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SCHEDULE 14A
(Rule 14a-101)
INFORMATION REQUIRED IN PROXY STATEMENT
SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) Securities
Exchange Act of 1934
Filed by the Registrant / /
Filed by a party other than the Registrant /x/
Check the appropriate box:
/x/ Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only
(as permitted by Rule 14a-6(e)(2))
/ / Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting material pursuant to Rule 14a-11(c) or Rule 14a-12
NOONEY REALTY TRUST, INC.
(Name of Registrant as Specified in Its Charter)
THE COMMITTEE TO INCREASE
SHAREHOLDER VALUE AT
NOONEY REALTY TRUST, INC.
(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
Payment of filing fee (Check the appropriate box):
/x/ No fee required
/ / Fee computed on table below per Exchange Act Rules 14a-6(i)(4) and 0-11.
(1) Title of each class of securities to which transaction applies:
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(2) Aggregate number of securities to which transactions applies:
(3) Per unit price or other underlying value of transaction
computed pursuant to Exchange Act Rule 0-11 (Set forth the
amount on which the filing fee is calculated and state how it
was determined.)
(4) Proposed maximum aggregate value of transaction:
(5) Total Fee paid:
/ / Fee paid previously with preliminary materials
/ / Check box if any part of the fee is offset as provided by Exchange Act
Rule 0-11(a)(2) and identify the filing for which the offsetting fee
was paid previously. Identify the previous filing by registration
statement number, or the Form or Schedule and the date of its filing.
(1) Amount previously paid:
(2) Form, Schedule or Registration Statement No.:
(3) Filing party:
(4) Date filed:
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NOONEY REALTY TRUST, INC.
ANNUAL MEETING OF SHAREHOLDERS
JULY 3, 1997
PRELIMINARY PROXY STATEMENT
(SUBJECT TO COMPLETION)
OF
THE COMMITTEE TO INCREASE
SHAREHOLDER VALUE AT
NOONEY REALTY TRUST, INC.
IN OPPOSITION TO
THE BOARD OF DIRECTORS OF
NOONEY REALTY TRUST, INC.
This Proxy Statement and the enclosed GREEN Proxy Card are being
furnished by a group of concerned shareholders who have formed the Committee to
Increase Shareholder Value at Nooney Realty Trust, Inc. (the "Shareholder
Committee" or the "Committee") to holders (the "Shareholders") of common stock,
par value $1.00 per share (the "Common Stock"), of Nooney Realty Trust, Inc., a
Missouri corporation (the "Trust"), in connection with the solicitation of
proxies by the Shareholder Committee. The proxies will be used at the Annual
Meeting of Shareholders, or any other meeting of shareholders held in lieu
thereof, and at any and all adjournments, postponements, reschedulings or
continuations thereof (the "Annual Meeting"). The Board of Directors of the
Trust has scheduled the Annual Meeting to be held on July 3, 1997 at the Pierre
Laclede Conference Center, 7733 Forsyth Boulevard, 2nd floor, in Clayton,
Missouri, at 10:00 a.m., and has set June 2, 1997 as the record date for
determining shareholders entitled to notice of and to vote at such Meeting (the
"Record Date"). This Proxy Statement is first being given or sent to
Shareholders on or about June __, 1997.
THIS SOLICITATION IS BEING MADE BY THE SHAREHOLDER COMMITTEE AND NOT ON
BEHALF OF THE TRUST'S BOARD OF DIRECTORS.
YOUR VOTE IS IMPORTANT, NO MATTER HOW MANY OR HOW FEW SHARES YOU OWN.
PLEASE SIGN AND DATE THE ENCLOSED GREEN PROXY CARD AND MAIL IT IN THE ENCLOSED
POSTAGE-PAID ENVELOPE PROMPTLY. PROPERLY VOTING THE ENCLOSED GREEN PROXY CARD
AUTOMATICALLY REVOKES ANY PROXY PREVIOUSLY SIGNED BY YOU.
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REASONS FOR THE SOLICITATION
The Shareholder Committee believes that it is in the Shareholders' best
interests to oppose the Trust's current Board of Directors and management and to
take control of the future of the Trust. The Shareholder Committee's position is
based on, among other things, the following reasons:
(1) The price of the Trust's Common Stock was approximately $20.00 at
the time of its initial public offering on or about September 25, 1984.
The Common Stock traded on the NASDAQ at only $9.50 on June 2, 1997.
Shareholders who held their shares of Common Stock throughout this 13-year
period lost more than 50% of their value.
(2) The financial performance of the Trust under present management has
been significantly worse than that of other real estate investment trusts during
the same period. Nonetheless, the Shareholder Committee believes that the
Trust's Board of Directors and management are taking the actions described below
to further entrench current management of the Trust.
(3) The Shareholder Committee seeks to increase the value of the Common
Stock by replacing the Trust's current Board of Directors and management, by
expanding the investment activities available to the Trust, and by reducing the
fees paid by the Trust to manage the Trust and its real estate holdings (see
"The Plans of the Shareholder Committee, Increase Shareholder Value").
(4) The Shareholder Committee's proposed Board of Directors intends to
conduct a thorough investigation of the actions (and failures to act) of the
present Board of Directors and management and their affiliated companies
(including PICO Holdings, Inc. and its affiliates (collectively referred to
herein as the "PICO Group")), and to pursue diligently any remedies that might
increase the value of the Common Stock. A few of the actions and failures to act
that the Shareholder Committee presently believes warrant investigation include
the following:
(i) the Trust's Board of Directors and management have allowed
and continue to allow the PICO Group to violate the Trust's bylaws (the
"Bylaws") by permitting the PICO Group to acquire more than 9.8% of the Trust's
Common Stock and possibly acquire additional shares of the Trust in the future
(see (iii) below), thereby potentially jeopardizing the tax status of the Trust
(see "PROPOSAL IV--MANAGEMENT'S BYLAW AMENDMENT TO ARTICLE VIII");
(ii) instead of pursuing the remedies expressly provided in
the Bylaws whenever a Shareholder acquires more than 9.8% of the Common Stock,
the Trust's Board of Directors, which includes the President and Chief Executive
Officer of PICO Holdings, Inc., now seeks to amend the Bylaws to absolve the
PICO Group and the Trust's Board of Directors and management from any liability
to the Trust arising from such transactions;
(iii) the Board of Directors wishes to further enhance its
relationship with the PICO Group by nominating another PICO Holdings, Inc.
executive officer to the Trust's Board of Directors (to replace the present
representative of the PICO Group), and by amending the Bylaws
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to grant the Board of Directors the right to unilaterally determine whether and
to what extent the 9.8% ownership restriction should be enforced in the future;
and
(iv) the Shareholder Committee believes that these changes not
only evidence the desire of the Trust's directors to protect their personal
interests and the interests of the PICO Group, but also evidence their attempt
to gain the authority to determine who can (and cannot) take control of the
Trust, thereby constituting a potential anti-takeover mechanism.
The Shareholder Committee urges you to sign, date and return the
enclosed GREEN Proxy Card. Unless otherwise indicated by you, the GREEN Proxy
Card authorizes the persons named therein to vote, and such persons will vote,
properly executed and duly returned proxies FOR the election of the Shareholder
Committee's nominees for director, FOR the amendment to Article VI of the Bylaws
proposed by the Shareholder Committee, which enhances the ability of the Board
of Directors to potentially increase the value of the Common Stock by expanding
the investment activities available to the Trust, AGAINST the amendment to
Article VI of the Bylaws proposed by the present Board of Directors, which
would, among other things, allow the Trust to invest in other real estate
investment trusts, AGAINST the amendment to Article VIII of the Bylaws proposed
by the Board of Directors to absolve the Trust's Board of Director's and
management and the PICO Group of any liability for the accumulation by the PICO
Group of more than 9.8% of the Common Stock, and AGAINST the proposal of the
Board of Directors to enable the Board to adjourn the Annual Meeting to allow
the Board to continue its solicitation of proxies for, among other things, the
express purpose of allowing management additional time to gain approval of their
proposals. The Shareholder Committee is not presently aware of any other matters
to be brought before the Annual Meeting. However, should other matters be
brought before the Annual Meeting, the persons named in the proxies will vote in
accordance with what they consider to be the best interests of the Shareholders
and the Trust.
YOU MAY VOTE FOR THE ELECTION OF THE SHAREHOLDER COMMITTEE'S NOMINEES FOR
DIRECTOR, FOR THE SHAREHOLDER COMMITTEE'S AMENDMENT TO ARTICLE VI OF THE BYLAWS,
AGAINST THE BOARD OF DIRECTORS' AMENDMENTS TO ARTICLES VI AND VIII OF THE
BYLAWS, AND AGAINST THE BOARD OF DIRECTORS' PROPOSAL TO ENABLE THE BOARD TO
ADJOURN THE ANNUAL MEETING TO ALLOW THE BOARD TO CONTINUE ITS SOLICITATION OF
PROXIES BY SIGNING AND DATING THE ENCLOSED GREEN PROXY CARD, AND RETURNING IT IN
THE POSTAGE-PAID ENVELOPE PROVIDED. IF YOU HAVE ALREADY SUBMITTED A PROXY CARD
TO THE BOARD OF DIRECTORS OF THE TRUST, YOU MAY CHANGE YOUR VOTE BY SIGNING,
DATING AND RETURNING THE ENCLOSED GREEN PROXY CARD. ONLY YOUR LATEST DATED,
PROPERLY EXECUTED PROXY CARD WILL COUNT AT THE ANNUAL MEETING.
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IMPORTANT
Your vote is important. Regardless of the number of shares you own,
please vote as recommended by the Shareholder Committee by signing, dating and
mailing your GREEN proxy card. You should discard all white proxy cards you
receive from management. Please act today. Time is a critical factor.
A later dated white management proxy card, even if marked "withhold
authority" for the Board's nominees and against their recommendations, will
revoke your vote for the Committee. Remember, only your latest dated and signed
proxy card counts.
If you hold your shares in the name of one or more brokerage firms,
banks or nominees, only they can vote your shares and only after receiving your
specific instructions. Please call your broker and instruct him/her to execute a
GREEN proxy card on your behalf. You should also promptly sign, date and mail
your GREEN proxy card when you receive it from your broker. Please do so for
each separate account you maintain.
If you have any questions about giving your proxy or require assistance
in voting your shares, please call D.F. King & Co., Inc., which is assisting us
on this matter, at (toll-free) 1-800- 326-3066.
THE SHAREHOLDER COMMITTEE
The Shareholder Committee was formed by KelCor, Inc., David L. Johnson,
CPA, and Daniel W. Pishny, CPA, who are described below under "Information About
the Participants in the Shareholder Committee's Proxy Solicitation; the Proxy
Solicitation and Expenses." The Committee was formed to seek ways to improve
Shareholder value. The Committee was also formed to attempt to replace the
current Board of Directors and management in response to their refusal to pursue
remedies against the PICO Group for its accumulation of shares in violation of
the Bylaws and their proposal to amend the Bylaws to absolve themselves and the
PICO Group from any liability arising from such violation. Other participants
include the Shareholder Committee's nominees for director, who are listed and
described in detail below under "The Shareholder Committee's Slate."
GENERAL
Proxy Information
As of the date of this Proxy Statement, the members of the Shareholder
Committee beneficially owned, directly or indirectly, 43,113 shares of Common
Stock as of the Record Date, representing approximately 4.97% of the issued and
outstanding shares of Common Stock. All of these shares were owned by either
KelCor, Inc., David L. Johnson or Daniel W. Pishny.
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The shares of Common Stock represented by each GREEN Proxy Card that is
properly executed and returned will be voted at the Annual Meeting in accordance
with the instructions marked thereon. Executed but unmarked GREEN Proxy Cards
will be voted as follows:
o FOR the Shareholder Committee's nominees for director as the Trust's
directors (the cumulative votes represented by a proxy will be cast
for such number of the members of such nominees for director at the
discretion of the proxies named therein to attempt to elect the
maximum number of nominees to the Board under the then prevailing
circumstances);
o FOR the amendment to Article VI of the Bylaws proposed by the
Shareholder Committee to enable the Board of Directors to
expand the investment activities available to the Trust;
o AGAINST the amendment to Article VI of the Bylaws proposed by the
Board of Directors, which would allow the Trust to invest in other
real estate investment trusts;
o AGAINST the amendment to Article VIII of the Bylaws proposed by the
Board of Directors to absolve the Trust's Board of Directors and
management and the PICO Group of any liability for the accumulation
by the PICO Group of more than 9.8% of the Common Stock; and
o AGAINST the proposal of the Board of Directors to enable the Board to
adjourn the Annual Meeting to allow the Board to continue its
solicitation of proxies for, among other things, the express purpose
of allowing management additional time to gain approval of their
proposals.
With the exception of the election of seven directors, the proposed
Bylaw amendments and the proposal to enable the Board of Directors to adjourn
the Annual Meeting to allow the Board to continue its solicitation of proxies
and votes, the Shareholder Committee is not aware at the present time of any
other matter scheduled to be voted upon by the holders of shares of Common Stock
at the Annual Meeting. If any other matter properly comes before the Annual
Meeting, the persons named as proxies on the enclosed GREEN proxy card will have
the discretionary authority to vote all shares covered by such proxies in
accordance with their best judgment with respect to such matter, unless they are
directed by a proxy to do otherwise.
If you hold your shares in the name of one or more brokerage firms,
banks or nominees, only they can vote your shares and only after receiving your
specific instructions. Please call your broker and instruct him/her to execute a
GREEN proxy card on your behalf. You should also promptly sign, date and mail
your GREEN proxy card when you receive it from your broker. Please do so for
each separate account you maintain.
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Proxy Revocation
Whether or not you plan to attend the Annual Meeting, the Shareholder
Committee urges you to vote FOR the election of the Shareholder Committee's
nominees for director, FOR the amendment to Article VI of the Bylaws proposed
herein by the Shareholder Committee to enable the Board of Directors to expand
the investment activities available to the Trust, AGAINST the amendment to
Article VI of the Bylaws proposed by the Board of Directors, which would, among
other things, allow the Trust to invest in other real estate investment trusts,
AGAINST the amendment to Article VIII of the Bylaws proposed by the current
Board of Directors to absolve the Trust's Board of Directors and management and
the PICO Group of any liability for the accumulation by the PICO Group of more
than 9.8% of the Common Stock, and AGAINST the proposal of the Board of
Directors to enable the Board to adjourn the Annual Meeting to allow the Board
to continue its solicitation of proxies for, among other things, the express
purpose of allowing management additional time to gain approval of their
proposals. Please do so by signing, dating and returning the GREEN Proxy Card in
the enclosed postage-paid envelope. You can do this even if you have already
voted on the proxy card solicited by the Board of Directors. REMEMBER, ONLY YOUR
LATEST DATED PROXY COUNTS.
Execution of the GREEN Proxy Card will not affect your right to attend
the Annual Meeting and to vote in person. Any Shareholder who executes and
delivers a proxy for use at the Annual Meeting has the right to revoke it at any
time before it is exercised by filing with the Shareholder Committee at c/o D.F.
King & Co., Inc., 77 Water Street, New York, NY 10005, or with the Secretary of
the Trust at its principal offices located at 7701 Forsyth Boulevard, St. Louis,
MO 63105, an instrument revoking it or a duly executed proxy bearing a later
date, or by appearing in person and voting at the Annual Meeting. The
Shareholder Committee requests that a copy of any revocation sent to the Trust
also be sent to the Shareholder Committee at c/o D.F. King & Co., Inc., 77 Water
Street, New York, NY 10005. Merely attending a meeting (and not voting) will not
revoke any previous proxy that has been duly executed by you. The GREEN Proxy
Card furnished to you by the Shareholder Committee, if properly executed and
delivered, will revoke all prior proxies.
THE SHAREHOLDER COMMITTEE URGES YOU TO SIGN, DATE AND MAIL THE GREEN PROXY
CARD IN THE ENCLOSED ENVELOPE. NO POSTAGE IS REQUIRED FOR MAILING WITHIN THE
UNITED STATES. PLEASE ACT TODAY.
Quorum and Voting Procedures
According to the proxy statement furnished to the Shareholders by the
Trust's Board of Directors (the "Management Proxy Statement"), there are 866,624
shares of Common Stock of the Trust issued and outstanding and entitled to vote
at the Annual Meeting. Only Shareholders of record at the close of business on
the Record Date are entitled to notice of and to vote on matters that come
before the Annual Meeting.
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If a Shareholder is a participant in the Trust's Dividend Reinvestment
Plan, the proxy card represents the number of full shares in the dividend
reinvestment plan account, as well as shares registered in the participant's
name. All proxies will be voted in accordance with the instructions given in the
proxy.
The Shareholder Committee believes that at least 98,432 shares of the
Common Stock owned by the PICO Group, and perhaps up to 117, 132 shares,
constitute "Excess Shares" under the Trust's Bylaws. This represents the number
of shares held at one time by the PICO Group in excess of 9.8% of the
outstanding shares, and thus are not entitled to vote at the Annual Meeting (see
discussion below in "PROPOSAL IV--MANAGEMENT'S BYLAW AMENDMENT TO ARTICLE VIII")
KelCor, Inc., a member of the Committee, filed a lawsuit on June 5, 1997, in the
Circuit Court of St. Louis County, Missouri, seeking, among other things, a
temporary restraining order and a declaratory judgment declaring the shares held
by the PICO Group in excess of 9.8% of the outstanding shares of the Trust to be
treated as "Excess Shares" under the Bylaws and prohibiting the PICO Group from
voting such Excess Shares at the Annual Meeting. The Court scheduled a hearing
on June 13, 1997, during which the Court will receive oral and written arguments
regarding the issues presented in the suit.
Holders of Common Stock have one vote for each share with respect to
all matters to be considered at the Annual Meeting except for the election of
directors, and have cumulative voting rights with respect to the election of the
seven individuals who will serve on the Board of Directors. Cumulative voting
rights entitle a Shareholder to cast in favor of one nominee as many votes as is
equal to the number of directors to be elected, multiplied by the number of
shares owned by such Shareholder, or to distribute such votes on the same
principle among two or more nominees, as such Shareholder sees fit. In the event
additional persons are nominated for the position of director, the proxy holders
may cumulate and cast their votes, at their discretion, among all or less than
all of the nominees in such proportions as they see fit. The seven nominees for
director receiving the highest number of votes at the Annual Meeting will be
elected. Under the Shareholder Committee's proposed plan, the cumulative votes
represented by a proxy will be cast for such number of their nominees at the
discretion of the proxies named herein to attempt to elect the maximum number of
nominees to the Board under the then prevailing circumstances.
The affirmative vote of a majority of the issued and outstanding shares
of the Trust is required to amend the Bylaws as described in the Shareholder
Committee's Proposals II, III and IV under this Proxy Statement. Subject to the
cumulative voting procedure set forth above, the affirmative vote of the holders
of a majority of the shares present in person or represented by proxy at the
Annual Meeting is required to elect directors, to adjourn the Annual Meeting to
allow for additional solicitation of proxies or votes and to act on any other
matters properly brought before the Annual Meeting. Shares represented by
proxies marked "withhold authority" with respect to the election of any one or
more nominees for election as directors, proxies marked "abstain" on amendments
of the Bylaws or the proposal to enable the Board of Directors to adjourn the
Annual Meeting to allow for additional solicitation of proxies, and proxies
marked to deny discretionary authority on other matters, will be counted for the
purpose of determining the number of shares
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represented by proxy at the Annual Meeting. Such proxies will have the same
effect as if the shares represented thereby were voted against such nominee or
nominees, against the amendments to the Bylaws, against the proposal to enable
the Board of Directors to adjourn the Annual Meeting to allow for additional
solicitation of proxies or votes and against such other matters, respectively.
Shares not voted on proxies returned by brokers, banks or nominees will have the
same effect as shares voted against the amendments to the Bylaws and will be
treated as not represented at the Annual Meeting with respect to the election of
directors, the proposal to enable the Board of Directors to adjourn the Annual
Meeting to allow for additional solicitation of proxies and other matters.
The current Board of Directors has indicated in the Management Proxy
Statement that the affirmative vote of 62.0% of the issued and outstanding
shares of the Trust will be required to amend Article VIII of the Bylaws as
described in Proposal A of the Management Proxy Statement (not Proposal III of
this Proxy Statement). Although an amendment to the Trust's Bylaws only requires
the affirmative vote of a majority of the issued and outstanding shares of the
Trust, the current Board of Directors of the Trust has elected to require the
greater percentage described above (62.0%) with respect to the matters described
in its Proposal A to eliminate the voting rights of 98,895 shares purchased by
the PICO Group, which may be ineligible to vote with respect to the matters
described in Proposal A because they were acquired in violation of the Bylaws.
PROPOSAL I--ELECTION OF DIRECTORS
The Shareholder Committee's Slate
David L. Johnson, CPA, Daniel W. Pishny, CPA, John W. Alvey, CPA, Mr.
Danley K. Sheldon, CPA, Mr. Bryan P. Collins, Mr. Scott L. Kotick, and Robert B.
Thomson, Esq., constitute the Shareholder Committee's slate (the "Slate") for
election to the Trust's Board of Directors at the Annual Meeting. Biographical
data on the Slate is set forth below.
Nominee Age Position
David L. Johnson 41 Chairman and Chief Executive Officer of Maxus
Properties, Inc.; Vice President of KelCor, Inc.
Daniel W. Pishny 35 President and Chief Operating Officer of Maxus
Properties, Inc.
John W. Alvey 39 Executive Vice President and Chief Financial Officer
of Maxus Properties, Inc.; President of KelCor, Inc.
Danley K. Sheldon 36 President of Ferrellgas, L.P.
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Bryan P. Collins 43 Vice President and Division Director of Payless
ShoeSource, Inc.
Scott L. Kotick 42 National Director of Acquisitions for the National
Partnership Investments Corp.
Robert B. Thomson 50 Attorney in private practice
DAVID L. JOHNSON, CPA Mr. Johnson is Chairman, Chief Executive Officer, and
4617 NW Normandy Lane majority shareholder of Maxus Properties, Inc.
Kansas City, MO 64116 ("Maxus"), a Missouri corporation located at 1100 Main,
Suite 2100, Kansas City, Missouri 64105, that
specializes in commercial property management for
affiliated owners. Maxus employs more than 200 people
to manage 41 commercial properties, including more than
6,400 apartment units and 300,000 square feet of retail
and office space. Mr. Johnson is also currently Vice
President of KelCor, Inc. ("KelCor"), a Missouri
corporation that specializes in the acquisition of
commercial real estate. Mr. Johnson and his wife own
all of the issued and outstanding stock of KelCor. Mr.
Johnson is a 1978 graduate of the University of
Missouri-Columbia. Upon graduation, Mr. Johnson joined
the international accounting firm of Arthur Andersen &
Co., where he was promoted to Tax Manager in 1982. At
Arthur Andersen, Mr. Johnson specialized in structuring
real estate transactions for clients. In 1988, Mr.
Johnson left Arthur Andersen to pursue a career in the
development, syndication and management of commercial
and multi-family real estate projects. Mr. Johnson is a
licensed real estate broker and a certified public
accountant in the State of Missouri. As of the date of
this Proxy Statement, Mr. Johnson was the direct owner
of 1900 shares of the Common Stock and a beneficial
owner of the 41,113 shares of Common Stock held by
KelCor. The 1900 shares held by Mr. Johnson directly
and the 41,113 shares held by KelCor were purchased on
margin accounts with two brokers. As of the date of
this Proxy Statement, the amount of indebtedness with
respect to the margin accounts for purchases of Common
Stock of the Trust was approximately $10,000 and
200,000, respectively.
DANIEL W. PISHNY, CPA Mr. Pishny is President, Chief Operating Officer and a
10420 England minority shareholder of Maxus. Mr. Pishny graduated
Overland Park, KS 66212 with highest distinction from the University of Kansas
in 1984 where he obtained a degree in business
administration. After graduating,
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he joined the Kansas City office of KPMG Peat Marwick,
an international accounting firm. At KPMG Peat Marwick,
Mr. Pishny was promoted to Audit Manager, specializing
in the auditing of financial institutions. Since 1990,
Mr. Pishny worked in the commercial real estate lending
departments of two major Kansas City financial
institutions. Mr. Pishny is responsible for the
day-to-day operations of Maxus and its managed
properties. As of the date of this Proxy Statement, Mr.
Pishny was the owner of 100 shares of the Common Stock.
JOHN W. ALVEY, CPA Mr. Alvey is Executive Vice President, Chief Financial
1943 Larkspur Officer and a minority shareholder of Maxus and
Liberty, MO 64068 President of KelCor. Mr. Alvey holds a degree from
Rockhurst College and a Masters of Accountancy from
Kansas State University. In 1982, Mr. Alvey joined
Arthur Andersen & Co., where he was promoted to Tax
Manager working primarily on real estate matters for
individual clients. Mr. Alvey joined Maxus in 1988,
after spending one year working with a Kansas City-area
real estate company. Mr. Alvey became President of
KelCor in 1992. Mr. Alvey is responsible for the
day-to-day accounting functions, risk management and
taxes for Maxus and its managed properties. Mr. Alvey,
as President of KelCor, may be deemed a beneficial
owner of the 41,113 shares of Common Stock held by
KelCor. However, he disclaims any such beneficial
interest in the Common Stock held by KelCor.
DANLEY K. SHELDON, CPA Mr. Sheldon is President of Ferrellgas, L.P.,a publicly
421 NW Briarcliff Pkwy traded Delaware limited partnership engaged in the
Kansas City, MO 64116 sale, distribution, marketing and trading of propane
and other gas liquids, located at One Liberty Plaza,
Liberty, Missouri 64068. Mr. Sheldon oversees all
aspects of Ferrellgas' retail operations, which
involves the retail distribution of more than 600
million gallons of propane to 800,000 customers in 45
states. In addition, Mr. Sheldon leads the company's
financial and administrative functions from Ferrellgas'
headquarters in Liberty, Missouri. Mr. Sheldon joined
Ferrellgas in 1986 as Director of Taxation and
Financial Reporting. In 1989, he became Treasurer and
in 1992 he was promoted to Managing Director of
Administration. He was appointed to Senior Vice
President, Chief Financial Officer and Managing
Director in 1993. He was elected President, Retail
Operations, in 1996 and was named to his current
position in 1997. Before joining Ferrellgas, Mr.
Sheldon worked as a tax manager for Arthur Andersen &
Co. in Omaha. Mr. Sheldon
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holds a degree in business administration from Iowa
State University. He graduated in 1981. Mr. Sheldon
serves on the Board of Directors of Blue Cross/Blue
Shield of Kansas City, Missouri and is a member of
the Kansas City Economic Development Commission.
BRYAN P. COLLINS, SR. Mr. Collins is Vice President and Division Director of
1708 Prestwick Dr. Payless ShoeSource, Inc., a Missouri corporation
Lawrence, KS 66047 located at 3231 East Sixth Street, Topeka, Kansas
66607. Payless is the largest family footwear retailer
in the United States. Bryan P. Collins has served as
Payless ShoeSource's Senior Vice President, Division
Director of Parade of Shoes since December 1996. He
also served as Payless ShoeSource's Senior Vice
President and General Merchandise Manager, Women's
Division (January 1994-December 1996), Senior Vice
President, General Merchandise Manager, Women's
Seasonal/Leisure (October 1991-January 1994), Vice
President, Merchandise Administration (March
1991-September 1991), and Vice President, Divisional
Merchandise Manager (1982-1985). Mr. Collins commenced
his employment with Payless ShoeSource in 1975 in the
distribution area. Before rejoining Payless ShoeSource
in 1991, Mr. Collins was employed by Topline Imports as
President (1989-1991), Executive Vice President
(1987-1989) and Marketing Manager (1985-1987). Mr.
Collins is a 1975 graduate of Emporia State University
with a degree in Business Administration. As of the
date of this Proxy Statement, Mr. Collins owns 100
shares of Common Stock.
SCOTT L. KOTICK Mr. Kotick is the National Director of Acquisitions for
344 N. Columbia Ave. National Partnership Investments Corp. ("NAPICO"), a
Columbus, OH _______ company located in Beverly Hills, California, whose
principal business is real estate syndication. Mr.
Kotick is primarily responsible for identifying,
structuring, and acquiring qualified properties for
each NAPICO Tax Credit Fund. Prior to joining NAPICO in
1992, Mr. Kotick was Director of Acquisitions and Vice
President of M.P.I. General, Inc., a private
multifamily real estate syndication firm in Beverly
Hills. From 1986 to 1988, Mr. Kotick had dual roles as
Vice President of Colony Timber, Inc., where he was
responsible for the acquisition of timberlands in the
United States and as controller of Branch and
Associates, a real estate consulting firm. From 1976 to
1978, Mr. Kotick was employed as a tax senior with
Arthur Andersen & Co. He is a frequent speaker at
various national affordable housing
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conferences and workshops. Mr. Kotick received a degree
from Florida State University.
ROBERT B. THOMSON Mr.Thomson is an attorney in private practice in Kansas
1100 Main, Suite 2101 City, Missouri. His practice emphasizes real estate,
Kansas City, MO 64105 corporate, securities and financing law. Mr. Thomson
graduated first in his law school class at the
University of Missouri - Kansas City in 1972. After
serving as a law clerk for a federal judge, he joined a
large law firm in Kansas City where he ultimately
served as Chairman of the Board of Directors. In 1988,
he became General Counsel, Secretary and member of the
Board of Directors of Tri-State Motor Transit Co.,
Inc., a publicly-held company listed on the American
Stock Exchange. After orchestrating a privatization
merger in 1990, he started his own law practice. Since
1987, Mr. Thomson has served as a Trustee for the
Kansas City, Missouri Police and Civilian Retirement
Fund, overseeing investments in excess of one-half
billion dollars.
The Board of Directors of the Trust has a single class of directors. At
each annual meeting of Shareholders, the directors are elected to a one year
term. The current Board was elected on or about May 14, 1996. The slate of
nominees proposed by the Shareholder Committee, if elected, would serve as
directors for terms expiring on or about May 12, 1998, or until the due election
and qualification of their successors. The Shareholder Committee has no reason
to believe any of its nominees will be disqualified or unable or unwilling to
serve if elected. However, in the event that any member of the Slate should
become unavailable for any reason, or should it become necessary or appropriate
for the Shareholder Committee to nominate additional persons, the Shareholder
Committee will seek to vote, to the extent permitted by law, the proxies for
such other persons as it nominates. KelCor has agreed to indemnify Messrs. David
L. Johnson, Daniel W. Pishny, John W. Alvey, Danley K. Sheldon, Bryan P.
Collins, Scott L. Kotick and Robert B. Thomson, and to reimburse them for their
reasonable out-of-pocket expenses, for their efforts in connection with this
solicitation.
For information regarding the proposed nominees of the Trust's current
Board of Directors, please refer to the Management Proxy Statement.
Except as described herein and in Appendix A hereto, no member of the
Shareholder Committee, the Slate or any of their respective associates (i) has
engaged in or has a direct or indirect interest in any transaction or series of
transactions since the beginning of the Trust's last fiscal year or in any
currently proposed transaction, to which the Trust or any of its subsidiaries is
a party where the amount involved was in excess of $60,000, (ii) is the
beneficial or record owner of any securities of the Trust or any parent or
subsidiary thereof, (iii) is the record owner of any securities of the Trust of
which it may not be deemed to be the beneficial owner, (iv) has been within the
past year, a party to any contract, arrangement or understanding with any person
with respect to any securities of the
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Trust, (v) has any arrangements or understandings with any nominee with respect
to any securities of the Trust pursuant to which such nominee was selected as a
nominee and there exist no such agreements or understandings between any nominee
and any other person, or (vi) has any agreement or understanding with respect to
future employment by the Trust or any arrangement or understanding with respect
to any future transactions to which the Trust will or may be a party.
During 1992, MBT Partners L.P. ("MBT") and ASF Restaurants Investors I,
L.P. ("ASF") filed voluntary petitions under Chapter 11 of the United States
Bankruptcy Code. David L. Johnson was the president and majority shareholder of
DLJ Enterprises, Inc., which was the general partner of MBT and ASF. MBT was
successfully reorganized and its only asset was later sold. MBT had three
investors all of whom were principals. The ASF bankruptcy resulted from the
bankruptcy of a restaurant that was the sole tenant of ASF's single-purpose
building. The bankruptcy was dismissed and its sole asset was disposed in a
foreclosure sale.
See "Principal Shareholders" and "Information About the Participants in
the Shareholder Committee's Proxy Solicitation; the Proxy Solicitation and
Expenses" for information regarding persons who beneficially own more than 5% of
the Common Stock and the ownership of the Common Stock by the management of the
Trust.
Each of the nominees has consented to serve as a director and, if
elected, intends to discharge his duties as director of the Trust in compliance
with all applicable legal requirements, including the general fiduciary
obligations imposed upon corporate directors.
Plans of the Shareholder Committee
The Shareholder Committee is committed to increase the value of the
Trust's Common Stock. The Shareholder Committee also intends to pursue any
remedies available to the Trust arising from violations of the Trust's Bylaws
and any breaches of fiduciary duty if the new Board Directors determines that it
is in the best interest of the Shareholders and that the remedies might increase
the value of the Common Stock.
Increase Shareholder Value
Under the current management, the value of the Common Stock
has languished since the Trust's inception. If the Shareholders elect the
Shareholder Committee's Slate as the Trust's Board of Directors, the new Board
and new management will promptly initiate action to increase the value of the
Trust's Common Stock.
The Shareholder Committee has been advised that the new Board
and management will replace the Trust's investment advisor, Nooney Advisors
Ltd., L.P. (the "Advisor"), and the Trust's leasing and management agent, Nooney
Krombach Company (the "Property Manager"). The Advisor and the Property Manager
are affiliates of Nooney Company. The Shareholder Committee
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is confident that the Trust will increase its revenues and decrease its expenses
by replacing those companies.
The current Board of Directors renewed the Advisory Agreement
between the Trust and the Advisor for a one-year period ending March 31, 1998.
The Board of Directors can, however, terminate that Agreement with sixty (60)
days' written notice. Although the Advisory Agreement provides for the payment
of a fee upon such termination, the Shareholder Committee believes, based on the
formula for calculating such fee and the information available to it, that no
fee will be due. If any fee is owed, the new Board of Directors will attempt to
minimize the cost related to such termination and challenge the fee if it
determines it to be commercially unreasonable. The Shareholder Committee
anticipates that the lower fees payable to the new adviser will reduce the
operating costs of the Trust, which will increase its long-term profitability.
The current Board of Directors has also renewed the Management
Contract between the Trust and the Property Manager for a one-year period ending
March 31, 1998. That Agreement can be terminated without penalty upon sixty (60)
days' written notice. The Shareholder Committee is confident that a new property
manager will be engaged on economic terms more reasonable than those contained
in the existing Management Contract.
Maxus has advised the Shareholder Committee Slate that it
would agree to act as the advisor and property manager of the Trust for fees
that are at least 10% less than the fees presently charged by the Advisor and
the Property Manager. Whether these fees can be reduced even more cannot be
determined until additional information is available. For a description of Maxus
and its relationship to members of the Slate, see "The Shareholder Committee's
Slate."
After replacing the Advisor and the Property Manager, the new
Board of Directors intends to develop a strategy to increase the Trust's
profitability and to aggressively pursue that course of action. The new Board of
Directors also intends to increase the Trust's earnings by acquiring additional
real estate holdings. The Trust will raise the capital necessary for its
acquisitions through private placements of equity or debt until the Trust's
economic performance allows it to raise additional capital in the public market.
Whenever the new Board of Directors determines it is beneficial to the Trust,
the Trust will also acquire real estate by exchanging shares of Common Stock
with the owners of such properties. All such plans will depend on the
Shareholders' approval of Proposal II below, the Shareholders' rejection of
Proposal III below, and the then-current real estate and financial market
conditions.
Pursue Claims
If the Shareholders elect the Shareholder Committee's Slate,
the Shareholder Committee has been advised that the new Board of Directors will
initiate an investigation of the actions and failures to act of the current
members of the Board of Directors and management, especially with respect to
their handling of matters involving the PICO Group. The Shareholder Committee
has also advised the new Board that it will investigate the manner in which the
PICO
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Group increased its holdings of Common Stock during the past 18 months from 78,
961 shares, representing approximately 9.11% of the Trust's outstanding shares,
to 202,061 shares, representing approximately 23.3% of the Trust's outstanding
shares. The Shareholder Committee understands that the performance of the
Advisor and the Property Manager will also be scrutinized by the new Board. The
Shareholder Committee believes that if the new Board of Directors determines
that it is in the best interest of the Shareholders and that the remedies would
increase the value of the Common Stock, the new Board of Directors will cause
the Trust to pursue any claims the Trust may have against such parties.
THE SHAREHOLDER COMMITTEE RECOMMENDS A VOTE FOR THE ABOVE LIST OF NOMINEES FOR
DIRECTOR.
- --------------------------------------------------------------------------------
PROPOSAL II--SHAREHOLDER COMMITTEE'S BYLAW AMENDMENT TO
ARTICLE VI
Shareholder Committee's Proposal to Amend Article VI of the Trust's Bylaws
The Shareholder Committee proposes to adopt an amendment to the Trust's
Bylaws that would (i) eliminate the Trust's "self-liquidating" policy and (ii)
eliminate the restriction relating to the Trust's ability to exchange Common
Stock of the Trust for real estate investments.
A member of the Shareholder Committee has requested the Board of
Directors to propose such an amendment because it would allow the Trust to
pursue a growth-oriented policy by seeking investment opportunities to increase
the return to Shareholders.
The Trust's self-liquidating policy is contained in Article VI, Section
6.1 of the Trust's Bylaws. The relevant portion of the text is as follows:
"The Trust is intended to be 'self-liquidating.' Accordingly, it is the
policy of the Trustees that the net proceeds of the sale, financing or
refinancing of each investment property, except as provided below, will
not be reinvested, but will either be distributed to the Shareholders
or applied to such capital improvements to, or the payment of
indebtedness with respect to, existing properties of the Trust or the
payment of any other expenses or the establishment of any reserves, all
as the Trustees deem necessary and appropriate. In addition, the Trust
may utilize the net proceeds of any sale, financing or refinancing of
an investment property to purchase the land underlying any of the
Trust's investment properties in cases where the Trust is not already
the owner. Also, if, within five (5) years from the effective date of
the Trust's registration statement in connection with its initial
public offering of Shares, the Trust sells, finances or refinances an
investment property, the Trust may reinvest, during such time period,
the proceeds of such sale, financing or refinancing. The disposition of
a property back to the original seller or an affiliate thereof, whether
in
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the form of a rescission, exchange or resale or pursuant to an option
or similar arrangement entered into at or prior to the time of taking
title of such property, shall not be deemed a sale, financing or
refinancing for the purposes of the self-liquidating aspect to the
investment policy of the Trustees."
The Shareholder Committee believes that it is in the best interests of
the Shareholders to amend the Trust's self-liquidating policy to allow the
reinvestment of proceeds from the sale, financing or refinancing of its
properties. This amendment will allow the Trust to grow by permitting it to seek
new investment opportunities. The Shareholder Committee believes that such
growth will increase the value of the Common Stock. The Shareholder Committee
proposes that Article VI, Section 6.1 of the Trust's Bylaws be amended to delete
the foregoing paragraph in its entirety.
The restriction relating to the ability of the Trust to exchange its
Common Stock for any real estate investment is contained in Article VI, Section
6.2(i). The relevant portion of the text is as follows:
"The Trust shall not:...
(i) Exchange shares for any real estate investment;..."
The Shareholder Committee believes it is in the best interests of the
Shareholders to amend the Trust's Bylaws to permit the Trust to exchange its
Common Stock to acquire real estate. Therefore, the Shareholder Committee
proposes that Article VI, Section 6.2(i) of the Trust's Bylaws be amended to
delete the foregoing paragraph (i) in its entirety and replace it with the
following:
"(i) [Intentionally omitted];..."
The effect of this amendment is to omit the restriction presently contained in
paragraph (i) without renumbering all subsequent paragraphs.
If adopted, the Shareholder Committee does not have any current plans
to (i) sell, finance or refinance or purchase any real property, or (ii)
exchange the Trust's Common Stock for any real estate upon the approval of the
amendment to the Trust's Bylaws as described in this Proxy Statement. The
Shareholder Committee intends for the Trust to take any one or more of the
foregoing actions only when any such action is believed to be in the best
interest of the Shareholders and to achieve the Trust's goal of maximizing the
Trust's value and the return to the Shareholders. Furthermore, the Shareholder
Committee does not believe that this amendment to the Bylaws will impact the
Trust's current dividend policy or REIT status.
THE SHAREHOLDER COMMITTEE RECOMMENDS A VOTE FOR THE ABOVE DESCRIBED AMENDMENT TO
ARTICLE VI OF THE TRUST'S BYLAWS.
- --------------------------------------------------------------------------------
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PROPOSAL III--MANAGEMENT'S BYLAW AMENDMENT TO ARTICLE VI
Current Management's Proposal to Amend Article VI of the Trust's Bylaws
The Trust's current Board of Directors, in the Management Proxy
Statement, proposed an amendment to Section 6.1 of the Bylaws that is very
similar to the amendment proposed by the Shareholder Committee in Proposal II.
The Board of Directors' proposed amendment also provides that (i) the paragraph
in Article VI, Section 6.1 of the Trust's Bylaws eliminate the self-liquidating
policy and (ii) the restriction relating to the ability of the Trust to exchange
its common stock for any real estate investment contained in Article VI, Section
6.2(i), be eliminated.
In addition to the above amendments to Article VI, however, the Trust's
current Board of Directors have also proposed to amend Article VI, Section
6.2(d), to eliminate the existing restriction against investing in equity
securities of other real estate investment trusts, thereby allowing the Trust to
invest in other real estate investment trusts.
As discussed above, the Shareholder Committee believes it is
inappropriate to allow the Board of Directors to invest in other real estate
investment trusts because such action is tantamount to delegating the Board's
responsibility to determine the appropriate real estate assets in which to
invest to the board of directors of another company and results in unnecessary
additional advisory fees. The Shareholder Committee believes the decision to
invest in other real estate investment trusts is more properly a decision for
individual shareholders to make.
THE SHAREHOLDER COMMITTEE RECOMMENDS A VOTE AGAINST THE ABOVE DESCRIBED
AMENDMENT TO ARTICLE VI OF THE TRUST'S BYLAWS BY VOTING AGAINST PROPOSAL III.
- --------------------------------------------------------------------------------
PROPOSAL IV--MANAGEMENT'S BYLAW AMENDMENT TO ARTICLE VIII
Current Management's Proposal To Amend Article VIII of the Trust's Bylaws
The Trust's Bylaws place restrictions on the accumulation of shares by
the Trust's shareholders. The Bylaws contain such restrictions to ensure the
Trust meets ownership tests necessary to qualify as a "real estate investment
trust" or "REIT" for federal income tax purposes under the Internal Revenue Code
of 1986, as amended (the "Code"). Specifically, Section 8.8(a) of the Bylaws
provides that no person may acquire, directly or indirectly, in excess of 9.8%
of the outstanding shares of the Trust.
The ownership tests that an entity must meet to qualify as a REIT
include, among others, the requirement that, at all times during the second half
of the Trust's taxable year, no more than 50% in value of the Trust's shares may
be owned, directly or indirectly, by five or fewer individuals (the
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so-called "closely held test"). If the closely held test is violated, the Trust
loses its REIT status for five years (including the year of violation).
Section 8.8(b) of the Trust's Bylaws provides that any acquisition of
shares in excess of 9.8% shall be null and void with respect to the shares that
are acquired in excess of the 9.8% limitation (the "Excess Shares"). Section
8.8(b) further provides that any such Excess Shares (i) shall be considered to
have been acquired by and held on behalf of the Trust, (ii) shall not be
considered outstanding for quorum or voting purposes, and (iii) shall not be
entitled to receive dividends, interest or any other distribution.
The Board of Directors proposes in the Management Proxy Statement an
amendment to Article VIII of the Trust's Bylaws. This proposed amendment is not
in the best interests of the Trust's shareholders for the following reasons:
1. The proposed amendment will suspend the application and enforcement
of Section 8.8(b) of the Bylaws for all periods on or prior to April 23, 1997.
This is a blatant attempt on the part of the Board of Directors to absolve the
PICO Group, the Trust's largest shareholder and the only shareholder who appears
to have violated the 9.8% limit, from any and all liability for its violation of
acquiring shares in excess of 9.8%. The proposed amendment also absolves the
current Board of Directors and management from any liability for allowing the
PICO Group (which is represented on the Trust's Board of Directors) to violate
the Bylaws, and to continue to violate the Bylaws after numerous written notices
of such violations.
2. The proposed Bylaw amendment will enable the Independent Directors of
the Trust (which term includes any representatives of the PICO Group) to waive
or modify periodically in their discretion any provisions of Section 8.8 of the
Bylaws with respect to any shares acquired in excess of the 9.8% ownership
threshold so long as the Independent Directors are satisfied that (a) any such
acquisition will not result in the disqualification of the Trust as a real
estate investment trust or otherwise subject the Trust to tax, and (b) the
waiver is in the best interest of the Trust. This amendment grants the
"Independent" Directors the authority to select who can and cannot acquire more
than 9.8% of the Trust's shares. This essentially allows the "Independent"
Directors to selectively enable any group, such as the PICO Group, to continue
to increase its stock holdings without affording the same rights to others. This
amendment also allows the Board to use its discretion in determining whether the
Trust complies with the REIT stock ownership rules rather than enforcing an
absolute stock ownership limitation as is currently provided in the Bylaws. The
current Board of Directors and management have demonstrated their inability to
monitor adequately the stock ownership of the PICO Group in the past.
3. The proposed Bylaw amendment provides that neither the Trust nor the
officers and directors of the Trust are responsible for making determinations
with respect to the number of shares that any person shall be deemed to own for
purposes of Section 8.8. The effect of this proposed amendment would be that
current management would not be accountable for monitoring the share ownership
of Shareholders that could jeopardize the Trust's tax status. Furthermore, this
proposed
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amendment would protect management from any liability for violating its
fiduciary duties relating to such matters. The Shareholder Committee believes
that management should not shirk its responsibility and duty to manage and
maintain the real estate investment trust tax status that has attracted
investors to purchase Common Stock in the Trust.
THE SHAREHOLDER COMMITTEE RECOMMENDS A VOTE AGAINST THE ABOVE DESCRIBED
AMENDMENT TO ARTICLE VIII OF THE TRUST'S BYLAWS BY VOTING AGAINST PROPOSAL IV.
- --------------------------------------------------------------------------------
PROPOSAL V--MANAGEMENT'S PROPOSAL TO APPROVE ANY
ADJOURNMENT OF THE ANNUAL MEETING
The Management Proxy Statement requests that you vote (either in person
or by proxy at the Annual Meeting) to adjourn the Annual Meeting to allow the
current Board of Directors to solicit additional votes to obtain a quorum or to
obtain more proxies or votes in favor of current management's proposals
regarding election of directors and the Bylaw amendments to Article VI and
Article VIII in the Management Proxy Statement. As indicated above, the
Shareholder Committee believes all of such proposals should be rejected.
Therefore, the Shareholder Committee recommends that you reject the current
Board of Directors' attempt to obtain authority to adjourn the Annual Meeting to
give them more time to obtain the necessary votes to support their nominees and
their proposals.
THE SHAREHOLDER COMMITTEE RECOMMENDS A VOTE AGAINST THE BOARD OF DIRECTORS'
PROPOSAL TO ALLOW FOR THE ADJOURNMENT OF THE ANNUAL MEETING TO SOLICIT
ADDITIONAL SHAREHOLDER PROXIES OR VOTES FOR MANAGEMENT BY VOTING AGAINST
PROPOSAL V.
PRINCIPAL SHAREHOLDERS
The Management Proxy Statement sets forth information as to the number
and percentage of outstanding shares beneficially owned by (i) each person known
by the Trust to own more than 5% of the outstanding shares of Common Stock, (ii)
each director of the Trust, (iii) each of the five most highly paid executive
officers of the Trust, and (iv) all executive officers and directors of the
Trust as a group. Reference is made thereto for such information.
INFORMATION ABOUT THE PARTICIPANTS IN THE
SHAREHOLDER COMMITTEE'S PROXY SOLICITATION;
THE PROXY SOLICITATION AND EXPENSES
The proxies solicited by this Proxy Statement are solicited by the Shareholder
Committee. In addition to the Shareholder Committee, John W. Alvey, CPA, Mr.
Danley K. Sheldon, CPA, Mr. Bryan P. Collins, Mr. Scott L. Kotick and Robert B.
Thomson, Esq., and may be deemed to be
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'participants' in this solicitation as that term is defined in Rule 14a-101,
Item 4, under the Securities Exchange Act of 1934, as amended. Proxies may be
solicited by members of the Shareholder Committee by mail, telephone, facsimile,
telegram and personal solicitation. Banks, brokerage houses and other
custodians, nominees and fiduciaries will be requested to forward solicitation
material to the beneficial owners of the Common Stock that such institutions
hold of record. The Shareholder Committee will reimburse such institutions for
their reasonable out-of-pocket expenses.
The entire expense of preparing and mailing this Proxy Statement and
any other soliciting material and the total expenditures relating to the
solicitation of proxies (including, without limitation, costs, if any, related
to advertising, printing, fees of attorneys, financial advisors, solicitors,
consultants, accountants, public relations, transportation and litigation) will
be borne by the Shareholder Committee, with funds provided by KelCor, Inc. The
Shareholder Committee presently intends to seek reimbursement from the Trust for
its reasonable expenses in connection with this solicitation and does not expect
to submit such matter to a vote of security holders, unless required by law. The
Shareholder Committee has retained D.F. King & Co., Inc. to assist in the
solicitation in proxies for a fee of $25,000 to $35,000 and has agreed to
reimburse it for its reasonable out of pocket expenses. KelCor, Inc. will
indemnify D.F. King & Co., Inc. against liabilities and expenses incurred in
connection with the solicitation. Approximately 28 persons will be used by D.F.
King & Co., Inc. in its solicitation efforts, which may be made by mail,
telephone, facsimile, telegram and in person.
The Shareholder Committee estimates that its total expenditures
relating to the solicitation of proxies will be approximately $200,000. Total
expenditures incurred to date relating to this solicitation have been
approximately $70,000. In addition to the use of the mails, proxies may be
solicited by The Shareholder Committee by telephone, telegram, facsimile and
personal solicitation, for which no additional compensation will be paid to
those persons engaged in such solicitation.
The following information is provided with respect to KelCor, Inc. For
information regarding the other members of the Shareholder Committee (David L.
Johnson and Daniel W. Pishny), and Messrs. John W. Alvey, Danley K. Sheldon,
Bryan P. Collins, Scott L. Kotick and Robert B. Thomson, please see "The
Shareholder Committee's Slate" and Appendix A.
KELCOR, INC. KelCor, Inc. was organized in February 1992 for the
1100 Main, Suite 2100 purpose of participating in the acquisition of
Kansas City, MO 64105 commercial real estate and loans secured by
commercial real estate. Since inception, KelCor has
participated in real estate and related transactions
totaling in excess of $100 million. As indicated herein
David L. Johnson and his wife own all of the issued and
outstanding stock of KelCor. KelCor and its affiliates
implement proactive asset management programs to
enhance property value and generate above- average
returns. KelCor's current mission is to purchase
multifamily projects and retail shopping centers.
KelCor will also purchase loans and pools of loans from
lending institutions with
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a view to gain control of the underlying asset at
substantial discounts from fair market value, based on
current property cash flow. As of the date of this
Proxy Statement, KelCor was the direct owner of 41,113
shares of Common Stock. In addition, David L. Johnson,
an affiliate of KelCor, owns 1900 shares of Common
Stock. As indicated above, the 1900 shares held by Mr.
Johnson directly and the 41,113 shares held by KelCor
were purchased on a margin account with two brokers. As
of the date of this Proxy Statement, the amount of
indebtedness with respect to the margin accounts for
purchases of Common Stock of the Trust was
approximately $10,000 and $200,000, respectively. For
additional information regarding any contractual
arrangements or relationships with the Trust, please
see "The Shareholder Committee's Slate" and Appendix A.
CERTAIN FORWARD-LOOKING STATEMENTS
The Shareholder Committee has made forward-looking statements in this
Proxy Statement that are subject to risks and uncertainties. Forward-looking
statements include those statements preceded by, followed by or that include the
words "believes," "expects," "anticipates" or similar expressions. For those
statements, the Shareholder Committee claims the protection of the safe harbor
for forward-looking statements contained in the Private Securities Litigation
Reform Act of 1995.
ADDITIONAL INFORMATION
Reference is made to the Management Proxy Statement for information
concerning the Common Stock, the beneficial ownership of such stock, other
information concerning the Trust's management, the procedures for submitting
proposals for consideration at the next Annual Meeting of the Shareholders of
the Trust, and other matters regarding the Trust and the Annual Meeting. The
Trust also is required to provide to Shareholders its Annual Report to
Shareholders for the year ended December 31, 1996, which contains information as
to the Trust's financial condition and other matters.
Your vote is important. Regardless of the number of shares you own,
please vote as recommended by the Committee by signing, dating and mailing your
GREEN proxy card. You should discard all white proxy cards you receive from
management. Please act today. Time is a critical factor.
A later dated white management proxy card, even if marked "withhold
authority" for the Board's nominees and against their recommendations, will
revoke your vote for the Shareholder Committee. Remember, only your latest dated
and signed proxy card counts.
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If you hold your shares in the name of one or more brokerage firms,
banks or nominees, only they can vote your shares and only after receiving your
specific instructions. Please call your broker and instruct him/her to execute a
GREEN proxy card on your behalf. You should also promptly sign, date and mail
your GREEN proxy card when you receive it from your broker. Please do so for
each separate account you maintain.
IF YOU HAVE ANY QUESTIONS OR REQUIRE ASSISTANCE, PLEASE CONTACT:
D.F. King & Co., Inc.
77 Water Street
New York, NY 10005
1-800-326-3066 (toll-free)
or
(212) 269-5550 (collect)
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APPENDIX A
Transactions in the Securities of the Trust within the Past Two Years
The following table sets forth information with respect to all purchases
and sales of shares of Common Stock of the Trust by KelCor, Inc., David L.
Johnson, Daniel W. Pishny and Bryan P. Collins. Messrs. David L. Johnson and
John W. Alvey may be deemed beneficial owners of KelCor, Inc., and have not
engaged in any purchases or sales in any other capacity except as herein
provided. Each of the transactions was effected on the open market, except where
otherwise noted.
KELCOR, INC.
Shares of Common Date of
Stock Purchased (Sold) Purchase
9,500 12/28/95
1,000 01/18/96
3,500 01/31/96
3,000 02/01/96
1,013 02/07/96
1,500 02/28/96
1,000 03/21/96
7,000 03/21/96
4,000 07/17/96
200 07/26/96
1,000 01/15/97
400 01/29/97
1,000 02/05/97
1,000 05/28/97
2,000 05/28/97
DAVID L. JOHNSON
Shares of Common Date of
Stock Purchased (Sold) Purchase
200 06/14/96
200 06/18/96
100 07/10/96
400 07/15/96
200 07/16/96
200 07/25/96
500 06/02/97
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DANIEL W. PISHNY
Shares of Common Date of
Stock Purchased (Sold) Purchase
100 02/21/96
BRYAN P. COLLINS
Shares of Common Date of
Stock Purchased (Sold) Purchase
100 05/27/97
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APPENDIX B
(Preliminary Copy)
This Proxy is Solicited on Behalf of the Committee to Increase Shareholder Value
at Nooney Realty Trust, Inc.
The undersigned hereby appoints KelCor, Inc., David L. Johnson and Daniel W.
Pishny, and each of them, with full power of substitution, to represent and to
vote on behalf of the undersigned all of the shares of Nooney Realty Trust,
Inc., which the undersigned is entitled to vote at the 1997 Annual Meeting of
Shareholders, and at any adjournment or adjournments thereof, hereby revoking
all proxies heretofore given with respect to such shares, upon the following
proposals more fully described in the Committee to Increase Shareholder Value at
Nooney Realty Trust, Inc. proxy statement for the meeting (receipt whereof is
hereby acknowledged) and all other matters properly coming before the meeting.
If a Shareholder is a participant in the Trust's Dividend Reinvestment
Plan, the proxy card represents the number of full shares in the dividend
reinvestment plan account, as well as shares registered in the participant's
name. All proxies will be voted in accordance with the instructions given in the
proxy.
THIS PROXY, WHEN PROPERLY EXECUTED, WILL BE VOTED IN THE MANNER DIRECTED HEREIN
BY THE UNDERSIGNED SHAREHOLDER. IF NO DIRECTION IS MADE, THIS PROXY WILL BE
VOTED FOR PROPOSAL NUMBER II AND AGAINST PROPOSALS III, IV AND V WITH RESPECT TO
THE ELECTION OF DIRECTORS (PROPOSAL I), WHERE NO VOTE IS SPECIFIED OR WHERE A
VOTE FOR ALL NOMINEES IS MARKED, THE CUMULATIVE VOTES REPRESENTED BY A PROXY
WILL BE CAST AT THE DISCRETION OF THE PROXIES NAMED HEREIN IN ORDER TO ELECT THE
MAXIMUM NUMBER OF NOMINEES UNDER THE THEN PREVAILING CIRCUMSTANCES. IF YOU
WITHHOLD YOUR VOTE FOR A PARTICULAR NOMINEE OR NOMINEES, ALL OF YOUR CUMULATIVE
VOTES WILL BE DISTRIBUTED TO THE REMAINING NOMINEE(S) AS DETERMINED BY THE
PROXIES HEREIN. ON ALL OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE MEETING,
THIS PROXY WILL BE VOTED IN THE DISCRETION OF THE PERSON OR PERSONS NAMED AS
PROXIES.
The Committee recommends a vote FOR all nominees and Proposal II.
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PROPOSAL I
I. ELECTION OF DIRECTORS:
/ /FOR all nominees / /WITHHOLD AUTHORITY to vote
listed below for all nominees listed below
David L. Johnson, CPA Daniel W. Pishny, CPA John W. Alvey, CPA
Danley K. Sheldon, CPA Bryan P. Collins Scott L. Kotick
Robert B. Thomson, Esq.
(INSTRUCTION: To withhold authority to vote for any individual nominee, mark
"FOR all nominees listed below" and strike a line through that nominee's name in
the list above.)
PROPOSAL II
II. THE SHAREHOLDER COMMITTEE'S AMENDMENT TO ARTICLE VI OF THE
BYLAWS:
/ /FOR amendments to / /AGAINST amendments to / /ABSTAIN
Article VI of Article VI of
the Bylaws the Bylaws
- --------------------------------------------------------------------------------
The Committee STRONGLY recommends a vote AGAINST Proposals III, IV and V.
PROPOSAL III
III. CURRENT MANAGEMENT'S AMENDMENT TO ARTICLE VI OF THE BYLAWS:
/ /AGAINST amendments to / /FOR amendments to / /ABSTAIN
Article VI of Article VI of
the Bylaws the Bylaws
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PROPOSAL IV
IV. MANAGEMENT'S PROPOSED AMENDMENT TO ARTICLE VIII, SECTION
8.8(a) OF THE BYLAWS:
/ /AGAINST amendment to / /FOR amendment to / /ABSTAIN
Section 8.8(a) of Section 8.8(a) of
the Bylaws the Bylaws
PROPOSAL V
V. MANAGEMENT'S RIGHT TO VOTE FOR ADJOURNMENT OF THE ANNUAL
MEETING:
/ /AGAINST right to / /FOR right to / /ABSTAIN
vote for vote for
adjournment adjournment
IN THEIR DISCRETION, THE PROXIES ARE AUTHORIZED TO VOTE UPON SUCH OTHER
BUSINESS AS MAY BE PROPERLY PRESENTED TO THE MEETING OR ANY ADJOURNMENT
OR ADJOURNMENTS THEREOF.
Dated:______________, 1997
IMPORTANT: PLEASE FILL IN DATE
- ---------------------------
Signature
- ---------------------------
Signature (if held jointly)
- ---------------------------
Title
Please sign exactly as name appears above. When shares are held by joint
tenants, both should sign. When signing as attorney, executor, administrator,
trustee or guardian, please give full title as such. If a corporation, please
sign in full corporate name by President or other authorized officer and give
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full title of such. If a partnership, please sign in partnership name by
authorized person and give full title of such. This proxy votes all shares
held in all capacities by the signatory.
PLEASE COMPLETE, DATE, SIGN AND MAIL THIS PROXY IN THE ENCLOSED
ENVELOPE.
I WILL / / WILL NOT / / ATTEND THE MEETING.
