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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
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.
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(1) Title of each class of securities to which transaction applies:
(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.
SPECIAL MEETING OF SHAREHOLDERS
AUGUST __, 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 Special
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 "Special Meeting"). The Board of Directors of the
Trust has scheduled the Special Meeting to be held on August ___, 1997 at the
Pierre Laclede Conference Center, 7733 Forsyth Boulevard, 2nd floor, in Clayton,
Missouri, at 10:00 a.m., and has set June 27, 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 July __, 1997.
THIS SOLICITATION IS BEING MADE BY THE SHAREHOLDER COMMITTEE IN
OPPOSITION TO, 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. REMEMBER, ONLY YOUR
LATEST DATED AND SIGNED PROXY WILL BE VOTED.
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REASONS FOR THE SOLICITATION
IN OPPOSITION TO THE TRUST'S BOARD OF DIRECTORS
KelCor, Inc. ("KelCor"), a member of the Shareholder Committee, filed a
lawsuit on June 5, 1997, in the Circuit Court of St. Louis County, Missouri,
seeking, among other things, (i) to compel the Trust's management to provide
certain corporate records to KelCor as required under Missouri law, (ii) a
declaratory judgment declaring the shares held by PICO Holdings, Inc. ("PICO")
and its affiliates (PICO and its affiliates are collectively referred to herein
as the "PICO Group") in excess of 9.8% of the outstanding shares of the Trust to
be treated as "Excess Shares" under the Trust's bylaws (the "Bylaws") and
prohibiting the PICO Group from voting such Excess Shares at the annual meeting
of the Shareholders and (iii) a preliminary injunction delaying the annual
meeting until the court entered its findings in the action for declaratory
judgment. The Court scheduled a hearing on June 13, 1997, during which the
Court, after hearing opening statements from current management's counsel and
KelCor's counsel, recessed the hearing and ordered both parties to try to
resolve their differences.
The Trust's management and KelCor reached an agreement (the "Settlement
Agreement") whereby management agreed to postpone the annual shareholder meeting
until after a Special Meeting of the Shareholders is held at which the only
matter to be voted upon is an amendment to Article VIII of the Bylaws proposed
by the Board of Directors. The proposed amendment would effectively absolve the
PICO Group, as well as the Trust's Board of Directors and management, from any
liability for violations of Article VIII caused when the PICO Group acquired
shares in excess of 9.8% (see below). Management agreed to hold the Special
Meeting on August ___, 1997, and further agreed to require the affirmative vote
of 62.0% of the issued and outstanding shares of the Trust to so amend Article
VIII of the Bylaws. A copy of the Settlement Agreement is attached hereto as
Appendix A and incorporated herein by this reference.
The Shareholder Committee believes that it is in the Shareholders' best
interests to oppose the proposal by the Trust's current Board of Directors and
management to amend Article VIII, Section 8.8(b) of the Bylaws, as more
particularly described below in "PROPOSAL I--MANAGEMENT'S BYLAW AMENDMENT TO
ARTICLE VIII". The Shareholder Committee bases its position on, among other
things, the following reasons:
(1) The Trust's Board of Directors and management have allowed and
continue to allow the PICO Group to violate the Bylaws by permitting the PICO
Group to acquire more than 9.8% of the Trust's Common Stock, thereby potentially
jeopardizing the tax status of the Trust.
(2) 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., 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.
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(3) The Shareholder Committee believes that the proposed amendment to
the Bylaws not only evidences the desire of the Trust's directors to protect
their personal interests, but also the interests of the PICO Group. The proposed
Bylaw amendment approves the PICO Group's acquisition of the Common Stock in
excess of 9.8%, but prohibits any other shareholder of the Trust from ever
acquiring more than 9.8% of the Common Stock. This will ensure that the PICO
Group will have greater voting power and control over the actions of the Trust
as long as the PICO Group chooses to maintain its ownership of more than 9.8% of
the Common Stock.
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 AGAINST the amendment to Article
VIII of the Bylaws, which is proposed by the Trust's Board of Directors to
ratify and approve the failure of the Board to enforce the Bylaws and to absolve
the Board of Directors, management and the PICO Group of any liability for the
accumulation by the PICO Group of more than 9.8% of the Common Stock. The
Shareholder Committee is not presently aware of any other matters to be brought
before the Special Meeting. However, if any other matter properly comes before
the Special 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.
YOU MAY VOTE AGAINST THE BOARD OF DIRECTORS' AMENDMENT TO ARTICLE VIII OF THE
BYLAWS 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 FOR THE SPECIAL MEETING, 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 SPECIAL
MEETING.
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.
A later dated white management proxy card will revoke your vote for the
Committee. Remember, only your latest dated and signed proxy card will be voted.
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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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." KelCor, Inc. is a Missouri corporation whose sole
shareholders are David L. Johnson and his wife. The Committee was formed to seek
ways to improve Shareholder value. The Committee was also formed to, among other
things, attempt to force the current Board of Directors and management to pursue
remedies against the PICO Group for its accumulation of shares in violation of
the Bylaws and to oppose the Board's proposal to amend the Bylaws to absolve
themselves and the PICO Group from any liability arising from such violation.
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, 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.
The shares of Common Stock represented by each GREEN Proxy Card that is
properly executed and returned will be voted at the Special Meeting in
accordance with the instructions marked thereon. Executed but unmarked GREEN
Proxy Cards will be voted AGAINST the amendment to Article VIII of the Bylaws,
which is 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.
With the exception of the proposed Bylaw amendment, 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 Special Meeting. If
any other matter properly comes before the Special 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 Special Meeting, the Shareholder
Committee urges you to vote AGAINST the amendment to Article VIII of the Bylaws,
which is 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. 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 WILL BE VOTED.
Execution of the GREEN Proxy Card will not affect your right to attend
the Special Meeting and to vote in person. Any Shareholder who executes and
delivers a proxy for use at the Special 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 Special
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 Settlement Agreement, there are 866,624 shares of
Common Stock of the Trust issued and outstanding and entitled to vote at the
Special Meeting. Only Shareholders of record at the close of business on June
17, 1997 (the Record Date), are entitled to notice of and to vote on matters
that come before the Special 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.
The Shareholder Committee believes that at least 98,895 shares of the
Common Stock owned by the PICO Group 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 Special Meeting (see discussion below in "PROPOSAL
I--MANAGEMENT'S BYLAW AMENDMENT TO ARTICLE VIII").
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Holders of the Common Stock have one vote for each share with respect
to the proposal to amend Article VIII of the Bylaws. Although an amendment to
the Trust's Bylaws requires the affirmative vote of only a majority of the
issued and outstanding shares of the Trust, as indicated above, the current
Board of Directors of the Trust has agreed to require the greater percentage
described above (62.0%) with respect to the matters described in Proposal I to
effectively eliminate the voting rights of the 98,895 shares purchased by the
PICO Group that may be ineligible to vote with respect to the matters described
in Proposal I because such shares were acquired in violation of the Bylaws.
Proxies marked "abstain" on the amendment to the Bylaws and proxies
marked to deny discretionary authority on other matters will be counted for the
purpose of determining the number of shares represented by proxy at the Special
Meeting. Such proxies will have the same effect as if the shares represented
thereby were voted against Proposal I to amend the Bylaws and against any other
matters. Shares not voted on proxies returned by brokers, banks or nominees will
have the same effect as shares voted against the amendment to the Bylaws.
PROPOSAL I--MANAGEMENT'S BYLAW AMENDMENT TO ARTICLE VIII
Article VIII of the 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 so-called
"Closely-Held Test"). If the Closely-Held Test is violated, the Trust loses its
REIT status and its tax treatment as a REIT 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"). This 9.8%
limitation prevents any five shareholders from acquring more than 50% of the
Trust's shares, which ensures that the Trust's REIT status will not be lost due
to a violation of the Closely-Held Test. 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.
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The PICO Group's Acquisition of Shares in Violation of Section 8.8(b) of the
Bylaws
Despite the explicit restriction in the Bylaws against owning more than
9.8% of the Common Stock, from 1995 through 1996, the PICO Group accumulated
approximately 23.3% of the Common Stock.
On December 31, 1995, PICO filed documents with the Securities and
Exchange Commission (the "SEC") that revealed that the PICO Group had acquired
9.11% of the Trust's shares.
On May 1, 1996, PICO informed the Trust's management that the PICO
Group beneficially owned 14.29% of the Trust's outstanding stock. The Trust's
management wrote to PICO six weeks later, on June 17, 1996, and informed PICO
that its holding of the Trust's shares exceeded the 9.8% limit permitted by the
Bylaws, and advised PICO to seek legal counsel with respect to this matter.
In September 1996, a member of the Trust's seven-member Board died. The
Trust's Board of Directors appointed John R. Hart, President and Chief Executive
Officer of PICO, to fill the Board vacancy.
In December 1996, despite the Trust's June 17, 1996 notice to PICO that
it was already in violation of the Bylaws' 9.8% ownership restriction, Mr. Hart
disclosed in an SEC filing that, as of November 15, 1996, the PICO Group's
ownership position in the Trust had actually increased to 20.75% of the Trust's
outstanding stock. On February 13, 1997, the PICO Group disclosed that, as of
December 31, 1996, its ownership of the Trust had increased even further, to
23.3% of all outstanding shares.
PICO's most recent SEC filing, made on March 19, 1997, reports the same
total ownership interest in the Trust for the PICO Group, although this report
reveals that PICO has transferred some of its Excess Shares of the Trust to
affiliated entities. PICO continues to claim dispositive power over the shares,
but claims to have no voting authority.
The PICO Group estimates that it has received dividends of
approximately $56,000 on account of the Excess Shares.
Beginning on March 11, 1997, David L. Johnson, as Vice President of
KelCor, Inc., sent letters to Gregory J. Nooney, Jr., Chairman of the Board and
Chief Executive Officer of the Trust, demanding that the Board of Directors of
the Trust enforce the Bylaws with respect to PICO, declare any Excess Shares
held by the PICO Group to be null and void in accordance with the Bylaws, and
take action to recover any dividends paid to the PICO Group on account of the
Excess Shares.
In response to KelCor's demands, the Board of Directors of the Trust
held a special meeting on April 23, 1997. Although both the Bylaws' 9.8%
ownership restriction and the PICO Group's violation of them are clear and
unambiguous, the Board decided at the special meeting not to pursue
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any action against the PICO Group to enforce the Bylaws. Instead, the Board
decided to propose a Bylaw amendment that would retroactively waive the Bylaws'
9.8% ownership restriction for the PICO Group, as more particularly described
below.
The PICO Group's Acquisition of Common Stock Violated Missouri's "Control Share
Acquisition" Statute
The Shareholder Committee believes that the PICO Group's acquisitions
of Common Stock in excess of 9.8%, in addition to violating Section 8.8(b) of
the Bylaws, also violated the Missouri "Control Share Acquisition" statute (the
"Control Share Statute"). The Control Share Statute set forth in Section 351.015
of the Missouri Revised Statutes governs the voting rights of shares acquired in
certain circumstances in which the owner of the shares acquires more than 20% of
the voting power of a corporation. The Control Share Statute defines "control
shares" as any shares acquired if such acquisition enables a person to exercise
or direct the exercise of the voting on the election of directors of more than
20% of the total voting power. Once a person acquires "control shares," those
shares are not entitled to vote unless either (1) the corporation's articles of
incorporation state that the Control Share Statute does not apply, or (2) a
majority of the disinterested shares votes to grant the control shares the right
to vote. As described above, the PICO Group obtained 23.3% of the total
outstanding shares of the Trust, thus triggering the Control Share Statute
restrictions. Neither of the exceptions described above apply to the Trust.
Thus, even aside from the Excess Share restrictions on voting of the PICO
Group's stock, the Shareholder Committee believes that the Control Share Statute
renders a substantial portion of the PICO Group shares ineligible to vote.
Current Management's Proposal To Amend Article VIII of the Bylaws
The Trust's Board of Directors at the Special Meeting proposes to amend
Section 8.8(b) of Article VIII of the Bylaws to read as follows:
(a) Except as otherwise provided in this Section 8.8, in order
to guard against the concentration of ownership of Shares to an extent
which is contrary to the requirements of the REIT provisions of the
Internal Revenue Code (including, but not limited to, Section 856(a)(6)
and 856(d)(2)(B), or successor provisions, of the Internal Revenue
Code), no Person may at any time subsequent to the Trust's commencement
of business operations acquire ownership of or own directly or
indirectly by application of the pertinent indirect ownership rules of
the Internal Revenue Code (including, but not limited to, Sections 318,
542(a), 544, 856(d)(5) and 856(h), or successor provisions, of the
Internal Revenue code) in excess of 9.8% of the value of the
outstanding Shares of the Trust (the "9.8% Limit"). In addition, no
Shares shall be transferred (or issued) to any Person if, following
such transfer (or issuance), such Person's direct or indirect ownership
of Shares would exceed the 9.8% Limit. If Shares are acquired by any
Person in violation of the 9.8% Limit, such acquisition shall be valid
only to the extent it does not result in a violation of the 9.8% Limit,
and such acquisition shall be null and void with respect to
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the excess ("Excess Shares"). Excess Shares shall be deemed to have
been acquired by, and to be held on behalf of, the Trust, and, as the
equivalent of treasury shares for such purpose, shall not be considered
to be outstanding for quorum or voting purposes, and shall not be
entitled to receive dividends, interest or any other distribution.
Notwithstanding anything to the contrary contained in these Bylaws, the
Trust shall not be required to make any payment to any Person in
respect of Excess Shares, such Excess Shares shall be forfeited to the
Trust without compensation, and the Trust shall automatically become
the record and beneficial owner of the Excess Shares.
(b) The provisions of Section 8.8(a) shall not (before or
after April 23, 1997) be applicable with respect to any Excess Shares
acquired by any Person on or prior to April 23, 1997 (the "Exempt
Shares") provided, however, that any person who owns or owned any
Exempt Shares on or prior to April 23, 1997 shall not acquire ownership
of or own, directly or indirectly, any additional Shares subsequent to
such date if all Shares owned, directly or indirectly, by such Person
after such acquisition exceeds the 9.8% Limit and, if such new Shares
are in fact acquired, such new Shares shall be treated as Excess
Shares.
(c) The Trust shall, if deemed necessary or advisable to
implement the provisions of this Section 8.8, include on the face or
back of each Share certificate issued by the Trust an appropriate
legend referring the holder of such certificate to the restrictions
contained in this Section 8.8 and stating that the complete text of
this Section 8.8 is on file with the Secretary of the Trust at the
Trust's registered office.
(d) Nothing herein contained shall limit the ability of the
Trustees to impose or to seek judicial or other imposition of
additional restrictions if deemed necessary or advisable to protect the
Trust and the interests of its Shareholders by preservation of the
Trust's status as a REIT under the Internal Revenue Code or otherwise
minimize the risk that the Trust may become subject to federal income
tax payable by the Trust.
(e) If any provision of this Section 8.8 or any application of
any such provision is determined to be invalid by any federal or state
court having jurisdiction over the issue, the validity of the remaining
provisions shall not be affected and the other applications of such
provisions shall be affected only to the extent necessary to comply
with the determination of such court.
(f) Except as expressly required by the REIT Provisions of the
Internal Revenue Code, nothing contained in these Bylaws shall in any
manner be read or understood to obligate or make the Trust, the
Trustees or the officers of the Trust, responsible for making
determinations relating to the number of Shares deemed to be owned by
any Person for purposes of this Section 8.8.
(g) Notwithstanding anything to the contrary contained in
Article XI, these Bylaws may be amended from time to time upon a vote
of the majority of the Independent
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Directors, and without the approval of the Shareholders, if said
majority of the Independent Directors determine that an amendment is
necessary or advisable to protect the status of the Trust as a REIT
under the REIT Provisions of the Code or otherwise minimize the federal
income tax payable by the Trust.
THE COMMITTEE'S RECOMMENDATION
This proposed amendment is NOT in the best interests of the Trust's Shareholders
and you should vote AGAINST it 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. Although the proposed Bylaw amendment prohibits the acquisition of
the Trust's shares in excess of 9.8% (with regard to acquisitions after April
23), it absolves the Board of any accountability to the Shareholders for failing
to monitor and/or enforce such restriction. 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 and the Trust's shareholders would be forced
to monitor compliance with the stock ownership limitation in order to protect
the Trust's tax status (as the Shareholder Committee has done with respect to
the PICO Group). 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 of the Trust and should not be able to disclaim liability for enforcing
the Bylaws, especially the Bylaw amendment that management is currently
proposing. The Shareholder Committee believes that enforcing bylaw provisions is
a fundamental duty of the board of directors of any company and that the Trust's
shareholders should not relieve the Trust's Board of Directors from such duty.
3. The Shareholder Committee also believes that the proposed Bylaw
amendment should be rejected because its allows the PICO Group to continue its
ownership of Excess Shares of Common Stock, while prohibiting any other
shareholders to acquire Common Stock in excess of such limitation. This proposed
Bylaw amendment has the effect of allowing the PICO Group to have substantially
more voting power and control over the actions of the Trust than any other
shareholder ever can attain. Thus, as long as the PICO Group chooses to maintain
its ownership of
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Common Stock in excess of 9.8%, its control of the Trust will continue for as
long as the proposed Bylaw amendment is in force.
The Trust's Board of Directors, in their definitive proxy statement
that was sent to Shareholders with respect to the postponed 1997 annual
shareholders meeting, proposed an additional amendment to Section 8.8(b) of the
Trust's Bylaws that would have enabled 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 limitation
so long as the "Independent" Directors were satisfied that (a) any such
acquisition would 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 was in the best interest of the Trust. This amendment would have granted
the "Independent" Directors the authority to select who can and cannot acquire
more than 9.8% of the Trust's shares. After repeated requests by and through the
insistence of the Shareholder Committee, the Trust's Board of Directors have
finally agreed not to propose such an amendment. Due to the Shareholder
Committee bringing to light the potential abuses that could result from such an
amendment (such as the possibility of allowing certain shareholders like the
PICO Group to increase their holdings well in excess of 9.8% but denying
attempts by other shareholders to do the same), the Trust's Board of Directors
likely realized that the Shareholders would reject the Trust's clear attempt to
give the Trust's Board of Directors such broad, discretionary powers.
THE SHAREHOLDER COMMITTEE RECOMMENDS A VOTE AGAINST THE ABOVE DESCRIBED
AMENDMENT TO ARTICLE VIII OF THE TRUST'S BYLAWS BY VOTING AGAINST PROPOSAL I.
PLANS OF THE SHAREHOLDER COMMITTEE
The Shareholder Committee is committed to increase the value of the
Trust's Common Stock. If the Shareholder Committee is successful, with your
help, in defeating Proposal I, the Committee intends to solicit proxies at the
next annual meeting of the Shareholders to take further actions to attempt to
increase the value of the Common Stock, including the nomination of a new slate
of directors. The Shareholder Committee will recruit and nominate a slate of
directors who, if elected, will replace the Nooney-affiliated management and
advisory firms with one or more companies that will guarantee at least a 10%
reduction in those respective fees. This change, alone, should amount to an
annual reduction of approximately $20,000 in such fees. If the Shareholder
Committee is not successful in defeating Proposal I, the Committee currently
does not intend to solicit proxies at the next annual meeting of the
Shareholders.
11
<PAGE>
PRINCIPAL SHAREHOLDERS
The proxy statement that the Trust's current management must send to
the Shareholders with respect to the Special Meeting ("Management's Proxy
Statement") is required to set 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. 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 of proxies for the Special Meeting for a fee of $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 $60,000. Total
expenditures incurred to date relating to this solicitation have been
approximately $10,000. 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 the Shareholder
Committee (KelCor, Inc., David L. Johnson and Daniel W. Pishny).
12
<PAGE>
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. 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 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 below, 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. 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
13
<PAGE>
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, 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
of the Trust.
For additional information regarding purchases and sales of Common
Stock by members of the Shareholder Committee, please see Appendix B. Except as
described herein and in Appendix B hereto, no member of the Shareholder
Committee 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 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.
See "Principal Shareholders" and Management's Proxy Statement 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.
14
<PAGE>
ADDITIONAL INFORMATION
Reference is made to Management's Proxy Statement for certain
information such proxy statement is required to include 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 Special 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. In addition, the Trust is required to file public
reports that are publicly available. Copies of all such documents filed by the
Trust, and by the Committee, are available at the Securities and Exchange
Commission's web site (www.sec.gov).
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.
A later dated white management proxy card will revoke your vote for the
Shareholder Committee. Remember, only your latest dated and signed proxy card
will be voted.
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 TO VOTE YOUR SHARES,
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)
15
<PAGE>
APPENDIX A
Settlement Agreement
THIS SETTLEMENT AGREEMENT between KelCor, Inc. and its affiliates, as
defined under the Securities Exchange Act of 1934, ("KelCor") and Nooney Realty
Trust, Inc. and its affiliates, as defined under the Securities Exchange Act of
1934, ("Nooney") is entered into as of this 24th day of June 1997.
WHEREAS, Nooney is a publicly-traded corporation and KelCor is a
shareholder of Nooney; and
WHEREAS, KelCor has commenced an action against Nooney styled KelCor,
Inc. v. Nooney Really Trust, Inc. in the Circuit Court for St. Louis County,
Civil Action No. 97-CC-01750 (the "Lawsuit") on June 5, 1997, seeking a
declaratory judgment and preliminary and permanent injunctive relief barring
Nooney from conducting an annual meeting of shareholders and from voting certain
proxies in connection with any annual or special meeting of shareholders of
the Trust, inter alia; and
WHEREAS, the parties appeared and began argument on KelCor's motion for
a preliminary injunction on June 13, 1997; and
WHEREAS, the parties desire amicably to resolve their differences, for
the sole purpose of settlement, and without admitting the merits of any position
taken by either party in the course of the Lawsuit and without admitting any
fault or liability.
NOW, THEREFORE, the undersigned parties agree as follows:
1. Nooney shall postpone its Annual Meeting of Shareholders to a date
at least forty-five (45) days after the special meeting referred to in the next
paragraph and, if Section 6(a) hereof is applicable pursuant to the terms of
this Agreement, no later than 45 days after the court enters its order in the
Lawsuit with respect to the voting rights of the "Excess Shares" of the PICO
Group (as defined below in Section 5(d).
2. Nooney shall call a special meeting of shareholders to be held
thirty (30) days after the date on which the parties can mail their proxy
materials as provided in paragraph 4, below, to vote on a single issue that
shall be the same as Proposal A (except that subparagraph (f) of the amendment
proposed therein will be deleted and the remaining subparagraphs appropriately
re-lettered) as contained in the proxy statement filed by Nooney with the
Securities and Exchange Commission ("SEC") on June 3, 1997 (the "By-Law
Amendment Proposal") and, in connection with such meeting:
a. Nooney shall set the record date as Friday, June 27, 1997; and
Appendix A-1
<PAGE>
b. The affirmative vote of 62.0% of the issued and outstanding
shares of Nooney will be required to pass the By-Law Amendment
Proposal. As used in this Settlement Agreement, "issued and
outstanding shares of Nooney" shall refer to 866,624 shares
without disqualification of any shares that may be deemed
Excess Shares pursuant to the present By-Law Section 8.8(b).
3. KelCor and Nooney shall file their proxy materials regarding the
By-Law Amendment Proposal with the SEC no sooner than the first (1st) business
day after the fall execution of this Settlement Agreement and no later than
three (3) business days after the full execution of this Settlement Agreement.
4. KelCor and Nooney, and each of their directors, officers and agents,
shall not mail proxy solicitation materials or otherwise actively solicit
proxies prior to thirteen (1 3) days after the full execution of this Settlement
Agreement; provided, if the SEC reviews the proxy solicitation material of
KelCor and/or Nooney, both parties agree to mail such materials and conduct any
other solicitation of proxies no earlier than the third (3rd) business day after
the SEC has completed its reviews and notified KelCor and Nooney that it has no
Rather comments. Both KelCor and Nooney agree to promptly proceed with all
matters relating to the SEC review, if any, of such proxy solicitation material.
5. KelCor and Nooney agree that the Special Meeting of
Shareholders and the Annual Meeting of Shareholders will be conducted as
follows:
a. Nooney will appoint an independent inspector of elections
mutually acceptable to Nooney and KelCor to tabulate votes on
all matters brought before the special meeting or the annual
meeting with the fees and expenses of such independent
inspector to be split by Nooney and KelCor;
b. Representatives of all shareholders will be allowed to attend
the special meeting and the annual meeting;
c. All stockholders will be provided reasonable opportunity to
speak at the special meeting and annual meeting on all matters
brought before the special meeting or annual meeting; and
d. If the court determines that some of the shares of Nooney
stock owned directly or indirectly by PICO Holdings, Inc. and
its affiliates, as defined under the Securities Exchange Act
of 1934 (collectively, the "PICO Group"), are "Excess Shame"
under the Nooney Bylaws and cannot be voted at the annual
meeting, than Nooney and KelCor agree to follow the court's
instructions with respect to the voting of any such Excess
Shares at the annual meeting.
Appendix A-2
<PAGE>
6. Upon the tabulation of votes on the By-Law Amendment Proposal
at the special meeting of shareholders:
a. if the By-Law Amendment Proposal receives less than 62.0% of
the vote of the issued and outstanding shams of Nooney as of
the record date for the special meeting of shareholders, then
paragraph 6(b) of this Settlement Agreement shall be void in
its entirety.
b. if the By-Law Amendment Proposal receives 62.0% or more of the
vote of the issued and outstanding shares of Nooney as of the
record date for the special meeting of shareholders, then
KelCor (i) shall not challenge the passage of the By-Law
Amendment and Proposal, (ii) shall accept the By-Law Amendment
as valid and enforceable and (iii) shall dismiss Count I of
the Lawsuit with prejudice with each party to bear its own
costs.
KELCOR, INC.
By: /s/ David J. Johnson
Witnessed:
/s/ Larry Huebner
Its Attorney
NOONEY REALTY TRUST, INC.
By: /s/Gregory J. Nooney
Witnessed:
/s/Frederick W. Scherrer
Its Attorney
Appendix A-3
<PAGE>
APPENDIX B
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 within the past two years by
KelCor, Inc., David L. Johnson and Daniel W. Pishny. David L. Johnson may be
deemed a beneficial owner of KelCor, Inc., but has 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
Total Beneficial Ownership of
Common Stock (including 1900
shares owned by David L. Johnson)
43,013
Appendix B-1
<PAGE>
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
Total Beneficial Ownership of Common Stock (including 41,113 shares owned by
KelCor, Inc.)
43,013
DANIEL W. PISHNY
Shares of Common Date of
Stock Purchased (Sold) Purchase
100 02/21/96
Total Beneficial Ownership of
Common Stock
100
Appendix B-2
<PAGE>
APPENDIX C
(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 Special Meeting of
Shareholders to be held on August __, 1997, and at any adjournment or
adjournments thereof, hereby revoking all proxies heretofore given with respect
to such shares, upon the following proposal 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. Remember, only your latest dated and signed proxy will be voted.
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 AGAINST PROPOSAL I IN OPPOSITION TO THE TRUST'S BOARD OF DIRECTORS. ON ALL
OTHER MATTERS THAT MAY PROPERLY COME BEFORE THE MEETING OR ANY ADJOURNMENT OR
ADJOURNMENTS THEREOF, THIS PROXY WILL BE VOTED IN THE DISCRETION OF THE PERSON
OR PERSONS NAMED AS PROXIES.
The Committee recommends a vote AGAINST Proposal I.
PROPOSAL I
I. MANAGEMENT'S PROPOSED AMENDMENT TO ARTICLE VIII, SECTION
8.8(a) OF THE BYLAWS:
| | AGAINST the proposed | | FOR the proposed | | ABSTAIN
amendment amendment
the Bylaws the Bylaws
Dated: ___________________, 1997
IMPORTANT: PLEASE FILL IN DATE
Appendix C-1
<PAGE>
- ---------------------------
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
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
POSTAGE-PAID ENVELOPE.
I WILL |_| WILL NOT |_| ATTEND THE MEETING.
Appendix C-2
