As filed with the Securities and Exchange Commission on December 24, 1997
Registration No. 333-_____
============================================================================
SECURITIES AND EXCHANGE COMMISSION
Washington D.C. 20549
REGISTRATION STATEMENT
ON FORM S-3
UNDER
THE SECURITIES ACT OF 1933
-------------------
GLIMCHER REALTY TRUST
(Exact name of Registrant as specified in its charter)
Maryland 31-1390518
(State or other jurisdiction of (I.R.S. employer
incorporation or organization) identification no.)
20 South Third Street
Columbus, Ohio 43215-3602
(614) 621-9000
(Address, including zip code, and telephone number,
including area code, of Registrant's principal executive offices)
-------------------
Herbert Glimcher
Chairman and Chief Executive Officer
GLIMCHER REALTY TRUST
20 South Third Street
Columbus, Ohio 43215-3602
(614) 621-9000
(Name, address, including zip code, and telephone number
including area code, of agent for service)
-------------------
Copies to:
Alan S. Pearce, Esq.
Robinson Silverman Pearce Aronsohn & Berman LLP
1290 Avenue of the Americas
New York, New York 10104
Approximate date of commencement of proposed sale to the public:
From time to time after the effective date of this Registration Statement
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the
following box: [ ]
If any of the securities being registered on this Form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection
with dividend or interest reinvestment plans, check the following box: [X]
If this form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following
box and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ ]
If this form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the
Securities Act registration statement number of the earlier effective
registration statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
==========================================================================
Proposed Proposed
Title of Maximum Maximum
Shares Amount Aggregate Aggregate Amount of
To Be to be Price Offering Registration
Registered Registered Per Share(1) Price(1) Fee
- ---------- ---------- ----------- --------- ------------
- --------------------------------------------------------------------------
Common Shares
of Beneficial 2,100,000
Interest shares $21.8125 $45,806,250 $11,971.57 (2)
==========================================================================
The registrant hereby amends this Registration Statement on such date
or dates as may be necessary to delay its effective date until the
Registrant shall file a further amendment which specifically states that
this Registration Statement shall thereafter become effective in accordance
with Section 8(a) of the Securities Act of 1933, as amended, or until the
Registration Statement shall become effective on such date as the Securities
and Exchange Commission, acting pursuant to said Section 8(a), may
determine.
PURSUANT TO RULE 429 UNDER THE SECURITIES ACT OF 1933, AS AMENDED, THE
PROSPECTUS WHICH CONSTITUTES PART OF THIS REGISTRATION STATEMENT ALSO
RELATES TO AND INCLUDES AN AGGREGATE OFFERING PRICE OF $4,469,680 OF 223,484
COMMON SHARES OF BENEFICIAL INTEREST REGISTERED ON FORM S-3, REGISTRATION
NO. 33-90730.
(Footnotes on next page)
<PAGE>
(Footnotes from Previous Page)
(1) Estimated solely for purpose of calculating the registration fee.
Pursuant to Rule 457(c), the offering price and registration fee are
computed on the basis of the average of the high and low prices for the
Common Shares on December 19, 1997, as reported on the New York Stock
Exchange.
(2) Does not include $1,541.27 which relates to the aggregate offering
price of $4,469,680 of 223,484 common shares of beneficial interest
previously registered on Form S-3, Registration No. 33-90730, which
amount was previously paid and is carried over to this Registration
Statement.
<PAGE>
____________________________________________________________________________
Information contained herein is subject to completion or amendment. A
registration statement relating to these securities has been filed with and
declared effective by the Securities and Exchange Commission. These
securities may not be sold nor may offers to buy be accepted without the
delivery of a final prospectus supplement and prospectus. This Prospectus
Supplement and the accompanying Prospectus shall not constitute an offer to
sell or the solicitation of an offer to buy nor shall there be any sale of
these securities in any State in which such offer, solicitation or sale
would be unlawful prior to registration or qualification under the
securities laws of any such State.
____________________________________________________________________________
Subject to Completion
Preliminary Prospectus, Dated December 24, 1997
PROSPECTUS
Glimcher Realty Trust
Distribution Reinvestment and Share Purchase Plan
2,100,000 Common Shares of Beneficial Interest
($0.01 par value per share)
--------------------
The Distribution Reinvestment and Share Purchase Plan, as amended (the
"Plan"), of Glimcher Realty Trust (the "Company") provides record and
beneficial owners of the Company's common shares of beneficial interest,
$0.01 par value per share (the "Common Shares"), record owners of limited
partnership interests (the "OP Units") of Glimcher Properties Limited
Partnership (the "Partnership") and investors ("new investors") who are not
currently record or beneficial holders of Common Shares or record holders of
OP Units, with a simple and convenient method of investing in Common Shares
without paying any brokerage commissions, service charges or other expenses.
Some of the significant features of the Plan are as follows:
Participants in the Plan may:
-- have cash distributions on all of the Common Shares or OP Units
owned by them automatically reinvested in Common Shares, and have the option
of investing in Common Shares by making cash payments of $100 to $3,000 per
calendar quarter, or
-- have cash distributions on less than all of such Common Shares or OP
Units automatically reinvested in Common Shares while continuing to receive
the remainder of their cash distributions, and have the option of investing
in Common Shares by making cash payments of $100 to $3,000 per calendar
quarter, or
-- invest in Common Shares only by making optional cash payments of
$100 to $3,000 per calendar quarter, or
-- invest in Common Shares only by making optional cash payments in
excess of $3,000 per calendar quarter, with the permission of the Company.
Under the Plan, Harris Trust and Savings Bank or any successor bank or
trust company as may from time to time be designated by the Company (the
"Agent"), will buy, at the Company's direction, newly issued Common Shares
from the Company or Common Shares in the open market or in negotiated
transactions with third parties. At present, the Company expects that the
Agent will usually purchase newly issued Common Shares from the Company.
Subject to certain limitations described below, the purchase price (before
giving effect to any Waiver Discount (as defined in the Summary) of newly
issued Common Shares on any given Investment Date (as defined in Question
19) will be the average of: the average of the high and low sale prices of
the Common Shares on the New York Stock Exchange for each of the twelve
Trading Days preceding such Investment Date that such average equals or
exceeds the Threshold Price (as defined in the Summary), if any, for such
Investment Date. If, for each of the twelve Trading Days, the average of
the high and low sale prices of the Common Shares on the New York Stock
Exchange for such Trading Day does not equal or exceed the Threshold Price,
if any, then the purchase price (before giving effect to any Waiver
Discount) will be determined by the Company on the basis of such market
quotations as it deems appropriate. A "Trading Day" is any day on which
trades in the Common Shares are reported on the New York Stock Exchange.
Subject to certain limitations described below, the purchase price of the
Common Shares, if the Agent is purchasing Common Shares in the open market
or in negotiated transactions with third parties, will be the weighted
average of the prices so paid for such Common Shares for the relevant
Investment Date.
(Continued on next page)
THESE SECURITIES HAVE NOT BEEN APPROVED OR DISAPPROVED BY THE SECURITIES
AND EXCHANGE COMMISSION OR ANY STATE SECURITIES COMMISSION NOR HAS THE
SECURITIES AND EXCHANGE COMMISSION OR ANY STATE SECURITIES
COMMISSION PASSED UPON THE ACCURACY OR ADEQUACY OF THIS
PROSPECTUS. ANY REPRESENTATION TO THE CONTRARY IS A
CRIMINAL OFFENSE.
THE ATTORNEY GENERAL OF THE STATE OF NEW YORK HAS NOT PASSED ON OR ENDORSED
THE MERITS OF THIS OFFERING. ANY REPRESENTATION TO THE
CONTRARY IS UNLAWFUL.
___________, 1997
<PAGE>
(Continued from previous page)
Holders of Common Shares or OP Units held in their own name ("Record
Owners") may participate in the Plan directly. Holders of Common Shares
held in bank, broker or other nominee names ("Beneficial Owners") may
participate in the Plan by requesting that the bank, broker or other nominee
reinvest distributions and/or make optional cash payments on the Beneficial
Owner's behalf. Alternatively, the Beneficial Owner may request his bank,
broker or other nominee to transfer the Common Shares into the Beneficial
Owner's own name, after which he may participate in the Plan directly (see
Question 6).
This Prospectus does not constitute an offer to sell or a solicitation
of an offer to buy any of the securities offered hereby in any jurisdiction
to any person to whom it is unlawful to make such an offer or solicitation
in such jurisdiction. No person has been authorized to give any information
or to make any representations other than those contained in this Prospectus
in connection with the offering made hereby, and if given or made, such
information or representations must not be relied upon as having been
authorized by the Company. Neither the delivery of this Prospectus nor any
sale made hereunder shall, under any circumstances, create any implication
that information herein is correct as of any time subsequent to the date
hereof.
TABLE OF CONTENTS
PAGE
ADDITIONAL INFORMATION . . . . . . . . . . . . . . . . . . . . . . . . . -3-
DOCUMENTS INCORPORATED BY REFERENCE. . . . . . . . . . . . . . . . . . . -3-
THE COMPANY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -4-
USE OF PROCEEDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
SUMMARY. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -5-
THE PLAN . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . -8-
DIVIDENDS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-24-
PLAN OF DISTRIBUTION . . . . . . . . . . . . . . . . . . . . . . . . . .-24-
LEGAL MATTERS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-25-
EXPERTS. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .-25-
<PAGE>
ADDITIONAL INFORMATION
The Company has filed with the Securities and Exchange Commission (the
"Commission"), 450 Fifth Street N.W., Washington, D.C. 20549, a Registration
Statement on Form S-3 under the Securities Act of 1933, as amended (the
"Securities Act"), and the rules and regulations promulgated thereunder,
with respect to the Common Shares offered pursuant to this Prospectus. This
Prospectus, which is part of the Registration Statement, does not contain
all of the information set forth in the Registration Statement and the
exhibits thereto. For further information with respect to the Company and
the Common Shares, reference is made to the Registration Statement and such
exhibits, copies of which may be examined without charge at, or obtained
upon payment of prescribed fees from, the Public Reference Section of the
Commission at Room 1024, Judiciary Plaza, 450 Fifth Street, N.W.,
Washington, D.C. 20549 and will also be available for inspection and copying
at the regional offices of the Commission located at Seven World Trade
Center, 13th Floor, New York, New York 10048 and at 500 West Madison Street,
Suite 1400, Chicago, Illinois 60661-2511.
Statements contained in this Prospectus as to the contents of any
contract or other document which is filed as an exhibit to the Registration
Statement are not necessarily complete, and each such statement is qualified
in its entirety by reference to the full text of such contract or document.
The Company is subject to the informational requirements of the
Securities Exchange Act of 1934, as amended (the "Exchange Act"), and in
accordance therewith files reports and proxy statements and other
information with the Commission. Such reports, proxy statements and other
information can be inspected and copied at the locations described above.
Copies of such materials can be obtained by mail from the Public Reference
Section of the Commission at 450 Fifth Street, N.W., Washington, D.C. 20549,
at prescribed rates. In addition, the Commission maintains a Website that
contains reports, proxy and information statements and other information
regarding registrants that file electronically with the Commission. The
address of this Website is http://www.sec. gov. The Common Shares and the
Company's 9 1/4% Series B Cumulative Redeemable Preferred Shares of
Beneficial Interest, par value $.01 per share (the "Series B Preferred
Shares") are listed on the New York Stock Exchange and similar information
concerning the Company can be inspected and copied at the New York Stock
Exchange, 20 Broad Street, New York, New York 10005.
The Company furnishes its shareholders with annual reports containing
audited financial statements with a report thereon by its independent public
accountants, and quarterly reports containing unaudited financial
information for each of the first three quarters of the fiscal year.
DOCUMENTS INCORPORATED BY REFERENCE
The following documents, which have been filed by the Company with the
Commission, are incorporated in this Prospectus by reference:
1. The Company's Annual Report on Form 10-K for the year ended
December 31, 1996.
2. The Company's Quarterly Report on Form 10-Q for the quarter ended
March 31, 1997.
3. The Company's Quarterly Report on Form 10-Q for the quarter ended
June 30, 1997.
4. The Company's Quarterly Report on Form 10-Q for the quarter ended
September 30, 1997.
5. The Company's Current Report on Form 8-K dated February 5, 1997
and filed with the Commission on February 5, 1997.
6. The Company's Current Report on Form 8-K dated June 17, 1997 and
filed with the Commission on June 23, 1997.
7. The Company's Current Report on Form 8-K dated November 4, 1997
and filed with the Commission on November 4, 1997.
8. The Company's Current Report on Form 8-K dated November 14, 1997
and filed with the Commission on November 15, 1997.
9. All other reports filed by the Company pursuant to Section 13(a)
or 15(d) of the Securities Exchange Act of 1934, as amended (the "Exchange
Act"), since December 31, 1996.
10. The description of the Common Shares contained in the Company's
Registration Statement on Form 8-A, filed with the Commission on October 21,
1993, and the information thereby incorporated by reference contained in the
Company's Registration Statement on Form S-11 (File No. 33-69740), as
amended by Amendments No. 1, 2, 3, 4 and 5, filed September 30, 1993,
November 5, 1993, November 22, 1993, November 30, 1993, January 10, 1994 and
January 19, 1994, respectively, under the heading "Description of Shares of
Beneficial Interest."
11. The description of the Series B Preferred Shares contained in the
Company's Registration Statement on Form 8-A, dated November 13, 1997 and
filed with the Commission on November 14, 1997.
All reports and other documents subsequently filed by the Company
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Exchange Act, prior
to the filing of a post-effective amendment which indicates that all
securities offered hereby have been sold or which deregisters all securities
then remaining unsold, shall be deemed to be incorporated by reference in
and to be a part of this Prospectus from the date of filing of such reports
and documents.
Any statement contained in a document incorporated or deemed to be
incorporated by reference herein shall be deemed to be modified or
superseded for purposes of this Prospectus to the extent that a statement
contained herein or in the Registration Statement containing this Prospectus
or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any
statement so modified or superseded shall not be deemed, except as so
modified or superseded, to constitute a part of this Prospectus.
The Company hereby undertakes to provide without charge to each person
to whom a copy of this Prospectus has been delivered, upon the written or
oral request of any such person, a copy of any and all of the documents
referred to above which have been or may be incorporated in this Prospectus
by reference, other than exhibits to those documents. Requests should be
directed to Glimcher Realty Trust, Attention: William Cornely, Senior Vice
President and Chief Financial Officer, 20 South Third Street, Columbus, Ohio
43215-3602 (telephone number (614) 621-9000).
THE COMPANY
The Company, together with its subsidiaries, is a fully integrated,
self-administered and self-managed equity real estate investment trust
("REIT") which owns and operates enclosed regional malls, and community
centers, consisting of community shopping centers and single tenant retail
properties.
The Company was formed on September 1, 1993 as a Maryland real estate
investment trust. The Company's executive offices are located at 20 South
Third Street, Columbus, Ohio 43215-3602, and its telephone number is (614)
621-9000.
USE OF PROCEEDS
To the extent that the Agent purchases newly issued Common Shares
(authorized but previously unissued Common Shares or treasury Common
Shares), rather than Common Shares in the open market or in negotiated
transactions with third parties, the Company will receive the proceeds. To
the extent that the Agent purchases Common Shares in the open market or in
negotiated transactions with third parties the Company will not receive any
proceeds. At present, the Company expects that the Agent generally will
purchase newly issued Common Shares from the Company rather than Common
Shares in the open market or in negotiated transactions with third parties.
Any proceeds received by the Company from any sales of Common Shares sold
pursuant to the Plan will be used for general Company purposes. The Company
has no basis for estimating either the number of Common Shares that will be
sold pursuant to the Plan or the prices at which such Common Shares will be
sold.
SUMMARY
The following summary of the Plan is qualified by reference to the full
text of the Plan which is contained herein.
Purposes of the Plan . . . . The primary purpose of the Plan is to provide
Record Owners and Beneficial Owners of Common
Shares, Record Owners of OP Units and
interested new investors, with a simple and
convenient method of investing in Common
Shares without payment of any brokerage
commissions, service charges or other
expenses. A secondary purpose of the Plan is
to provide the Company with a means of raising
additional capital through sales of newly
issued Common Shares. Whether significant
amounts of additional capital are raised may
be affected, in part, by the Company's
decision to grant waivers of limitations
relating to optional cash payments proposed to
be made pursuant to Requests for Waiver, and
the Company's decision from time to time to
direct the Agent to purchase newly issued
Common Shares rather than Common Shares in the
open market or in negotiated transactions with
third parties.
Distribution Reinvestments/
Optional Cash Payment
Investments. . . . . . . . . Eligible holders of Common Shares or eligible
holders of OP Units, whether Record Owners or
Beneficial Owners (including investors who
have made an initial investment through the
Share Purchase Program (as defined in this
paragraph) (each, a "participant")), may (i)
have cash distributions on all of the Common
Shares or OP Units, as the case may be, owned
by them automatically reinvested in Common
Shares (the "Distribution Reinvestment
Program"), and have the option of investing in
Common Shares (the "Share Purchase Program")
by making optional cash payments of $100 to
$3,000 per calendar quarter; (ii) have cash
distributions on less than all of such Common
Shares or OP Units automatically reinvested in
Common Shares while continuing to receive the
remainder of their cash distributions, and
have the option of investing in Common Shares
by making optional cash payments of $100 to
$3,000 per calendar quarter; (iii) invest in
Common Shares only by making optional cash
payments of $100 to $3,000 per calendar
quarter; or (iv) invest in Common Shares only
by making optional cash payments in excess of
$3,000 per calendar quarter, with the
permission of the Company. Interested new
investors may become participants by choosing
to (i) invest in Common Shares by making an
initial optional cash payment of $100 to
$3,000 per calendar quarter; or (ii) invest in
Common Shares by making an initial cash
payment in excess of $3,000 per calendar
quarter, with the permission of the Company.
Plan Limitations . . . . . . Each month participants have the option to
make optional cash payments of no less than
$100, subject to a limitation of $3,000 per
calendar quarter (unless the participant has
obtained approval of the Company to exceed
such quarterly limit). Optional cash payments
in excess of $3,000 may be made by a
participant only upon such participant's
submission to the Company of a completed and
signed Request for Waiver and the Company's
grant of a waiver of limitations relating to
the optional cash payments proposed to be made
pursuant to such Request for Waiver (an
"Accepted Request for Waiver"). There is no
pre-established maximum limit applicable to
optional cash payments that may be made
pursuant to Accepted Requests for Waivers.
Purchase Price . . . . . . . Subject to certain limitations described
below, the purchase price of Common Shares
purchased in the open market or in negotiated
transactions with third parties will be the
weighted average price for all of such Common
Shares so purchased by the Agent. Subject to
certain limitations described below, the
purchase price (before giving effect to any
Waiver Discount) of newly issued Common Shares
on any given Investment Date will be the
average of: the average of the high and low
sale prices of the Common Shares on the New
York Stock Exchange for each of the twelve
Trading Days preceding such Investment Date
that such average equals or exceeds the
Threshold Price, if any, for such Investment
Date. If, for each of the twelve Trading
Days, the average of the high and low sale
prices of the Common Shares on the New York
Stock Exchange for such Trading Day does not
equal or exceed the Threshold Price, if any,
then the purchase price (before giving effect
to any Waiver Discount) will be determined by
the Company on the basis of such market
quotations as it deems appropriate. A
"Trading Day" is any day on which trades in
the Common Shares are reported on the New York
Stock Exchange. The purchase price, as so
determined and before giving effect to any
Waiver Discount, is referred to herein as the
"Market Price."
Notwithstanding the foregoing, in no event
shall the purchase price for a newly issued
Common Share (after taking into account any
Waiver Discount), whether pursuant to optional
cash payments or distribution reinvestment, be
less than the sum of (i) 95% of the fair
market value of a Common Share on the
Investment Date, plus (ii) any brokerage
commissions and related charges described in
Question 39. Also, in the case of the
purchase of a Common Share in the open market
or negotiated transactions with third parties,
pursuant to an optional cash payment, in no
event shall the sum of any brokerage
commissions and related charges described in
Question 39 exceed 5% of the fair market value
of such Common Share.
Unless it waives its right to do so, the
Company may establish for any Pricing Period
(as defined in Question 13) a minimum price
(the "Threshold Price") in order to provide
the Company with the ability to set a minimum
price at which newly issued Common Shares will
be sold under the Plan on any given Investment
Date. A Threshold Price will only be
established when newly issued Common Shares
will be purchased on the applicable Investment
Date.
Discounts to Purchase
Price. . . . . . . . . . . . The Company will, on the business day
immediately prior to each Pricing Period,
determine whether to establish a discount from
the Market Price applicable to optional cash
payments made pursuant to Accepted Requests
for Waiver that are used to purchase newly
issued Common Shares. In addition, if a
Waiver Discount exists for a particular
Investment Date, such Waiver Discount will
apply to all optional cash payments applicable
to such Investment Date used to purchase newly
issued Common Shares, not just those made
pursuant to Accepted Requests for Waiver.
Such discount (the "Waiver Discount") shall be
between 0% and 3% of the purchase price and
may vary each Investment Date, but once
established will uniformly apply to all
optional cash payments made that are used to
purchase newly issued Common Shares for that
Investment Date. Setting a Waiver Discount
for a particular Investment Date shall not
affect the setting of a Waiver Discount for
any subsequent Investment Date. The Waiver
Discount will apply to the entire optional
cash payment and not just the portion that
exceeds $3,000. Notwithstanding the
foregoing, in the case of the purchase of a
Common Share in the open market or negotiated
transactions with third parties, pursuant to
an optional cash payment, in no event shall
the sum of any brokerage commissions and
related charges described in Question 39
exceed 5% of the fair market value of such
Common Share.
Requests for Waiver/
Waiver Discounts . . . . . . The grant of waivers of limitations relating
to optional cash payments proposed to be made
pursuant to Requests for Waiver, and the
setting of Waiver Discounts, if any, will be
considered on the basis of a variety of
factors, which may include the Company's
current and projected capital needs, the
alternatives available to the Company to meet
those needs, prevailing market prices for
Common Shares and other Company securities,
general economic and market conditions,
expected aberrations in the price of trading
volume of the Common Shares, the number of
Common Shares held by the participant
submitting the Request for Waiver, the past
actions of a participant under the Plan, the
aggregate amount of optional cash payments for
which such Request for Waiver have been
submitted and the administrative constraints
associated with granting a waiver. Grants of
waivers will be made in the sole and absolute
discretion of the Company.
Number of Common
Shares Offered . . . . . . . 2,100,000 Common Shares are authorized to be
issued and registered under the Securities Act
for offering pursuant to the Plan.
THE PLAN
The original Distribution Reinvestment and Share Purchase Plan of the
Company became effective in June 1994. The original Distribution
Reinvestment and Share Purchase Plan has been significantly amended by the
Board of Trustees of the Company (the "Board of Trustees"). The following
questions and answers constitute the Distribution Reinvestment and Share
Purchase Plan, as amended (the "Plan"), of the Company. Holders of Common
Shares ("Shareholders") and holders of OP Units ("OP Unitholders") currently
enrolled in the Company's Distribution Reinvestment and Share Purchase Plan
will automatically be enrolled in the Plan. Participation in the Plan is
entirely voluntary and participants may terminate their participation at any
time. Shareholders and OP Unitholders who do not choose to participate or
who terminate their participation in the Plan will continue to receive cash
distributions, as declared and paid, on their Common Shares or OP Units, as
the case may be, in the usual manner.
Purpose
1. What is the purpose of the Plan?
The primary purpose of the Plan is to provide Record Owners and
Beneficial Owners of Common Shares, Record Owners of OP Units and
interested new investors with a simple and convenient method of investing in
Common Shares without payment of any brokerage commissions, service charges
or other expenses. A secondary purpose of the Plan is to provide the
Company with a means of raising additional capital through sales of newly
issued Common Shares. Whether significant amounts of additional capital are
raised may be affected, in part, by the Company's decision to grant waivers
of limitations relating to optional cash payments proposed to be made
pursuant to Requests for Waiver, and the Company's decision from time to
time to direct the Agent to purchase newly issued Common Shares rather than
Common Shares in the open market or in negotiated transactions with third
parties (see Question 13).
The Plan is primarily intended for the benefit of long-term investors,
and not for the benefit of individuals or institutions who engage in short-
term trading activities. The Plan does not limit the aggregate amount of
cash distributions which an individual or an institution may reinvest.
Accordingly, participants with large holdings of Common Shares or OP Units
in the Plan may reinvest a greater amount than participants with smaller
holdings of Common Shares or OP Units in the Plan. In addition, because of
the Waiver Discount feature of the Share Purchase Program, it is possible
that certain financial intermediaries may engage in short-term trading
activities or positioning transactions in order to benefit from any Waiver
Discount. Such short-term trading or positioning transactions could cause
volatility in the composite trading volume and price of the Common Shares.
The Company does not endorse such short-term trading or positioning
transactions and has not entered into any formal or informal arrangements to
facilitate such short-term trading or positioning transactions. Individuals
or institutions that engage in such short-term trading or positioning
transactions may be considered "underwriters" as that term is defined in the
Securities Act. Individuals or institutions considered to be "underwriters"
may incur disclosure obligations and other liabilities under the Securities
Act. The Company reserves the right to modify, suspend or terminate
participation in the Plan by otherwise eligible holders in order to prevent
practices which are not consistent with the purposes of the Plan.
2. What investment options exist under the Plan?
Eligible holders of Common Shares or eligible holders of OP Units,
whether Record Owners or Beneficial Owners (including investors who have
made an initial investment through the Share Purchase Program), may (i) have
cash distributions on all of the Common Shares or OP Units, as the case may
be, owned by them automatically reinvested in Common Shares, and have the
option of investing in Common Shares by making optional cash payments of
$100 to $3,000 per calendar quarter; (ii) have cash distributions on less
than all of such Common Shares or OP Units automatically reinvested in
Common Shares while continuing to receive the remainder of their cash
distributions, and have the option of investing in Common Shares by making
optional cash payments of $100 to $3,000 per calendar quarter; (iii) invest
in Common Shares only by making optional cash payments of $100 to $3,000 per
calendar quarter; or (iv) invest in Common Shares only by making optional
cash payments in excess of $3,000 per calendar quarter, with the permission
of the Company. Interested new investors may become participants by
choosing to (i) invest in Common Shares by making an initial optional cash
payment of $100 to $3,000 per calendar quarter; or (ii) invest in Common
Shares by making an initial cash payment in excess of $3,000 per calendar
quarter, with the permission of the Company.
Advantages and Disadvantages
3. What are the advantages and disadvantages of the Plan?
Advantages
(a) Participants in the Plan receive full investment of their
distributions and optional cash payments because they are not required to
pay brokerage commissions, service charges or other expenses in connection
with purchases of Common Shares under the Plan and because the Plan permits
fractional Common Shares, as well as whole Common Shares, to be purchased
from the Company.
(b) Distributions on all whole and fractional Common Shares credited
to participants' accounts are automatically reinvested in additional whole
or fractional Common Shares.
(c) Newly issued Common Shares purchased using optional cash payments
made pursuant to Accepted Requests for Waivers generally will be purchased
for the Plan at the Market Price, reduced by the Waiver Discount, if any.
(d) Participants also avoid the necessity of safekeeping certificates
representing the Common Shares credited to their accounts and have increased
protection against loss, theft or destruction of such certificates.
Furthermore, certificates representing Common Shares not previously credited
to a participant's account may be deposited for safekeeping as more fully
explained in the answer to Question 25.
(e) A regular statement for each account provides a participant with a
record of each transaction.
Disadvantages
(a) No interest will be paid by the Company or the Agent on
distributions or optional cash payments held pending reinvestment or
investment (see Questions 7 and 12). In addition, optional cash payments of
less than $100 and that portion of optional cash payments in excess of
$3,000 per calendar quarter, unless such upper limit has been waived, are
subject to return to the participant without interest. Moreover, all or a
portion of optional cash payments in excess of $3,000 that have been granted
a waiver may also be subject to return to the participant without interest
in the event that the Threshold Price (as defined in Question 13), if any,
is not met for any Trading Days during the related Pricing Period (as
defined in Question 13) (see Question 13).
(b) With respect to newly issued Common Shares, the actual number of
Common Shares to be issued to a participant or credited to the participant's
Plan account will not be determined until after the end of the relevant
Pricing Period. Therefore, during the Pricing Period participants will not
know the actual price per share or number of shares they have purchased.
(c) The Market Price, whether or not reduced by any Waiver Discount,
may exceed the price at which Common Shares are trading on the Investment
Date when the Common Shares are issued or thereafter.
(d) Because optional cash payments must be received by the Agent on or
prior to the Optional Cash Payment Due Date (as defined in Question 14),
such payments may be exposed to changes in market conditions for a longer
period of time than in the case of typical secondary market transactions
(see Questions 14 and 19).
(e) Resales of Common Shares credited to a participant's account under
the Plan will involve the deduction from the proceeds of such resales of any
related brokerage commission, transfer tax or other fees incurred by the
Agent allocable to the resales of such Common Shares (see Question 29).
Administration
4. Who administers the Plan?
Harris Trust and Savings Bank, as Agent for the participants,
administers the Plan, keeps records, sends statements of account to
participants and performs other duties relating to the Plan. All costs of
administering the Plan are paid by the Company. Common Shares purchased
under the Plan are issued in the name of the Agent or its nominee, as agent
for the participants, unless and until a participant requests that a
certificate for all or part of such Common Shares be issued (see Question
23). As record holder of the Common Shares held in participants' accounts
under the Plan, the Agent will receive distributions on all Common Shares
held by it on the distribution record date, will credit such distributions
to the participants' accounts on the basis of full and fractional Common
Shares held in these accounts, and will automatically reinvest, if such
participants have so elected or failed to make any election, such
distributions in additional Common Shares. The Agent makes all purchases of
Common Shares under the Plan.
The following address and telephone number may be used to obtain
information about the Plan:
Harris Trust and Savings Bank
Attention: Dividend Reinvestments
P.O. Box A 3309
Chicago, IL 60690
Telephone number: (800) 942-5909
If you are already a Plan participant, be sure to mention your account
number(s) in any correspondence.
Eligibility
For purposes of this section, responses are generally directed (a) to
existing holders of Common Shares and OP Unitholders, according to the
method by which their Common Shares or OP Units are held, and (b) to new
investors. Existing holders of Common Shares are either Record Owners or
Beneficial Owners. Existing holders of OP Units are Record Owners. A
Record Owner is a person who owns Common Shares or OP Units that are
registered in his own name. A Beneficial Owner is a person who beneficially
owns Common Shares that are registered in a name other than his own name
(for example, the Common Shares are held in the name of a bank, broker or
other nominee in whose name the Beneficial Owner's Common Shares are held).
A Record Owner may participate directly in the Plan, whereas a Beneficial
Owner will either have to become a Record Owner by having one or more Common
Shares transferred into his own name or coordinate his participation in the
Plan through the bank, broker or other nominee in whose name the Beneficial
Owner's Common Shares are held. For more detailed information and
instructions, see Questions 5 and 6.
5. Who is eligible to become a participant?
Record Owners. All Record Owners are eligible to participate directly
in the Plan.
Beneficial Owners. A Beneficial Owner may become a participant by
instructing his bank, broker or other nominee to arrange participation in
the Plan on the Beneficial Owner's behalf. The bank, broker or other
nominee should then make arrangements with its securities depository and the
securities depository will provide the Agent with the information necessary
to allow the Beneficial Owner to participate in the Distribution
Reinvestment Program. Should the Beneficial Owner also wish to participate
in the Share Purchase Program and if the bank, broker or other nominee holds
the Common Shares in the name of a securities depository, a Broker and
Nominee Form ("B&N form") must also be sent to the Agent for the bank,
broker or other nominee to participate in the Share Purchase Program on
behalf of the Beneficial Owner.
Alternatively, a Beneficial Owner may request that the number of Common
Shares that the Beneficial Owner wishes to be enrolled in the Plan be
reclassified or reregistered by the bank, broker or other nominee in the
Beneficial Owner's own name as a record owner in order to directly
participate in the Plan.
Non-Shareholders. New investors may participate in the Plan by making
an initial purchase of Common Shares under the Share Purchase Program.
Shareholders, OP Unitholders and new investors whose participation
would be unlawful will not be eligible to participate in the Plan.
Shareholders, OP Unitholders and new investors who are citizens or
residents of a country other than the United States and its territories and
possessions should make certain that their participation in the Plan does
not violate local laws governing such things as taxes, currency and exchange
controls, stock registration, and foreign investments.
Participation by Shareholders
6. How does an eligible shareholder, OP Unitholder or new investor become
a participant?
A Record Owner may become a participant by completing and signing the
enclosed Authorization Form and returning it to the Agent. Additional
Authorization Forms may be obtained at any time by written request to the
Agent at the following address: Harris Trust and Savings Bank, Attention:
Dividend Reinvestments, P.O. Box A 3309, Chicago, IL 60690, or by
telephoning the Agent at: (800) 942-5909. If the Common Shares or OP Units
are registered in more than one name (e.g. joint tenants, trustees, etc.),
all registered holders must complete and sign the Authorization Form.
A Beneficial Owner may become a participant by instructing his bank, broker
or other nominee to arrange participation in the Plan on the Beneficial
Owner's behalf. The bank, broker or other nominee should then make
arrangements with its securities depository and the securities depository
will provide the Agent with the information necessary to allow the
Beneficial Owner to participate in the Distribution Reinvestment Program.
If the bank, broker or other nominee holds the Common Shares in the name of
a securities depository, optional cash payments must be made through the use
of a B&N Form. Interested Beneficial Owners are cautioned to ensure that
the broker, bank or other nominee passes along the proceeds of any
applicable Waiver Discount to the Beneficial Owner's account.
Alternatively, a Beneficial Owner may request that the number of Common
Shares that the Beneficial Owner wishes to be enrolled in the Plan be
reclassified or reregistered by the bank, broker or other nominee in the
Beneficial Owner's own name as a record owner in order to directly
participate in the Plan.
A new investor may, under the Share Purchase Program, become a
participant by making an initial investment of $100 to $3,000 (unless such
upper limit has been waived) and completing and signing an Authorization
Form and returning it to the Agent on or prior to the Optional Cash Payment
Due Date. At the same time, the new participant may designate all, a
portion or none of the Common Shares to be purchased to be enrolled in the
Distribution Reinvestment Program. The Authorization Form should be
returned to the Agent, with payment, on or before the applicable dates
discussed below.
For participants wishing to have distributions reinvested with respect
to any Common Shares or OP Units pursuant to the Distribution Reinvestment
Program, a completed and signed Authorization Form requesting reinvestment
of distributions must be received by the Agent at least five business days
before the Record Date established for a particular distribution on such
Common Shares or OP Units. If such an Authorization Form is received less
than five business days before the Record Date established for a particular
distribution on such Common Shares or OP Units, reinvestment of
distributions will begin on the distribution payment date following the next
Record Date provided such Record Owner remains the record holder of such
Common Shares or OP Units. If such Record Owner does not remain the record
holder of such Common Shares or OP Units on such next Record Date, such
Authorization Form shall be returned to the sender and the request for
reinvestment of distributions shall be denied.
For participants wishing to make optional cash payments to purchase
Common Shares under the Share Purchase Program, full payment must be
received by the Agent on or prior to the Optional Cash Payment Due Date.
Any participant who returns an Authorization Form to the Agent without
specifying the number of Common Shares so purchased under the Plan to be
included in the Distribution Reinvestment Program will be enrolled as having
specified that all of such Common Shares be so included in the Distribution
Reinvestment Program. See Question 7 for additional investment option
information.
7. What does the Authorization Form provide?
The Authorization Form appoints the Agent as agent for the participant
and directs the Company to pay to the Agent the participant's cash
distributions on the Common Shares and OP Units owned by the participant on
the applicable Record Date and enrolled in the Distribution Reinvestment
Program, and thereafter including all whole and fractional shares of Common
Shares credited to the participant's Plan account under the Distribution
Reinvestment Program and such number of Common Shares purchased under the
Share Purchase Program as a participant may designate from time to time.
Cash distributions with respect to Common Shares and OP Units enrolled in
the Distribution Reinvestment Program will be automatically reinvested by
the Agent in Common Shares. Any cash distributions on Common Shares or OP
Units that are not enrolled in the Distribution Reinvestment Program will be
paid, as declared and paid, in the usual manner.
The Authorization Form provides for the purchase of Common Shares
through the following investment options:
-- have cash distributions on all of the Common Shares or OP Units
owned by them automatically reinvested in Common Shares, and have the option
of investing in Common Shares by making cash payments of $100 to $3,000 per
calendar quarter, or
-- have cash distributions on less than all of such Common Shares or OP
Units automatically reinvested in Common Shares while continuing to receive
the remainder of their cash distributions, and have the option of investing
in Common Shares by making cash payments of $100 to $3,000 per calendar
quarter, or
-- invest in Common Shares only by making optional cash payments, or an
initial cash payment, of $100 to $3,000 per calendar quarter, or
-- invest in Common Shares only by making optional cash payments, or an
initial cash payment, in excess of $3,000 per calendar quarter, with the
permission of the Company.
Additionally, the Authorization Form directs the Agent to purchase
Common Shares with a participant's optional cash payments, if any, and
directs the Agent to enroll all, a portion or none, at the option of the
participant, of such new Common Shares in the Distribution Reinvestment
Program.
A participant may change his or her investment election by completing
and signing a new Authorization Form and returning it to the Agent (see
Question 6). Any change of election concerning the reinvestment of
distributions must be received by the Agent at least five business days
prior to the Record Date for a distribution payment date (see Question 11)
in order for the change to become effective with respect to that
distribution payment.
Regardless of which method of participation is selected, all cash
distributions paid on whole or fractional Common Shares credited to a
participant's Plan account will be reinvested automatically. No interest
will be paid by the Company or the Agent on distributions held pending
reinvestment.
8. What does the B&N Form provide?
The B&N Form provides the only means other than redesignation of the
Common Shares in the Beneficial Owner's own name, by which a bank, broker or
other nominee holding shares of a Beneficial Owner in the name of a
securities depository may invest optional cash payments on behalf of such
Beneficial Owner. A B&N Form must be delivered to the Agent each time that
such bank, broker or other nominee transmits optional cash payments on
behalf of a Beneficial Owner. Forms may be obtained at any time by written
request to the Agent at the following address: Harris Trust and Savings
Bank, Attention: Dividend Reinvestments, P.O. Box A 3309, Chicago, IL 60690,
or by telephoning the Agent at: (800) 942-5909.
Prior to submitting the B&N Form, the bank, broker or other nominee for
a Beneficial Owner must make arrangements with its securities depository and
the Agent in order to participate on behalf of the Beneficial Owner.
The B&N Form and appropriate instructions must be received by the Agent
at least five business days prior to an Investment Date or the payment will
not be invested until the following Investment Date.
9. When may an eligible shareholder, OP Unitholder or new investor
participant in the Plan?
The Plan became effective on June 15, 1994. The Plan applies to cash
distributions paid after August 1, 1994, and optional cash payments received
upon enrollment or thereafter in accordance with the terms of the Plan.
Record Owners, Beneficial Owners and new investors may participate in the
Plan subject to compliance with the procedures described herein.
10. May I reinvest less than the full amount of my distributions?
Yes. Participants may designate any desired number of their Common
Shares or OP Units for which distributions are to be reinvested.
Distributions will thereafter be reinvested only on the number of Common
Shares or OP Units specified, and the participant will continue to receive
cash distributions, as declared and paid, on the remainder of the Common
Shares or OP Units, as the case may be, in the usual manner. However, all
cash distributions paid on whole or fractional Common Shares credited to a
participant's Plan account will be reinvested automatically.
11. How and when can a participant change the amount of distributions to be
reinvested?
A participant may change his investment election by completing and
signing a new Authorization Form and returning it to the Agent. Any change
of election concerning the reinvestment of distributions must be received by
the Agent at least five business days prior to the Record Date for a
distribution payment date in order for the change to become effective with
respect to that distribution payment.
Optional Cash Payments
12. How does the optional cash payment feature of the Plan work?
All Record Owners and new investors who have timely completed, signed
and returned Authorization Forms indicating their intention to participate
in the Share Purchase Program, and Beneficial Owners whose brokers, banks or
other nominees have timely indicated their intention to participate in the
Share Purchase Program (except for Beneficial Owners whose brokers, banks or
other nominees hold the Common Shares of the Beneficial Owners in the name
of a securities depository), are eligible to invest monthly in Common
Shares, whether or not a distribution is declared. Once during each month,
a participant shall have the option to make an optional cash payment (of no
less than $100), subject to the $3,000 per calendar quarter limitation
described in Question 13. If a bank, broker or other nominee holds Common
Shares of a Beneficial Owner in the name of a securities depository,
optional cash payments must be made through the use of the B&N Form (see
Questions 6 and 8). Participants in the plan are not obligated to
participate in the Share Purchase Program. The same amount need not be sent
each time, and there is no obligation to make an optional cash payment in
any calendar quarter.
Optional cash payments must be accompanied by an Authorization Form or
a B&N Form, as applicable. An initial optional cash payment may be made by
a participant when enrolling in the Share Purchase Plan by sending the Agent
a check or money order (together with a completed and signed optional cash
payment form), made payable to "Harris Trust and Savings Bank", or making a
wire transfer to "Harris Trust and Savings Bank", and in each case
delivering a completed and signed Authorization Form or B&N Form, as
applicable. Wire transfers may be used only if approved verbally in advance
by the Agent. Checks returned for any reason will not be resubmitted for
collection and participants will be charged the Agent's customary fee for
returned checks. Checks and money orders are accepted subject to timely
collection as good funds and verification of compliance with the terms of
the Plan.
Optional cash payment forms may be obtained at any time by written
request to the Agent at the following address: Harris Trust and Savings
Bank, Attention: Dividend Reinvestments, P.O. Box A 3309, Chicago, IL 60690,
or by telephoning the Agent at: (800) 942-5909. Once a participant has
enrolled in the Plan an optional cash payment form will be attached to each
statement of account sent to the participant. Checks, money orders and
optional cash payment forms should be mailed to: Harris Trust and Savings
Bank, Attention: Dividend Reinvestments, P.O. Box A 3309, Chicago, IL 60690,
or by telephoning the Agent at: (800) 942-5909.
No interest will be paid by the Company or the Agent on optional cash
payments held pending investment.
Optional cash payments must be in United States dollars. Do not send
cash. Checks not drawn on a United States bank are subject to collection
and collection fees and will be invested on the Investment Date when the
shares are issued or thereafter. The trading price on the Investment Date
generally governs the amount of taxable income to participants. See
Question 39.
13. What limitations apply to optional cash payments?
Each optional cash payment is subject to a minimum per month purchase
limit of $100 and a maximum per calendar quarter purchase limit of $3,000
(unless such limit has been waived). Therefore, during any calendar
quarter, optional cash payments made during one month will be aggregated
with optional cash payments made during another month, in order to determine
whether quarterly purchase limits have been exceeded. For purposes of these
limitations, all Plan accounts under the common control or management of a
participant, or a bank, broker or other nominee, will be aggregated.
Generally, optional cash payments of less than $100 and that portion of any
optional cash payment which exceeds the maximum calendar quarterly purchase
limit of $3,000 (unless such limit has been waived by the Company) will be
returned to participants without interest at the end of the relevant Pricing
Period. The Pricing Period shall mean the period encompassing the twelve
Trading Days preceding any given Investment Date.
Participants may make optional cash payments of at least $100 and no
more than $3,000 each calendar quarter without the approval of the Company.
Optional cash payments in excess of $3,000 may be made by a participant only
upon such participant's submission to the Company of a completed and signed
Request for Waiver and the Company's grant of a waiver of limitations
relating to the optional cash payments proposed to be made pursuant to such
Request for Waiver. There is no pre-established maximum limit applicable to
optional cash payments that may be made pursuant to Accepted Requests for
Waivers. A Request for Waiver must be received by the Company no later than
the applicable Investment Date. Request for Waiver forms will be furnished
at any time upon request to the Agent at the address specified in Question
4. Participants interested in obtaining further information about any
proposed Request for Waiver should contact William Cornely, Senior Vice
President and Chief Financial Officer of the Company, at (614) 621-9000.
The Company will, on the business day immediately prior to each Pricing
Period, determine whether to establish a discount from the Market Price
applicable to optional cash payments made pursuant to Accepted Requests for
Waiver that are used to purchase newly issued Common Shares. In addition,
if a Waiver Discount exists for a particular Investment Date, such Waiver
Discount will apply to all optional cash payments applicable to such
Investment Date used to purchase newly issued Common Shares, not just those
made pursuant to Accepted Requests for Waiver. The Waiver Discount shall be
between 0% and 3% of the purchase price and may vary each Investment Date,
but once established will uniformly apply to all optional cash payments made
pursuant to Accepted Requests for Waiver that are used to purchase newly
issued Common Shares for that Investment Date. Setting a Waiver Discount
for a particular Investment Date shall not affect the setting of a Waiver
Discount for any subsequent Investment Date. The Waiver Discount will apply
to the entire optional cash payment and not just the portion that exceeds
$3,000. Notwithstanding the foregoing, in the case of the purchase of a
Common Share in the open market or negotiated transactions with third
parties, pursuant to an optional cash payment, in no event shall the sum of
any brokerage commissions and related charges described in Question 39
exceed 5% of the fair market value of such Common Share. Also, in no event
shall the purchase price for a newly issued Common Share (after taking into
account any Waiver Discount), whether pursuant to optional cash payments or
distribution reinvestment, be less than the sum of (i) 95% of the fair
market value of a Common Share on the Investment Date, plus (ii) any
brokerage commissions and related charges described in Question 39.
The grant of waivers of limitations relating to optional cash payments
proposed to be made pursuant to Requests for Waiver, and the setting of
Waiver Discounts, if any, will be considered on the basis of a variety of
factors, which may include the Company's current and projected capital
needs, the alternatives available to the Company to meet those needs,
prevailing market prices for Common Shares and other Company securities,
general economic and market conditions, expected aberrations in the price of
trading volume of the Common Shares, the number of Common Shares held by the
participant submitting the Request for Waiver, the past actions of a
participant under the Plan, the aggregate amount of optional cash payments
for which such Request for Waiver have been submitted and the administrative
constraints associated with granting a waiver. Grants of waivers will be
made in the sole and absolute discretion of the Company.
Unless it waives its right to do so, the Company may establish for any
Pricing Period a Threshold Price in order to provide the Company with the
ability to set a minimum price at which newly issued Common Shares will be
sold under the Plan on any given Investment Date. A Threshold Price will
only be established when newly issued Common Shares will be purchased on the
applicable Investment Date.
The Company will, on the business day immediately prior to each Pricing
Period, determine whether to establish a Threshold Price and/or Waiver
Discount and, if a Threshold Price and/or Waiver Discount is established,
the Company will notify the Agent of the amount of such Threshold Price and
Waiver Discount, as the case may be. Setting a Threshold Price and/or
Waiver Discount for a Pricing Period shall not affect the setting of a
Threshold Price or a Waiver Discount for any subsequent Pricing Period. For
any Investment Date, the Company may waive its right to set a Threshold
Price and/or Waiver Discount.
The determination whether to establish a Threshold Price and/or Waiver
Discount and, if a Threshold Price or Waiver Discount is established, its
amount, will be made by the Company at its sole and absolute discretion
after a review of current market conditions, the level of participation in
the Plan, the Company's current and projected capital needs and other
relevant factors. Neither the Company nor the Agent shall be required to
provide any written notice to participants as to whether a Threshold Price
and/or Waiver Discount has been established for any Pricing Period.
Participants, however, may ascertain whether a Threshold Price and/or Waiver
Discount applicable to a given Pricing Period has been set by contacting
William Cornely, Senior Vice President and Chief Financial Officer of the
Company at (614) 621-9000.
The Threshold Price, if established for any Investment Date, will be a
stated dollar amount that the average of the high and low sale prices of the
Common Shares on the New York Stock Exchange for each of the twelve Trading
Days preceding the relevant Investment Date must equal or exceed. In the
event that the Threshold Price is not equalled or exceeded for a Trading Day
in such twelve Trading Day period, then the average of the high and low sale
prices of the Common Shares on the New York Stock Exchange for that Trading
Day would be excluded from the calculation of the Market Price for newly
issued Common Shares on the Investment Date. Thus, for example, if the
Threshold Price were not equalled or exceeded for three of the twelve
Trading Days in any such twelve Trading Day period, then the Market Price
for newly issued Common Shares on the Investment Date would be based upon
the average of: the average of the high and low sale prices of the Common
Shares on the New York Stock Exchange for each of the nine Trading Days that
such average equalled or exceeded the Threshold Price. If, for each of the
twelve Trading Days, the average of the high and low sale prices of the
Common Shares on the New York Stock Exchange for such Trading Day does not
equal or exceed the Threshold Price, if any, then the purchase price (before
giving effect to any Waiver Discount) will be determined by the Company on
the basis of such market quotations as it deems appropriate.
In addition, for each Trading Day on which the Threshold Price is not
satisfied, 1/12 of each optional cash payment made by a participant pursuant
to an Accepted Request for Waiver will be returned to such participant,
without interest, as soon as practicable after the applicable Investment
Date. In the example above, therefore, 3/12 of each participant's optional
cash payment made pursuant to an Accepted Request for Waiver would be
returned to such participant by check, without interest, as soon as
practicable after the applicable Investment Date. This return procedure
will only apply when newly issued Common Shares are purchased directly from
the Company for optional cash payments made pursuant to Accepted Requests
for Waiver and the Company has set a Threshold Price with respect to the
relevant twelve Trading Day period.
14. When will optional cash payments received by the Agent be invested?
The Agent will apply any optional cash payments received from a
participant on or prior to the sixth business day before an Investment Date
("Optional Cash Payment Due Date") to the purchase of Common Shares for the
account of the participant on such Investment Date if such Common Shares are
newly issued Common Shares and as soon as practicable after such Investment
Date if such Common Shares are purchased in the open market or in negotiated
transactions with third parties.
15. When must optional cash payments be received by the Agent and cleared?
In order for funds to be considered timely received, the Agent must
receive a check, money order or wire transfer by the date such payment is
due and such check, money order or wire transfer must clear before the
related Investment Date. Wire transfers may be used only if approved
verbally in advance by the Agent. Checks and money orders are accepted
subject to timely collection as good funds and verification of compliance
with the terms of the Plan. Checks returned for any reason will not be
resubmitted for collection.
Any checks, money orders or wire transfers received more than thirty
days prior to any Investment Date shall be promptly returned, without
interest.
No interest will be paid by the Company or the Agent on optional cash
payments held pending investment.
16. May a refund of uninvested optional cash payments be obtained?
Upon telephone or written request to the Agent received at least five
business days prior to any Optional Cash Payment Due Date, any optional cash
payments that have been delivered to the Agent shall not be invested and
shall be returned to the participant as soon as practicable. Requests
received less than five business days prior to such date will not be
returned but instead will be invested on the next related Investment Date.
Also, each optional cash payment, to the extent that it does not either
conform to the limitations described in Question 13 or, if it is a check or
money order, does not clear within the limit described in Question 15, will
be returned to the participant as soon as practicable.
17. Are there any expenses to participants in connection with their
participation in the Plan?
Participants will incur no brokerage commissions or service charges in
connection with the reinvestment of distributions under the Distribution
Reinvestment Program or the investment of optional cash payments under the
Share Purchase Program. The Company will pay all other costs of
administration of the Plan. However, participants who request that the
Agent sell all or any portion of their Common Shares will receive any
proceeds less any related brokerage commission, transfer tax or other fees
(see Question 29).
Purchases
18. What is the source of the Common Shares purchased under the Plan?
Common Shares purchased for participant's accounts under the Plan may
be purchased by the Agent either (a) from newly issued Common Shares or (b)
in the open market (on the New York Stock Exchange or any securities
exchange where the Common Shares are then traded or in the over-the-counter
market) or in negotiated transactions with third parties.
19. When will Common Shares be purchased for participants' accounts?
Purchases of newly issued Common Shares will be made for any month in
which a distribution is paid on the distribution payment date and in any
other month, on the tenth day (or if such day is not a business day, the
next succeeding business day) of such month (such day, an "Investment
Date"). Purchases in the open market or in negotiated transactions with
third parties will begin on the Investment Date and will be completed no
later than 30 days from such date except where completion at a later date is
necessary or advisable under any applicable securities laws and regulations.
The exact timing of open market purchases or negotiated transactions with
third parties, including determining the number of Common Shares, if any, to
be purchased on any day or at any time of that day, the prices paid for such
Common Shares, the markets on which such purchases are made and the persons
(including brokers and dealers) from or through which such purchases are
made shall be determined by the Agent or the broker selected by it for that
purpose. In making purchases for a participant's account, the Company or
the Agent may commingle the participant's funds with those of other
shareholders of the Company participating in the Plan. All Common Shares
purchased by the Agent in the open market or negotiated transactions with
third parties using participant's funds shall be treated for federal income
tax purposes as having been so purchased by the Agent as agent for such
participants. Neither the Company nor the Agent shall be liable when
conditions, including compliance with the Rules and Regulations of the
Securities and Exchange Commission, prevent the purchase of Common Shares or
interfere with the timing of such purchases.
20. What is the price of Common Shares purchased by participants under the
Plan?
Subject to certain limitations described below, for each Investment
Date, the purchase price of Common Shares purchased in the open market or in
negotiated transactions with third parties will be the weighted average
price for such Common Shares so purchased by the Agent as of such Investment
Date. Subject to certain limitations described below, the purchase price
(before giving effect to any Waiver Discount) of newly issued Common Shares
on any given Investment Date will be the average of: the average of the high
and low sale prices of the Common Shares on the New York Stock Exchange for
each of the twelve Trading Days preceding such Investment Date that such
average equals or exceeds the Threshold Price, if any, for such Investment
Date. If, for each of the twelve Trading Days, the average of the high and
low sale prices of the Common Shares on the New York Stock Exchange for such
Trading Day does not equal or exceed the Threshold Price, if any, then the
purchase price (before giving effect to any Waiver Discount) will be
determined by the Company on the basis of such market quotations as it deems
appropriate. In addition, if a Waiver Discount exists for a particular
Investment Date, such Waiver Discount will apply to all optional cash
payments applicable to such Investment Date used to purchase newly issued
Common Shares, not just those made pursuant to Accepted Requests for Waiver.
Notwithstanding the foregoing, in the case of the purchase of a Common Share
in the open market or negotiated transactions with third parties, pursuant
to an optional cash payment, in no event shall the sum of any brokerage
commissions and related charges described in Question 39 exceed 5% of the
fair market value of such Common Share. Also, in no event shall the
purchase price for a newly issued Common Share (after taking into account
any Waiver Discount), whether pursuant to optional cash payments or
distribution reinvestment, be less than the sum of (i) 95% of the fair
market value of a Common Share on the Investment Date, plus (ii) any
brokerage commissions and related charges described in Question 39.
Neither the Company nor any participant shall have any authorization or
power to direct the time or price at which shares will be purchased or the
selection of the broker or dealer through or from whom purchases are to be
made by the Agent.
21. How many Common Shares will be purchased for a participant?
The number of Common Shares to be purchased for a participant's account
as of any Investment Date will be equal to the total dollar amount to be
invested for the participant divided by the applicable purchase price (after
giving effect to any Waiver Discount and any overall limitations discussed
above), computed to at least three decimal places. For a participant who
has elected to reinvest distributions on Common Shares or OP Units
registered in the participant's name, the total dollar amount to be invested
as of any distribution payment date will be the sum of (a) the distribution
on all or a part of the Common Shares or OP Units registered in the
participant's own name, (b) any optional cash payments to be invested as of
that Investment Date and (c) the distribution on all Common Shares
(including fractional shares) previously credited to the participant's Plan
account. For a participant who has elected to invest only optional cash
payments, the total dollar amount to be invested as of any Investment Date
will be the sum of (x) any optional cash payments to be invested as of that
Investment Date and (y) the distribution on all Common Shares (including
fractional Common Shares) previously credited to the participant's Plan
account.
The amount to be invested for a participant residing in the United
States will be reduced by any amount the Company is required to deduct for
federal tax withholding purposes (see Question 39).
Reports to participants
22. What reports are sent to participants in the Plan?
After an investment is made for a participant's account, whether by
reinvestment of distributions or by optional cash payment, the participant
will be sent a statement which will provide a record of the cost of the
Common Shares purchased for that account, the number of Common Shares
purchased, the date on which the Common Shares were purchased and the number
of Common Shares in that account. In addition, each participant will be
sent income tax information for reporting distributions paid.
In addition, participants will receive copies of other communications
sent to record holders of Common Shares, including the Company's annual
report to its shareholders, the notice of annual meeting and proxy statement
in connection with its annual meeting of shareholders and Internal Revenue
Service information for reporting distributions paid on Common Shares.
Share Certificates
23. Are certificates issued to participants for Common Shares purchased
under the Plan?
Yes. Common Shares purchased under the Plan are registered in the name
of the Agent or its nominee, as agent for the participants in the Plan. A
certificate for any number of whole Common Shares credited to a
participant's Plan account will be issued to the participant upon written
request to the Agent. Such requests will be handled by the Agent, normally
within two weeks, at no charge to the participant. Any remaining whole
Common Shares and a fraction of a Common Share will continue to be credited
to the participant's account. If a participant is a Beneficial Owner, any
written request must be placed through such participant's bank, broker or
other nominee.
Common Shares while credited to the account of a participant under the
Plan may not be pledged, sold or otherwise transferred. A participant who
wishes to pledge, sell or transfer such Common Shares must request that a
certificate for such Common Shares first be issued in the participant's
name.
24. What is the effect on a participant's Plan account if a participant
requests a certificate for whole Common Shares held in the account?
If a participant maintains an account for reinvestment of
distributions, all distributions on the Common Shares for which a
certificate is requested would continue to be reinvested under the Plan so
long as such Common Shares remain registered in the participant's name. If
the participant maintains a Plan account only for optional cash payments,
distributions on Common Shares for which a certificate is requested would no
longer be reinvested under the Plan unless and until the participant submits
an Authorization Form to authorize reinvestment of distributions on Common
Shares registered in the participant's name (see Questions 6 through 8).
25. May Common Shares held in certificate form be deposited in a
participant's Plan account?
Yes, whether or not the participant has previously authorized
reinvestment of distributions. All distributions on any Common Shares
evidenced by certificates deposited in accordance with the Plan will
automatically be reinvested. The participant should contact the Agent for
the proper procedure to deposit certificates.
Withdrawal from the Plan
26. May a participant withdraw from the Plan?
Yes, by providing written notice instructing the Agent to terminate the
account.
27. What happens when a participant terminates an account?
If a participant's notice of termination is received by the Agent at
least five business days prior to the record date for a distribution payment
date, reinvestment of distributions and investments of optional cash
payments will cease as of the date notice of termination is received by the
Agent. If the notice of termination is received later than five business
days prior to the record date for a distribution payment date, the
termination may not become effective until after the investment of any
distributions and optional cash payments to be invested as of the next
Investment Date.
When terminating an account, the participant may request that a
certificate be issued for all whole Common Shares held in the account. As
soon as practicable after notice of termination is received, the Agent will
send to the participant (a) a certificate for all whole Common Shares held
in the account and (b) a check representing any uninvested optional cash
payments remaining in the account and the value of any fractional Common
Share held in the account. After an account is terminated, all
distributions for the terminated account will be paid to the shareholder
unless the shareholder re-elects to participate in the Plan.
When terminating an account, the participant may request that all
Common Shares, both full and fractional, credited to the Plan account be
sold or that certain of the Common Shares be sold and a certificate be
issued for the remaining Common Shares (see Question 29). The Agent will
remit to the participant the proceeds of any sale of Common Shares, less any
related brokerage commission, transfer tax or other fees incurred by the
Agent allocable to the sale of such Common Shares.
28. When may a shareholder re-elect to participate in the Plan?
Generally, a shareholder or OP Unitholder of record may re-elect to
participate at any time. However, the Agent reserves the right to reject
any Authorization Form on the grounds of excessive joining and withdrawing.
Such reservation is intended to minimize unnecessary administrative expense
and to encourage use of the Plan as a long-term shareholder investment
service.
Sale of Common Shares
29. May a participant request that Common Shares held in a Plan account be
sold?
Yes. A participant may request that all or any portion of the Common
Shares held in a Plan account be sold either when an account is being
terminated (see Question 27) or without terminating the account. However, a
fractional Common Share will not be sold unless all Common Shares held in
the account are sold. If all Common Shares (including any fractional share)
held in a Plan account are sold, the account will automatically be
terminated, and the participant, or, if the participant is a Beneficial
Owner, his bank, broker or other nominee, will have to complete, sign and
return to the Agent a new Authorization Form or B&N Form, as the case may
be, (see Questions 6 through 8) in order to again participate in the Plan.
Within seven days after receipt of a participant's written request to
sell Common Shares held in a Plan account, the Agent will place a sell order
through a broker or dealer designated by the Agent. The participant will
receive the proceeds of the sale less any brokerage commission, transfer tax
or other fees incurred by the Agent allocable to the sale of such Common
Shares.
30. What happens when a participant sells or transfers all the Common
Shares registered in the participant's name?
He may remain a participant and may continue to make optional cash
payments, in which case the Agent will continue to reinvest the
distributions on the Common Shares credited to the participant's account
under the Plan unless the participant notifies the Agent that he wishes to
terminate the account.
Other Information
31. What happens if the Company authorizes shares distribution or splits
its shares?
In the event of a shares split or a shares distribution payable in
Common Shares, the Agent will receive and credit to the participant's Plan
account the applicable number of whole and/or fractional Common Shares based
both on the number of Common Shares held in the participant's Plan account
and the number of Common Shares registered in the participant's own name as
of the record date for the shares distribution or split.
32. What happens if the Company has a rights offering?
If the Company has a rights offering in which separately tradeable and
exercisable rights are issued to registered holders of Common Shares, the
rights attributable to whole Common Shares held in a participant's Plan
account will be transferred to the Plan participant as promptly as
practicable after the rights are issued. Rights attributable to fractional
Common Shares will be sold, and the proceeds will be treated as an optional
cash payment.
33. How are a participant's Common Shares voted at a shareholders meeting?
If the participant is a Record Owner, the participant will receive a
proxy card covering both shares registered in the participant's name and
shares held in the Plan. If the participant is a Beneficial Owner, the
participant will receive a proxy covering Common Shares held in the Plan
through his bank, broker or other nominee.
If a proxy is returned properly signed and marked for voting, all of
the shares covered by the proxy will be voted as marked. If a proxy is
returned properly signed but no voting instructions are given, all of the
participant's shares will be voted in accordance with recommendations of the
Board of Trustees, unless applicable laws require otherwise. If the proxy
is not returned, or if it is returned unexecuted or improperly executed,
shares registered in a participant's name may be voted only by the
participant in person.
34. What is the responsibility of the Company and the Agent under the Plan?
The Company and the Agent, in administering the Plan, are not liable
for any act done in good faith or for any good faith omission to act,
including, without limitation, any claim of liability (a) arising out of a
failure to terminate a participant's account upon such participant's death,
prior to receipt by the Agent of notice in writing of such death, (b) with
respect to the prices and times at which Common Shares are purchased or sold
for a participant or (c) with respect to any fluctuation in market value
before or after any purchase or sale of Common Shares. Neither the Agent,
the Company, nor any agent for either shall have any duties,
responsibilities or liabilities except such as are expressly set forth in
the Plan. Since the Company has delegated all responsibility for
administering the Plan to the Agent, the Company specifically disclaims any
responsibility for any of the Agent's actions or inactions in connection
with the administration of the Plan. Neither the trustees, officers or
shareholders of the Company shall have any personal liability under the
Plan.
All notices from the Agent to a participant will be addressed to the
participant's last known address. Participants should notify the Agent
promptly in writing of any change of address.
The Agent may resign as administrator of the Plan at any time, in which
case the Company shall appoint a successor administrator. In addition, the
Company may replace the Agent with a successor administrator at any time.
35. May the Plan be amended, suspended or terminated?
While the Company expects to continue the Plan indefinitely, the
Company may amend, suspend or terminate the Plan at any time, but such
action shall have no retroactive effect that would prejudice the interests
of the participants. To the extent practicable, any such amendment,
suspension or termination will be announced to participants at least 30 days
prior to its effective date.
36. What happens if the Plan is terminated?
Each participant will receive (a) a certificate for all whole Common
Shares held in the participant's account and (b) a check representing the
value of any fractional Common Share held in the participant's account and
any unreinvested distributions or optional cash payments held in the account
less any related brokerage commissions, transfer tax or other fees incurred
by the Agent allocable to the sale of such Common Shares.
37. Who interprets and regulates the Plan?
The Company is authorized to issue such interpretations, adopt such
regulations and take such actions as it may deem reasonably necessary or
advisable to effectuate the Plan. Any action to effectuate the Plan taken
by the Company or the Agent in the good faith exercise of its judgment will
be binding on participants.
38. What law governs the Plan?
The terms and conditions of the Plan and its operation shall be
governed by the laws of the State of Maryland.
39. What are the federal income tax consequences of participation in the
Plan?
Participants should consult their personal tax advisors with specific
reference to their own tax situations and potential changes in the
applicable law as to all Federal, state, local, foreign and other tax
matters in connection with the reinvestment of distributions and purchases
of Common Shares under the Plan, the participant's tax basis and holding
period for Common Shares acquired under the Plan and the character, amount
and tax treatment of any gain or loss realized on the disposition of Common
Shares. The income tax consequences for participants who are not United
States citizens or resident aliens are not discussed herein. The following
is only a brief summary of some of the Federal income tax considerations
applicable to the Plan, is for general information only, and is not tax
advice.
Shareholder Distribution Reinvestment And Optional Cash Payments
In the case of newly-issued Common Shares purchased by the Agent from
the Company using cash distributions, a participant will be treated for
Federal income tax purposes as having received a distribution equal to the
fair market value on the Investment Date of the Common Shares so acquired.
With respect to Common Shares purchased by the Agent in the open market or
in negotiated transactions with third parties (hereafter "an open market
transaction"), the Internal Revenue Service has indicated in somewhat
similar situations that the amount of the distribution received by a
participant would include the fair market value on the Investment Date of
the Common Shares acquired and a pro-rata share of any brokerage commissions
or other related charges (hereafter "Commissions") paid by the Company in
connection with the Agent's purchase of the Common Shares on behalf of the
participant.
A participant who makes an optional cash payment to the Plan will be
treated as receiving a cash distribution equal to the sum of (i) the excess,
if any, of the fair market value of the Common Shares credited to the
participant's account, less the amount of the optional cash payment, plus
(ii) a pro-rata share of any Commissions paid by the Company on behalf of
the participant if the Common Shares are acquired by the Agent in an open
market transaction.
As in the case of non-reinvested cash distributions, the distributions
described above will constitute taxable "dividend" income to participants to
the extent of the Company's current and accumulated earnings and profits
allocable to the distributions and any excess distributions will constitute
a return of capital which reduces the basis of a participant's Common Shares
or results in gain to the extent such excess distribution exceeds the
participant's tax basis in his Common Shares. In addition, if the Company
designates part or all of its distributions as capital gain distributions,
such designated amounts would be treated by a participant as long-term
capital gains.
A participant's tax basis in his Common Shares acquired under the Plan
will generally equal the total amount of distributions a participant is
treated as receiving from the Company (as described above), plus the amount
of any optional cash payments that are made. A participant's holding period
in such Common Shares generally begins on the day following the applicable
Investment Date.
OP Unitholder Reinvestment And Optional Cash Payments
There is no clear legal authority regarding the income tax treatment of
a limited partner in a partnership (such as an OP Unitholder) who invests
cash distributions from the partnership in stock of another entity (such as
the Company) that is a partner in the partnership. However, the Company
presently intends to treat an OP Unitholder in the same manner for federal
income tax purposes as any other investor who acquires Common Shares in the
Company through optional cash payments. Thus, in the case of Common Shares
purchased by the Agent, whether through the reinvestment of an OP
Unitholder's Partnership distributions or through an optional cash payment
made by the OP Unitholder, the OP Unitholder will be treated for federal
income tax purposes as having received a distribution from the Company equal
to the sum of (i) the excess, if any, of the fair market value of the Common
Shares credited to the OP Unitholder's account over the amount of cash
deemed paid by the OP Unitholder for the Common Shares (i.e., the amount of
the Partnership distribution and/or any optional cash payment), plus (ii) a
pro-rata share of any Commissions paid by the Company on behalf of the OP
Unitholder if the Common Shares are acquired by the Agent in an open market
transaction.
Distributions from the Partnership with respect to OP Units will be
taxable to OP Unitholders only to the extent that such distributions exceed
such OP Unitholder's tax basis for its OP Units. Any such distribution in
excess of an OP Unitholder's tax basis in its OP Units will generally be
taxable as capital gain, assuming that the OP Units constitute a capital
asset in the hands of the OP Unitholder. However, under Section 751(b) of
the Internal Revenue Code, to the extent a distribution is considered to be
in exchange for an OP Unitholder's interest in substantially appreciated
inventory items or unrealized receivables of the Partnership, the OP
Unitholder may recognize ordinary income rather than a capital gain.
The tax basis of Common Shares acquired for an OP Unitholder under the
Plan by reinvestment of Partnership distributions or through an optional
cash payment will generally equal the total amount of distributions such OP
Unitholder is treated as receiving from the Company (as described above)
plus the amount of cash deemed paid by the OP Unitholder for the Common
Shares (i.e., the amount of the Partnership distribution and/or any optional
cash payment used to acquire the Common Shares). The holding period of
Common Shares acquired under the Plan generally begins on the day following
the applicable Investment Date.
Backup Withholding
In general, any dividend reinvested under the Plan is not subject to
Federal income tax withholding. The Company or the Agent may be required,
however, to deduct as "backup withholding" thirty-one percent (31%) of all
dividends paid to any shareholder, regardless of whether such dividends are
reinvested pursuant to the Plan. Similarly, the Agent may be required to
deduct backup withholding from all proceeds of sales of Common Shares held
in a Plan account. A participant is subject to backup withholding if: (a)
the participant has failed to properly furnish the Company and the Agent
with his correct tax identification number ("TIN"), (b) the Internal Revenue
Service notifies the Company or the Agent that the TIN furnished by the
participant is incorrect, (c) the Internal Revenue Service notifies the
Company or the Agent that backup withholding should be commenced because the
participant failed to report properly dividends paid to him or her or (d)
when required to do so, the participant fails to certify, under penalties of
perjury, that the participant is not subject to backup withholding. Backup
withholding amounts will be withheld from dividends before such dividends
are reinvested under the Plan. Therefore, dividends to be reinvested under
the Plan by participants who are subject to backup withholding will be
reduced by the backup withholding amount. Such withheld amounts constitute
a credit on the participant's income tax return.
Administrative Expenses
The Company intends to take the position that administrative expenses
of the Plan paid by the Company are not constructive distributions to
participants.
Disposition
A participant may recognize a gain or loss upon receipt of a cash
payment for a fractional Common Share credited to a Plan account or when the
Common Shares held in that account are sold at the request of the
participant. A gain or loss may also be recognized upon a participant's
disposition of Common Shares received from the Plan. The amount of any such
gain or loss will be the difference between the amount realized (generally
the amount of cash received) for the whole or fractional Common Shares and
the tax basis of such Common Shares. Generally, gain or loss recognized on
the disposition of Common Shares acquired under the Plan will be treated for
Federal income tax purposes as a capital gain or loss.
40. What happens if reinvestment of a participant's distributions or
optional cash payments would cause the participant or any other person
to exceed the Ownership Limit set forth in the Company's Amended and
Restated Declaration of Trust, or otherwise violate the Company's
Amended and Restated Declaration of Trust?
The Company's Amended and Restated Declaration of Trust, as amended
(the "Declaration of Trust"), places certain restrictions upon the
ownership, directly or indirectly, of the Common Shares, including the
limitation of ownership of the Common Shares by any one person to 8.0% of
the lesser of the number or the value of the outstanding shares (the
"Ownership Limit"), subject to certain exceptions. To the extent any
reinvestment of distributions elected by a shareholder or OP Unitholder or
investment of an optional cash payment would cause such shareholder, OP
Unitholder, or any other person to exceed the Ownership Limit or otherwise
violate the Declaration of Trust, such investment would be void ab initio,
and such shareholder or OP Unitholder will be entitled to receive cash
distributions or a refund of his optional cash payment (each without
interest) in lieu of such investment.
DIVIDENDS
The Company has made quarterly uninterrupted distributions since it
became a publicly-traded company in January 1994. Future distributions by
the Company will be made at the discretion of the Board of Trustees and will
depend on the actual cash flow of the Company, its financial condition,
capital requirements, the annual distribution requirements under the real
estate investment trust provisions of the Internal Revenue Code of 1986, as
amended, and such other factors as the Board of Trustees deems relevant.
PLAN OF DISTRIBUTION
Except to the extent that the Agent purchases Common Shares in open
market transactions, the Common Shares acquired under the Plan will be sold
directly by the Company through the Plan. The Company may sell Common
Shares to persons (including brokers or dealers) who, in connection with any
resales of such shares, may be considered to be "underwriters" as that term
is defined in the Securities Act. Such Common Shares, including Common
Shares acquired pursuant to waivers granted with respect to the Share
Purchase Program, may be resold in market transactions (including coverage
of short positions) on any national securities exchange on which Common
Shares trade or in privately negotiated transactions. The Common Shares are
currently traded on the New York Stock Exchange. Under certain
circumstances, it is expected that a portion of the Common Shares available
for issuance under the Plan will be issued pursuant to such waivers. The
difference between the price such purchasers pay to the Company for such
Common Shares, after deduction of any applicable Waiver Discount, if any,
and the price at which such Common Shares are resold, may be deemed to
constitute underwriting commissions received by such persons in connection
with such transactions.
Subject to the availability of Common Shares registered for issuance
under the Plan, there is no total maximum number of Common Shares that can
be issued pursuant to the reinvestment of distributions. From time to time,
certain financial intermediaries may engage in short-term trading activities
or positioning transactions in order to benefit from any Waiver Discount.
Such short-term trading or positioning transactions could cause volatility
in the composite trading volume and price of the Common Shares. The Company
does not endorse such short-term trading or positioning transactions and has
not entered into any formal or informal arrangements to facilitate such
short-term trading or positioning transactions.
Participants will incur no brokerage commissions or service charges in
connection with the reinvestment of distributions and in connection with any
purchases made pursuant to optional cash payments under the Plan. The
Company will pay all other costs of administration of the Plan. However,
participants who request that the Agent sell all or any portion of their
Common Shares (see Questions 26 and 27) will receive any proceeds less any
related brokerage commission, transfer tax or other fees.
Common Shares may not be available under the Plan in all states.
LEGAL MATTERS
Certain legal matters will be passed upon for the Company by Robinson
Silverman Pearce Aronsohn & Berman LLP, New York, New York. Robinson
Silverman Pearce Aronsohn & Berman LLP will rely on Ballard Spahr Andrews &
Ingersoll, Baltimore, Maryland, as to certain matters of Maryland law,
including the legality of the Common Shares.
EXPERTS
The audited financial statements and schedule incorporated by reference
in this Prospectus and elsewhere in this Registration Statement have been
incorporated by reference herein in reliance on the report of Coopers &
Lybrand L.L.P., independent accountants, given on the authority of that firm
as experts in accounting and auditing.
<PAGE>
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=
No dealer, salesperson or other individual has been authorized to give
any information or make any representations not contained in this Prospectus
in connection with this offering covered by this Prospectus. If given or
made, such information or representations must not be relied upon as having
been authorized by the Company. This Prospectus does not constitute an
offer to sell or a solicitation of an offer to buy, the Common Shares in any
jurisdiction where, or to any person to whom, it is unlawful to make such
offer or solicitation. Neither the delivery of this Prospectus nor any sale
made hereunder shall, under any circumstances, create any implication that
there has been no change in the facts set forth in this Prospectus or in the
affairs of the Company since the date hereof.
------------------------
SUMMARY TABLE OF CONTENTS
Page
Additional Information . . . . . . . . . . . . . . . . . . . . . . . . . . 3
Documents Incorporated by Reference. . . . . . . . . . . . . . . . . . . . 3
The Company. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 4
Use of Proceeds. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
Summary. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5
The Plan . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8
Dividends. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Plan of Distribution . . . . . . . . . . . . . . . . . . . . . . . . . . .24
Legal Matters. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
Experts. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . .25
------------------------
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=
Glimcher Realty Trust
2,100,000 Common Shares
of Beneficial Interest
offered by the Company
solely in connection with its
DISTRIBUTION
REINVESTMENT AND SHARE
PURCHASE PLAN
----------------------
PROSPECTUS
_______________, 1997
----------------------
============================================================================
=
<PAGE>
PART II. INFORMATION NOT REQUIRED IN PROSPECTUS
Item 14. Other Expenses of Issuance and Distribution.
The following table itemizes the expenses incurred by the Company in
connection with the offering of the Common Shares being registered. All the
amounts shown are estimates except the Securities and Exchange Commission
registration fee and the New York Stock Exchange listing fee.
Item Amount
---- ------
Registration Fee -- Securities and
Exchange Commission (1) . . . . . . . . . . . . . $ 13,513
Blue Sky Fees and Expenses. . . . . . . . . . . . . 1,500
Printing and Engraving Costs. . . . . . . . . . . . 5,000
Legal Fees and Expenses . . . . . . . . . . . . . . 20,000
Accounting Fees and Expenses. . . . . . . . . . . . 2,000
Miscellaneous Expenses. . . . . . . . . . . . . . . 987
Total. . . . . . . . . . . . . . . . . . $ 43,000
=========
_______________
(1) Includes the registration fee of $1,541.27 pertaining to the
aggregate offering price of $4,469,680 of 223,484 Common Shares
previously registered on Form S-3, Registration No. 33-90730, which
amount was previously paid and carried over to this Registration
Statement.
Item 15. Indemnification of Trustees and Officers.
Under Maryland law, a real estate investment trust formed in Maryland
is permitted to eliminate, by provision in its declaration of trust, the
liability of its trustees and officers to the trust and its shareholders for
money damages except for the liability of a trustee or officer resulting
from (i) actual receipt of an improper benefit or profit in money, property
or services or (ii) acts or omissions involving active and deliberate
dishonesty established by a final judgment as being material to the cause of
action. The Declaration of Trust contains such a provision which eliminates
such liability to the maximum extent permitted by Maryland law.
The Declaration of Trust of the Company authorizes it, to the extent
provided in its Bylaws, to obligate itself to indemnify and to pay or
reimburse reasonable expenses in advance of final disposition of a
proceeding to (a) any present or former trustee or officer or (b) any
individual who, while a trustee of the Company and at the request of the
Company, serves or has served another corporation, partnership, joint
venture, trust, employee benefit plan or any other enterprise as a trustee,
director, officer or partner of such corporation, partnership, joint
venture, trust, employee benefit plan or other enterprise from and against
any claim or liability to which such person may become subject or which such
person may incur by reason of his status as a present or former trustee or
officer of the Company. The Company's Bylaws require it, to the maximum
extent permitted by Maryland law, to indemnify (i) any present or former
trustee or officer who has been successful, on the merits or otherwise, in
the defense of a proceeding to which he was made a party by reason of his
service in that capacity, against reasonable expenses incurred by him in
connection with the proceeding and (ii) any present or former trustee or
officer against any claim or liability to which he may become subject by
reason of service in that capacity unless it is established that (a) his act
or omission was committed in bad faith or was the result of active and
deliberate dishonesty, (b) he actually received an improper personal benefit
in money, property or services or (c) in the case of a criminal proceeding,
he had reasonable cause to believe that his act or omission was unlawful.
In addition, the Company's Bylaws require it, to the maximum extent
permitted by Maryland law, to pay or reimburse, in advance of final
disposition of a proceeding, reasonable expenses incurred by a present or
former trustee or officer made a party to a proceeding by reason of his
status as a trustee or officer provided that the Company shall have received
(i) a written affirmation by the trustee or officer of his good faith belief
that he has met the standard of conduct necessary for indemnification by the
Company as authorized by the Bylaws and (ii) a written undertaking by or on
his behalf to repay the amount paid or reimbursed by the Company if it shall
ultimately be determined that the standard of conduct was not met. The
Company's Bylaws also (i) permit the Company to provide indemnification and
payment or reimbursement of expenses to a present or former trustee or
officer who served a predecessor of the Company in such capacity and to any
employee or agent of the Company or a predecessor of the Company, (ii)
provide that any indemnification or payment or reimbursement of the expenses
permitted by the Bylaws shall be furnished in accordance with the procedures
provided for indemnification and payment or reimbursement of expenses under
Section 2-418 of the Maryland General Corporation Law ("MGCL") for directors
of Maryland corporations and (iii) permit the Company to provide to the
trustees and officers such other and further indemnification or payment or
reimbursement of expenses as may be permitted by Section 2-418 of the MGCL
for directors of Maryland corporations. Insofar as indemnification for
liabilities arising under the Securities Act may be permitted to trustees
and officers of the Company pursuant to the foregoing provisions or
otherwise, the Company has been advised that, although the validity and
scope of the governing statute has not been tested in court, in the opinion
of the Commission, such indemnification is against public policy as
expressed in the Securities Act and is, therefore, unenforceable. In
addition, indemnification may be limited by state securities laws.
Item 16. Exhibits
3.1 Amended and Restated Declaration of Trust.(1)
3.2 Amendment to Amended and Restated Declaration of Trust of Glimcher
Realty Trust.(2)
3.3 Bylaws of Glimcher Realty Trust.(3)
4.1 Amended and Restated Declaration of Trust (See Exhibit 3.1 above).
4.2 Amendment to Amended and Restated Declaration of Trust (See
Exhibit 3.2 above).
4.3 Bylaws (see Exhibit 3.3 above).
4.4 Form of Common Share Certificate.(3)
4.5 Articles Supplementary Classifying Series A Convertible Preferred
Shares.(4)
4.6 Specimen Series A Convertible Preferred Share Certificate.(4)
4.7 Articles Supplementary Classifying Series B Cumulative Redeemable
Preferred Shares of Beneficial Interest.(5)
4.8 Specimen Series B Cumulative Redeemable Preferred Share
Certificate.(5)
4.9 Articles Supplementary Classifying Series A-1 Convertible
Preferred Shares.(5)
4.10 Specimen Series A-1 Convertible Preferred Share Certificate.(5)
4.11 Articles Supplementary Classifying Series A-1 Convertible
Preferred Shares.(6)
4.12 Specimen Series A-1 Convertible Preferred Share Certificate.(6)
5.1 Opinion of Ballard Spahr Andrews & Ingersoll re: legality of the
Common Shares.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included as part of
Exhibit 5.1).
23.3 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP.
24.1 Power of attorney.
99.1 Form of Authorization Form relating to participation in the
Glimcher Realty Trust Distribution Reinvestment and Share Purchase
Plan.
99.2 Form of Broker and Nominee Form relating to participation in the
Glimcher Realty Trust Distribution Reinvestment and Share Purchase
Plan.
99.3 Form of Request for Waiver relating to participation in the
Glimcher Realty Trust Distribution Reinvestment and Share
Purchase Plan.
_____________________
(1) Incorporated by reference to Glimcher Realty Trust's Registration
Statement on Form S-3, Registration No. 33-91084.
(2) Incorporated by reference to Glimcher Realty Trust's Annual Report on
Form 10-K for the year ended December 31, 1994, filed with the
Securities and Exchange Commission on March 21, 1995.
(3) Incorporated by reference to Glimcher Realty Trust's Registration
Statement on Form S-11, Registration No. 33-69740.
(4) Incorporated by reference to Glimcher Realty Trust's Current Report on
Form 8-K dated February 5, 1997 and filed with the Securities and
Exchange Commission on February 5, 1997.
(5) Incorporated by reference to Glimcher Realty Trust's Current Report on
Form 8-K dated November 14, 1997 and filed with the Securities and
Exchange Commission on November 15, 1997.
(6) Incorporated by reference to Glimcher Realty Trust's Registration
Statement on Form S-3 filed with the Securities and Exchange Commission
on December 24, 1997.
<PAGE>
Item 17. Undertakings.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to trustees, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a trustee, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issues.
The Registrant further undertakes:
(1) To file, during any period in which offers or sales are being
made, a post-effective amendment to this Registration Statement:
(i) To include any prospectus required by Section 10(a)(3)
of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising
after the effective date of the Registration Statement (or the most recent
post-effective amendment thereof) which, individually or in the aggregate,
represent a fundamental change in the information set forth in the
Registration Statement. Notwithstanding the foregoing, any increase or
decrease in volume of securities offered (if the total dollar value of
securities offered would not exceed that which was registered) and any
deviation from the low or high and of the estimated maximum offering range
may be reflected in the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the changes in volume and
price represent no more than a 20 percent change in the maximum aggregate
offering price set forth in the "Calculation of Registration Fee" table in
the effective Registration Statement;
(iii) To include any material information with respect to
the plan of distribution not previously disclosed in the Registration
Statement or any material change to such information in the Registration
Statement; provided, however, that paragraphs (1)(i) and (1)(ii) do not
apply if the registration statement is on Form S-3 or Form S-8, and the
information required to be included in a post-effective amendment by those
paragraphs is contained in periodic reports filed with or furnished to the
Commission by the Registrant pursuant to Section 13 or 15(d) of the Exchange
Act that are incorporated by reference in this Registration Statement;
(2) That, for the purpose of determining any liability under the
Securities Act of 1933, each such post-effective amendment shall be
deemed to be a new Registration Statement relating to the securities
offered therein, and the offering of such securities at that time shall
be deemed to be the initial bona fide offering thereof; and
(3) To remove from registration by means of a post-effective
amendment any of the securities being registered which remain unsold at
the termination of the offering.
The undersigned Registrant hereby undertakes that, for purposes of
determining any liability under the Securities Act, each filing of the
Registrant's Annual Report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act (and, where applicable, each filing of an employee benefit
plan's annual report pursuant to Section 15(d) of the Exchange Act) that is
incorporated by reference in the Registration Statement shall be deemed to
be a new Registration Statement relating to the securities offered therein,
and the offering of such securities at that time shall be deemed to be the
initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to trustees, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the
Registrant has been advised that in the opinion of the Commission such
indemnification is against public policy as expressed in the Securities Act
and is, therefore, unenforceable. In the event that a claim for
indemnification against such liabilities (other than the payment by the
Registrant of expenses incurred or paid by a trustee, officer or controlling
person of the Registrant in the successful defense of any action, suit or
proceeding) is asserted by such trustee, officer or controlling person in
connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question of
whether such indemnification by it is against public policy as expressed in
the Securities Act and will be governed by the final adjudication of such
issues.
<PAGE>
SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-3 and has duly caused the
Registrant's Registration Statement on Form S-3 to be signed on its behalf
by the undersigned, thereunto duly authorized, in the City of Columbus,
State of Ohio, on December 24, 1997.
GLIMCHER REALTY TRUST
By: /s/ Herbert Glimcher
-------------------------
Herbert Glimcher
Chairman and Chief Executive Officer
POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below hereby constitutes and appoints Herbert Glimcher or David J.
Glimcher his true and lawful attorney-in-fact and agent, will full power of
substitution and resubstitution, for him and in his name, place and stead,
in any and all capacities, to sign any and all amendments (including post-
effective amendments) to this registration statement, and to file the same,
with exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorney-in-fact and
agent full power and authority to do and perform each and every act and
thing requisite and necessary to be done, as fully to all intents and
purposes as he might or could do in person, hereby ratifying and confirming
all that said attorney-in-fact and agent or either of them, or their or his
substitute or substitutes, may lawfully do or cause to be done by virtue
hereof.
Pursuant to the requirements of the Securities Act of 1933, as amended,
the Registrant's Registration Statement on Form S-3 has been signed below by
the following persons in the capacities and on the dates indicated:
Name Title Date
/s/ Herbert Glimcher Chairman, Chief Executive December 24, 1997
- ----------------------- Officer and Trustee
(Herbert Glimcher) (Principal Executive Officer)
/s/ David J. Glimcher President and Chief December 24, 1997
- ----------------------- Operating Officer and Trustee
(David J. Glimcher)
/s/ William Cornely Senior Vice President and Chief December 24, 1997
- ----------------------- Financial Officer (Principal
(William Cornely) Accounting Officer and Principal
Financial Officer)
/s/ Michael Glimcher Senior Vice President of Leasing December 24, 1997
- ----------------------- and Trustee
(Michael Glimcher)
/s/ William R. Husted Senior Vice President of December 24, 1997
- ----------------------- Construction and Trustee
(William R. Husted)
/s/ Philip G. Barach Trustee December 24, 1997
- -----------------------
(Philip G. Barach)
/s/ Oliver Birckhead Trustee December 24, 1997
- -----------------------
(Oliver Birckhead)
/s/ E. Gordon Gee Trustee December 24, 1997
- -----------------------
(E. Gordon Gee)
/s/ Alan R. Weiler Trustee December 24, 1997
- -----------------------
(Alan R. Weiler)
/s/ Harvey Weinberg Trustee December 24, 1997
- -----------------------
(Harvey Weinberg)
<PAGE>
EXHIBIT INDEX
Exhibit No. Description Page No.
3.1 Amended and Restated Declaration of Trust.(1)
3.2 Amendment to Amended and Restated Declaration of Trust of
Glimcher Realty Trust.(2)
3.3 Bylaws of Glimcher Realty Trust.(3)
4.1 Amended and Restated Declaration of Trust (See Exhibit 3.1 above).
4.2 Amendment to Amended and Restated Declaration of Trust (See Exhibit
3.2 above).
4.3 Bylaws (see Exhibit 3.3 above).
4.4 Form of Common Share Certificate.(3)
4.5 Articles Supplementary creating Series A Convertible Preferred
Shares.(4)
4.6 Specimen Series A Convertible Preferred Share Certificate.(4)
4.7 Articles Supplementary Classifying Series B Cumulative
Redeemable Preferred Shares of Beneficial Interest.(5)
4.8 Specimen Series B Cumulative Redeemable Preferred Share
Certificate.(5)
4.9 Articles Supplementary Classifying Series A-1 Convertible
Preferred Shares.(5)
4.10 Specimen Series A-1 Convertible Preferred Share
Certificate.(5)
4.11 Articles Supplementary Classifying Series C Preferred
Shares.(6)
4.12 Specimen Series C Preferred Share Certificate.(6)
5.1 Opinion of Ballard Spahr Andrews & Ingersoll re: legality of the
Common Shares.
23.1 Consent of Coopers & Lybrand L.L.P.
23.2 Consent of Ballard Spahr Andrews & Ingersoll (included as part of
Exhibit 5.1).
23.3 Consent of Robinson Silverman Pearce Aronsohn & Berman LLP.
24.1 Power of attorney.
99.1 Form of Authorization Form relating to participation in the Glimcher
Realty Trust Distribution Reinvestment and Share Purchase Plan.
99.2 Form of Broker and Nominee Form relating to participation in the
Glimcher Realty Trust Distribution Reinvestment and Share Purchase
Plan.
99.3 Form of Request for Waiver relating to participation in the Glimcher
Realty Trust Distribution Reinvestment and Share Purchase Plan.
________________
(1) Incorporated by reference to Glimcher Realty Trust's Registration
Statement, Registration No. 33-91084.
(2) Incorporated by reference to Glimcher Realty Trust's Annual Report on
Form 10-K for the year ended December 31, 1994, filed with the
Securities and Exchange Commission on March 21, 1995.
(3) Incorporated by reference to Glimcher Realty Trust's Registration
Statement on Form S-11, Registration No. 33-69740.
(4) Incorporated by reference to Glimcher Realty Trust's Current Report on
Form 8-K dated February 5, 1997 and filed with the Securities and
Exchange Commission on February 5, 1997.
(5) Incorporated by reference to Glimcher Realty Trust's Current Report on
Form 8-K dated November 14, 1997 and filed with the Securities and
Exchange Commission on November 15, 1997.
(6) Incorporated by reference to Glimcher Realty Trust's Registration
Statement on Form S-3 filed with the Securities and Exchange Commission
on December 24, 1997.
EXHIBIT 5.1
December 24, 1997
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215
Re: Registration Statement on Form S-3
Ladies and Gentlemen:
We have served as Maryland counsel to Glimcher Realty Trust, a
Maryland real estate investment trust (the "Company"), in connection with
certain matters of Maryland law arising out of the Registration Statement on
Form S-3 (the "Registration Statement") filed by the Company to register
2,100,000 common shares (the "Shares") of beneficial interest, $.01 par
value per share, for an offering to be made on a delayed or continuous basis
in the future pursuant to Rule 415 under the Securities Act of 1933, as
amended. Unless otherwise defined herein, capitalized terms used herein
shall have the meanings ascribed to them in the Registration Statement.
In connection with our representation of the Company, and as a
basis for the opinion hereinafter set forth, we have examined originals, or
copies certified or otherwise identified to our satisfaction, of the
following documents (hereinafter collectively referred to as the
"Documents"):
1. The Registration Statement;
2. The Amended and Restated Declaration of Trust of the Company,
as amended (the "Declaration of Trust"), certified as of a recent date by
the SDAT;
3. The Bylaws of the Company, certified as of a recent date by
the Secretary of the Company;
4. Resolutions adopted by the Board of Trustees of the Company,
or a duly authorized committee thereof, relating to (i) the Plan, (ii) the
sale and issuance of the Shares, and (iii) the filing of the Registration
Statement with the Securities and Exchange Commission, certified as of a
recent date by the Secretary of the Company (the "Resolutions");
5. A certificate as of a recent date of the SDAT as to the good
standing of the Company;
6. The form of certificate evidencing a common share of
beneficial interest, $.01 par value per share, of the Company, certified as
of a recent date by the Secretary of the Company;
7. A certificate executed by George Schmidt, Senior Vice
President, General Counsel and Secretary of the Company, dated December 24,
1997; and
8. Such other documents and matters as we have deemed necessary
or appropriate to express the opinion set forth in this letter, subject to
the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed, and so
far as is known to us, there are no facts inconsistent with, the following:
1. Each individual executing any of the Documents, whether on
behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a
party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of
the Documents has duly and validly executed and delivered each of the
Documents to which such party is a signatory, and such party's obligations
set forth therein are legal, valid and binding and are enforceable in
accordance with all stated terms.
4. All Documents submitted to us as originals are authentic.
All Documents submitted to us as certified or photostatic copies conform to
the original documents. All signatures on all Documents are genuine. All
public records reviewed or relied upon by us or on our behalf are true and
complete. All statements and information contained in the Documents are
true and complete. There are no modifications or amendments to the
Documents, and there has been no waiver of any of the provisions of the
Documents, by action or omission of the parties or otherwise.
5. The Shares will not be issued in violation of any restriction
or limitation contained in Section 6.6 of the Declaration of Trust.
The phrases "known to us" is limited to the actual knowledge,
without independent inquiry, of the lawyers at our firm who have performed
legal services in connection with the issuance of this opinion.
Based upon the foregoing, and subject to the assumptions,
limitations and qualifications stated herein, it is our opinion that:
1. The Company is a real estate investment trust duly formed and
existing under the and by virtue of the laws of the State of Maryland and is
in good standing with the SDAT.
2. The Shares have been duly authorized for issuance and, upon
issuance and delivery of the Shares in the form of the Certificate and
payment therefor in the manner contemplated by the Registration Statement
and by the Plan, such Shares will be (assuming that the sum of (a) any
common shares of beneficial interest issued between the date hereof and the
date on which the Shares are actually issued (not including any Shares),
(ii) all common shares of beneficial interest issued as of the date hereof
and (iii) the Shares, will not exceed the total number of common shares of
beneficial interest that the Company is authorized to issue) duly
authorized, validly issued, fully paid and nonassessable.
The foregoing opinion is limited to the substantive laws of the
State of Maryland, and we do not express any opinion herein concerning any
other law. We express no opinion as to the applicability or effect of any
federal or state securities laws, including the securities laws of the State
of Maryland. To the extent that any matter as to which our opinion is
expressed herein would be governed by the laws of any jurisdiction other
than the State of Maryland, we do not express any opinion on such matter.
We assume no obligation to supplement this opinion if any
applicable law changes after the date hereof or if we become aware of any
fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you solely for your benefit and
may not be relied upon by, quoted in any manner to, or delivered to any
other person or entity without, in each instance, our prior written consent.
We hereby consent to the filing of this opinion as an exhibit to
the Registration Statement and to the use of the name of our firm therein.
In giving this consent, we do not admit that we are within the category of
persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours,
BALLARD SPAHR ANDREWS & INGERSOLL
EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We consent to the incorporation by reference in the registration statement
of Glimcher Realty Trust on Form S-3 of our report dated February 21, 1997,
on our audits of the consolidated financial statements and financial
statement schedule of Glimcher Realty Trust as of December 31, 1996 and
1995, and for the years ended December 31, 1996, 1995, and 1994. We also
consent to the reference to our firm under the caption "Experts."
COOPERS & LYBRAND L.L.P.
Columbus, Ohio
December 22, 1997
EXHIBIT 23.3
December 24, 1997
Glimcher Realty Trust
20 South Third Street
Columbus, Ohio 43215-3602
Gentlemen:
We consent to the use of our name as counsel in the Registration
Statement on Form S-3 of Glimcher Realty Trust covering 2,100,000 common
shares of beneficial interest to be filed with the Securities and Exchange
Commission on December 24, 1997.
Very truly yours,
ROBINSON SILVERMAN PEARCE
ARONSOHN & BERMAN LLP
EXHIBIT 99.1
GLIMCHER REALTY TRUST
AUTHORIZATION FORM
DISTRIBUTION REINVESTMENT AND SHARE PURCHASE PLAN
Please Read Carefully - This is Not a Proxy
I/we hereby appoint Harris Trust and Savings Bank or any successor bank or
trust company (the "Agent") as may from time to time be designated by
Glimcher Realty Trust (the "Company") as my/our agent to act in accordance
with and subject to the terms and conditions of the Distribution
Reinvestment and Share Purchase Plan of the Company, as amended (the
"Plan"). I/we hereby represent that I/we have received and reviewed the
Prospectus dated December 24, 1997 relating to the Plan (the "Prospectus").
Capitalized terms used herein and not otherwise defined have the meanings
set forth in the Prospectus.
TO ENROLL - Check "I" or "II" under "Distribution Reinvestment Program"
and/or "I" or "II" under "Share Purchase Program". If no box is checked,
option "I" under "Distribution Reinvestment Program" will be deemed to have
been selected. If your Common Shares are held by a bank, broker or other
nominee, you do not have to complete this Authorization Form. Please ask
your bank, broker or other nominee to enroll you in the Plan.
[ ] As a NEW investor, I/we hereby enroll in the Share Purchase Program by
making an initial optional cash payment as set forth under "Share Purchase
Program" below. (As a NEW investor, you must complete Annex A hereto).
[ ] As an existing participant in the Plan, I/we wish to make an optional
cash payment as set forth under "Share Purchase Program" below, or change my
investment election as set forth under "Distribution Reinvestment Program"
below.
DISTRIBUTION REINVESTMENT PROGRAM
[ ] I. Full Distribution Reinvestment. I/we hereby authorize the Company to
pay to the Agent for my/our account all cash distributions payable to me/us
on (i) all of the common shares of beneficial interest, $0.01 par value per
share, of the Company (the "Common Shares") registered in my/our name(s) and
(ii) all limited partnership interests of Glimcher Properties Limited
Partnership (the "OP Units") registered in my/our name(s). I/we hereby
authorize the Agent, as my/our agent, to apply all of my/our cash
distributions it receives with respect to such Common Shares and OP Units to
the purchase of full and fractional Common Shares.
[ ] II. Partial Distribution Reinvestment. I/we hereby authorize the
Company to pay to the Agent for my/our account all cash distributions
payable to me/us on (i) _________ Common Shares registered in my/our name(s)
and (ii) ______________ OP Units registered in my/our name(s). I/we hereby
authorize the Agent, as my/our agent, to apply all of my/our cash
distributions it receives with respect to such Common Shares and OP Units to
the purchase of full and fractional Common Shares.
SHARE PURCHASE PROGRAM
[ ] I. Optional Cash Payments of $100 to $3,000 per Calendar Quarter. I/we
wish to invest in Common Shares by making an optional cash payment of
__________ in United States dollars to the Agent for my/our account under
the Share Purchase Program. (Optional cash payments in excess of $3,000 per
calendar quarter may be made by a participant only upon such participant's
submission to the Company of a completed and signed Request for Waiver and
the Company's grant of a waiver of limitations relating to such optional
cash payments). I/we hereby direct the Agent to purchase Common Shares with
such optional cash payment. I/we hereby direct the Agent to enroll in the
Distribution Reinvestment Program [ ](a) all; [ ](b) none; [ ](c) __________
of the Common Shares to be purchased. (Please check box "a", "b" or "c" and
specify the applicable number of Common Shares to be enrolled if box "c" is
checked. If none of boxes "a", "b" or "c" is checked, box "a" will be
deemed to have been selected). I/we hereby authorize the Agent, as my/our
agent, to apply such payments to the purchase of full and fractional
registered Common Shares.
[ ] II. Optional Cash Payments of in Excess of $3,000 per Calendar Quarter.
I/we wish to invest in Common Shares by making an optional cash payment of
__________ in United States dollars to the Agent for my/our account under
the Share Purchase Program. I/we hereby direct the Agent to purchase Common
Shares with such optional cash payment. I/we have submitted to the Company
a completed and signed Request for Waiver and the Company has granted a
waiver of the limitations relating to this optional cash payment. I/we
hereby direct the Agent to enroll in the Distribution Reinvestment Program [
](a) all; [ ](b) none; [ ](c) __________ of the Common Shares to be
purchased. (Please check box "a", "b" or "c" and specify the applicable
number of Common Shares to be enrolled if box "c" is checked. If none of
boxes "a", "b" or "c" is checked, box "a" will be deemed to have been
selected). I/we hereby authorize the Agent, as my/our agent, to apply such
payments to the purchase of full and fractional registered Common Shares.
____________________________________________________________________________
IF YOU CHECKED "I" OR "II" UNDER "SHARE PURCHASE PROGRAM", PLEASE NOTE THE
FOLLOWING:
Participants in the Plan are not obligated to participate in the Share
Purchase Program. Participants in the Share Purchase Program may invest in
Common Shares by making optional cash payments whether or not a distribution
is declared. The same optional cash payment amount need not be sent each
time, and there is no obligation to make an optional cash payment in any
calendar quarter.
Each optional cash payment is subject to a minimum per month purchase limit
of $100 and a maximum per calendar quarter purchase limit of $3,000 (unless
such limit has been waived by the Company). Optional cash payments in
excess of $3,000 per calendar quarter may be made by a participant only upon
such participant's submission to the Company of a completed and signed
Request for Waiver and the Company's grant of a waiver of limitations
relating to such optional cash payments. Generally, optional cash payments
of less than $100 and that portion of any optional cash payment which
exceeds the maximum calendar quarterly purchase limit of $3,000 (unless such
limit has been waived by the Company) will be returned to participants
without interest at the end of the relevant Pricing Period. There is no
pre-established maximum limit applicable to optional cash payments that may
be made pursuant to Accepted Requests for Waiver. Participants interested
in obtaining further information about any optional cash payments proposed
to be made pursuant to a Request for Waiver should contact William Cornely,
Senior Vice President and Chief Financial Officer of the Company, at (614)
621-9000. Grants of waivers will be made in the sole and absolute discretion
of the Company.
An optional cash payment must be made by sending the Agent a check or money
order (together with a completed and signed optional cash payment form),
made payable to "Harris Trust and Savings Bank" or making a wire transfer to
"Harris Trust and Savings Bank". Wire transfers may be used only if
approved verbally in advance by the Agent. Optional cash payment forms may
be obtained at any time by written request to the Agent at the following
address: Harris Trust and Savings Bank, Attention: Dividend Reinvestments,
P.O. Box A 3309, Chicago, IL 60690, or by telephoning the Agent at: (800)
942-5909. Once a participant has enrolled in the Plan an optional cash
payment form will be attached to each statement of account sent to you.
Checks, money orders and optional cash payment forms should be mailed to
Harris Trust and Savings Bank, Attention: Dividend Reinvestments, P.O. Box A
3309, Chicago, IL 60690.
Optional cash payments must be in United States dollars. Do not send cash.
Checks and money orders are accepted subject to timely collection as good
funds and verification of compliance with the terms of the Plan. Checks not
drawn on a United States bank are subject to collection and collection fees
and will be invested on the Investment Date when the Common Shares are
issued or thereafter. Checks returned for any reason will not be
resubmitted for collection. No interest will be paid by the Company or the
Agent on optional cash payments held pending investment.
____________________________________________________________________________
Please return this Authorization Form, payment (if any) and the optional
cash payment form (if any) to Harris Trust and Savings Bank, Attention:
Dividend Reinvestments, P.O. Box A 3309, Chicago, IL 60690. If the Common
Shares of OP Units are registered in more than one name (e.g. joint tenants,
trustees, etc.), all registered holders must complete and sign this
Authorization Form.
___________________________________________
Please print full name(s) exactly as
Common Shares or OP Units are registered
___________________________________________
Signature
___________________________________________
Signature
___________________________________________
Date
___________________________________________
Social Security Number or
Tax Identification Number
<PAGE>
Annex A
____________________________________________________________________________
1. ACCOUNT REGISTRATION
Complete only one section: Print clearly in capital letters.
[ ] Individual or Joint Account
______________________
Owner's Name
Owner's Social Security No. Owner's Date of Birth
(used for tax reporting) Month Day Year
[ ][ ][ ]-[ ][ ]-[ ][ ][ ][ ] [ ][ ] [ ][ ] [ ][ ][ ][ ]
____________________________________________________________________
______________________
Joint Owner's Name
Joint Owner's Social Security No. Joint Owner's Date of Birth
(used for tax reporting) Month Day Year
[ ][ ][ ]-[ ][ ]-[ ][ ][ ][ ] [ ][ ] [ ][ ] [ ][ ][ ][ ]
____________________________________________________________________
A joint account will be registered "Joint Tenants with Rights of
Survivorship" unless you check a box below:
[ ] Tenants in common
[ ] Tenants by entirety
[ ] Community property
____________________________________________________________________________
[ ] Gift Transfer To a Minor (UGMA/UTMA)
______________________
Custodian's Name
______________________
Minor's Name
Minor's Social Security No. Minor's Date of Birth
(used for tax reporting) Month Day Year
[ ][ ][ ]-[ ][ ]-[ ][ ][ ][ ] [ ][ ] [ ][ ] [ ][ ][ ][ ]
____________________________________________________________________________
[ ] Trust (Please check only one of the trustee types)
[ ] Individual As Trustee
[ ] Organization As Trustee
________________________________________________________________
Trustee: Individual or Organization Name
________________________________________________________________
Co-Trustee's Name
____________________________________________________________________
Name of Trust
____________________________________________________________________
For the Benefit Of
____________________________________________________________________
Trust Taxpayer Identification No. Date of Trust
Month Day Year
[ ][ ][ ]-[ ][ ]-[ ][ ][ ][ ] [ ][ ] [ ][ ] [ ][ ][ ][ ]
[ ] Organization or Business Entity (Please check only one of the
organization or business entity types):
[ ] Corporation [ ] Partnership [ ] Other
____________________________________________________________________
Name of Organization or Business Entity
Organization Taxpayer Identification No.
[ ][ ][ ]-[ ][ ]-[ ][ ][ ][ ]
____________________________________________________________________________
2. ADDRESS
_________________________________________________________________
Mailing Address (Including Apartment or Box Number)
_________________________________________________________________
City State Zip
(___) _____-_____ (___) ____-____
Home Phone Work Phone
For Mailing Address Outside the United States:
_________________________________________________________________
County of Residence Province Routing or Postal Code
____________________________________________________________________________
3. ACCOUNT AUTHORIZATION SIGNATURE (required)
[ ] Request For Taxpayer Identification Number (Substitute Form W-9)
I am a U.S. citizen or a resident alien. I certify, under penalties
of perjury, that (1) the taxpayer identification number in Section 1
is correct (or I am waiting for a number to be issued to me) and
(CROSS OUT THE FOLLOWING IF NOT TRUE) (2) I am not subject to backup
withholding because: (a) I am exempt from backup withholding, or
(b) I have not been notified by the Internal Revenue Service that I
am subject to backup withholding as a result of failure to report
all interest or dividends, or (c) the IRS has notified me that I am
no longer subject to backup withholding.
[ ] Certificate of Foreign Status (Substitute Form W-8)
I am an exempt foreign citizen. I certify, under penalties of
perjury, that for distributions, I am not a U.S. citizen or resident
alien (or I am filing for a foreign corporation, partnership,
estate, or trust) and I am an exempt foreign person. I have entered
in Section 2 the country where I reside permanently for income-tax
purposes.
[ ] For Organizations and Business Entities Exempt From Backup
Withholding
I qualify for exemption and my account will not be subject to tax
reporting and backup withholding.
__________________________________ ________________________________________
Signature Date
__________________________________ ________________________________________
Signature Date
EXHIBIT 99.2
GLIMCHER REALTY TRUST
BROKER AND NOMINEE FORM
DISTRIBUTION REINVESTMENT AND SHARE PURCHASE PLAN
As provided in the Prospectus dated December 24, 1997 (the "Prospectus")
related to the Distribution Reinvestment and Share Purchase Plan of Glimcher
Realty Trust (the "Company"), as amended (the "Plan"), this Broker and
Nominee Form is to be used by a bank, broker or other nominee making an
optional cash investment under the Plan on behalf of one or more Beneficial
Owner(s) whose Common Shares are held in the name of a securities
depository. Capitalized terms used herein and not otherwise defined have
the meanings set forth in the Prospectus.
The bank, broker or other nominee submitting this B&N Form hereby certifies
that (a) the information contained herein is true and correct as of the date
hereof; (b) a current copy of the Prospectus has been delivered to each
Beneficial Owner on whose behalf an optional cash payment is hereby being
made, and (c) with respect to each Beneficial Owner on whose behalf an
optional cash payment is hereby being made either (i) the optional cash
payment for such Beneficial Owner does not exceed $3,000 per calendar
quarter or (ii) such Beneficial Owner has submitted to the Company a
completed and signed Request for Waiver with respect to such optional cash
payment and the Company has granted a waiver of limitations relating to such
optional cash payment proposed to be made pursuant to such Request for
Waiver.
A B&N Form must be delivered to the Agent each time that such bank, broker
or other nominee transmits optional cash payments on behalf of a Beneficial
Owner. The B&N Form and appropriate instructions must be received by the
Agent at least five business days prior to an Investment Date or the payment
will not be invested until the following Investment Date.
[ ] I. Optional Cash Payments of $100 to $3,000 per Calendar Quarter. I/we
wish to invest in Common Shares on behalf of certain Beneficial Owners by
making an optional cash payment of __________ in United States dollars to
the Agent for my/our account under the Share Purchase Program. (Optional
cash payments in excess of $3,000 per calendar quarter may be made by a
participant only upon such participant's submission to the Company of a
completed and signed Request for Waiver and the Company's grant of a waiver
of limitations relating to such optional cash payments). I/we hereby direct
the Agent to purchase Common Shares with such optional cash payment. I/we
hereby direct the Agent to enroll in the Distribution Reinvestment Program [
](a) all; [ ](b) none; [ ](c) __________ of the Common Shares to be
purchased. (Please check box "a", "b" or "c" and specify the applicable
number of Common Shares to be enrolled if box "c" is checked. If none of
boxes "a", "b" or "c" is checked, box "a" will be deemed to have been
selected). I/we hereby authorize the Agent, as my/our agent, to apply such
payments to the purchase of full and fractional registered Common Shares.
[ ] II. Optional Cash Payments of In Excess of $3,000 per Calendar Quarter.
I/we wish to invest in Common Shares on behalf of certain Beneficial Owner
by making an optional cash payment of __________ in United States dollars to
the Agent for my/our account under the Share Purchase Program. I/we hereby
direct the Agent to purchase Common Shares with such optional cash payment.
I/we have submitted to the Company a completed and signed Request for Waiver
and the Company has granted a waiver of limitations relating to the optional
cash payments proposed to be made pursuant to such Request for Waiver. I/we
hereby direct the Agent to enroll in the Distribution Reinvestment Program [
](a) all; [ ](b) none; [ ](c) __________ of the Common Shares to be
purchased. (Please check box "a", "b" or "c" and specify the applicable
number of Common Shares to be enrolled if box "c" is checked. If none of
boxes "a", "b" or "c" is checked, box "a" will be deemed to have been
selected). I/we hereby authorize the Agent, as my/our agent, to apply such
payments to the purchase of full and fractional registered Common Shares.
_________________________________________________________
Tile of Account to which Common Shares are to be Credited
_________________________________________________________
Participant Number with Depository
_________________________________________________________
Tax Identification Number
_________________________________________________________
Contact
_________________________________________________________
Phone
_________________________________________________________
Name of Depository
_________________________________________________________
Name(s) of Beneficial Owners For Whom
Optional Cash Payments Are Hereby Being Made
_________________________________________________________
Name(s) of Beneficial Owners For Whom
Optional Cash Payments Are Hereby Being Made
_________________________________________________________
Total Optional Cash Payment
_________________________________________________________
Method of Payment
_________________________________________________________
Date
_________________________________________________________
Name of Broker, Bank or Other Nominee
By:______________________________________________________
Name:____________________________________________________
Title:___________________________________________________
EXHIBIT 99.3
GLIMCHER REALTY TRUST
REQUEST FOR WAIVER
DISTRIBUTION REINVESTMENT AND SHARE PURCHASE PLAN
I/we hereby request that Glimcher Realty Trust (the "Company") grant a
waiver of the limitations relating to the optional cash payment set forth
below that is proposed to be made under the Distribution Reinvestment and
Share Purchase Plan of the Company, as amended (the "Plan"). Capitalized
terms used herein and not otherwise defined have the meanings set forth in
the Prospectus dated December 24, 1997 relating to the Plan.
A Request for Waiver must be received by the Company no later than the
applicable Investment Date. Participants interested in obtaining further
information about any proposed Request for Waiver should contact William
Cornely, Senior Vice President and Chief Financial Officer of the Company,
at (614) 621-9000.
_________________________________________________________
Proposed Optional Cash Payment
_________________________________________________________
Proposed Method of Payment
_________________________________________________________
Name
_________________________________________________________
Social Security Number or Tax Identification Number
_________________________________________________________
Street Address
_________________________________________________________
City State Zip
_____________________
Fax Number
____________________________________
Date
________________________________________________
Signature
