.
(j) Any grant of an Option Right may provide for the
payment to the Optionee of dividend equivalents thereon in
cash or Common Shares on a current, deferred or contingent
basis, or the Committee may provide that any dividend
equivalents shall be credited against the Option Price.
(k) No Option Right granted pursuant to this Section 4
may be exercised more than 10 years from the Date of Grant.
(l) Each grant shall be evidenced by an agreement, which
shall be executed on behalf of the Corporation by any officer
thereof and delivered to and accepted by the Optionee and
shall contain such terms and provisions as the Committee may
determine consistent with this Plan.
5. Appreciation Rights. The Committee may also authorize
grants to Participants of Appreciation Rights. An Appreciation
Right shall be a right of the Participant to receive from the
Corporation an amount, which shall be determined by the Committee
and shall be expressed as a percentage (not exceeding 100%) of the
Spread at the time of the exercise of an Appreciation Right. Any
grant of Appreciation Rights under this Plan shall be upon such
terms and conditions as the Committee may determine in accordance
with the following provisions:
(a) Any grant may specify that the amount payable upon
the exercise of an Appreciation Right may be paid by the
Corporation in cash, Common Shares or any combination thereof
and may (i) either grant to the Participant or reserve to the
Committee the right to elect among those alternatives or
(ii) preclude the right of the Participant to receive and the
Corporation to issue Common Shares or other equity securities
in lieu of cash; provided, however, that no form of
consideration or manner of payment that would cause Rule 16b-3
to cease to apply to this Plan shall be permitted.
(b) Any grant may specify that the amount payable upon
the exercise of an Appreciation Right shall not exceed a
maximum specified by the Committee on the Date of Grant.
(c) Any grant may specify (i) a waiting period or periods
before Appreciation Rights shall become exercisable and
(ii) permissible dates or periods on or during which
Appreciation Rights shall be exercisable.
5 13
<PAGE>
(d) Any grant may specify that an Appreciation Right may
be exercised only in the event of a change in control of the
Corporation or other similar transaction or event.
(e) Any grant may provide for the payment to the
Participant of dividend equivalents thereon in cash or Common
Shares on a current, deferred or contingent basis.
(f) Each grant shall be evidenced by an agreement, which
shall be executed on behalf of the Corporation by any officer
thereof and delivered to and accepted by the Optionee and
shall describe the subject Appreciation Rights, identify any
related Option Rights, state that the Appreciation Rights are
subject to all of the terms and conditions of this Plan and
contain such other terms and provisions as the Committee may
determine consistent with this Plan.
(g) Regarding Tandem Appreciation Rights only: Each
grant shall provide that a Tandem Appreciation Right may be
exercised only (i) at a time when the related Option Right (or
any similar right granted under any other plan of the
Corporation) is also exercisable and the Spread is positive
and (ii) by surrender of the related Option Right (or such
other right) for cancellation.
(h) Regarding Free-standing Appreciation Rights only:
(i) Each grant shall specify in respect of
each Free-standing Appreciation Right a Base Price per
Common Share, which shall be equal to or greater or less
than the Market Value per Share on the Date of Grant;
(ii) Successive grants may be made to the same
Participant regardless of whether any Free-standing
Appreciation Rights previously granted to the Participant
remain unexercised;
(iii) Each
grant shall specify the period or periods of continuous
employment, or continuous engagement of the consulting
services, of the Participant by the Corporation or any
Subsidiary that are necessary before the Free-standing
Appreciation Rights or installments thereof shall become
exercisable; and any grant may provide for the earlier
exercise of the Free-standing Appreciation Rights in the
event of a change in control of the Corporation or other
similar transaction or event; and
(iv) No Free-standing Appreciation Right granted
under this Plan may be exercised more than 10 years from
the Date of Grant.
6. Restricted Shares. The Committee may also authorize
grants or sales to Participants of Restricted Shares upon such terms
and conditions as the Committee may determine in accordance with the
following provisions:
6 14
<PAGE>
(a) Each grant or sale shall constitute an immediate
transfer of the ownership of Common Shares to the Participant
in consideration of the performance of services, entitling
such Participant to dividend, voting and other ownership
rights, subject to the substantial risk of forfeiture and
restrictions on transfer hereinafter referred to.
(b) Each grant or sale may be made without additional
consideration from the Participant or in consideration of a
payment by the Participant that is less than the Market Value
per Share on the Date of Grant.
(c) Each grant or sale shall provide that the Restricted
Shares covered thereby shall be subject to a "substantial risk
of forfeiture" within the meaning of Section 83 of the Code
for a period to be determined by the Committee on the Date of
Grant, and any grant or sale may provide for the earlier
termination of such period in the event of a change in control
of the Corporation or other similar transaction or event.
(d) Each grant or sale shall provide that, during the
period for which such substantial risk of forfeiture is to
continue, the transferability of the Restricted Shares shall
be prohibited or restricted in the manner and to the extent
prescribed by the Committee on the Date of Grant. Such
restrictions may include without limitation rights of
repurchase or first refusal in the Corporation or provisions
subjecting the Restricted Shares to a continuing substantial
risk of forfeiture in the hands of any transferee.
(e) Any grant or sale may require that any or all
dividends or other distributions paid on the Restricted Shares
during the period of such restrictions be automatically
sequestered and reinvested on an immediate or deferred basis
in additional Common Shares, which may be subject to the same
restrictions as the underlying award or such other
restrictions as the Committee may determine.
(f) Each grant or sale shall be evidenced by an
agreement, which shall be executed on behalf of the
Corporation by an officer thereof and delivered to and
accepted by the Participant and shall contain such terms and
provisions as the Committee may determine consistent with this
Plan. Unless otherwise directed by the Committee, all
certificates representing Restricted Shares, together with a
stock power that shall be endorsed in blank by the Participant
with respect to the Restricted Shares, shall be held in
custody by the Corporation until all restrictions thereon
lapse.
7. Deferred Shares. The Committee may also authorize grants
or sales of Deferred Shares to Participants upon such terms and
conditions as the Committee may determine in accordance with the
following provisions:
(a) Each grant or sale shall constitute the agreement by
the Corporation to issue or transfer Common Shares to the
Participant in the future in consideration of the performance
of services, subject to the fulfillment during the Deferral
Period of such conditions as the Committee may specify.
7 15
<PAGE>
(b) Each grant or sale may be made without additional
consideration from the Participant or in consideration of a
payment by the Participant that is less than the Market Value
per Share on the Date of Grant.
(c) Each grant or sale shall provide that the Deferred
Shares covered thereby shall be subject to a Deferral Period,
which shall be fixed by the Committee on the Date of Grant,
and any grant or sale may provide for the earlier termination
of the Deferral Period in the event of a change in control of
the Corporation or other similar transaction or event.
(d) During the Deferral Period, the Participant shall not
have any right to transfer any rights under the subject award,
shall not have any rights of ownership in the Deferred Shares
and shall not have any right to vote the Deferred Shares, but
the Committee may on or after the Date of Grant authorize the
payment of dividend equivalents on the Deferred Shares in cash
or additional Common Shares on a current, deferred or
contingent basis.
(e) Each grant or sale shall be evidenced by an
agreement, which shall be executed on behalf of the
Corporation by any officer thereof and delivered to and
accepted by the Participant and shall contain such terms and
provisions as the Committee may determine consistent with this
Plan.
8. Performance Shares and Performance Units. The Committee
may also authorize grants of Performance Shares and Performance
Units, which shall become payable to the Participant upon the
achievement of specified Management Objectives, upon such terms and
conditions as the Committee may determine in accordance with the
following provisions:
(a) Each grant shall specify the number of Performance
Shares or Performance Units to which it pertains, which may be
subject to adjustment to reflect changes in compensation or
other factors.
(b) The Performance Period with respect to each
Performance Share or Performance Unit shall be determined by
the Committee on the Date of Grant and may be subject to
earlier termination in the event of a change in control of the
Corporation or other similar transaction or event.
(c) Each grant shall specify the Management Objectives
that are to be achieved by the Participant, which may be
described in terms of Corporation-wide objectives or
objectives that are related to the performance of the
individual Participant or the Subsidiary, division, department
or function within the Corporation or Subsidiary in which the
Participant is employed or with respect to which the
Participant provides consulting services.
(d) Each grant shall specify in respect of the specified
Management Objectives a minimum acceptable level of
achievement below which no payment will be made and shall set
forth a formula for determining the amount of any payment to
be made if
8 16
<PAGE>
performance is at or above the minimum acceptable
level but falls short of full achievement of the specified
Management Objectives.
(e) Each grant shall specify the time and manner of
payment of Performance Shares or Performance Units that shall
have been earned, and any grant may specify that any such
amount may be paid by the Corporation in cash, Common Shares
or any combination thereof and may either grant to the
Participant or reserve to the Committee the right to elect
among those alternatives; provided, however, that no form of
consideration or manner of payment that would cause Rule 16b-3
to cease to apply to this Plan shall be permitted.
(f) Any grant of Performance Shares may specify that the
amount payable with respect thereto may not exceed a maximum
specified by the Committee on the Date of Grant. Any grant of
Performance Units may specify that the amount payable, or the
number of Common Shares issued, with respect thereto may not
exceed maximums specified by the Committee on the Date of
Grant.
(g) On or after the Date of Grant of Performance Shares,
the Committee may provide for the payment to the Participant
of dividend equivalents thereon in cash or additional Common
Shares on a current, deferred or contingent basis.
(h) The Committee may adjust Management Objectives and
the related minimum acceptable level of achievement if, in the
sole judgment of the Committee, events or transactions have
occurred after the Date of Grant that are unrelated to the
performance of the Participant and result in distortion of the
Management Objectives or the related minimum acceptable level
of achievement.
(i) Each grant shall be evidence by an agreement, which
shall be executed on behalf of the Corporation by any officer
thereof and delivered to and accepted by the Participant and
shall contain such terms and provisions as the Committee may
determine consistent with this Plan.
9. Transferability. (a) No Option Right or other derivative
security (as that term is used in Rule 16b-3) granted under this
Plan may be transferred by a Participant except by will or the laws
of descent and distribution. Option Rights and Appreciation Rights
granted under this Plan may not be exercised during a Participant's
lifetime except by the Participant or, in the event of the
Participant's legal incapacity, by his guardian or legal
representative acting in a fiduciary capacity on behalf of the
Participant under state law and court supervision.
(b) Any grant made under this Plan may provide that all or any
part of the Common Shares that are to be issued or transferred by
the Corporation upon the exercise of Option Rights or Appreciation
Rights or upon the termination of the Deferral Period applicable to
Deferred Shares or in payment of Performance Shares or Performance
Units, or are no longer subject to the substantial risk of
forfeiture and restrictions on transfer referred to in Section 6 of
this Plan, shall be subject to further restrictions upon transfer.
9 17
<PAGE>
10. Adjustments. The Committee may make or provide for such
adjustments in the number of Common Shares covered by outstanding
Option Rights, Appreciation Rights, Deferred Shares and Performance
Shares granted hereunder, the Option Prices per Common Share or Base
Prices per Common Share applicable to any such Option Rights and
Appreciation Rights, and the kind of shares (including shares of
another issuer) covered thereby, as the Committee may in good faith
determine to be equitably required in order to prevent dilution or
expansion of the rights of Participants that otherwise would result
from (a) any stock dividend, stock split, combination of shares,
recapitalization or other change in the capital structure of the
Corporation or (b) any merger, consolidation, spin-off, spin-out,
split-off, split-up, reorganization, partial or complete liquidation
or other distribution of assets, issuance of warrants or other
rights to purchase securities or any other corporate transaction or
event having an effect similar to any of the foregoing. In the
event of any such transaction or event, the Committee may provide in
substitution for any or all outstanding awards under this Plan such
alternative consideration as it may in good faith determine to be
equitable under the circumstances and may require in connection
therewith the surrender of all awards so replaced. Moreover, the
Committee may on or after the Date of Grant provide in the agreement
evidencing any award under this Plan that the holder of the award
may elect to receive an equivalent award in respect of securities of
the surviving entity of any merger, consolidation or other
transaction or event having a similar effect, or the Committee may
provide that the holder will automatically be entitled to receive
such an equivalent award. The Committee may also make or provide
for such adjustments in the maximum number of Common Shares
specified in Section 3(a) of this Plan and the maximum number of
Common Shares specified in Section 4(a) of this Plan as the
Committee may in good faith determine to be appropriate in order to
reflect any transaction or event described in this Section 10.
11. Fractional Shares. The Corporation shall not be required
to issue any fractional Common Shares pursuant to this Plan. The
Committee may provide for the elimination of fractions or for the
settlement thereof in cash.
12. Withholding Taxes. To the extent that the Corporation is
required to withhold federal, state, local or foreign taxes in
connection with any payment made or benefit realized by a
Participant or other person under this Plan, and the amounts
available to the Corporation for the withholding are insufficient,
it shall be a condition to the receipt of any such payment or the
realization of any such benefit that the Participant or such other
person make arrangements satisfactory to the Corporation for payment
of the balance of any taxes required to be withheld. At the
discretion of the Committee, any such arrangements may without
limitation include relinquishment of a portion of any such payment
or benefit or the surrender of outstanding Common Shares. The
Corporation and any Participant or such other person may also make
similar arrangements with respect to the payment of any taxes with
respect to which withholding is not required.
13. Certain Terminations of Employment or Consulting Services,
Hardship, and Approved Leaves of Absence. Notwithstanding any other
provision of this Plan to the contrary, in the event of termination
of employment or consulting services by reason of death, disability,
normal retirement, early retirement with the consent of the
Corporation, termination of employment or consulting services to
enter public or military service with the consent of the
10 18
<PAGE>
Corporation
or leave of absence approved by the Corporation, or in the event of
hardship or other special circumstances, of a Participant who holds
an Option Right or Appreciation Right that is not immediately and
fully exercisable, any Restricted Shares as to which the substantial
risk of forfeiture or the prohibition or restriction on transfer has
not lapsed, any Deferred Shares as to which the Deferral Period is
not complete, any Performance Shares or Performance Units that have
not been fully earned, or any Common Shares that are subject to any
transfer restriction pursuant to Section 9(b) of this Plan, the
Committee may take any action that it deems to be equitable under
the circumstances or in the best interests of the Corporation,
including without limitation waiving or modifying any limitation or
requirement with respect to any award under this Plan.
14. Administration of the Plan. (a) This Plan shall be
administered by the Compensation Committee of the Board, which shall
be composed of not less than two members of the Board, each of whom
shall be a "disinterested person" within the meaning of Rule 16b-3.
A majority of the Committee shall constitute a quorum, and the acts
of the members of the Committee who are present at any meeting
thereof at which a quorum is present, or acts unanimously approved
by the members of the Committee in writing, shall be the acts of the
Committee.
(b) The interpretation and construction by the Committee of
any provision of this Plan or any agreement, notification or
document evidencing the grant of Option Rights, Appreciation Rights,
Restricted Shares, Deferred Shares. Performance Shares or
Performance Units, and any determination by the Committee pursuant
to any provision of this Plan or any such agreement, notification or
document, shall be final and conclusive. No member of the Committee
shall be liable for any such action taken or determination made in
good faith.
15. Amendments and Other Matters. (a) This Plan may be
amended from time to time by the Committee; provided, however,
except as expressly authorized by this Plan, no such amendment shall
increase the maximum number of Common Shares specified in
Section 3(a) hereof, increase the number of Common Shares specified
in Section 4(a) hereof or otherwise cause this Plan to cease to
satisfy any applicable condition of Rule 16b-3, without the further
approval of the shareholders of the Corporation.
(b) The Committee may condition the grant of any award or
combination of awards authorized under this Plan on the surrender or
deferral by the Participant of his or her right to receive a cash
bonus or other compensation otherwise payable by the Corporation or
a Subsidiary to the Participant.
(c) This Plan shall not confer upon any Participant any right
with respect to continuance of employment or other service with the
Corporation or any Subsidiary and shall not interfere in any way
with any right that the Corporation or any Subsidiary would
otherwise have to terminate any Participant's employment or other
service at any time.
(d) (i) To the extent that any provision of this Plan would
prevent any Option Right that was intended to qualify as a
Tax-qualified Option from so qualifying, any such provision shall be
null and void with respect to any such Option Right; provided,
however, that any such
11 19
<PAGE>
provision shall remain in effect with respect
to other Option Rights, and there shall be no further effect on any
provision of this Plan.
(ii) Any award that may be made pursuant to an amendment to
this Plan that shall have been adopted without the approval of the
shareholders of the Corporation shall be null and void if it is
subsequently determined that such approval was required in order for
this Plan to continue to satisfy the applicable conditions of
Rule 16b-3.
16. Termination of the Plan. No further awards shall be
granted under this Plan after the passage of 10 years from the date
on which the Plan is first approved by the shareholders of the
Corporation.
12 20
<PAGE>
EXHIBIT 4.2
Form of Stock Option Agreement
21
<PAGE>
STOCK OPTION AGREEMENT
----------------------
This Stock Option Agreement (this "Agreement) is made by and
between Forum Group, Inc., an Indiana corporation (the
"Company"), and ________________ (the "Optionee").
RECITALS
A. The Optionee is an employee of the Company and/or one
or more Subsidiaries (as defined below) and has made and is
expected to make a substantial contribution to the performance
and future prospects of the Company; and
B. The execution of this Agreement by the Company has been
authorized by a resolution adopted by the Compensation Committee
(the "Committee") of the Board of Directors (the "Board") of the
Company on ___________, ____.
NOW, THEREFORE, the parties hereto hereby agree as follows:
1. Grant of Option. Pursuant to the Company's Equity
Incentive Plan (the "Plan"), the Company hereby grants to the
Optionee, effective as of ____________, ____ (the "Date of
Grant"), an option (the "Option") to purchase ____ shares of the
Company's common stock, without par value ("Common Stock"), at a
purchase price of $___ per share (the "Option Price"). The
Company will, subject to the terms and conditions of this
Agreement and of the Plan, cause certificates representing any
shares of Common Stock purchased by the Optionee upon full or
partial exercise of the Option in accordance with the terms
hereof to be delivered to the Optionee upon payment in full of
the Option Price therefor.
2. Vesting of Option. (a) Subject to Sections 2(b) and 4
hereof, the Option will vest and be exercisable with respect to
one-_____ of the shares of Common Stock subject to the Option on
each of the first ____ anniversaries of the Date of Grant,
provided that the Optionee remains in the continuous employ, on a
full-time basis, of the Company or a Subsidiary from the Date of
Grant through the applicable vesting date. For purposes of this
Agreement, (i) "Subsidiary" means a corporation, partnership,
joint venture, unincorporated association or other entity in
which the Company has a direct or indirect ownership or other
equity interest and (ii) the continuous employment of the
Optionee with the Company or a Subsidiary will not be deemed to
have been interrupted, and the Optionee will not be deemed to
have ceased to be an employee of the Company or a Subsidiary, by
reason of the transfer of his or her full-time employment among
the Company and its Subsidiaries or a leave of absence approved
by the Board or the Committee. To the extent exercisable, the
Option may be exercised in whole or in part from time to time
until terminated pursuant to Section 4 hereof.
22
<PAGE>
(b) Notwithstanding Section 2(a) hereof, the Option
will vest and be immediately and fully exercisable upon the
Optionee's death or Disability (as defined below) while in the
full-time employ of the Company or any Subsidiary. For purposes
of this Agreement, "Disability" means permanent disability within
the meaning of the long-term disability plan of the Company or a
Subsidiary in effect with respect to the Optionee, and the date
of such Disability will be the date on which the Optionee begins
actually to receive disability benefits pursuant to such
long-term disability plan.
3. Payment of Exercise Price. The Option Price will be
payable (a) in cash in the form of currency or check or other
cash equivalent acceptable to the Company, (b) by actual or
constructive transfer to the Company of nonforfeitable,
nonrestricted shares of Common Stock that have been owned by the
Optionee for more than six months prior to the date of exercise,
or (c) by a combination of such methods of payment.
Nonforfeitable, nonrestricted shares of Common Stock that are
transferred by the Optionee in payment of all or any part of the
Option Price will be valued on the basis of their fair market
value as determined by the Committee or the Board from time to
time. The requirement of payment in cash will be deemed
satisfied if the Optionee makes arrangements that are
satisfactory to the Company with a bank or broker that is a
member of the National Association of Securities Dealers, Inc. to
sell a sufficient number of the shares of Common Stock being
purchased so that the net proceeds of the sale transaction will
at least equal the Option Price plus the amount of any applicable
withholding taxes and pursuant to which the bank or broker
undertakes to deliver to the Company the full amount of the
Option Price plus the amount of any applicable withholding taxes
not later than the date on which the sale transaction would
settle on a regular-way basis in the ordinary course of business.
4. Termination of Option. (a) The Option will terminate
automatically and without further notice on the earliest of the
following dates:
(i) the date that is __ calendar days after the
Optionee ceases to be a full-time employee of the Company or
a Subsidiary for any reason other than for a reason
described in clause (ii) of this Section 4(a);
(ii) in the event of the Optionee's death or
Disability, ___ calendar days after the Optionee's death or
Disability, as the case may be; and
(iii) the ____ annual anniversary of the Date of Grant.
(b) The Option will be exercisable after the Optionee
ceases to be a full-time employee of the Company or a Subsidiary
only to the extent that the Optionee could have exercised the
2 23
<PAGE>
Option on the date on which his or her full-time employment with
the Company or a Subsidiary terminated.
(c) In the event that the Optionee commits an act that
the Committee or the Board determines to have been intentionally
committed and materially inimical to the interests of the Company
or a subsidiary, the Option will terminate at the time of that
determination notwithstanding any other provision of this
Agreement, in which event, without further action, the Optionee
will have no rights hereunder.
5. Certain Limitations. (a) Notwithstanding anything to
the contrary herein contained, the Company will not be required
to, and will not, issue and deliver shares of Common Stock on
exercise of the Option if (i) such action would result in a
violation of law or in an event of default under (A) any credit
agreement to which the Company is or becomes a party, (B) any
indenture to which the Company is or becomes a party, or (C) any
note, debenture or other evidence of indebtedness executed and
delivered by the Company, or (ii) immediately prior to such
payment, there exists a default under any credit agreement or any
indenture to which the Company is or becomes a party or any note,
debenture or other evidence of indebtedness executed and
delivered by the Company.
(b) Notwithstanding anything to the contrary herein
contained, the Option will not be exercisable if the exercise
thereof would result in a violation of any applicable federal and
state securities laws. The Company will use reasonable efforts
to comply with all such laws so as to permit the option to be
exercisable in accordance with its terms, provided, however, that
the Company will have no liability to the Optionee or any other
person or entity in the event of a failure to comply therewith.
6. Transferability and Exercisability. Neither the Option
nor any interest therein may be transferred by the Optionee
except by will or the laws of descent and distribution, and the
Option may not be exercised during the lifetime of the Optionee
except by the Optionee or, in the event of his or her legal
incapacity, by his or her guardian or legal representative acting
on behalf of the Optionee in a fiduciary capacity under state law
and court supervision.
7. Adjustments. The Committee or the Board may, but will
not be required to, make such adjustments in the Option Price and
the number or kind of shares of stock or other securities subject
to the Option that the Committee or the Board may determine to be
appropriate in order to prevent any dilution or expansion of the
Optionee's rights under this Agreement that otherwise would
result from any (a) stock dividend, stock split, combination of
shares, recapitalization or other change in the capital structure
of the Company or (b) merger, consolidation, spin-off, spin-out,
split-off, split-up, reorganization, partial or complete
liquidation or other distribution of assets, issuance of warrants
3 24
<PAGE>
or other rights to purchase securities or any other corporate
transaction or event having an effect similar to any of foregoing
(other than rights arising under a subscription offering that has
an initial exercise period of less than one year, as to which no
adjustment will be made unless the Committee or Board, in its
respective sole discretion, otherwise determines). Furthermore,
in the event that any transaction or event described or referred
to in the immediately preceding sentence occurs, the Committee
may provide in substitution for any or all of the Optionee's
rights under this Agreement such alternative consideration as the
Committee or the Board may determine to be appropriate in the
circumstances.
8. Withholding Taxes. The Option is intended to be a
nonqualified stock option and will not be treated as an
"incentive stock option" under Section 422 of the Internal
Revenue Code of 1986, as amended. If the Company is required to
withhold any federal, state, local or foreign tax in connection
with any exercise of the Option, it will be a condition to such
exercise that the Optionee pay or make arrangements satisfactory
to the Company for payment of all such taxes. The Optionee may
elect to satisfy all or any part of any such withholding
requirement by retention by the Company of a portion of the
shares of Common Stock purchased upon exercise of the Option, and
the shares of Common Stock so retained will be credited against
such withholding requirement at the fair market value of such
shares on the date of exercise as reasonably determined by the
Committee from time to time; provided, however, that, if the
Optionee is subject to Section 16 of the Securities Exchange Act
of 1934, as amended (the "Exchange Act"), such election will be
subject to the applicable conditions of Rule 16b-3 promulgated by
the Securities and Exchange Commission under Section 16(b) of the
Exchange Act.
9. Right to Terminate Employment and Adjust Compensation.
No provision of this Agreement will limit in any way whatsoever
the Company's right to terminate the Optionee's employment,
adjust the Optionee's compensation or otherwise change the terms
and conditions of the Optionee's employment.
10. Relation to Other Benefits. Any economic or other
benefit to the Optionee under this Agreement or the Plan will not
be taken into account in determining any benefits to which the
Optionee may be entitled under any profit-sharing, retirement or
other benefit or compensation plan maintained by the Company or
any of its Subsidiaries and will not affect the amount of any
life insurance coverage available to any beneficiary under any
life insurance plan covering employees of the Company or any of
its Subsidiaries.
11. Amendments. Any amendment to the Plan will be deemed
to be an amendment to this Agreement to the extent that the
amendment is applicable hereto.
4 25
<PAGE>
12. Severability. In the event that one or more of the
provisions of this Agreement is invalidated for any reason by a
court of competent jurisdiction, any provision so invalidated
will be deemed to be separable from the other provisions hereof,
and the remaining provisions hereof will continue to be valid and
fully enforceable.
13. Governing Law. This Agreement is made under, and will
be construed in accordance with, the laws of the State of
Indiana, without giving effect to the principles of conflict of
laws thereof.
IN WITNESS WHEREOF, the parties hereto have executed this
Agreement effective as of the Date of Grant.
FORUM GROUP, INC.
By: ____________________________
Name:
Title:
________________________________
_________________, Optionee
5 26
<PAGE>
EXHIBIT 4.3
Amended and Restated Articles of Incorporation of the Company
27
<PAGE>
AMENDED AND RESTATED ARTICLES OF INCORPORATION OF FORUM GROUP, INC.
-------------------------------------------------------------------
ARTICLE 1
NAME OF THE CORPORATION
-----------------------
The name of the corporation is Forum Group, Inc. (the
"Corporation").
ARTICLE 2
PURPOSE OF THE CORPORATION
--------------------------
The Corporation is organized for the purpose of engaging in
any and all lawful businesses for which corporations may be
incorporated under the Indiana Business Corporation Law, as
amended, IND. CODE 23-1-17-1, et seq. (the "Law").
ARTICLE 3
PERIOD OF EXISTENCE OF THE CORPORATION
--------------------------------------
The period during which the Corporation shall continue to
exist as a corporation is perpetual.
ARTICLE 4
REGISTERED OFFICE AND REGISTERED AGENT
OF THE CORPORATION
--------------------------------------
Section 4.1. Registered Office. The post office address
of the Registered Office of the Corporation is:
8900 Keystone Crossing, Suite 200
Post Office Box 40498
Indianapolis, Indiana 46240-0498
Section 4.2. Registered Agent. The name and post office
address of the Registered Agent of the Corporation are:
John H. Sharpe
8900 Keystone Crossing, Suite 200
Post Office Box 40498
Indianapolis, Indiana 46240-0498
ARTICLE 5
NUMBER OF AUTHORIZED SHARES OF THE CORPORATION
----------------------------------------------
The Corporation has authority to issue fifty million
(50,000,000) shares, all of which are shares without par value.
ARTICLE 6
GENERAL PROVISIONS REGARDING SHARES OF THE CORPORATION
------------------------------------------------------
Section 6.1. Preferred Stock. Two million (2,000,000) of
the shares which the Corporation has authority to issue
constitute a separate and single class of shares known as
Preferred Stock ("Preferred Stock"). The shares of Preferred
Stock may be issued in one or more series. The Board of
Directors is vested with authority to determine and state the
designations and the relative rights, preferences,
qualifications, limitations and restrictions of each such series
by the adoption and filing in accordance with the Law of an
appropriate resolution or resolutions authorizing the issuance of such
28
<PAGE>
series prior to the issuance of such series. All shares of
Preferred Stock of the same series shall be identical with each
other in all respects.
Section 6.2. Common Stock. All of the remaining shares
which the Corporation has authority to issue constitute a
separate and single class of shares known as Common Stock
("Common Stock"). The shares of Common Stock shall not be issued
in series. All shares of Common Stock shall be identical with
each other in all respects.
Section 6.3. Issuance of Shares. The Board of Directors
has authority to authorize and direct the issuance by the
Corporation of shares of Preferred Stock and Common Stock at such
times, in such amounts, to such persons, for such considerations
and upon such terms and conditions as it may, from time to time,
determine upon, subject only to the restrictions, limitations,
conditions and requirements imposed by the Law, by other
applicable laws, by these Articles of Incorporation and by the
resolution or resolutions authorizing the issuance of any series
of shares of Preferred Stock adopted by the Board of Directors
pursuant to Section 6.1 of these Articles of Incorporation.
Section 6.4. Distributions Upon Shares. The Board of
Directors has authority to authorize and direct the payment of
dividends and the making of other distributions by the
Corporation in respect of shares of the issued and outstanding
Preferred Stock and Common Stock at such times, in such amounts
and forms, from such sources (specifically including, but not
limited to, the unrestricted and unreserved capital surplus of
the Corporation) and upon such terms and conditions as it may,
from time to time, determine upon, subject only to the
restrictions, limitations, conditions and requirements imposed by
the Law, by other applicable laws, by these Articles of
Incorporation and by the resolution or resolutions authorizing
the issuance of any series of shares of Preferred Stock adopted
by the Board of Directors pursuant to Section 6.1 of these
Articles of Incorporation. The Board of Directors has authority
to authorize and direct the payment of dividends and the making
of distributions by the Corporation in respect of shares of the
issued and outstanding Preferred Stock or Common Stock in shares
of the same class or in shares of any other class without
obtaining the affirmative vote or the written consent of the
class in which the payment or distribution is to be made.
Section 6.5. Acquisition of Shares. The Board of
Directors has authority to authorize and direct the acquisition
by the Corporation of the issued and outstanding shares of
Preferred Stock and Common Stock at such times, in such amounts,
from such persons, for such considerations, from such sources,
and upon and subject to such terms and conditions as it may, from
time to time, determine upon, subject only to the restrictions,
limitations, conditions and requirements imposed by the Law, by
other applicable laws, by these Articles of Incorporation and by
the resolution or resolutions authorizing the issuance of any
series of shares of Preferred Stock adopted by the Board of
Directors pursuant to Section 6.1 of these Articles of
Incorporation.
Section 6.6. Fractional Shares and Scrip. The Board of
Directors has authority (but shall not be obliged) (1) to
authorize the issuance by the Corporation of fractional shares of
Preferred Stock and Common Stock, (2) to arrange for the
disposition of fractional shares by the holders of the same, (3)
to pay in cash or otherwise the fair value of fractional shares
as of the time when those entitled to such fractional shares are
determined, and (4) to issue scrip in registered or bearer form
which shall entitle the holder of the same to receive a
certificate evidencing a full share upon surrender of such scrip
aggregating a full share. A fractional share shall, but scrip
shall not (unless in registered form and containing the terms so
provided), entitle the holder to exercise the same rights
(proportionately reduced) as the class or series of shares of
Preferred Stock or Common Stock in respect of which it is issued
possesses. The Board of Directors has authority to authorize
such scrip to be issued subject to the condition that it shall
become void if not exchanged for certificates evidencing full
shares upon or before a specified date, or subject to the
condition that the shares for which such scrip is exchangeable
may be sold by the Corporation and the proceeds of such sale
distributed to the holders of such scrip, or subject to any other
conditions which the Board of Directors may determine upon.
Section 6.7. Series A Preferred Stock. The terms of
Series A Preferred Stock are as follows:
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<PAGE>
Clause 6.71. Designation and Amount. The shares
of such series shall be designated as the "Series A
Preferred Stock" and the number of shares constituting
such series shall be 50,000.
Clause 6.72. Dividends and Distributions. (a)
Simultaneously with the declaration of any dividend or
distribution on the Common Stock, other than a dividend
payable in shares of Common Stock or a subdivision of
the outstanding shares of Common Stock (by
reclassification or otherwise), the Board of Directors
shall declare a dividend or distribution on the Series
A Preferred Stock in an amount per shares (rounded to
the nearest cent), subject to the provision for
adjustment hereinafter set forth, equal to 100 times
the aggregate per share amount of cash dividends, and
100 times the aggregate per share amount (payable in
kind) of all non-cash dividends or other distributions,
declared on the Common Stock. In the event the
Corporation shall at any time on or after February 1,
1993 declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
common stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to
which holders of shares of Series A Preferred Stock
were entitled immediately prior to such event under the
preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding
immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall pay any dividend
or distribution declared on the Series A Preferred
Stock as provided in Clause 6.82 (a) of these Articles
of Incorporation at least one business day before it
pays the dividend or distribution simultaneously
declared on the Common Stock.
(c) If the Board of Directors fixes a record
date for the determination of holders of shares of
Common Stock entitled to receive payment of a dividend
or distribution declared thereon, it shall
simultaneously fix such dated as the record date for
the determination of holders of shares of Series A
Preferred Stock entitled to receive payment of any
related dividend or distribution declared thereon.
Clause 6.73. Voting Rights. The holders of
shares of the Series A Preferred Stock shall not have
any voting rights except as set forth in this Clause
6.72 and Clause 6.710 of these Articles of
Incorporation, or as required by law. If the
Corporation fails to perform its obligations under
Section 4.3.2 of the Stock Purchase Agreement, dated as
of February 1, 1993, between Forum Holdings, L.P.
("Holdings") and the Corporation on or before the
Put/Call Closing Dated (as such term is defined
therein), then from and after the calendar day
immediately following the Put/Call Closing Date, the
holders of shares of Series A Preferred Stock shall
have the following voting rights:
(a) Subject to the provision for adjustment
hereinafter set forth, each share of Series A Preferred
Stock shall entitled the holder thereof to 100 votes on
all matters submitted to a vote of the shareholders of
the Corporation. In the event the Corporation shall at
any time on or after February 1, 1993 declare or pay
any dividend on the Common Stock payable in shares of
Common Stock, or effect a subdivision or combination or
consolidation of the outstanding shares of Common Stock
(by reclassification or otherwise than by payment of a
dividend in shares of Common Stock) into a greater or
lesser number of shares of Common Stock, then in each
such case the number of votes per share to which
holders of shares of Series A Preferred Stock were
entitled immediately prior to such event shall be
adjusted by multiplying such number by a fraction, the
numerator of which is the number of shares of Common
Stock outstanding
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immediately after such event and the
denominator of which is the number of shares of Common
Stock that were outstanding immediately prior to such
event.
(b) Except as otherwise provided herein or
by law, the holders of shares of Series A Preferred
Stock and the holders of shares of Common Stock shall
vote together as one class on all matters submitted to
a vote of shareholders of the Corporation.
(c) Except as set forth in Clause 6.810 of
these Articles of Incorporation, or as required by law,
holders of Series A Preferred Stock shall have no
special voting rights and their consent shall not be
required (except to the extent they are entitled to
vote with holders of Common Stock as set forth herein)
for taking any corporation action.
Clause 6.74. Certain Restrictions. Whenever
dividends or distributions payable on the Series A
Preferred Stock as provided in Clause 6.82 of these
Articles of Incorporation are in arrears, thereafter
and until all accrued and unpaid dividends and
distributions on shares of Series A Preferred Stock
outstanding shall have been paid in full, the
Corporation shall not:
(a) declare or pay dividends, or make any
other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock;
(b) declare or pay dividends, or make any
other distributions, on any shares of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series A Preferred
Stock, except dividends paid ratably on the Series A
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(c) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series A Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series A Preferred Stock; or
(d) redeem or purchase or otherwise acquire
for consideration any shares of Series A Preferred
Stock, or any shares of stock ranking on a parity with
the Series A Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as
determined by the Board of Directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation
unless the Corporation could under this Clause 6.84
purchase or otherwise acquire such shares at such time
and in such a manner.
Clause 6.75. No Redemption. Except as provided
in Clause 6.78 of these Articles of Incorporation, the
shares of Series A Preferred Stock shall not be
redeemable.
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Clause 6.76. Reacquired Shares. Any shares of
Series A Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth
herein.
Clause 6.77. Liquidation, Dissolution or Winding
Up. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, no
distribution or payment shall be made (a) to the
holders of Common Stock or any other shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series A
Preferred Stock unless, prior thereto, the holders of
shares of Series A Preferred Stock shall have received
an aggregate amount per share equal to $200 per share,
plus an amount equal to the sum of (i) all accrued and
unpaid dividends and distributions thereon to the date
of such payment (the "Liquidation Payment Date") and
(ii) such additional amounts, if any, as may be
required to result in a hypothetical annualized
internal rate of return of 27.5% on the sum of $200
during the period from and including February 1, 1993
to but excluding the Liquidation Payment Date, or (b)
to the holders of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or
winding up) with the Series A Preferred Stock, except
distributions made ratably on the Series A Preferred
Stock and all other such parity stock in proportion to
the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution
or winding up.
Clause 6.78. Consolidation, Merger, Etc. Prior
to consummating any business combination transaction,
including without limitation a consolidation or merger
or the sale of all or substantially all of the
Corporation's assets or those of its subsidiaries, the
Corporation will redeem all shares of Series A
Preferred Stock at a price per share equal to $200 per
share, plus an amount equal to the sum of (i) all
accrued and unpaid dividends and distributions thereon
to the date of such redemption (the "Redemption Date")
and (ii) such additional amounts, if any, as may be
required to result in a hypothetical annualized
internal rate of return of 27.5% on the sum of $200
from the period from and including February 1, 1993 to
but excluding the Redemption Date.
Clause 6.79. Rank. The Series A Preferred
Stock shall rank prior to the Common Stock, both as to
payment of dividends and as to distributions or
payments upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation.
Clause 6.710. Amendment. These Articles of
Incorporation shall not be amended in any manner which
would materially alter or change the powers,
preferences or special rights of the Series A Preferred
Stock so as to affect them adversely without the
affirmative vote of the holders of at least a majority
of the outstanding shares of Series A Preferred Stock,
voting separately as a class.
Section 6.8. Series B Preferred Stock. The terms of
Series B Preferred Stock are as follows:
Clause 6.81. Designation and Amount. The shares
of such series shall be designated as the "Series B
Preferred Stock" and the number of shares constituting
such series shall be 50,000.
Clause 6.82. Dividends and Distributions. (a)
Simultaneously with the declaration of any dividend or
distribution on the Common Stock, other than a dividend
payable in shares of Common Stock or a subdivision of
the outstanding shares of
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Common Stock (by
reclassification or otherwise), the Board of Directors
shall declare a dividend or distribution on the Series
B Preferred Stock in an amount per share (rounded to
the nearest cent), subject to the provision for
adjustment hereinafter set forth, equal to 100 times
the aggregate per share amount of cash dividends, and
100 times the aggregate per share amount (payable in
kind of all non-cash dividends or other distributions,
declared on the Common Stock. In the event the
Corporation shall at any time on or after February 1,
1993 declare or pay any dividend on the Common Stock
payable in shares of Common Stock, or effect a
subdivision or combination or consolidation of the
outstanding shares of Common Stock (by reclassification
or otherwise than by payment of a dividend in shares of
common Stock) into a greater or lesser number of shares
of Common Stock, then in each such case the amount to
which holders of shares of Series B Preferred Stock
were entitled immediately prior to such event under the
preceding sentence shall be adjusted by multiplying
such amount by a fraction, the numerator of which is
the number of shares of Common Stock outstanding
immediately after such event and the denominator of
which is the number of shares of Common Stock that were
outstanding immediately prior to such event.
(b) The Corporation shall pay any dividend
or distribution declared on the Series B Preferred
Stock as provided in Clause 6.92(a) of these Articles
of Incorporation at least one business day before it
pays the dividend or distribution simultaneously
declared on the Common Stock.
(c) If the Board of Directors fixes a record
date for the determination of holders of shares of
Common Stock entitled to receive payment of a dividend
or distribution declared thereon, it shall
simultaneously fix such date as the record date for the
determination of holders of shares of Series B
Preferred Stock entitled to receive payment of any
related dividend or distribution declared thereon.
Clause 6.82. Voting Rights. The holders of
shares of the Series B Preferred Stock shall have the
following voting rights:
(a) Each share of Series B Preferred Stock
shall entitle the holder thereof to one vote on all
matters submitted to a vote of the shareholders of the
Corporation.
(b) Except as otherwise provided herein or
by law, the holders of shares of Series B Preferred
Stock and the holders of shares of Common Stock shall
vote together as one class on all matters submitted to
a vote of shareholders of the Corporation.
(c) Except as set forth in Clauses 6.98 and
6.910 of these Articles of Incorporation, or as
required by law, holders of Series B Preferred Stock
shall have no special voting rights and their consent
shall not be required (except to the extent they are
entitled to vote with holders of Common Stock as set
forth herein) for taking any corporate action.
Clause 6.84. Certain Restrictions. Whenever
dividends or distributions payable on the Series B
Preferred Stock as provided in Clause 6.92 of these
Articles of Incorporation are in arrears, thereafter
and until all accrued and unpaid dividends and
distributions on shares of Series B Preferred Stock
outstanding shall have been paid in full, the
Corporation shall not:
(a) declare or pay dividends, or make any
other distributions, on any shares of stock ranking
junior (either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock;
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<PAGE>
(b) declare or pay dividends, or make any
other distributions, on any shares of stock ranking on
a parity (either as to dividends or upon liquidation,
dissolution or winding up) with the Series B Preferred
Stock, except dividends paid ratably on the Series B
Preferred Stock and all such parity stock on which
dividends are payable or in arrears in proportion to
the total amounts to which the holders of all such
shares are then entitled;
(c) redeem or purchase or otherwise acquire
for consideration shares of any stock ranking junior
(either as to dividends or upon liquidation,
dissolution or winding up) to the Series B Preferred
Stock, provided that the Corporation may at any time
redeem, purchase or otherwise acquire shares of any
such junior stock in exchange for shares of any stock
of the Corporation ranking junior (either as to
dividends or upon dissolution, liquidation or winding
up) to the Series B Preferred Stock; or
(d) redeem or purchase or otherwise acquire
for consideration any shares of Series B Preferred
Stock, or any shares of stock ranking on a parity with
the Series B Preferred Stock, except in accordance with
a purchase offer made in writing or by publication (as
determined by the Board of directors) to all holders of
such shares upon such terms as the Board of Directors,
after consideration of the respective annual dividend
rates and other relative rights and preferences of the
respective series and classes, shall determine in good
faith will result in fair and equitable treatment among
the respective series or classes.
The Corporation shall not permit any subsidiary of the
Corporation to purchase or otherwise acquire for
consideration any shares of stock of the Corporation
unless the Corporation could under this Clause 6.84
purchase or otherwise acquire such shares at such time
and in such a manner.
Clause 6.85. No Redemption. Except as provided
in Clause 6.88 of these Articles of Incorporation, the
shares of Series B Preferred Stock shall not be
redeemable.
Clause 6.86. Reacquired Shares. Any shares of
Series B Preferred Stock purchased or otherwise
acquired by the Corporation in any manner whatsoever
shall be retired and canceled promptly after the
acquisition thereof. All such shares shall upon their
cancellation become authorized but unissued shares of
Preferred Stock and may be reissued as part of a new
series of Preferred Stock to be created by resolution
or resolutions of the Board of Directors, subject to
the conditions and restrictions on issuance set forth
herein.
Clause 6.87. Liquidation, Dissolution or Winding
Up. Upon any voluntary or involuntary liquidation,
dissolution or winding up of the Corporation, no
distribution or payment shall be made (a) to the
holders of Common Stock or any other shares of stock
ranking junior (either as to dividends or upon
liquidation, dissolution or winding up) to the Series B
Preferred Stock unless, prior thereto, the holders of
shares of Series B Preferred Stock shall have received
an aggregate amount per share equal to $200 per share,
plus an amount equal to the sum of (i) all accrued and
unpaid dividends and distributions thereon to the date
of such payment (the "Liquidation Payment Date") and
(ii) such additional amounts, if any, as may be
required to result in a hypothetical annualized
internal rate of return of 27.5% on the sum of $200
during the period from and including February 1, 1993
to but excluding the Liquidation Payment Date, or (b)
to the holders of stock ranking on a parity (either as
to dividends or upon liquidation, dissolution or
winding up) with the Series B Preferred Stock, except
distributions made ratably on the Series B Preferred
Stock and all other such parity stock in proportion to
the total amounts to which the holders of all such
shares are entitled upon such liquidation, dissolution
or winding up.
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Clause 6.88. Consolidation, Merger, Etc. Prior
to consummating any business combination transaction,
including without limitation a consolidation or merger
or the sale of all or substantially all of the
corporation's assets or those of its subsidiaries, the
Corporation shall redeem all shares of Series B
Preferred Stock at a price per share equal to $200 per
share, plus an amount equal to the sum of (i) all
accrued and unpaid dividends and distributions thereon
to the date of such redemption (the "Redemption Date")
and (ii) such additional amounts, if any, as may be
required to result in a hypothetical annualized
internal rate of return of 27.5% on the sum of $200
from the period from and including February 1, 1993 to
but excluding the Redemption Date; provided, however,
that the holders of shares of Series B Preferred Stock
shall have the election in connection with any such
business combination transaction, exercisable by the
affirmative vote of the holders of at least two-thirds
of the outstanding shares of Series B Preferred Stock,
voting separately as a class, to render the foregoing
provisions of this Clause 6.88 inapplicable to such
business combination transaction.
Clause 6.89. Rank. The Series B Preferred
Stock shall rank prior to the Common Stock, both as to
payment of dividends and as to distributions or
payments upon voluntary or involuntary liquidation,
dissolution or winding up of the Corporation.
Clause 6.810. Amendment. These Articles of
Incorporation shall not be amended in any manner which
would materially alter or change the powers,
preferences or special rights of the Series B Preferred
Stock so as to affect them adversely without the
affirmative vote of the holders of at least a majority
of the outstanding shares of Series B Preferred Stock,
voting separately as a class.
ARTICLE 7
VOTING RIGHTS OF SHARES OF THE CORPORATION
------------------------------------------
Section 7.1. Preferred Stock. The holders of shares of
Preferred Stock have the right, voting separately by class or by
series, to cast one vote for each duly authorized, issued and
outstanding share of Preferred Stock held by them upon each
question or matter in respect of which, under the Law, such
holders are entitled to vote by class or by series. The holders
also have the right, voting in common with the holders of shares
of Common Stock and not separately by class or by series, to cast
one vote for each duly authorized, issued and outstanding share
of Preferred Stock held by them upon each question or matter
submitted generally to the holders of shares of the Corporation
in respect of which, under the Law, voting by class or by series
is not required.
Section 7.2. Common Stock. The holders of shares of
Common Stock have the right, voting separately by class, to cast
one vote for each duly authorized, issued and outstanding share
of Common Stock held by them upon each question or matter in
respect of which, under the Law, such holders are entitled to
vote by class. Such holders also have the right, voting in
common with the holders of shares of Preferred Stock and not
separately by class, to cast one vote for each duly authorized,
issued and outstanding share of Common Stock held by them upon
each question or matter submitted generally to the holders of
shares of the Corporation in respect of which, under the Law,
voting by class or by series is not required.
ARTICLE 8
DIRECTORS
---------
Section 8.1. Number. The number of Directors of the
Corporation shall be as specified from time to time by the Code
of By-Laws of the Corporation, but shall not be less than three
(3). If and whenever the Code of By-Laws of the Corporation does
not contain a provision specifying the number of Directors, the
number shall be nine (9). The terms of the Directors deemed
elected as of the effective date of the Corporation's Third
Amended and Restated Joint Plan of Reorganization, dated as of
January 17, 1992, as modified (the "Effective Date"), as well as
the terms of any Directors filling
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vacancies in the Board of
Directors existing as of the Effective Date, shall expire at the
1994 annual meeting of Shareholders. The terms of any other
Directors shall expire at the next annual meeting of Shareholders
following their election. Directors need not be Shareholders of
the Corporation.
Section 8.2. Vacancies. Subject to the rights of the
holders of any series of Preferred Stock then outstanding, newly
created Directorships resulting from any increase in the
authorized number of Directors or any vacancies in the Board of
Directors resulting from death, resignation, retirement,
disqualification, removal from office or other cause shall be
filled by a majority vote of the Directors then in office, and,
except as otherwise provided in Section 8.1 of these Articles of
Incorporation, Directors so chosen shall hold office for a term
expiring at the next annual meeting of Shareholders.
Section 8.3. Removal. Subject to the rights of the
holders of any series of Preferred Stock then outstanding, any
Director, or the entire Board of Directors, may be removed from
office at any time (1) with or without cause, by the affirmative
vote of the holders of at least a majority of the voting power of
all of the shares of the Corporation entitled to vote generally
in the election of Directors, voting together as a single class,
or (2) only with cause, by the affirmative vote of at least a
majority of the other Directors; provided, however, that, through
March 31, 1995, removal of a Director elected for an initial term
of office longer than one (1) year shall require the affirmative
vote of the holders of at least 75% of the voting power of all of
the shares of the Corporation entitled to vote generally in the
election of Directors, voting together as a single class.
Section 8.4. Amendment, Repeal. Notwithstanding anything
contained in these Articles of Incorporation or the Code of By-
Laws of the Corporation to the contrary (and notwithstanding the
fact that a lesser percentage may be specified by law, in these
Articles of Incorporation or in the Code of By-Laws of the
Corporation), the affirmative vote of the holders of (1) through
March 31, 1995, at least 75%, and (2) thereafter, at least a
majority, of the voting power of all of the shares of the
Corporation entitled to vote generally in the election of
Directors, voting together as a single class, shall be required
to alter, amend or repeal this Article 8.
ARTICLE 9
GENERAL PROVISIONS FOR REGULATION OF THE BUSINESS
AND CONDUCT OF THE AFFAIRS OF THE CORPORATION
-------------------------------------------------
Section 9.1. Indemnification and Related Matters. Each
person who is or was or had agreed to become a Director or
officer of the Corporation, and each such person who is or was
serving or who had agreed to serve at the request of the Board or
an officer of the Corporation as an employee or agent of the
Corporation or as a Director, officer, employee or agent of
another corporation, partnership, joint venture, trust or other
entity, whether for profit or not for profit (including the
heirs, executors, administrators or estate of such person), will
be indemnified by the Corporation to the full extent permitted by
the Law or any other applicable law as currently or hereafter in
effect and will be entitled to advancement of expenses in
connection therewith. The right of indemnification and of
advancement of expenses provided in this Section 9.1 (1) will not
be exclusive of any other rights to which any person seeking
indemnification or advancement of expenses may otherwise be
entitled, including without limitation pursuant to any contract
approved by a majority of the entire Board of Directors (whether
or not the Directors approving such contract are or are to be
parties to such contract or similar contracts), and (2) will be
applicable to matters otherwise within its scope whether or not
such matters arose or arise before or after the adoption of this
Section 9.1. Without limiting the generality or the effect of
the foregoing, the Corporation may adopt By-Laws, or enter into
one or more agreements with any person, which provide for
indemnification and/or advancement of expenses greater or
different than that provided in this Section 9.1 or the Law.
Notwithstanding anything to the contrary contained in this
Section 9.1, in the event that the Corporation enters into an
agreement with a person providing for indemnification and/or
advancement of expenses, in respect of the retention of counsel
or any other person or entity to represent, or assist in the
representation of, such person, the provisions of such agreement
will exclusively govern the Corporation's obligations in respect
of indemnification for or advancement of fees or disbursements of
counsel or any other person engaged in connection with the
matter. Any amendment or repeal of, or adoption of any provision
inconsistent with, this Section 9.1 will
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not adversely affect any
right or protection existing hereunder, or arising out of facts
occurring, prior to such amendment, repeal or adoption and no
such amendment, repeal or adoption will affect the legality,
validity or enforceability of any contract entered into or right
granted prior to the effective date of such amendment, repeal or
adoption.
Section 9.2. Place of Shareholders' Meetings. Meetings of
the holders of the issued and outstanding shares of Preferred
Stock and Common Stock may be held at such places, within or
without the State of Indiana, as the Board of Directors may, from
time to time, establish by appropriate provisions in the Code of
By-Laws of the Corporation or by resolution.
Section 9.3. Control Share Acquisitions. Chapter 42 of
the Law shall not apply to control share acquisitions of shares
of the Corporation.
Section 9.4. Business Combinations. The Corporation shall
not be governed by Chapter 43 of the Law.
ARTICLE 10
PROVISIONS FOR
CERTAIN BUSINESS COMBINATIONS
-----------------------------
Section 10.1. Vote Required.
Clause 10.11. Higher Vote for Certain Business
Combinations. In addition to any affirmative vote
required by law or these Articles of Incorporation
which cannot be waived, and except as otherwise
expressly provided in Section 10.2 of this Article 10:
(a) Any merger or consolidation of the
Corporation or any Subsidiary (as hereinafter defined)
with (1) any Interested Shareholder (as hereinafter
defined), or (2) any other corporation (whether or not
itself an Interested Shareholder) which is, or after
such merger or consolidation would be, an Affiliate (as
hereinafter defined) of an Interested Shareholder; or
(b) Any sale, lease, exchange, mortgage,
pledge, transfer or other disposition (in one
transaction or a series of transactions) to or with any
Interested Shareholder or any Affiliate of any
Interested Shareholder of any assets of the Corporation
or any Subsidiary having an aggregate Fair Market Value
(as hereinafter defined) of $1,000,000 or more; or
(c) The issuance or transfer by the
Corporation or any Subsidiary (in one transaction or a
series of transactions) of any securities of the
Corporation or any Subsidiary to any Interested
Shareholder or any Affiliate of any Interested
Shareholder in exchange for cash, securities or other
property (or a combination thereof) having an aggregate
Fair Market Value of $1,000,000 or more; or
(d) The adoption of any plan or proposal for
the liquidation, dissolution or winding up of the
Corporation or any Subsidiary proposed by or on behalf
of any Interested Shareholder or any Affiliate of any
Interested Shareholder; or
(e) Any reclassification of securities
(including any reverse stock split) or recapitalization
of the Corporation, or any merger or consolidation of
the Corporation with any Subsidiary, or any other
transaction (whether or not with or into or otherwise
involving an Interested Shareholder) which has the
effect, directly or indirectly, of increasing the
proportion of the outstanding shares of any class of
equity or convertible securities of the Corporation or
any Subsidiary which is directly or indirectly owned by
any Interested Shareholder or any Affiliate of any
Interested Shareholder; shall require affirmative vote
of the holders of at least 66-2/3% of the voting power
of all of
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the shares of the Corporation entitled to
vote generally in the election of Directors (the
"Voting Stock"), voting together as a single class (it
being understood that, for purposes of this Article 10,
each share of the Voting Stock shall have the number of
votes granted to it pursuant to Article 7 of these
Articles of Incorporation), that have voted, but in any
event not less than the affirmative vote of the holders
of at least a majority of the voting power of all of
the shares of the Corporation entitled to vote
generally in the election of Directors, voting together
as a single class. Such affirmative vote shall be
required notwithstanding the fact that no vote may be
required, or that a greater or lesser percentage may be
specified, by law or in any agreement with any national
securities exchange or otherwise.
Clause 10.12. Definition of "Business
Combination." The term "Business Combination," as used
in this Article 10, shall mean any transaction which is
referred to in any one or more of paragraphs (a)
through (e) of Clause 10.11 of this Section 10.1, and
which is contractually agreed to or consummated not
later than March 31, 1994.
Section 10.2. When Higher Vote is Not Required. The
provisions of Section 10.1 of this Article 10 shall not be
applicable to any particular Business Combination, and such
Business Combination shall require only such affirmative vote as
is required by law and any other provision of these Articles of
Incorporation, if all of the conditions specified in either of
the following Clauses 10.21 and 10.22 are met:
Clause 10.21. Approval by Continuing Directors.
The Business Combination shall have been approved by a
majority of the Continuing Directors (as hereinafter
defined).
Clause 10.22. Price and Procedure Requirements.
All of the following conditions shall have been met:
(a) The aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of
the Business Combination of consideration other than
cash to be received per share by holders of shares of
Common Stock in such Business Combination shall be at
least equal to the highest of the following:
(1) The highest per share price
(including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by the Interested Shareholder for any
shares of Common Stock acquired by it (A)
within the two-year period immediately prior
to the first public announcement of the
proposal of the Business Combination (the
"Announcement Date"), or (B) in the
transaction in which it became an Interested
Shareholder, whichever is higher;
(2) The Fair Market Value per
share of Common Stock on the Announcement
Date or on the date on which the Interested
Shareholder became an Interested Shareholder
(such latter date being referred to in this
Article 10 as the "Determination Date"),
whichever is higher; and
(3) The price per share equal to
the Fair Market Value per share of Common
Stock determined pursuant to subparagraph
(a)(2) above, multiplied by the ratio of (A)
the highest per share price (including
brokerage commissions, transfer taxes and
soliciting dealers' fees) paid by the
Interested Shareholder for any shares of
Common Stock acquired by it within the two-
year period immediately prior to the
Announcement Date, to (B) the Fair Market
Value per share of Common Stock on the first
day in such two-year
11 38
<PAGE>
period upon which the
Interested Shareholder acquired any shares of
Common Stock.
(b) The aggregate amount of the cash and the
Fair Market Value as of the date of the consummation of
the Business Combination of consideration other than
cash to be received per share by holders of shares of
any other class of outstanding Voting Stock shall be at
least equal to the highest of the following [it being
intended that the requirements of this paragraph (b)
shall be required to be met with respect to every class
of outstanding Voting Stock whether or not the
Interested Shareholder has previously acquired any
share of a particular class of Voting Stock]:
(1) The highest per share price
(including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by the Interested Shareholder for any
shares of such class of Voting Stock acquired
by it (A) within the two-year period
immediately prior to the Announcement Date,
or (B) in the transaction in which it became
an Interested Shareholder, whichever is
higher;
(2) The highest preferential
amount per share to which the holders of
shares of such class of Voting Stock are
entitled in the event of any voluntary or
involuntary liquidation, dissolution or
winding up of the Corporation;
(3) The Fair Market Value per
share of such class of Voting Stock on the
Announcement Date or on the Determination
Date, whichever is higher; and
(4) The price per share equal to
the Fair Market Value per share of such class
of Voting Stock determined pursuant to
subparagraph (b)(3) above, multiplied by the
ratio of (A) the highest per share price
(including any brokerage commissions,
transfer taxes and soliciting dealers' fees)
paid by the Interested Shareholder for any
shares of such class of Voting Stock acquired
by it within the two-year period immediately
prior to the Announcement Date, to (B) the
Fair Market Value per share of such class of
Voting Stock on the first day in such two-
year period upon which the Interested
Shareholder acquired any shares of such class
of Voting Stock.
(c) The consideration to be received by
holders of a particular class of outstanding Voting
Stock (including Common Stock) shall be in cash or in
the same form as the Interested Shareholder has
previously paid for shares of such class of Voting
Stock. If the Interested Shareholder has paid for
shares of any class of Voting Stock with a varying form
of consideration, the form of consideration for such
class of Voting Stock shall be either cash or the form
used to acquire the largest number of shares of such
class of Voting Stock previously acquired by the
Interested Shareholder.
(d) A proxy or information statement
describing the proposed Business Combination and
complying with the requirements of the Securities
Exchange Act of 1934, as amended, and the rules and
regulations thereunder (or any subsequent provisions
replacing such Act, rules or regulations) shall be
mailed to shareholders of the Corporation at least
thirty (30) days prior to the consummation of the
Business Combination (whether or not such proxy or
information statement is required to be mailed pursuant
to such Act or subsequent provisions).
Section 10.3. Certain Definitions. For the purposes of
this Article 10:
12 39
<PAGE>
Clause 10.31. A "person" shall include any
individual, firm, corporation or other entity. When
two or more persons act as a partnership, limited
partnership, syndicate or other group for the purpose
of acquiring Voting Stock, such partnership, syndicate
or group shall be deemed a "person."
Clause 10.32. "Interested Shareholder" shall mean
any person (other than the Corporation or any
Subsidiary) which:
(a) Is the beneficial owner, directly or
indirectly, of more than 10% of the voting power of the
outstanding Voting Stock; or
(b) Is an Affiliate of the Corporation and
at any time within the two-year period immediately
prior to the date in question was the beneficial owner,
directly or indirectly, of 10% or more of the voting
power of the then outstanding Voting Stock; or
(c) Is an assignee of or has otherwise
succeeded to any share of Voting Stock which was at any
time within the two-year period immediately prior to
the date in question beneficially owned, directly or
indirectly, by any Interested Shareholder, if such
assignment or succession shall have occurred in the
course of a transaction or series of transactions not
involving a public offering within the meaning of the
Securities Act of 1933, as amended.
Clause 10.33. A person shall be a "beneficial
owner" of any Voting Stock:
(a) Which such person or any of its
Affiliates or Associates (as hereinafter defined)
beneficially owns, directly or indirectly; or
(b) Which such person or any of its
Affiliates or Associates has (1) the right to acquire
(whether such right is exercisable immediately or only
after the passage of time) pursuant to any agreement,
arrangement or understanding, or upon the exercise of
conversion rights, exchange rights, warrants or
options, or otherwise, or (2) the right to vote
pursuant to any agreement, arrangement or
understanding; or
(c) Which is beneficially owned, directly or
indirectly, by any other person with which such person
or any of its Affiliates or Associates has any
agreement, arrangement or understanding for the purpose
of acquiring, holding, voting or disposing of any
shares of Voting Stock.
Clause 10.34. For the purpose of determining
whether a person is an Interested Shareholder pursuant
to Clause 10.32 of this Section 10.3, the number of
shares of Voting Stock deemed to be outstanding shall
include shares deemed owned through application of
Clause 10.33 of this Section 10.3 but shall not include
any other shares of Voting Stock which may be issuable
pursuant to any agreement, arrangement or
understanding, or upon the exercise of conversion
rights, exchange rights, warrants or options, or
otherwise.
Clause 10.35. "Affiliate" and "Associate" shall
have the respective meanings ascribed to such terms in
Rule 12b-2 of the General Rules and Regulations under
the Securities Exchange Act of 1934, as amended, as in
effect on March 31, 1992.
Clause 10.36. "Subsidiary" means any corporation
of which a majority of any class of equity security is
owned, directly or indirectly, by the Corporation;
provided, however, that for the purposes of the
definition of an Interested Shareholder set forth in
Clause 10.32 of Section 10.3, the term "Subsidiary"
shall mean only a corporation of which a majority of
each class of equity security is owned, directly or
indirectly, by the Corporation.
13 40
<PAGE>
Clause 10.37. "Continuing Director" means, with
respect to any Interested Shareholder, a member of the
Board of Directors of the Corporation (the "Board") who
is not, and within the past 12 months has not been,
individually or as a member or employee of a firm or
other entity, employed, retained or engaged by, an
officer or director of, or an owner of more than 10% of
the capital stock of, such Interested Shareholder or
any Affiliate of such Interested Shareholder.
Clause 10.38. "Fair Market Value" means:
(a) In the case of stock, the highest
closing sale price during the thirty (30) day period
immediately preceding the date in question of a share
of such stock on the Composite Tape for New York Stock
Exchange-Listed Stock, or if such stock is not quoted
on the Composite Tape, on the New York Stock Exchange,
or if such stock is not listed on such Exchange, on the
principal United Sates securities exchange registered
under the Securities Exchange Act of 1934, as amended,
on which such stock is listed, or if such stock is not
listed on any such exchange, the highest closing bid
quotation with respect to a share of such stock during
the thirty (30) day period preceding the date in
question on the National Association of Securities
Dealers, Inc., Automated Quotations System or any
system then in use, or if such stock is not quoted on
any such system, the fair market value of such stock on
the date in question as determined by a majority of
Continuing Directors then on the Board in good faith;
and
(b) In the case of property other than cash
or stock, the fair market value of such property on the
date in question as determined by a majority of
Continuing Directors then on the Board in good faith.
Clause 10.39. In the event of any Business
Combination in which the Corporation survives, the
phrase "consideration other than cash to be received,"
as used in paragraphs (a) and (b) of Clause 10.22 of
Section 10.2 of this Article 10, shall include the
shares of Common Stock and/or the shares of any other
class of outstanding Voting Stock held by the holders
of such shares.
Section 10.4. Powers of the Board of Directors. A
majority of the Continuing Directors then on the Board shall have
the power and duty to determine for the purposes of this Article
10, on the basis of information known to them after reasonable
inquiry, (1) whether a person is an Interested Shareholder, (2)
the number of shares of Voting Stock beneficially owned by a
person, (3) whether a person is an Affiliate or Associate of
another, and (4) whether the assets which are the subject of any
Business Combination have, or the consideration to be received
for the issuance or transfer of securities by the Corporation or
any Subsidiary in any Business Combination has, an aggregate Fair
Market Value of $1,000,000 or more.
Section 10.5. No Effect on Fiduciary Obligations of
Interested Shareholders. Nothing contained in this Article 10
shall be construed to relieve any Interested Shareholder from any
fiduciary obligation imposed by law.
Section 10.6. Amendment, Repeal, etc. Notwithstanding
anything contained in these Articles of Incorporation or the Code
of By-Laws of the Corporation (and notwithstanding the fact that
a greater or lesser percentage may be specified by law, in these
Articles of Incorporation or in the Code of By-Laws of the
Corporation), the affirmative vote of at least 66-2/3% of the
voting power of all of the shares of the Corporation entitled to
vote generally in the election of Directors, voting together as a
single class, that have voted, but in any event not less than the
affirmative vote of at least a majority of the voting power of
all of the shares of the Corporation entitled to vote generally
in the election of Directors, voting together as a single class,
shall be required to alter, amend or repeal this Article 10.
14 41
<PAGE>
EXHIBIT 5
Opinion of John H. Sharpe, Esq.
42
<PAGE>
FORUM GROUP, INC.
8900 Keystone Crossing, Suite 200
Indianapolis, Indiana 46240-0498
November 7, 1994
Forum Group, Inc.
8900 Keystone Crossing, Suite 200
Indianapolis, Indiana 46240-0498
Re: Forum Group, Inc. Equity Incentive Plan
Dear Ladies and Gentlemen:
I have acted as counsel for Forum Group, Inc., an Indiana
corporation (the "Company"), in connection with the proposed
issuance and sale of up to 2,250,000 shares of Common Stock,
without par value, of the Company (the "Shares") pursuant to the
Forum Group, Inc. Equity Incentive Plan (the "Plan") to be
registered under the Securities Act of 1933, as amended, pursuant
to a Registration Statement on Form S-8 to be filed by the
Company with the Securities and Exchange Commission (the
"Registration Statement").
I have examined the Plan and such other documents, records,
and matters of law, and made or performed such additional
inquiries, investigations, and examinations, as I have deemed
necessary for purposes of this opinion. Based upon the
foregoing, I am of the opinion that the Shares that may be issued
and sold pursuant to the Plan and authorized forms of agreements
evidencing grants or awards of stock options, stock appreciation
rights, restricted or deferred stock, performance stock and
performance units will, when issued and sold in accordance with
the Plan and such forms of agreements, be duly authorized,
validly issued, fully paid, and nonassessable.
I hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement.
Very truly yours,
/s/ John H. Sharpe
John H. Sharpe, Esq.
43
<PAGE>
EXHIBIT 23.1
Consent of KPMG Peat Marwick LLP
44
<PAGE>
The Board of Directors
Forum Group, Inc.:
We consent to incorporation by reference in the registration
statement on Form S-8 of Forum Group, Inc. of our report dated
May 13, 1994, with respect to the consolidated balance sheets of
Forum Group, Inc. and subsidiaries as of March 31, 1994, and
1993, and the related consolidated statements of operations,
shareholders' equity, and cash flows for each of the years in the
three-year period ended March 31, 1994, and all related
schedules, which report appears in the March 31, 1994, annual
report on Form 10-K of Forum Group, Inc.
/s/KPMG Peat Marwick LLP
KPMG Peat Marwick LLP
Indianapolis, Indiana
November 7, 1994
45
<PAGE>
EXHIBIT 24
Powers of Attorney
46
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ Mark L. Pacala
-------------------
Mark L. Pacala
Dated: November 2, 1994
47
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ Peter P. Copses
-------------------
Peter P. Copses
Dated: October 18, 1994
48
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ Daniel A. Decker
--------------------
Daniel A. Decker
Dated: October 17, 1994
49
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ James A. Eden
-------------------
James A. Eden
Dated: October 18, 1994
50
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ Asher O. Pacholder
----------------------
Asher O. Pacholder
Dated: October 18, 1994
51
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ William G. Petty, Jr.
-------------------------
William G. Petty, Jr.
Dated: October 18, 1994
52
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ Antony P. Ressler
---------------------
Antony P. Ressler
Dated: October 18, 1994
53
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ Paul A. Shively
-------------------
Paul A. Shively
Dated: October 18, 1994
54
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ D. Ellen Shuman
-------------------
D. Ellen Shuman
Dated: October 18, 1994
55
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ Eric P. Siegel
-------------------
Eric P. Siegel
Dated: October 18, 1994
56
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ Merlin C. Spencer
---------------------
Merlin C. Spencer
Dated: October 18, 1994
57
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Paul A.
Shively, Brian C. Swinton, Robert A. Profusek, Troy B. Lewis, and
each of them as my true and lawful attorneys-in-fact and agents,
each with full power of substitution and resubstitution, to sign
for me, in my name in my capacity as a director and/or officer of
Forum Group, Inc. (the "Company"), one or more Registration
Statements on Form S-8 (or any other appropriate form) relating
to the registration under the Securities Act of 1933, as amended,
of shares of Common Stock of the Company issuable to participants
in the Forum Group, Inc. Equity Incentive Plan pursuant to the
terms thereof and to file the same, with all exhibits thereto,
and all other documents in connection therewith, with the
Securities and Exchange Commission, hereby ratifying and
confirming all that the said attorneys-in-fact and agents, or
their substitutes or resubstitutes, or any of them, shall do or
cause to be done by virtue hereof.
/s/ Robert A. Whitman
---------------------
Robert A. Whitman
Dated: October 17, 1994
58
<PAGE>
POWER OF ATTORNEY
I hereby constitute and appoint John H. Sharpe, Robert
A. Whitman, Paul A. Shively, Brian C. Swinton, Robert A.
Profusek, Troy B. Lewis, and each of them as my true and lawful
attorneys-in-fact and agents, each with full power of
substitution and resubstitution, to sign for me, in my name in my
capacity as a director and/or officer of Forum Group, Inc. (the
"Company"), one or more Registration Statements on Form S-8 (or
any other appropriate form) relating to the registration under
the Securities Act of 1933, as amended, of shares of Common Stock
of the Company issuable to participants in the Forum Group, Inc.
Equity Incentive Plan pursuant to the terms thereof and to file
the same, with all exhibits thereto, and all other documents in
connection therewith, with the Securities and Exchange
Commission, hereby ratifying and confirming all that the said
attorneys-in-fact and agents, or their substitutes or
resubstitutes, or any of them, shall do or cause to be done by
virtue hereof.
/s/ George D. Woodard
----------------------
George D. Woodard
Dated: October 18, 1994
59
<PAGE>
