descendant or ancestor of any executive officer, director, partner or Person that owns ten percent (10%) or more of the outstanding beneficial interest of or in such entity; and (c) with respect to a Person, any Person which directly or indirectly, through one or more intermediaries, controls, is controlled by, or is under common control with such Person or entity; provided, however, that for purposes of the definition of “Affiliate,” no Investor shall be deemed an “Affiliate” of the Company.

 

“ Agreement ” shall have the meaning set forth in the preamble.

 

“ Basket ” shall have the meaning set forth in Section 9.03.

 

“ Business Day ” shall mean any day other than (i) a Saturday, (ii) a Sunday or (iii) any other day on which banks in the City of New York are authorized or required to close.

 

“ By-Laws ” shall mean, when used with respect to a specified Person, the by-laws of a Person, as the same may be amended from time to time.

 

“ Capital Stock ” shall mean, with respect to any Person, any and all shares, shares of beneficial interest, interests, participations, rights in or other equivalents (however designated and whether voting or non-voting) of such Person’s capital stock or any form of membership, ownership or participation interests, as applicable, including partnership interests, whether now outstanding or hereafter issued and any and all securities, debt instruments, rights, warrants or options exercisable or exchangeable for or convertible into such capital stock.

 

“ Certificate of Incorporation ” shall mean, when used with respect to a specified Person, the Declaration of Trust, Articles or Certificate of Incorporation or other applicable organizational document of such Person, as currently in effect.

 

“ Closing ” shall have the meaning set forth in Section 2.02(a).

 

“ Closing Date ” shall have the meaning set forth in Section 2.02(a).

 

“ Commission Filings ” shall have the meaning set forth in Section 3.08.

 

“ Common Stock ” shall mean the common shares of beneficial interest, $1 par value per share, of the Company.

 

“ Company ” shall have the meaning set forth in the preamble.

 

“ Company Subsidiaries ” and “ Company Subsidiary ” shall have the meaning set forth in Section 3.03.

 

“ Consents ” shall mean all governmental and third party consents, approvals, authorizations, qualifications and waivers necessary to be received by a Person for the consummation of the transaction contemplated by the Agreement.

 

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“ Contract ” shall mean any legally binding contract, agreement, mortgage, deed of trust, bond, loan, indenture, lease, license, note, option, warrant, right, instrument, commitment or other similar document, arrangement or agreement, whether written or oral.

 

“ Declaration of Trust ” shall have the meaning set forth in Section 3.01.

 

“ Exchange Act ” shall mean the Securities Exchange Act of 1934, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

“ GAAP ” shall mean generally accepted accounting principles applied on a consistent basis as used in the United States of America.

 

“ Governmental Body ” shall mean any government or governmental or quasi-governmental authority including, without limitation, any federal, state, territorial, county, municipal or other governmental or quasi-governmental agency, board, branch, bureau, commission, court, arbitral body (public or private), department or other instrumentality or political unit or subdivision, whether located in the United States or abroad, the National Association of Securities Dealers, Inc., the New York Stock Exchange, the Nasdaq National Market, the Nasdaq SmallCap Market or the American Stock Exchange.

 

“ Indemnitee ” shall have the meaning set forth in Section 9.01.

 

“ Indemnitor ” shall have the meaning set forth in Section 9.01.

 

“ Investor ” shall have the meaning set forth in the preamble.

 

“ Law ” shall mean any treaty, statute, ordinance, code, rule, regulation, Order or other legal requirement enacted, adopted, promulgated, applied or followed by any Governmental Body.

 

“ Legal Proceeding ” shall mean any judicial, administrative or arbitral actions, suits, proceedings (public or private) or governmental proceedings.

 

“ Legend ” shall mean the Legend set forth in Section 4.02(e).

 

“ Lien ” shall mean any mortgage, pledge, lien (statutory or otherwise), security interest, hypothecation, conditional sale agreement, encumbrance or similar restriction or agreement.

 

“ Loss ” shall have the meaning set forth in Section 9.01.

 

“ Material Adverse Effect ” shall mean any event, condition or contingency that has had, or is reasonably likely to have, a material adverse effect on the business, assets, liabilities (including contingent liabilities), results of operations, financial condition or, to the knowledge of the Company, prospects of the Company and the Company Subsidiaries, taken as a whole.  For the purposes of this Agreement, a Material Adverse Effect shall not be deemed to arise by reason of (i) events of war impacting the economy in general, and (ii) changes in general economic conditions.

 

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“ Notice ” shall have the meaning set forth in Section 9.02(a).

 

“ NYSE ” shall mean the New York Stock Exchange.

 

“ Order ” shall mean any order, injunction, judgment, decree, ruling, writ, assessment or arbitration award.

 

 “ Person ” shall mean any individual, corporation, partnership, firm, limited liability company, joint venture, trust, association, unincorporated organization, group, joint-stock company, Governmental Body or other entity.

 

“ Purchase Price ” shall mean $4,000,000 in the aggregate, payable as set forth in Section 2.02.

 

 “ SEC ” shall mean the U.S. Securities and Exchange Commission.

 

“ Securities Act ” shall mean the Securities Act of 1933, as amended, and the rules and regulations of the SEC promulgated thereunder.

 

“ Subsidiary ” shall mean, as to any Person, any other Person more than 50% of the shares of the voting stock, voting interests, membership interests or partnership interests of which are owned or controlled, or the ability to select or elect more than 50% of the directors or similar managers is held, directly or indirectly, by such first Person or one or more of its Subsidiaries or by such first Person and one or more of its Subsidiaries; provided, however, that First Union Management, Inc. shall not be deemed to be a Subsidiary of the Company.

 

“ Unaudited Financial Statements ” shall have the meaning specified in Section 3.07.

 

Section 1.02.          Rules of Construction .  Unless the context otherwise requires:

 

(a)           an accounting term defined by GAAP that is not otherwise defined herein has the meaning assigned to it in accordance with GAAP;

 

(b)           “or” is not exclusive;

 

(c)           words in the singular include the plural, and words in the plural include the singular;

 

(d)           the words “include” and “including” shall be deemed to mean “include, without limitation,” and “including, without limitation”;

 

(e)           “herein,” “hereof,” “hereto,” “hereunder” and other words of similar import refer to this Agreement as a whole and not to any particular article, section, paragraph or clause where such terms may appear;

 

(f)            references to sections mean references to such section in this Agreement, unless stated otherwise; and

 

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(g)           the use of any gender shall be applicable to all genders.

 

ARTICLE II
ISSUANCE, SALE AND PURCHASE OF THE SHARES.

 

Section 2.01.          Sale and Purchase of the Shares .  Upon the terms and subject to the conditions of this Agreement, the Company will sell to the Investor, and the Investor will purchase from the Company, the Shares for a purchase price of $4,000,000 (the “Purchase Price”).

 

Section 2.02.                        Closing .

 

(a)           Subject to the satisfaction or waiver of the conditions set forth in this Agreement, the closing of the transaction contemplated by Section 2.01 (the “ Closing ”) shall take place at 10:00 AM on the first business day following receipt by the Company of notice that the Shares have been duly listed on the NYSE, pending notice of issuance, but not later than Wednesday, February 23, 2005, or at such other time as may be mutually agreed upon by the Investor and the Company (the “ Closing Date ”).  The Closing shall occur on the Closing Date at the offices of Katten Muchin Zavis Rosenman, 575 Madison Avenue, New York, New York.

 

(b)           At the Closing: (i) the Company will deliver to the Investor (x) a certificate for the Shares registered in the name of the Investor and (y) legal opinions of counsel to the Company addressed to the Investor, satisfactory to counsel to the Investor and in substantially the form of Annex A and Annex B (the “Company Counsel Opinions”); (ii) the Investor, in full payment for the Shares, will deliver to the Company the Purchase Price in immediately available funds, by wire transfer to such account as the Company shall specify, and (iii) each party shall take or cause to happen such other actions, and shall execute and deliver such other instruments or documents, as shall be required under Article VII.

 

Section 2.03.        Use of Proceeds .  The Company shall use the proceeds from the sale of the Shares for general corporate purposes.

 

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

 

The Company represents and warrants to the Investor as follows:

 

Section 3.01.        Organization and Good Standing .  The Company is an unincorporated association in the form of a business trust organized, validly existing and in good standing under the Laws of the State of Ohio and has trust power and authority to own, lease and operate its properties and carry on its business as presently conducted.  The Company is duly qualified, registered or licensed as a foreign business entity to do business and is in good standing in each jurisdiction in which the ownership or leasing of its properties or the character of its present operations makes such qualification, registration or licensing necessary, except where the failure to so qualify or be in good standing could not reasonably have a Material Adverse Effect. The

 

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Company has heretofore delivered or made available to the Investor complete and correct copies of the declaration of trust of the Company, as amended to date (the “Declaration of Trust”).

 

Section 3.02.        Authority; Binding Effect .  The Company has trust power and authority to execute and deliver this Agreement and to consummate the transaction contemplated hereby.  The execution and delivery of this Agreement and the consummation by the Company of the transaction contemplated hereby have been duly and validly approved by all necessary action on the part of the Company.  This Agreement has been duly executed and delivered by the Company and constitutes the legal, valid and binding obligation of the Company, enforceable in accordance with its terms, except as such enforceability may be subject to the effects of any applicable bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or similar Laws affecting creditors’ rights generally and subject to the effects of general equitable principles.

 

Section 3.03.        Organization and Good Standing of Company Subsidiaries .  Schedule 3.03 lists all Subsidiaries of the Company and their respective jurisdictions of formation (collectively, the “ Company Subsidiaries ” and each, a “ Company Subsidiary ”).  Except as set forth in Schedule 3.03 , the Company owns, directly or indirectly, all the shares of outstanding Capital Stock of each Company Subsidiary.  There are no outstanding securities or rights convertible into or exchangeable for shares of any Capital Stock of any Company Subsidiary and there are no Contracts by which any Company Subsidiary is bound to issue additional shares of Capital Stock.  All of the shares of Capital Stock of each of the Company Subsidiaries are duly and validly authorized, fully paid and non-assessable and, except for the Liens set forth in Schedule 3.03, are owned by the Company free and clear of any Lien with respect thereto.  Each Company Subsidiary is duly organized, validly existing and in good standing under the Laws of its jurisdiction of organization, and has all requisite corporate power and authority to own, operate and lease its properties and to carry on its business as it is now being conducted, and is duly licensed or qualified to do business in each other jurisdiction in which it owns or leases properties, or conducts any business, so as to require such qualification, except where the failure to be so licensed or qualified in any such jurisdiction could not reasonably have a Material Adverse Effect.

 

Section 3.04.        Capitalization .  Schedule 3.04(a) sets forth, in each case as of the date hereof, (i) the authorized capitalization of the Company, the number of shares of each class issued and outstanding and the number of shares reserved for issuance in connection with the Company’s stock option plans, and (ii) all options, warrants, convertible securities, rights to subscribe to, calls, contracts, undertakings, arrangements and commitments to issue which may result in the issuance of stock of the Company.  All of the issued and outstanding shares of the Company’s Capital Stock have been duly and validly authorized and issued and are fully paid and non-assessable and are not subject to any preemptive rights.  No securities of the Company are entitled to preemptive or similar rights, and no person has any right of first refusal, preemptive right, right of participation, or any similar right to participate in the transaction contemplated by this Agreement.

 

Section 3.05.        No Violations; Consents .   Neither the execution, delivery or performance by the Company of this Agreement nor the consummation of the transaction contemplated hereby, will (a) conflict with, or result in the breach of, any provision of the organizational documents of

 

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the Company or any Company Subsidiary, (b) conflict with, violate, result in the breach or termination of, or constitute a default or give rise to any right of termination, amendment, cancellation or acceleration or right to increase the obligations or otherwise modify the terms thereof under any Contract or Order to which the Company or any Company Subsidiary is a party or by which the Company or any Company Subsidiary or any of the properties or assets of the Company or any Company Subsidiary is bound, (c) constitute a violation of any Law applicable to the Company or any Company Subsidiary; or (d) result in the creation of any Lien upon the properties or assets of the Company or any Company Subsidiary.  Except for the approval of the NYSE referred to in Section 7.01(c), no Consent is required on the part of the Company or the Company Subsidiaries in connection with the execution and delivery of this Agreement and the consummation of the transaction contemplated hereby.

 

Section 3.06.        Listing .  The Company is not in violation of the listing requirements of the NYSE in any material respect.  The Company has not received any written notice from the NYSE that the Common Stock is to be delisted by the NYSE.

 

Section 3.07.        Financial Statements .  The Company has previously delivered to the Investor copies of the unaudited combined balance sheet of the Company and the Company Subsidiaries as of September 30, 2004 and the related unaudited combined statements of operations and cash flows for the three months and nine months ended September 30, 2004, as reported in the Company’s Quarterly Report on Form 10-Q for the quarterly period ended September 30, 2004, filed with the SEC under the Exchange Act (the “ Unaudited Financial Statements ”).  The Unaudited Financial Statements accurately reflect the books and records of the Company and present fairly, in all material respects, the combined financial position of the Company and the Company Subsidiaries and the combined results of their operations and their cash flows for the period and date covered thereby, in conformity with GAAP, except for changes resulting from year-end adjustments (none of which will be material in amount) and the absence of footnote disclosures thereto.

 

Section 3.08.      Commission Filings .  The Company has filed all reports, registration statements, proxy statements and other materials, together with any amendments required to be made with respect thereto, that were required to be filed with the SEC under the Securities Act or the Exchange Act from and after December 31, 2003 (all such reports and statements are collectively referred to herein as the “ Commission Filings ”).  As of their respective dates, the Commission Filings, including the financial statements contained therein, complied in all material respects with all of the statutes and published rules and regulations enforced or promulgated by the regulatory authority with which the Commission Filings were filed, and, except to the extent the information in any Commission Filing has been revised or superseded by a later filed Commission Filing, did not and do not as of the date hereof contain any untrue statement of a material fact or omit to state any material fact required to be stated therein or necessary in order to make the statements therein, in the light of the circumstances under which they were made, not misleading.  The financial statements of the Company included in the Commission Filings comply in all material respects with applicable accounting requirements and the rules and regulations of the SEC with respect thereto as in effect at the time of filing.  Such financial statements have been prepared in accordance with GAAP, except as may be otherwise specified in such financial statements or the notes thereto, and fairly present in all material respects the financial position of the Company

 

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and its consolidated subsidiaries as of and for the dates thereof and the results of operations and cash flows for the periods then ended, subject, in the case of unaudited statements, to normal, year-end audit adjustments.

 

Section 3.09.      Absence of Certain Developments .  Except as specifically disclosed in the Commission Filings, since September 30, 2004 and through the date hereof, no event or series of events occurred which could reasonably have a Material Adverse Effect.

 

Section 3.10.      Litigation .  There are no Legal Proceedings pending or, to the knowledge of the Company, threatened, that question the validity of this Agreement or the transaction contemplated hereby or any action taken or to be taken by the Company or any Company Subsidiary in connection with the consummation of the transaction contemplated hereby.  Except as otherwise specifically disclosed herein or in the Commission Filings, there are no Legal Proceedings pending or, to the knowledge of the Company, threatened, against or involving the Company or any Company Subsidiary or any of their respective properties or assets, at Law or in equity, involving, individual claims of more than $1,000,000 or claims in the aggregate of more than $3,000,000.  There is no outstanding or, to the knowledge of the Company, threatened, Order of any Governmental Body against the Company or any Company Subsidiary or any of their respective properties or assets, which Order could reasonably have a Material Adverse Effect.

 

Section 3.11.      Compliance with Laws .  The Company and the Company Subsidiaries are in compliance in all respects with all Laws and Orders promulgated by any Governmental Body applicable to the Company and the Company Subsidiaries or to the conduct of the business or operations of the Company and the Company Subsidiaries or the use of their properties (including any leased properties) and assets, except where failure to comply would not have a Material Adverse Effect.  Since January 1, 2004, neither the Company nor any Company Subsidiary has received any written notice of violation or alleged material violation of any such Law or Order by any Governmental Body in any material respect that has not been resolved. Since January 1, 2004, neither the Company nor any Company Subsidiary has received written notice that it is the subject of an investigation by any Governmental Body which could reasonably have a Material Adverse Effect.

 

Section 3.12.      Financial Advisors .  No agent, broker, investment banker, finder, financial advisor or other Person is or will be entitled to any broker’s or finder’s fee or any other commission or similar fee from the Company, directly or indirectly, in connection with the transaction contemplated hereby.

 

Section 3.13.      No General Solicitation .  None of the Company or any of its “affiliates” (as defined in Rule 501(b) of Regulation D under the Securities Act (“Regulation D”)), has, directly or through an agent, engaged in any form of general solicitation or general advertising in connection with the offering of the Shares (as those terms are used in Regulation D) under the Securities Act or in any manner involving a public offering within the meaning of Section 4(2) of the Securities Act; and the Company has not entered into any contractual arrangement with respect to the distribution of the Shares except for this Agreement, and the Company will not enter into any such arrangement.

 

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Section 3.14.      No Default .  The Company is not in default in the payment or performance of any of its Contracts, except where such default would not have a Material Adverse Effect.

 

Section 3.15.      Registration of Shares .  The Company has not entered into any agreement to register its debt or equity securities under the Securities Act.

 

Section 3.16.      Disclosure Controls .  The Company has established d