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SCHEDULE 14A INFORMATION
Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No. )
Filed by the Registrant / /
Filed by a party other than the Registrant /X/
Check the appropriate box:
/ / Preliminary Proxy Statement
/ / Confidential, for Use of the Commission Only (as permitted by Rule
14a-6(e)(2))
/X/ Definitive Proxy Statement
/ / Definitive Additional Materials
/ / Soliciting Material Pursuant to Section 240.14a-11(c) or Section
240.14a-12
Nooney Realty Trust, Inc.
- --------------------------------------------------------------------------------
(Name of Registrant as Specified In Its Charter)
The Shareholder 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)(1)
and 0-11
(1) Title of each class of securities to which transaction applies:
------------------------------------------------------------------------
(2) Aggregate number of securities to which transaction 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:
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(4) Date Filed:
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NOONEY REALTY TRUST, INC.
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SPECIAL MEETING OF SHAREHOLDERS
AUGUST 8, 1997
------------------------
PROXY STATEMENT
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 8, 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
10, 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.
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
Holdings") and its affiliates (PICO Holdings and its affiliates, including
Physicians Insurance Company of Ohio, Inc. ("PICO"), 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
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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 the Trust's counsel and KelCor's counsel, recessed the hearing
and suggested that both parties try to resolve their differences.
The Trust's Board of Directors and KelCor reached an agreement (the
"Settlement Agreement") whereby the Board of Directors 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). The Board of
Directors agreed to hold the Special Meeting on August 8, 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 to
amend Article VIII, Section 8.8 of the Bylaws, as more particularly described
below in "PROPOSAL 1--BOARD'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.
(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.
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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 PROXY CARDS YOU RECEIVE FROM THE
TRUST'S BOARD OF DIRECTORS. Please act today.
A later dated proxy card in favor of the Trust's Board of Directors 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.
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
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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.
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 27, 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 1--BOARD'S BYLAW
AMENDMENT TO ARTICLE VIII").
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
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Directors of the Trust has agreed to require the greater percentage described
above (62.0%) with respect to the matters described in Proposal 1 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
1 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 1 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 1--BOARD'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.
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 (based on certain attribution rules under the Code),
according to documents filed with the Securities and Exchange Commission (the
"SEC") pursuant to Section 13 of the Securities Exchange Act of 1934 (the "1934
Act"), from 1995 through 1996, the PICO Group accumulated approximately 23.3% of
the Common Stock (based on the beneficial ownership rules under the 1934 Act,
which differ from the attribution rules under the Code).
As of December 31, 1995, PICO filed documents with the SEC that revealed
that it 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 the PICO Group's 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.
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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 the
PICO Group was already in violation of the Bylaws' 9.8% ownership restriction,
Mr. Hart disclosed in an SEC filing that, as of November 15, 1996, PICO's
ownership position in the Trust had actually increased to 20.75% of the Trust's
outstanding stock. On February 13, 1997, PICO Holdings disclosed that, as of
December 31, 1996, the PICO Group's ownership of the Trust had increased even
further, to 23.3% of all outstanding shares.
PICO Holdings' most recent SEC filing, made as of March 19, 1997, reports
the same total ownership interest in the Trust for the PICO Group, although this
report reveals that PICO Group had transferred some of its Excess Shares of the
Trust to affiliated entities. The PICO Group 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 the PICO Group, 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 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 approximately 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 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.
BOARD'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 of Article VIII of the Bylaws to read as follows:
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(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 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
By-laws, 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 By-laws 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
By-laws may be amended from time to time upon a vote of the majority of the
Independent 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.
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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 the Trust's Board of Directors
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 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 Article VIII 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 has 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 its 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 1.
8
<PAGE>
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 1, the Committee intends to solicit proxies at the next
annual meeting of the Shareholders to take further action 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 1, the Committee currently
does not intend to solicit proxies at the next annual meeting of the
Shareholders.
PRINCIPAL SHAREHOLDERS
The proxy statement that the Trust's current Board of Directors must send to
the Shareholders with respect to the Special Meeting ("Board'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.
9
<PAGE>
The following information is provided with respect to the Shareholder
Committee (KelCor, Inc., David L. Johnson and Daniel W. Pishny).
<TABLE>
<S> <C>
KELCOR, INC. KelCor, Inc. ("KelCor") was organized in February 1992 for
1100 Main, Suite 2100 the purpose of participating in the acquisition of commercial
Kansas City, MO 64105 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. ("Maxus"), a
Kansas City, MO 64116 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, 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.
</TABLE>
10
<PAGE>
<TABLE>
<S> <C>
DANIEL W. PISHNY, CPA Mr. Pishny is President, Chief Operating Officer and a
10420 England minority shareholder of Maxus. Mr. Pishny graduated with
Overland Park, KS 66212 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.
</TABLE>
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 the Board'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.
ADDITIONAL INFORMATION
Reference is made to the Board'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, 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 PROXY CARDS YOU RECEIVE FROM THE TRUST'S
BOARD OF DIRECTORS. Please act today.
A later dated proxy card in favor of the Trust's Board of Directors 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
11
<PAGE>
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)
12
<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
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 (13) 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.
A-1
<PAGE>
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 Shares" under the Nooney Bylaws and cannot be
voted at the annual meeting, then Nooney and KelCor agree to follow the
court's instructions with respect to the voting of any such Excess Shares
at the annual meeting.
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 shares 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
A-2
<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.
<TABLE>
<CAPTION>
SHARES OF COMMON DATE OF
STOCK PURCHASED (SOLD) PURCHASE
- -------------------------------- ---------
<S> <C>
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
DAVID L. JOHNSON
<CAPTION>
SHARES OF COMMON DATE OF
STOCK PURCHASED (SOLD) PURCHASE
- -------------------------------- ---------
<S> <C>
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
<CAPTION>
SHARES OF COMMON DATE OF
STOCK PURCHASED (SOLD) PURCHASE
- -------------------------------- ---------
<S> <C>
100 02/21/96
TOTAL BENEFICIAL OWNERSHIP OF
COMMON STOCK
- --------------------------------
100
</TABLE>
B-1
<PAGE>
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 8, 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 1 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.
<PAGE>
THE COMMITTEE RECOMMENDS A VOTE AGAINST PROPOSAL 1.
PROPOSAL 1
<TABLE>
<S> <C> <C> <C>
1. THE BOARD'S PROPOSED AMENDMENT TO ARTICLE VIII, SECTION 8.8 OF THE BYLAWS:
/ / AGAINST the proposed / / FOR the proposed / / ABSTAIN
amendment to the Bylaws amendment to the Bylaws
</TABLE>
<TABLE>
<S> <C>
Dated: , 1997
IMPORTANT: PLEASE FILL IN DATE
---------------------------------------------
Signature
---------------------------------------------
Signature (if held jointly)
---------------------------------------------
Title
</TABLE>
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.
