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EXHIBIT 10.22
MIT-MSAM
EXCEPTED HOLDER AGREEMENT
This EXCEPTED HOLDER AGREEMENT is made and entered into as of April 3,
1996 by and between MERIDIAN INDUSTRIAL TRUST, INC., a Maryland corporation (the
"COMPANY"), and XXXXXX XXXXXXX ASSET MANAGEMENT INC., a Delaware corporation
("MSAM").
R E C I T A L S
A. The Company intends to qualify as a real estate investment trust
("REIT") under the Internal Revenue Code of 1986, as amended (the "CODE").
B. To help the Company qualify and maintain its status as a REIT, the
Company's Third Amended and Restated Articles of Incorporation (the "ARTICLES")
impose certain limitations on the ownership of the Company's stock. (Capitalized
terms used in this Agreement that are not otherwise defined shall have the
meanings given to them in the Articles.) The Articles contain a general
restriction prohibiting any Person from owning more than a specified percentage
(initially set at eight and one half percent) of the lesser of the number or
value of any class of outstanding shares of the Company (the "OWNERSHIP LIMIT").
C. The Company's Board of Directors is permitted to establish an
"EXCEPTED HOLDER LIMIT" allowing ownership in excess of the Ownership Limit if
certain conditions are satisfied. This Agreement is intended to create an
Excepted Holder Limit for MSAM, acting on its own behalf and on behalf of its
client accounts over which it has investment discretion ("MSAM Clients").
A G R E E M E N T
1. REPRESENTATIONS AND COVENANTS OF MSAM
Beginning on the date hereof, and during any period that an Excepted
Holder Limit established pursuant to this Agreement (as subsequently adjusted)
remains in effect, MSAM represents and agrees as follows:
1.1 The shares of the Company over which MASM exercises discretionary
authority, either on its own behalf or on behalf of the MSAM Clients, will be
treated as being owned actually, Beneficially and Constructively by one Person
solely for the purposes of this Agreement and the provisions of Article 5 of the
Articles. This section shall not constitute an admission by MSAM that MSAM
actually, Beneficially or Constructively owns any shares of Equity Stock of the
Company owned by any MSAM Clients, or that any combination of MSAM and any MSAM
Clients may be considered to be a group for purposes of Section 13(d)(3) of the
Securities Exchange Act of 1934.
1.2 Neither MSAM, acting on its own behalf, nor any individual MSAM
Client owns or will own actually, Beneficially or Constructively more than eight
and one half percent of the outstanding shares of Equity Stock of the Company.
In the case of MSAM Clients which are pooled
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investment vehicles, this limit shall not be applicable to the vehicle itself,
but shall apply to the participants in the vehicle, who shall be deemed to own
their allocable share of the vehicle's investment in shares of Equity Stock of
the Company based on the participant's percentage ownership of the vehicle.
1.3 MSAM and the MSAM Clients shall not collectively own actually,
Beneficially or Constructively shares of the Company's Equity Stock in excess of
the Excepted Holder Limit established pursuant to this Agreement.
1.4 MSAM, on behalf of itself and each of the MSAM Clients, agrees that
any violation or attempted violation of Article 1 of this Agreement or the
provisions of the Board of Directors' resolution implementing this Agreement (or
other action contrary to the ownership restrictions imposed under the Articles)
will automatically subject the shares that otherwise would result in the
violation to the treatment described in Sections 5.5 and 5.6 of the Articles
(the shares will be immediately transferred to a Trust, or if the transfer to
the Trust would be ineffective, the purported Transfer will be void ab initio).
1.5 MSAM will not intentionally take any action which would result in a
breach of any representation, warranty or covenant of MSAM set forth in this
Agreement.
2. ESTABLISHMENT OF AN EXCEPTED HOLDER LIMIT FOR MSAM
Based on the above representations and agreements, the board of
directors of the Company, effective as of the date of this Agreement, has
established an Excepted Holder Limit for MSAM by adopting a resolution in the
form attached to this Agreement as Exhibit "A".
3. MISCELLANEOUS
3.1 All questions concerning the construction, validity and
interpretation of this Agreement shall be governed by and construed in
accordance with the domestic laws of the State of Maryland, without giving
effect to any choice of law or conflict of law provision (whether of the State
of Maryland or any other jurisdiction) that would cause the application of the
laws of any jurisdiction other than the State of Maryland.
3.2 This Agreement may be signed by the parties in separate
counterparts, each of which when so signed and delivered shall be an original,
but all such counterparts shall together constitute one and the same instrument.
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Each of the parties has caused this Agreement to be signed by its duly
authorized officers as of the date set forth in the introductory paragraph of
this Agreement.
The "Company" "Xxxxxx"
MERIDIAN INDUSTRIAL TRUST, INC., a XXXXXX XXXXXXX ASSET
Maryland corporation MANAGEMENT INC., acting on its own
behalf and on behalf of the MSAM
Clients
By: /s/ Xxxxx X. Xxxxxxxx By: /s/ Xxxxxxx X. Xxxxx
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Xxxxx X. Xxxxxxxx Name: Xxxxxxx X. Xxxxx
Its: Chairman of the Board and Chief Its: Principal
Executive Officer
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EXHIBIT "A"
MIT -- MSAM
EXCEPTED HOLDER LIMIT RESOLUTION
In accordance with Article 5 of the Company's Third Amended and Restated
Articles of Incorporation ("ARTICLES"), the Directors hereby determine that,
effective upon the execution of an Excepted Holder Agreement (capitalized terms
used in this resolution that are not otherwise defined shall have the meanings
given to those terms in the Articles), and subject to adjustment as set forth
below:
1. An Excepted Holder Limit equal to the greater of (a) 1,600,000
shares of the Company's Common Stock or (b) eight and one half percent of the
number or value of outstanding shares of the Company's Common Stock shall apply
to XXXXXX XXXXXXX ASSET MANAGEMENT INC., a Delaware corporation ("MSAM"), acting
on its own behalf and on behalf of its client accounts over which it has
investment discretion (the "MSAM Clients") (which shall include any shares of
Common Stock issuable upon the exercise of any warrants or options exercisable
for shares of Common Stock held by MSAM or any MSAM Client); provided, however,
that in the event of a redemption, repurchase or cancellation of shares of
Common Stock or similar action on the part of the Company that results in the
number of shares of Common Stock then actually, Beneficially or Constructively
Owned by MSAM or any MSAM Client representing in the aggregate a greater
percentage of the outstanding shares of Common Stock, such Ownership Limit shall
be increased proportionately;
2. As to each Person that is deemed to Beneficially Own or
Constructively Own an interest in shares of the Company that are held by MSAM or
any MSAM Client, that Person's deemed indirect interest in the shares held by
MSAM or any such MSAM Client shall be disregarded for purposes of applying the
Ownership Limit to that Person, provided, however, if such a Person also owns
actually, Beneficially or Constructively an interest in other shares of the
Company, the interest held through MSAM or any MSAM Client shall not be so
disregarded; and
3. When MSAM or any MSAM Client sells or otherwise transfers ownership
of shares of Common Stock of the Company outside of MSAM and the MSAM Clients,
the Excepted Holder Limit then applicable to MSAM and the MSAM Clients shall be
reduced by the interest that is sold or transferred, but the limit applicable to
MSAM and the MSAM Clients shall not be reduced below the basic Ownership Limit.
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