-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, Cn6+2l+bg777hUcRWIU0UKWtnvtkUkLLIYAkbR35JGe67rvHlwuleRLBYTyZuaHe IUBs/u9v+qnRXsM3LZ9BgA== 0000950134-95-002662.txt : 19951102 0000950134-95-002662.hdr.sgml : 19951102 ACCESSION NUMBER: 0000950134-95-002662 CONFORMED SUBMISSION TYPE: SC 13E3/A PUBLIC DOCUMENT COUNT: 4 FILED AS OF DATE: 19951101 SROS: NASD SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: FORUM RETIREMENT PARTNERS L P CENTRAL INDEX KEY: 0000804752 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SOCIAL SERVICES [8300] IRS NUMBER: 351686799 STATE OF INCORPORATION: DE FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13E3/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-41402 FILM NUMBER: 95586503 BUSINESS ADDRESS: STREET 1: 8900 KEYSTONE CROSSING STE 200 STREET 2: PO BOX 40498 CITY: INDIANAPOLIS STATE: IN ZIP: 46240 BUSINESS PHONE: 3178460700 FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: FORUM GROUP INC CENTRAL INDEX KEY: 0000033939 STANDARD INDUSTRIAL CLASSIFICATION: SERVICES-SOCIAL SERVICES [8300] IRS NUMBER: 610703072 STATE OF INCORPORATION: IN FISCAL YEAR END: 0331 FILING VALUES: FORM TYPE: SC 13E3/A BUSINESS ADDRESS: STREET 1: 8900 KEYSTONE CROSSING STE 200 STREET 2: P O BOX 40498 CITY: INDIANAPOLIS STATE: IN ZIP: 46240-0498 BUSINESS PHONE: 3178460700 MAIL ADDRESS: STREET 1: 8900 KEYSTONE CROSSING STE 200 STREET 2: PO BOX 40498 CITY: INDIANAPOLIS STATE: IN ZIP: 46240-0498 FORMER COMPANY: FORMER CONFORMED NAME: EXCEPTICON INC DATE OF NAME CHANGE: 19810909 FORMER COMPANY: FORMER CONFORMED NAME: GUARDIAN CARE CORP DATE OF NAME CHANGE: 19720615 SC 13E3/A 1 AMENDMENT NO.3 TO SCHEDULE 13E3 1 SECURITIES AND EXCHANGE COMMISSION Washington, D.C. 20549 SCHEDULE 13E-3 RULE 13E-3 TRANSACTION STATEMENT (Pursuant to Section 13(e) of the Securities Exchange Act of 1934) (Amendment No. 3) FORUM RETIREMENT PARTNERS, L.P. (Name of Issuer) FORUM GROUP, INC. FORUM RETIREMENT, INC. (Name of Person Filing Statement) Preferred Depositary Units Representing Preferred Limited Partners' Interests 349 851 105 (Title of Class of Securities) (CUSIP Number of Class of Securities)
Dennis L. Lehman Senior Vice President and Chief Financial Officer Forum Group, Inc. 11320 Random Hills Road Fairfax, Virginia 22030 (703) 277-7000 (Name, Address and Telephone Number of Persons Authorized to Receive Notices and Communications on Behalf of the Persons Filing Statement) Copies to: Robert A. Profusek, Esq. Jones, Day, Reavis & Pogue 599 Lexington Avenue New York, New York 10022 (212) 326-3800 October 2, 1995 (Date Tender Offer First Published, Sent or Given to Security Holders) This statement is filed in connection with a tender offer. 2 This Amendment No. 3 (this "Amendment") supplements and amends the Rule 13E-3 Transaction Statement, as previously supplemented and amended (the "Schedule 13E-3"), relating to a tender offer by Forum Group, Inc., an Indiana corporation (the "Purchaser"), to purchase any and all of the outstanding preferred depositary units (the "Units") representing preferred limited partners' interests in Forum Retirement Partners, L.P. (the "Partnership"), at $2.83 per Unit, net to the seller in cash, on the terms and subject to the conditions set forth in the Purchaser's Offer to Purchase dated October 2, 1995 (the "Offer to Purchase"), the Supplement dated October 16, 1995 to the Offer to Purchase, the Supplement dated November 1, 1995 (the "November 1 Supplement") to the Offer to Purchase, and the related Letter of Transmittal. A copy of the November 1 Supplement is filed by the Purchaser as Exhibit (a)(11) to Amendment No. 2 to Schedule 14D-1 Tender Offer Statement which was filed by the Purchaser with the Securities and Exchange Commission (the "Commission") contemporaneously with this Amendment. The cross reference sheet below is being supplied pursuant to General Instruction F to Schedule 13E-3 and shows the location in the Schedule 14D-1 Tender Offer Statement originally filed by the Purchaser with the Commission on October 2, 1995 (as amended, the "Schedule 14D-1"), of the information required to be included in response to the items of Schedule 13E-3. The information in the Schedule 14D-1, including all exhibits thereto, is hereby expressly incorporated herein by reference and the responses to each item in this Amendment are qualified in their entirety by the information contained in the Schedule 14D-1. CROSS REFERENCE SHEET
Where located in Item in Schedule 13E-3 Schedule 14D-1 ---------------------- ------------------ Item 2 Item 2 Item 3 Item 3 Item 4(a) * Item 8(a)-(b) * Item 8(d)-(e) * Item 9 * Item 10 Item 6 Item 11 Item 7 Item 12 * Item 17(b) * Item 17(d) *
---------------------- * The information requested by this Item is not required to be included in the Schedule 14D-1. -2- 3 ITEM 2. IDENTITY AND BACKGROUND Item 2 of the Schedule 13E-3 is hereby supplemented and amended by adding the following: (a)-(d) and (g) The Schedule 13E-3 is being filed by the Purchaser and Forum Retirement, Inc. (the "General Partner"), a Delaware corporation, a wholly owned subsidiary of the Purchaser, and the sole general partner of the Partnership. The information set forth in "Additional Information Concerning the General Partner" in, and Annex A to, the November 1 Supplement is incorporated herein by reference. In addition, pursuant to General Instruction D to Schedule 13E-3, the information set forth in Item 3 of the Partnership's Schedule 14D-9 Solicitation/Recommendation Statement (the "Schedule 14D-9"), a copy of which has been filed as Exhibit (d)(11) to the Schedule 13E-3, is incorporated herein by reference. (e)-(f) During the last five years, neither the General Partner nor, to its knowledge, any of its executive officers or directors (i) has been convicted in a criminal proceeding (excluding traffic violations or similar misdemeanors) or (ii) was a party to a civil proceeding of a judicial or administrative body of competent jurisdiction and as a result of such proceeding was or is subject to a judgment, decree or final order enjoining future violations of, or prohibiting activities subject to, Federal or state securities laws or finding any violation of such laws. ITEM 3. PAST CONTACTS, TRANSACTIONS OR NEGOTIATIONS. Item 3 of the Schedule 13E-3 is hereby supplemented and amended by adding the following: The answer to Item 3 of Amendment No. 2 to the Schedule 14D-1 is incorporated herein by reference. ITEM 4. TERMS OF THE TRANSACTION. Item 4 of the Schedule 13E-3 is hereby supplemented and amended by adding the following: (a) The information set forth in "Effect of the Offer on Certain Litigation" and "Certain Conditions of the Offer" in the November 1 Supplement is incorporated herein by reference. ITEM 8. FAIRNESS OF THE TRANSACTION. Item 8 of the Schedule 13E-3 is hereby supplemented and amended by adding the following: (a)-(b) and (d)-(e) The information set forth in "Additional Information Concerning the Background of the Offer" and "Additional Information Concerning Determinations by the Purchaser" in the November 1 Supplement is incorporated herein by reference. In addition, pursuant to General Instruction D to Schedule 13E-3, the information set forth in Item 4 of Amendment No. 2 to the Schedule 14D-9, a copy of which is filed as Exhibit (d)(13) hereto, is incorporated herein by reference. ITEM 9. REPORTS, OPINIONS, APPRAISALS AND CERTAIN NEGOTIATIONS Item 9 of the Schedule 13E-3 is hereby supplemented and amended by adding the following: (a)-(c) The information set forth in "Additional Information Concerning the Background of the Offer" and "Additional Information Concerning Certain Determinations by the Purchaser" in the November 1 Supplement is incorporated herein by reference. In addition, pursuant to General Instruction D to Schedule 13E-3, the information set forth in Item 4 of Amendment No. 2 to the Schedule 14D-9 is incorporated herein by reference. -3- 4 ITEM 10. INTEREST IN SECURITIES OF THE ISSUER. Item 10 of the Schedule 13E-3 is hereby supplemented and amended by adding the following: The information set forth in "Additional Information Concerning the General Partner" in the November 1 Supplement is incorporated herein by reference. ITEM 11. CONTRACTS, ARRANGEMENTS OR UNDERSTANDINGS WITH RESPECT TO THE ISSUER'S SECURITIES. Item 11 of the Schedule 13E-3 is hereby supplemented and amended by adding the following: The information set forth in "Additional Information Concerning the General Partner" in the November 1 Supplement is incorporated herein by reference. ITEM 12. PRESENT INTENTION AND RECOMMENDATION OF CERTAIN PERSONS WITH REGARD TO THE TRANSACTION. Item 12 of the Schedule 13E-3 is hereby supplemented and amended by adding the following: (b) The information set forth in "Additional Special Factors" in the October 16 Supplement and in "Additional Information Concerning Certain Determinations by the Purchaser" in the November 1 Supplement is incorporated by reference. In addition, pursuant to General Instruction D to Schedule 13E-3, the information set forth in Item 4 of the Schedule 14D-9 and Item 4 of Amendment No. 2 to the Schedule 14D-9 is incorporated herein by reference. ITEM 17. MATERIAL TO BE FILED AS EXHIBITS. Item 17 of the Schedule 13E-3 is hereby supplemented and amended by adding the following exhibits: 99.(b)(3) Opinion of Robert A. Innamorati & Co., as reissued 99.(d)(12) Supplement dated November 1, 1995 to the Offer to Purchase dated October 2, 1995 99.(d)(13) Amendment No. 2 to Schedule 14D-9 Solicitation/Recommendation Statement dated November 1, 1995 -4- 5 SIGNATURE After due inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: November 1, 1995 FORUM GROUP, INC. By Troy B. Lewis ----------------------------------- Troy B. Lewis, Attorney-in-Fact* *Pursuant to a Power of Attorney previously filed with the Securities and Exchange Commission -5- 6 SIGNATURE After due inquiry and to the best of its knowledge and belief, the undersigned certifies that the information set forth in this statement is true, complete and correct. Dated: November 1, 1995 FORUM RETIREMENT, INC. By Richard A. Huber ----------------------------------- Richard A. Huber, Secretary -6- 7 INDEX TO EXHIBITS
Exhibits --------- 99.(b)(3) Opinion of Robert A. Innamorati & Co., as reissued . . . . . . . . . . . . . . . . 99.(d)(12) Supplement dated November 1, 1995 to the Offer to Purchase dated October 2, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 99.(d)(13) Amendment No. 2 to Schedule 14D-9 Solicitation/Recommendation Statement dated November 1, 1995 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .
-7- EX-99.(B)(3) 2 OPINION OF ROBERT A. INNAMORATI 1 October 13, 1995 Special Committee of the Board of Directors Forum Retirement, Inc. 8900 Keystone Crossing Suite 200 P.O. Box 40498 Indianapolis, IN 46240 Attn : Mr. John Sexton Mr. James Leslie Gentlemen: Forum Group, Inc. (the "Purchaser") has offered to purchase any and all of the outstanding preferred depositary units (the "Units") representing preferred limited partners' interests in Forum Retirement Partners, L.P. (the "Partnership"), at a price of $2.83 per Unit net to the seller in cash (the "Offer"). The Offer commenced on October 2, 1995 and is expected to be amended no later than October 16, 1995 to reflect the foregoing price per Unit. You have asked us whether, in our opinion, the proposed cash consideration to be received by the holders of Units, other than the Purchaser and its affiliates, (the "Unaffiliated Limited Partners") is fair to such Unaffiliated Limited Partners, from a financial point of view. In arriving at our opinion, we have reviewed the Offer to Purchase and financial and other information that was publicly available or furnished to us by Forum Retirement, Inc. (the "General Partner"), or its affiliates and representatives, including certain financial projections for the Partnership and information provided by the General Partner or its affiliates in discussions therewith concerning the Partnership's business, operations and future prospects. In addition, we have compared certain financial and securities data of the Partnership with various other entities in similar businesses whose securities are traded in public markets, reviewed other cash tender offer transactions and conducted such other financial studies, analyses and investigations as we deemed appropriate for purposes of this opinion. In rendering the opinion set forth below, we have assumed and relied upon, without independent verification: the accuracy and completeness of the financial and other information obtained by us from public sources and that was provided to us by the General Partner or its affiliates and representatives. With respect to the financial projections supplied to us, we have assumed they 2 Forum Retirement, Inc. October 13, 1995 Page 2 have been reasonably prepared on the basis of the best currently available estimates and judgments of the General Partner or its affiliates, and with reasonable assumptions as to the future operating and financial performance of the Partnership. We have neither made nor obtained any independent appraisal of the assets or liabilities of the Partnership nor have we conducted any physical inspection of the properties and facilities of the Partnership. Our opinion is necessarily based on the status and condition of the Partnership and economic, market, financial and other conditions as they exist on, and on the information made available to us as of, the date of this letter. It should be understood that, although subsequent developments may affect this opinion, we do not have any obligation to update or revise this opinion. This opinion is being delivered pursuant to the terms and conditions agreed to in the engagement agreement between the General Partner and ROBERT A. INNAMORATI & CO., INC. Based on the foregoing and such other factors as we deem relevant, we are of the opinion that the proposed cash consideration to be received by the Unaffiliated Limited Partners pursuant to the Offer is fair to such Unaffiliated Limited Partners, from a financial point of view. Very truly yours, ROBERT A. INNAMORATI & CO., INC. By: /s/ Robert A. Innamorati ____________________________________ Robert A. Innamorati President EX-99.(D)(12) 3 SUPPLEMENT DATED 10/31/95 1 Supplement to Offer to Purchase for Cash Any and All Outstanding Preferred Depositary Units Representing Preferred Limited Partners' Interests in FORUM RETIREMENT PARTNERS, L.P. at $2.83 Net Per Preferred Depositary Unit by FORUM GROUP, INC. THE OFFER AND WITHDRAWAL RIGHTS WILL EXPIRE AT 12:00 MIDNIGHT, NEW YORK CITY TIME, ON FRIDAY, NOVEMBER 10, 1995, UNLESS THE OFFER IS EXTENDED. THE BOARD OF DIRECTORS OF THE GENERAL PARTNER OF FORUM RETIREMENT PARTNERS, L.P. (WITH THE DIRECTOR AFFILIATED WITH THE PURCHASER ABSTAINING), BASED UPON THE UNANIMOUS RECOMMENDATION OF A SPECIAL COMMITTEE COMPRISED OF THE INDEPENDENT MEMBERS OF THE BOARD OF DIRECTORS, HAS DETERMINED THAT THE OFFER IS FAIR TO UNITHOLDERS (OTHER THAN FORUM GROUP, INC. AND ITS AFFILIATES) AND RECOMMENDS THAT SUCH UNITHOLDERS ACCEPT THE OFFER AND TENDER ALL OF THEIR UNITS PURSUANT TO THE OFFER. SEE ITEM 4 OF THE SCHEDULE 14D-9. The Offer is not conditioned on any minimum number of Units being tendered. The Offer is conditioned on, among other things, (i) the absence of certain litigation, orders, or other legal matters and (ii) the absence of a material adverse change (or any development involving a prospective material adverse change) in the business, financial condition, results of operations, or prospects of the Partnership. See "The Offer -- Certain Conditions of the Offer" in the Offer to Purchase. The purchase of Units pursuant to the Offer may result in the delisting of the Units from trading on the American Stock Exchange and the Partnership no longer filing reports and other information under the Securities Exchange Act of 1934, as amended, and would reduce the number of Units that might otherwise trade publicly as well as the number of Unitholders. Any of these effects could adversely affect the liquidity or prices realizable in sales of the Units following the completion of the Offer. See "Special Factors -- Certain Effects of the Offer" in the Offer to Purchase. Procedures for tendering Units are set forth in "The Offer -- Procedures for Tendering Units" in the Offer to Purchase. Tendering Unitholders should continue to use the Letter of Transmittal and the Notice of Guaranteed Delivery previously delivered with the Offer to Purchase. Unitholders who have already tendered Units using the Letter of Transmittal need not complete another Letter of Transmittal or take any additional action for their Units to be tendered pursuant to the Offer. Upon the acceptance for payment of Units tendered pursuant to the Offer, each tendering Unitholder will be deemed to have released the Purchaser, the General Partner, and certain other persons from any claim based upon the allegations being made against the Purchaser and the General Partner in certain pending litigation. Accordingly, tendering Unitholders may be waiving significant rights. See "Effect of the Offer on Certain Litigation". Any questions or requests for assistance or additional copies of this Supplement to Offer to Purchase, the Offer to Purchase, the previous Supplement to Offer to Purchase, the Letter of Transmittal, the Notice of Guaranteed Delivery, and other related materials may be directed to the Information Agent at its address and telephone numbers set forth on the back cover of this Supplement to Offer to Purchase. THIS TRANSACTION HAS NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES AND EXCHANGE COMMISSION NOR HAS THE COMMISSION PASSED UPON THE FAIRNESS OR MERITS OF SUCH TRANSACTION NOR UPON THE ACCURACY OR ADEQUACY OF THE INFORMATION CONTAINED IN THIS DOCUMENT. ANY REPRESENTATION TO THE CONTRARY IS UNLAWFUL. November 1, 1995 The Information Agent for the Offer is: MACKENZIE PARTNERS, INC. 2 To the Holders of Preferred Depositary Units of Forum Retirement Partners, L.P.: INTRODUCTION The following is certain additional information that supplements the Offer to Purchase dated October 2, 1995 (the "Offer to Purchase"), as previously supplemented by a supplement dated October 16, 1995 (the "October 16 Supplement"), of Forum Group, Inc. (the "Purchaser") pursuant to which the Purchaser is offering to purchase any and all of the outstanding preferred depositary units (the "Units") representing preferred limited partners' interests in Forum Retirement Partners, L.P., a Delaware limited partnership (the "Partnership"), not now beneficially owned by the Purchaser, at $2.83 per Unit, without interest, net to the seller in cash, on the terms and subject to the conditions set forth in the Offer to Purchase, the October 16 Supplement, this Supplement, and the related Letter of Transmittal (which together constitute the "Offer"). Amendment No. 2 (the "Schedule 14D-9 Amendment") to the Partnership's Solicitation/Recommendation Statement on Schedule 14D-9 (the "Schedule 14D-9"), which contains additional information concerning the Offer, is being mailed to Unitholders together with this Supplement. Except as set forth in this Supplement, the terms and conditions set forth in the Offer to Purchase, as previously supplemented by the October 16 Supplement, and related Letter of Transmittal remain applicable in all respects to the Offer, and this Supplement should be read in conjunction with the Offer to Purchase, the October 16 Supplement, and the related Letter of Transmittal. Capitalized terms used herein without definition have the meanings ascribed to such terms in the Offer to Purchase. ADDITIONAL INFORMATION CONCERNING THE BACKGROUND OF THE OFFER As discussed in the Offer to Purchase (see "Special Factors -- Certain Determinations by the Purchaser"), no person was retained to act as an unaffiliated representative on behalf of unaffiliated Unitholders for purposes of negotiating the terms of the Offer and the Purchaser did not obtain any report, opinion, or appraisal from any outside party relating to the fairness of the Offer. However, following the public announcement of the Offer, the Board of Directors of the General Partner (the "FRI Board") established a Special Committee comprised of persons not affiliated with the Purchaser and the Special Committee thereafter retained financial and legal advisors who were also not affiliated with the Purchaser. The Special Committee, with the assistance of its financial and legal advisors, negotiated an increase in the offer price from $2.50 per Unit as proposed on October 2, 1995 to $2.83 per Unit as set forth in the October 16 Supplement. For additional information with respect to the foregoing, see "Additional Information Concerning the Background of the Offer" in the October 16 Supplement and Item 4 of the Schedule 14D-9, which have previously been furnished to Unitholders and filed with the Commission. ADDITIONAL INFORMATION CONCERNING THE GENERAL PARTNER Annex A hereto sets forth the following information with respect to each of the directors and officers of the General Partner: (i) name; (ii) business address; (iii) present principal occupation or employment and the name, principal place of business, and address of any corporation or other organization in which such employment or occupation is conducted; (iv) material occupations, positions, offices, or employments during the last five years, giving the starting and ending dates of each and the name, principal business, and address of any business corporation or other organization in which such occupation, position, office, or employment was carried on; and (v) citizenship. Except as disclosed in the Offer to Purchase, the October 16 Supplement, or this Supplement, neither the General Partner, nor, to the knowledge of the Purchaser, any of the persons listed in Annex A hereto, or any majority owned subsidiary or associate of the General Partner or the persons so listed, beneficially owns or has a right to acquire any equity securities of the Partnership, nor has the General Partner, or, to the knowledge of the Purchaser, any of the persons listed in Annex A, effected any transactions in the equity securities of the Partnership which are required to be disclosed pursuant to the rules and regulations of the Commission. Except as disclosed in the Offer to Purchase, the October 16 Supplement, or this Supplement, neither the General Partner, nor, to the knowledge of the Purchaser, any of the persons listed in Annex A hereto, has any present or proposed contract, arrangement, understanding, or relationship with any other person with respect to any securities of the 3 Partnership, including, but not limited to, any contract, arrangement, understanding, or relationship concerning the transfer or the voting of any securities of the Partnership, joint ventures, loan or option arrangements, puts or calls, guaranties of loans, guaranties against loss, or the giving or withholding of proxies. ADDITIONAL INFORMATION CONCERNING CERTAIN DETERMINATIONS BY THE PURCHASER For a discussion of the Purchaser's consideration of the fairness of the Offer, see "Special Factors -- Certain Determinations by the Purchaser" in the Offer to Purchase. For a discussion of the Special Committee's consideration of these matters, see Item 4 of the Schedule 14D-9. Additional information concerning the Special Committee's determination regarding the fairness of the Offer is set forth in Item 4 of the Schedule 14D-9 Amendment and is incorporated herein by reference. As disclosed in "Certain Information Concerning the Purchaser" in the Offer to Purchase, during 1994, the Purchaser acquired in privately negotiated transactions 1,831,644 Units at a purchase price of $3.00 per Unit, or $0.17 per Unit more than the offer price. The Purchaser did not consider such purchases to be material to its consideration of the fairness of the Offer because, among other things, the Purchaser's assumptions relating to the value of an investment in the Units have changed since the time such purchases were effected, primarily as a result of the lowering of the Purchaser's assumptions as to the number of living units that can be added pursuant to the Partnership's expansion program and the anticipated results of operations of certain of the Properties. As disclosed in "Special Factors -- Certain Determinations by the Purchaser" in the Offer to Purchase, since the recapitalization of the Purchaser in 1993, the Purchaser has performed a number of analyses in addition to that set forth in the Offer to Purchase with respect to the value of an investment in the Units. Such analyses were performed for internal use only and not with a view to dissemination to Unitholders. (For a discussion of the valuation analyses performed by the financial advisor to the Special Committee, see Item 4 of the Schedule 14D-9.) In addition, based upon the assumptions as to the future prospects of the Partnership which the Purchaser believes to be appropriate (as described in "Special Factors -- Certain Determinations by the Purchaser" in the Offer to Purchase), none of such analyses resulted in valuations in excess of those resulting from the valuation analyses set forth in "Special Factors -- Certain Determinations by the Purchaser" in the Offer to Purchase or in Item 4 of the Schedule 14D-9. As discussed in "Interests of Certain Persons in the Offer" in the Offer to Purchase, deferred management fees are payable to the Purchaser out of net proceeds from sales and refinancings of the Partnership's RCs ("Capital Transaction Proceeds") after making distributions of such Capital Transaction Proceeds in an amount sufficient (i) to meet Limited Partners' income tax liabilities, (ii) together with all prior distributions of Capital Transaction Proceeds, to repay Limited Partners' capital contributions, and (iii) together with all prior distributions of Capital Transaction Proceeds and net cash flow, to pay a 12% cumulative, simple annual return on the Limited Partners' respective unrecovered capital contributions. Assuming that all of the Partnership's Properties were sold as of June 30, 1995 and that the payment of the deferred management fees continued to be subordinated to distributions of the resulting proceeds, a Unitholder who purchased his, her, or its Units at $12.75 in the initial public offering of the Units would be entitled to receive approximately $21.15 per Unit (plus amounts required to be distributed in respect of income tax liabilities) before any proceeds from such sale would be payable to the Purchaser in respect of deferred management fees. The foregoing does not purport to reflect an estimate of the amount that would actually be realized by Unitholders in the event of an actual sale of the Properties. The Purchaser does not believe that the net proceeds from such a sale would be sufficient to result in a distribution per Unit in an amount in excess of the per Unit value range set forth in "Special Factors -- Certain Determinations by the Purchaser" in the Offer to Purchase. Accordingly, the Purchaser did not consider the right of Unitholders to receive proceeds from sales of the Properties prior to the payment of the deferred management fees to be material to its consideration of the fairness of the Offer. EFFECT OF THE OFFER ON CERTAIN LITIGATION As disclosed in "Special Factors -- Certain Litigation against the Purchaser and the General Partner" in the Offer to Purchase, the Purchaser and the General Partner are parties to certain litigation (the "Pending Litigation") in which Plaintiff has alleged, among other things, breach of the Partnership Agreement, breach of -2- 4 fiduciary duty, insider trading and oppression of minority Unitholders, and civil conspiracy. More specifically, Plaintiff has alleged, among other things, that (i) the FRI Board is not comprised of a majority of Independent Directors as required by the Partnership Agreement, (ii) the allegedly improper composition of the FRI Board is a consequence of actions by the Purchaser, (iii) the FRI Board has approved and/or acquiesced in 8% management fees being charged by the Purchaser under the Management Agreement, whereas Plaintiff alleges that the "industry standard" for such fees is 4%, thereby resulting in an "overcharge" to the Partnership estimated by Plaintiff at $1.8 million per annum, beginning in 1994, and (iv) as a consequence of the allegedly improper composition of the FRI Board, the Purchaser and the General Partner breached the Partnership Agreement and failed to discharge fiduciary duties. Upon the acceptance for payment by the Purchaser of the Units tendered pursuant to the Offer, each tendering Unitholder will transfer to the Purchaser all of its right, title, and interest in and to the tendered Units. Accordingly, tendering Unitholders will not participate in any future benefit that might accrue to the holder of the tendered Units as a result of any recovery by the Partnership in connection with any derivative action brought by Plaintiff or any other Unitholder on behalf of the Partnership, whether in connection with the Pending Litigation or otherwise. In addition, upon the acceptance for payment by the Purchaser of Units tendered pursuant to the Offer, each tendering Unitholder will be deemed to have released the Purchaser, the General Partner, and their respective stockholders, affiliates, directors, officers, employees, agents, and representatives from any claim, cause of action, or liability based upon the allegations made in the Pending Litigation, as described above, or the facts underlying such allegations. The release set forth in the Letter of Transmittal previously delivered with the Offer to Purchase is hereby deemed to be modified so as to be limited to the subject matter of the Pending Litigation as set forth in the immediately preceding sentence. See "The Offer -- Release of Claims" in the Offer to Purchase. The foregoing release does not include a release of any claims that tendering Unitholders might have under federal securities laws. The Purchaser, based on the advice and opinion of its counsel, believes that the release deemed to be given by tendering Unitholders upon acceptance for payment by the Purchaser of Units tendered pursuant to the Offer will be enforceable. CERTAIN CONDITIONS TO THE OFFER In "The Offer -- Certain Conditions to the Offer" in the Offer to Purchase, the Purchaser reserved the right, among other things, to terminate the Offer if in the "sole discretion" of the Purchaser certain events occurred. The Purchaser hereby amends the Offer to modify that standard to the Purchaser's "reasonable discretion." CERTAIN OTHER MATTERS RELEVANT TO THE OFFER The Purchaser has filed with the Commission a Tender Offer Statement on Schedule 14D-1 and has filed with the Commission a Transaction Statement on Schedule 13E-3, together with exhibits in each case, pursuant to Rules 14d-3 and 13e-3, respectively, under the Exchange Act, furnishing certain additional information with respect to the Offer. Such Statements and amendments thereto, including exhibits, may be examined and copies may be obtained at the places and in a manner set forth under "Certain Information Concerning the Partnership" in the Offer to Purchase (except they will not be available in the regional offices of the Commission). FORUM GROUP, INC. November 1, 1995 -3- 5 ANNEX A CERTAIN INFORMATION WITH RESPECT TO THE DIRECTORS AND OFFICERS OF THE GENERAL PARTNER Certain information with respect to the directors and officers of the General Partner is set forth below. Each of the directors and officers of the General Partner is a United States citizen. DIRECTORS James C. Leslie has been Executive Vice President -- Financial Services of The Staubach Company, a commercial real estate services company, since 1992. Theretofore, Mr. Leslie served in other capacities with The Staubach Company. The business address of The Staubach Company, which is also Mr. Leslie's business address, is 6750 LBJ Freeway, Suite 1100, Dallas, Texas 75240. Donald J. McNamara has been the Chairman and Co-Chief Executive Officer of The Hampstead Group, L.L.C. ("Hampstead"), a privately held investment company, since 1992. Theretofore, Mr. McNamara served as President, Chairman, and Chief Executive Officer of Hampstead. The principal business address of Hampstead, which is also Mr. McNamara's business address, is 4200 Texas Commerce Tower West, 2001 Ross Avenue, Dallas, Texas 75201. See also Annex D to the Offer to Purchase. Mr. McNamara has been the President and Chairman of the Board of the General Partner since 1993. John F. Sexton has been Chairman of Evans - McKinsey & Company, a financial consulting company, since 1993. Theretofore, Mr. Sexton was Senior Vice President of Finance of Lomas Financial Corporation, a financial services company. The business address of Evans-McKinsey & Company, which is also Mr. Sexton's business address, is 8214 Westchester, Suite 500, Dallas, Texas 75225. OFFICERS Richard A. Huber is the Secretary of the General Partner and is the only officer of the General Partner other than Mr. McNamara. Mr. Huber has been Vice President - Operations Finance of the Purchaser since 1993. Theretofore, Mr. Huber was Director-Operations Accounting and Analysis, Senior Living Services Division of Marriott Corporation, a company which owns and operates senior living facilities. The business address of the Purchaser, which is also Mr. Huber's business address, is 11320 Random Hills Road, Suite 400, Fairfax, Virginia 22030. See also Annex C to the Offer to Purchase. A-1 6 Facsimile copies of the Letter of Transmittal will be accepted. The Letter of Transmittal and Depositary Receipts for Units and any other required documents should be sent by each Unitholder or his broker, dealer, commercial bank, trust company, or nominee to the Depositary at the address set forth below: The Depositary for the Offer is: AMERICAN STOCK TRANSFER & TRUST COMPANY By Mail, Hand or Overnight Courier: American Stock Transfer & Trust Company 40 Wall Street, 46th Floor New York, New York 10005 By Facsimile Transmission: (718) 234-5001 For Information or Confirmation by Telephone: (718) 921-8200 Any questions or requests for assistance or additional copies of this Supplement to Offer to Purchase, the Offer to Purchase, the previous Supplement to Offer to Purchase, the Letter of Transmittal, and the Notice of Guaranteed Delivery may be directed to the Information Agent at the telephone numbers and location listed below. You may also contact your broker, dealer, commercial bank, or trust company for assistance concerning this Offer. The Information Agent for the Offer is: MACKENZIE PARTNERS, INC. 156 Fifth Avenue New York, New York 10010 (212) 929-5500 (call collect) or Call Toll Free (800) 322-2885 EX-99.(D)(13) 4 AMENDMENT NO.2 TO SCHEDULE 14D-9 1 ================================================================================ SECURITIES AND EXCHANGE COMMISSION WASHINGTON, D.C. 20549 ----------------- AMENDMENT NO.2 TO SCHEDULE 14D-9 Solicitation/Recommendation Statement Pursuant to Section 14(d) of the Securities Exchange Act of 1934 ----------------- FORUM RETIREMENT PARTNERS, L.P. (Name of Subject Company) FORUM RETIREMENT, INC. FORUM RETIREMENT PARTNERS, L.P. (Name of Persons Filing Statement) PREFERRED DEPOSITARY UNITS REPRESENTING PREFERRED LIMITED PARTNERS' INTERESTS (Title of Class of Securities) 349 851 105 (CUSIP Number of Class of Securities) RICHARD A. HUBER SECRETARY FORUM RETIREMENT, INC. 11320 RANDOM HILLS ROAD SUITE 400 FAIRFAX, VIRGINIA 22030 (703) 277-7000 (Name, address and telephone number of person authorized to receive notice and communications on behalf of person filing statement) With a copy to: Jeffery B. Floyd, Esq. Vinson & Elkins L.L.P. 1001 Fannin, Suite 2300 Houston, Texas 77002 (713) 758-2222 ================================================================================ 2 AMENDMENT NO. 2 TO SOLICITATION/RECOMMENDATION STATEMENT ON SCHEDULE 14D-9 This Amendment No. 2 to Solicitation/Recommendation Statement on Schedule 14D-9 (this "Amendment") is an amendment of the Solicitation/Recommendation Statement on Schedule 14D-9 filed October 16, 1995, as previously amended by Amendment No.1 filed October 17, 1995 (as amended by Amendment No.1, the "Schedule 14D-9"), by Forum Retirement Partners, L.P., a Delaware limited partnership (the "Partnership"), and Forum Retirement, Inc., the sole general partner of the Partnership and a Delaware corporation (the "General Partner"), relating to the tender offer made by Forum Group, Inc., an Indiana corporation ("Forum Group"), to purchase any and all of the issued and outstanding Units not beneficially owned by it. All capitalized terms used in this Amendment and not defined herein have the meanings set forth in the Schedule 14D-9. ITEM 4. THE SOLICITATION OR RECOMMENDATION Item 4(b) of the Schedule 14D-9 is hereby amended and supplemented by adding the following information with respect to the reasons for the recommendation: In addition to the other matters described in the Schedule 14D-9, in evaluating the Offer, the Special Committee considered the fact that the Offer of $2.83 exceeds the net book value per Unit of the Partnership of approximately $2.54 as of June 30, 1995. The Special Committee also considered the fact that the Offer was not conditioned on acceptance of the Offer by a majority of the Unitholders to whom it was directed and determined that the lack of such condition permitted each Unitholder to make its own decision regarding whether to tender Units pursuant to the Offer. The Special Committee did not consider liquidation value to be material to its determination because, among other factors, the prior decision by the General Partner's Board to expand certain of the Partnership's Properties and to apply the Partnership's available cash flow to such expansion, Forum Group's stated intention to make capital available to the Partnership to accelerate the expansion program if it significantly increases its equity ownership in the Partnership through the Offer, Forum Group's contractual right of first refusal on the Partnership's Properties, the fact that in a liquidation the deferred management fees of $15,780,000 would become due and payable, and the fact that the Partnership could not be liquidated without the approval of Forum Group pursuant to the terms of the Partnership Agreement. The Special Committee approved the conclusion and analyses of RAI&Co.; however, the Special Committee did not adopt the opinion of RAI&Co as the exclusive basis for its determination as to the fairness of the Offer. Rather, the Special Committee included RAI&Co's opinion in the total mix of information regarding the Offer that was available to, and evaluated by, it. The Special Committee believes that RAI&Co's analyses support the Special Committee's determination that the Offer is fair to the Unitholders (other than Forum Group and its affiliates), because, among other things, the $2.83 per Unit cash price is in the upper half of the range of the various per Unit ranges resulting from the analyses by RAI&Co. See "Item 4. The Solicitation or Recommendation -- Opinion of Financial Advisor" in the Schedule 14D-9. A decision as to the fairness of a transaction takes into account numerous factors, including quantifiable per Unit values resulting from various financial analyses. The various financial analyses performed by RAI&Co in connection with its presentation and the rendering of its fairness opinion to the Special Committee resulted in a range of possible per Unit valuations. As set forth under the caption "Item 4. The Solicitation or Recommendation -- Reasons for the Recommendation" in the Schedule 14D-9, the Special Committee considered, among other things, such valuation ranges before determining to recommend the Offer at $2.83 per Unit. Such price per Unit valuation is above the mid-point of each of such ranges. The Special Committee believes that the Offer is fair, notwithstanding the fact that the highest end of the various valuation ranges considered by it exceeds the $2.83 per Unit price in the Offer. In making its determination and recommendation regarding the fairness of the Offer, the members of the Special Committee considered various factors, including their knowledge of the business, results of operations, properties, financial condition and prospects of the Partnership, including, without limitation, the economic limitations likely to be imposed on the Partnership as a result of a possible change in tax status beginning in 1998. The Special -2- 3 Committee member's knowledge of the business, results of operations, properties and financial condition included that gained from the meeting of the Special Committee with the representatives of the management of Forum Group on October 5, 1995, and their own experience from serving on the Board of Directors of the General Partner during the preceding two years and in that role overseeing the management of the affairs of the Partnership. With regard to the prospects of the Partnership, the members of the Special Committee reviewed and evaluated the ten year financial projections summarized under the caption "Item 8. Additional Information -- Certain Financial Projections" in the Schedule 14D-9. The Special Committee also took their knowledge into account in considering and analyzing the other factors set forth under the caption "Item 4. The Solicitation or Recommendation -- Reasons for the Recommendation" in the Schedule 14D-9. RAI&Co has reissued its opinion dated October 13, 1995, to replace the paragraph of the opinion that stated, "This opinion is for the General Partner's Special Committee and its Board of Directors and is not to be quoted or referred to in whole or in part in any written document, nor shall this letter be delivered to or relied upon by any other person or used for any other purpose, except as provided and upon the terms and conditions agreed to in the engagement agreement between the General Partner and ROBERT A. INNAMORATI & CO., INC." with the following sentence: "This opinion is being delivered pursuant to the terms and conditions agreed to in the engagement agreement between the General Partner and ROBERT A. INNAMORATI & CO., INC." In reissuing its opinion, RAI&Co did not supplement or update its work or analyses performed and summarized under "Item 4. The Solicitation or Recommendation -- Opinion of Financial Advisor" in the Schedule 14D-9. ITEM 9. MATERIAL TO BE FILED AS EXHIBITS. 1. - Offer to Purchase (incorporated by reference to Exhibit (a)(1) to Forum Group's Schedule 14D-1 dated October 2, 1995). 2. - Supplement to Offer to Purchase dated October 16, 1995 (incorporated by reference to Exhibit (a)(9) to Forum Group's Amendment No. 1 to Schedule 14D-1 dated October 16, 1995). 3. - Letter of Transmittal (incorporated by reference to Exhibit (a)(2) to Forum Group's Schedule 14D-1 dated October 2, 1995). 4. - Letter to Unitholders dated October 16, 1995. 5. - Press release dated October 16, 1995 (incorporated by reference to Exhibit (a)(10) to Forum Group's Amendment No. 1 to Schedule 14D-1 dated October 16, 1995). 6. - Fairness opinion of Robert A. Innamorati & Co. dated October 13, 1995 (attached as Annex A hereto). 7. - Form of Indemnification Agreement between Forum Group and the directors and officers of the General Partner. 8. - Form of Indemnification Agreement between Forum Retirement, Inc .and its directors. 9. - Amended and Restated Agreement of Limited Partnership, dated as of December 29, 1986, of the Partnership, as amended (incorporated by reference to Exhibit 4(1) to the Partnership's Registration Statement on Form S-2 (Registration No. 33-71498), dated November 10, 1993 (the "Form S-2")). 10. - Depositary Agreement, dated as of December 29, 1986, by and among the Partnership, Forum Retirement, Inc., the general partner of the Partnership, as general partner and attorney-in-fact of -3- 4 the limited partners, Manufacturers Hanover Trust Company (which subsequently assigned its interests thereunder to American Stock Transfer & Trust Company) and all holders from time to time of depositary receipts (incorporated by reference to Exhibit 10(6) to the Form S-2). 11. - Recapitalization Agreement, dated as of October 6, 1994, by and between Forum Group and the Partnership (incorporated by reference to Exhibit 10(1) to the Partnership's Current Report on Form 8-K dated October 12, 1993). 12. - Letter Agreement, dated December 14, 1993, by and among Forum Group, Forum A/H, Inc. and the Partnership (incorporated by reference to Exhibit 2(3) of Amendment No. 1 to the Form S-2, dated December 21, 1993). 13. - Management Agreement, dated as of December 29, 1986 (the "Management Agreement"), by and among the Partnership, Forum Retirement Operations, L.P. ("Operations"), Forum Health Partners 1-A, L.P., Foulk Manor Partners, L.P., and Forum Group (incorporated by reference to Exhibit 10(1) to the Form S-2). 14. - First Amendment to the Management Agreement, dated as of September 20, 1986 (incorporated by reference to Exhibit 10(2) to the Form S-2). 15. - Second Amendment to the Management Agreement, dated as of September 20, 1989 (incorporated by reference to Exhibit 10(3) to the Form S-2). 16. - Third Amendment to the Management Agreement, dated as of May 27, 1992 (incorporated by reference to Exhibit 10(4) to the Form S-2). 17. - Fourth Amendment to the Management Agreement, dated as of November 9, 1993 (incorporated by reference to Exhibit 10(5) to the Form S-2). 18. - Option Agreement, dated as of December 29, 1986, by and among Forum Group, Inc., the Partnership, and Operations (incorporated by reference to Exhibit 2(1) to the Form S-2). 19. - Presentation to the Special Committee of the Board of Directors of the General Partner of the Partnership delivered by Robert A. Innamorati & Co. on October 13, 1995. * 20. - Fairness opinion of Robert A. Innamorati & Co. dated October 13, 1995, reissued. 21. - Supplement to Offer to Purchase dated November 1, 1995 (incorporated by reference to Exhibit (d)(12) to Forum Group's Amendment NO. 2 to Schedule 14D-9 dated November 1, 1995). - ------------------ * Filed herewith -4- 5 SIGNATURE After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct. Dated: November 1, 1995 FORUM RETIREMENT PARTNERS, L.P. By: Forum Retirement, Inc. its General Partner By: /S/ RICHARD A. HUBER ---------------------- Richard A. Huber Secretary FORUM RETIREMENT, INC. By: /S/ RICHARD A. HUBER ---------------------- Richard A. Huber Secretary -5- -----END PRIVACY-ENHANCED MESSAGE-----