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UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549

SCHEDULE 14A

Proxy Statement Pursuant to Section 14(a) of
the Securities Exchange Act of 1934 (Amendment No.          )

Filed by the Registrant ý

Filed by a Party other than the Registrant o

Check the appropriate box:

ý

 

Preliminary Proxy Statement

o

 

Confidential, for Use of the Commission Only (as permitted by Rule 14a-6(e)(2))

o

 

Definitive Proxy Statement

o

 

Definitive Additional Materials

o

 

Soliciting Material Pursuant to §240.14a-12

SPIRIT FINANCE CORPORATION

(Name of Registrant as Specified In Its Charter)

 

(Name of Person(s) Filing Proxy Statement, if other than the Registrant)
         
Payment of Filing Fee (Check the appropriate box):

o

 

No fee required.

ý

 

Fee computed on table below per Exchange Act Rules 14a-6(i)(1) and 0-11.
    (1)   Title of each class of securities to which transaction applies:
         

    (2)   Aggregate number of securities to which transaction applies:
        114,085,085 shares of Common Stock
        1,260,000 shares of Common Stock issuable upon exercise of stock options

    (3)   Per unit price or other underlying value of transaction computed pursuant to Exchange Act Rule 0-11 (set forth the amount on which the filing fee is calculated and state how it was determined):
        In accordance with Section 14(g) of the Securities Exchange Act of 1934, the filing fee was determined by multiplying $0.0000307 by the sum of (A) 114,085,085 outstanding shares of Common Stock multiplied by $14.50 per share, and (B) outstanding options to purchase 1,260,000 shares of Common Stock multiplied by $4.50 per share (which is the difference between $14.50 and $10.00, the exercise price per share of all outstanding stock options).

    (4)   Proposed maximum aggregate value of transaction:
        $1,659,903,732.50

    (5)   Total fee paid:
        $50,959.04


o

 

Fee paid previously with preliminary materials.

o

 

Check box if any part of the fee is offset as provided by Exchange Act Rule 0-11(a)(2) and identify the filing for which the offsetting fee was paid previously. Identify the previous filing by registration statement number, or the Form or Schedule and the date of its filing.

 

 

(1)

 

Amount Previously Paid:
         

    (2)   Form, Schedule or Registration Statement No.:
         

    (3)   Filing Party:
         

    (4)   Date Filed:
         


GRAPHIC

Dear Stockholder:

        On behalf of the board of directors, I cordially invite you to attend the 2007 Annual Meeting of Stockholders of Spirit Finance Corporation to be held at the Four Seasons Resort, 10600 East Crescent Moon Drive, Scottsdale, Arizona 85262, on Friday, June 15, 2007, at 9:00 a.m. local time.

        The Notice of Annual Meeting of Stockholders and the proxy statement that follow describe the business to be conducted at the meeting.

        Whether you own a few or many shares of stock of Spirit Finance Corporation, it is important that your shares be represented. The 2007 Annual Meeting of Stockholders will include a proposal regarding the acquisition of Spirit through the merger of a newly formed corporation owned by a consortium of equity investors with Spirit, as well as the election of directors and the ratification of the appointment of our independent registered public accounting firm. If the merger is completed, you will be entitled to receive $14.50 in cash, without interest and less any applicable withholding taxes, for each share of our common stock that you own at the effective time of the merger.

        The acquisition of Spirit will take place through the merger of an entity named Redford Merger Co. with Spirit. Redford Merger Co. is a subsidiary of Redford Holdco, LLC, which is a Delaware limited liability company that was recently organized to facilitate the acquisition of Spirit and is owned directly or indirectly by a group of equity investors including an affiliate of Macquarie Bank Limited, Kaupthing Bank hf. and other independent equity participants. If the merger is approved by our stockholders, Spirit will become a subsidiary of Redford Holdco, LLC and our common stock will no longer be listed for trading on the New York Stock Exchange.

        At a meeting of our board of directors, the board unanimously: (a) approved the merger and the related merger agreement; (b) determined that the merger agreement and the terms and conditions of the merger are fair to, advisable and in the best interests of, Spirit and our stockholders; and (c) directed that the merger be submitted for approval at a meeting of our stockholders. In reaching this determination, our board of directors considered a variety of factors, which are discussed in the attached proxy statement. Our board of directors unanimously recommends that you vote "FOR" the approval of the merger. Our board of directors also unanimously recommends that you vote "FOR" approval of adjournment of the annual meeting, if deemed necessary, for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the time of the annual meeting to approve the merger.

        If you cannot personally attend the meeting, we encourage you to make certain you are represented at the meeting by signing and dating the accompanying proxy card and promptly returning it in the enclosed envelope. Returning your proxy card will not prevent you from voting in person, but will assure that your vote will be counted if you are unable to attend the meeting.

    Sincerely,
    SIGNATURE
                        , 2007   Morton H. Fleischer,
Chairman of the Board of Directors

        This transaction has not been approved or disapproved by the Securities and Exchange Commission or any state securities commission. Neither the Securities and Exchange Commission nor any state securities commission has passed upon the merits or fairness of this transaction or upon the adequacy or accuracy of the information contained in this proxy statement. Any representation to the contrary is a criminal offense.



SPIRIT FINANCE CORPORATION
NOTICE OF 2007 ANNUAL MEETING OF STOCKHOLDERS
TO BE HELD June 15, 2007


        NOTICE IS HEREBY GIVEN that the 2007 Annual Meeting of Stockholders of Spirit Finance Corporation, a Maryland corporation (the "Company"), will be held on June 15, 2007, at 9:00 a.m. local time, at the Four Seasons Resort, 10600 East Crescent Moon Drive, Scottsdale, Arizona 85262, for the following purposes:

        Only stockholders of record at the close of business on April 23, 2007 are entitled to notice of and to vote at the meeting or at any postponements or adjournments thereof.

        You are cordially invited to attend the meeting. All stockholders, whether or not you expect to attend the meeting in person, are requested to complete, date and sign the enclosed form of proxy and return it promptly in the postage paid, return-addressed envelope provided for that purpose. By returning your proxy promptly, you can help the Company avoid the expense of follow-up mailings to ensure a quorum so that the meeting can be held. Stockholders who attend the meeting may revoke a prior proxy and vote in person as set forth in the proxy statement.

        THE ENCLOSED PROXY IS BEING SOLICITED BY THE BOARD OF DIRECTORS OF THE COMPANY. THE BOARD OF DIRECTORS RECOMMENDS THAT YOU VOTE IN FAVOR OF THE PROPOSED ITEMS. YOUR VOTE IS IMPORTANT.

    By Order of the Board of Directors

Scottsdale, Arizona

 

Michael T. Bennett,
Dated:                        , 2007   Secretary


TABLE OF CONTENTS

 
GENERAL INFORMATION
QUESTIONS AND ANSWERS ABOUT THE MEETING
  What is being voted on at the meeting?
  Who can vote at the meeting?
  How many votes do I have?
  What constitutes a quorum for the meeting?
  How do I authorize my vote?
  Can I authorize my vote by telephone or electronically?
  Can I change my vote after I return my proxy card?
  What vote is required to approve each item?
  What does it mean if I receive more than one proxy card?
  Who will bear the cost of this solicitation?
  Whom should I call with questions?
QUESTIONS AND ANSWERS ABOUT THE MERGER
  How does Spirit's board of directors recommend that I vote on the merger?
  What effect will the merger have on our Company?
  What will I receive in the merger?
  Who will own our Company after the merger?
  Who is Redford?
  What do I need to do now?
  What vote is needed to approve the merger?
  Should I send in my stock certificates now?
  Will the merger be a taxable transaction for me?
  What about payment of dividends through closing?
  Will I have dissenters' rights in connection with the merger?
  When do you expect to complete the merger?
  What if the proposed merger is not completed?
SUMMARY
  The Annual Meeting of Stockholders
  Our Directors and Executive Officers Own Shares Which May Be Voted at the Annual Meeting
  Parties to the Proposed Merger
  Structure of the Merger
  Pursuant to the Merger, Spirit Stockholders Will Receive $14.50 in Cash for Each Share of Spirit Common Stock Outstanding
  Procedures for the Exchange of Spirit Common Stock Certificates
  Market Price Information
  Material United States Federal Income Tax Consequences of the Merger
  Opinion of Wachovia Securities
  Recommendation of Our Board of Directors
  Spirit and Redford Must Meet Several Conditions to Complete the Merger
  Redford and Spirit May Terminate the Merger Agreement
  Termination Fee
  Redford and Spirit May Amend and Extend the Merger Agreement
  Some of Our Directors and Executive Officers Have Interests in the Merger that are in Addition to or Different from the Interests of Our Stockholders
  We are Prohibited from Soliciting Other Offers
  Our Stockholders Do Not Have Dissenters' Rights
  Contact for our Stockholders Regarding Questions and Requests
 

THE ANNUAL MEETING
  Date, Time and Place
  Purpose of the Annual Meeting
  Record Date; Stock Entitled to Vote
  Quorum
  How to Vote Your Shares
  Voting of Proxies
  Votes Required
  Solicitation of Proxies
  Stock Certificates
  Recommendation of Our Board of Directors
  Contact for Our Stockholders Regarding Questions and Requests
PROPOSAL 1 APPROVAL OF THE MERGER
  Description of the Merger
  Background of the Merger
  Reasons for the Merger
  Opinion of Wachovia Securities
  Structure of the Merger and Merger Consideration
  Procedures for Submitting Certificates
  Treatment of Restricted Stock and Stock Options
  Conditions to the Merger
  Regulatory Approvals
  Business Pending the Merger
  No Solicitation
  Covenant to Hold a Stockholders' Meeting and to Recommend the Merger
  Commercially Reasonable Efforts Covenant
  Certain Other Covenants
  Representations and Warranties of the Parties
  Effective Time of the Merger
  Amendment of the Merger Agreement
  Termination of the Merger Agreement
  Effect of Termination
  Termination Fees
  Other Fees, Expenses and Damages; Limitations on Liability
  Specific Performance
  Interests of Our Directors and Executive Officers in the Merger
  Certain Employee Matters
  Material United States Federal Income Tax Consequences of the Merger
  Litigation Related to the Merger
  No Dissenters' Rights
  Delisting and Deregistration of Our Common Stock
MARKET PRICE AND DIVIDEND DATA
  Market Information
  Stockholder Information
  Distribution Information
PROPOSAL 2 ELECTION OF DIRECTORS
  Directors
  Governance Policies
  Policy Regarding Directors' Attendance at Annual Meeting
  Board of Directors Meetings
 

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  Committees of the Board of Directors
  Director Nominations
  Director Independence Determination
  Compensation Committee Interlocks and Insider Participation
  Director Compensation
  Communication with the Board of Directors
  Executive Officers
PROPOSAL 3 RATIFICATION OF APPOINTMENT OF THE INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM
  Audit Committee Pre-Approval Policies and Procedures
  Report of the Audit Committee
  Audit Fees
PROPOSAL 4 ADJOURNMENT OF THE ANNUAL MEETING
  The Adjournment Proposal
  Vote Required and Recommendation of Our Board of Directors
  Postponement of the Annual Meeting
SECURITY OWNERSHIP
EXECUTIVE COMPENSATION
  Compensation Discussion and Analysis
  Compensation Committee Report
  Summary Compensation Table
  Grants of Plan-Based Awards in 2006
  Outstanding Equity Awards at 2006 Fiscal Year-End
  Option Exercises and Stock Vested in 2006
  Employment Agreements
  2003 Stock Option and Incentive Plan
  401(k) Plan
CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS
SECTION 16(A) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
SOLICITATION OF PROXIES
ANNUAL REPORT
STOCKHOLDER PROPOSALS FOR 2008 ANNUAL MEETING
OTHER MATTERS
NOTICE TO BANKS, BROKER-DEALERS AND VOTING TRUSTEES AND THEIR NOMINEES
ATTENDANCE AT THE MEETING

APPENDIX A—AGREEMENT AND PLAN OF MERGER
APPENDIX B—OPINION OF WACHOVIA SECURITIES

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SPIRIT FINANCE CORPORATION
14631 N. Scottsdale Road, Suite 200
Scottsdale, AZ 85254


PROXY STATEMENT
ANNUAL MEETING OF STOCKHOLDERS
To be held June 15, 2007



GENERAL INFORMATION

        This proxy statement is furnished in connection with the solicitation of proxies by and on behalf of the board of directors of Spirit Finance Corporation, a Maryland corporation, which we refer to as Spirit or the Company, for exercise at the 2007 Annual Meeting of Stockholders of the Company to be held at the Four Seasons Resort, 10600 East Crescent Moon Drive, Scottsdale, Arizona 85262, on June 15, 2007, at 9:00 a.m. local time, and at any and all postponements or adjournments thereof. This proxy statement dated                        , 2007, the accompanying form of proxy and the Notice of Annual Meeting will be first mailed or given to the Company's stockholders on or about                        , 2007.

        Because many of the Company's stockholders may be unable to attend the meeting in person, the board of directors solicits proxies to give each stockholder an opportunity to vote on all matters presented at the meeting. Stockholders are urged to:


QUESTIONS AND ANSWERS ABOUT THE MEETING

What is being voted on at the meeting?

        The board of directors is asking stockholders to consider four proposals at this year's meeting:


Who can vote at the meeting?

        The board of directors has set the close of business on April 23, 2007 as the record date for the meeting. Only persons holding shares of record at the close of business on April 23, 2007 will be entitled to receive notice of and to vote at the meeting.




How many votes do I have?

        Each share of the Company's common stock you own as of the close of business on the record date, April 23, 2007, will entitle you to one vote on each matter properly submitted for vote at the meeting.


What constitutes a quorum for the meeting?

        The presence, in person or by proxy, of the holders of a majority of the outstanding shares of the Company's common stock is necessary to establish a quorum at the meeting. On April 23, 2007, the record date, there were 114,085,085 shares of the Company's common stock outstanding. The presence, in person or by proxy, of 57,042,543 shares is necessary to establish a quorum at the meeting. Shares present, in person or by proxy, including shares as to which authority to vote on any proposal is withheld, shares abstaining as to any proposal, and broker non-votes (where a broker submits a properly executed proxy but does not have authority to vote a customer's shares on a proposal) on any proposal will be considered present at the meeting for purposes of establishing a quorum for the transaction of business at the meeting. Each of these categories will be tabulated separately.


How do I authorize my vote?

        If you complete and properly sign the accompanying proxy card and return it to the tabulation agent, American Stock Transfer & Trust Company, it will be voted as you direct, unless you later revoke the proxy. If no instructions are specified, shares of common stock represented by a proxy will be voted for the proposals set forth on the proxy and in the discretion of the persons named as proxies on such other matters as may properly come before the meeting. Your proxy must be received by the tabulation agent by 5:00 p.m., New York City time, on Thursday, June 14, 2007 to be valid. If you are a registered stockholder (that is, if you hold your shares of common stock in certificate form) and you attend the meeting, you may deliver your completed proxy in person. If you hold your shares of common stock in "street name" (that is, if you hold your shares of common stock through a broker or other nominee) and you wish to vote in person at the meeting, you will need to obtain a proxy from the institution that holds your shares.


Can I authorize my vote by telephone or electronically?

        If you hold your shares in "street name," you may be able to grant your proxy by telephone, or electronically over the Internet, by following the instructions included with your proxy card. Please check your proxy card or contact your broker or nominee to determine whether you will be able to grant your proxy by telephone or electronically. The deadline for granting your proxy by telephone or electronically is 5:00 p.m., New York City time, on Thursday, June 14, 2007.

        If you are a registered stockholder, then you may not grant your proxy by telephone or over the Internet. For your proxy to be valid, you must complete the enclosed proxy card and return it in the enclosed envelope so that it reaches the tabulation agent, American Stock Transfer & Trust Company, by 5:00 p.m., New York City time, on Thursday, June 14, 2007 or attend and deliver your proxy card in person at the annual meeting.


Can I change my vote after I return my proxy card?

        Yes. Even after you have submitted your proxy, you may change your vote at any time before the proxy is exercised by filing with the Secretary of the Company, at the principal office address of the Company, a written notice of revocation. You may also change your vote by executing a duly executed proxy bearing a later date and delivering that proxy to the tabulation agent, or by attending the meeting and voting in person. The powers of the proxy holders will be suspended if you attend the meeting in person and so request. However, attendance at the meeting will not by itself revoke a previously granted proxy. If you want to change or revoke your proxy and you hold your shares of common stock in "street name," contact your broker or the nominee that holds your shares.

        Any written notice of revocation sent to the Company must include the stockholder's name and must be received prior to the meeting to be effective.

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What vote is required to approve each item?

        Merger.    The proposed merger of MergerCo with the Company in accordance with the merger agreement, as described in this proxy statement (Proposal 1), requires the affirmative vote of holders of a majority of the shares of the Company's outstanding common stock entitled to vote at the meeting.

        Election of Directors.    The election of each director nominee (Proposal 2) requires the affirmative vote of a plurality of the votes cast at the meeting (which means the ten nominees receiving the most votes). The Company's stockholders are not entitled to cumulate votes with respect to the election of directors.

        Ratification of Independent Registered Public Accounting Firm.    The affirmative vote of a majority of the votes cast at the meeting is required for the ratification of the appointment of Ernst & Young LLP as the Company's independent registered public accounting firm for the fiscal year ending December 31, 2007 (Proposal 3).

        Proposal to Adjourn the Annual Meeting and Other Business.    The affirmative vote of a majority of the votes cast at the meeting is required for the approval of the proposal to adjourn the annual meeting, if necessary, for the purpose, among others, of soliciting additional proxies (Proposal 4) and all other business not described in this proxy statement and properly submitted to the stockholders for their consideration at the meeting.

        If you hold your shares in "street name," your broker or nominee may not be permitted to exercise voting discretion with respect to some of the matters to be acted upon. If you do not give your broker or nominee specific instructions on such a matter, your shares may not be voted. Shares of common stock represented by "broker non-votes" will, however, be counted in determining whether there is a quorum.

        Abstentions and broker non-votes will have the effect of a "No" vote against Proposal 1 and will have no effect on all other proposals at the meeting.

        Votes cast in person at the meeting or by proxy will be tabulated by the Company's transfer agent, American Stock Transfer & Trust Company.


What does it mean if I receive more than one proxy card?

        If you have shares of our common stock that are registered differently and are in more than one account, you will receive more than one proxy card. Please follow the directions for voting on each of the proxy cards you receive to ensure that all of your shares are voted.


Who will bear the cost of this solicitation?

        The Company will pay the cost of this solicitation, which will be made primarily by mail. Proxies also may be solicited in person, or by telephone, facsimile, Internet or similar means, or by our directors, officers or employees without additional compensation. We will, on request, reimburse stockholders who are brokers, banks or other nominees for their reasonable expenses in sending proxy materials to the beneficial owners of the shares they hold of record. We have retained Georgeson Inc. to assist us in soliciting proxies. We will pay the fees of Georgeson Inc., which we expect to be approximately $11,000 plus the reimbursement of expenses.


Whom should I call with questions?

        If you would like additional copies, without charge, of this proxy statement or if you have questions about the merger, including the procedures for voting your shares, you should contact Georgeson Inc., our proxy solicitor, by telephone, toll free, at (866) 574-4075.

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QUESTIONS AND ANSWERS ABOUT THE MERGER

How does Spirit's board of directors recommend that I vote on the merger?

        At a meeting of our board of directors on March 11, 2007, the board unanimously: (a) approved the merger and the merger agreement; (b) determined that the merger agreement and the terms and conditions of the merger are fair to, advisable and in the best interests of our Company and our stockholders; and (c) directed that the merger be submitted for approval at a meeting of our stockholders. In reaching this determination, our board of directors considered a variety of factors, which are discussed in this proxy statement. Our board of directors unanimously recommends that you vote "FOR" the approval of the merger. Our board of directors also unanimously recommends that you vote "FOR" approval of adjournment of the annual meeting, if deemed necessary, for the purpose, among others, to solicit additional proxies if there are not sufficient votes at the time of the annual meeting to approve the merger.


What effect will the merger have on our Company?

        If the merger is completed, your shares of common stock will be converted into the right to receive $14.50 per share in cash, you will no longer have an equity interest in us and Redford will own all of our common stock. In addition, our charter will be amended and restated to contain only the provisions of the charter of MergerCo.


What will I receive in the merger?

        If the merger is completed, you will be entitled to receive $14.50 in cash, referred to as the merger consideration, without interest and less any applicable withholding taxes, for each share of our common stock that you own at the effective time of the merger. For example, if you own 100 shares of our common stock, you will be entitled to receive $1,450.00 in cash, less any applicable withholding taxes, in exchange for those shares.


Who will own our Company after the merger?

        If the merger is completed, we will be a subsidiary of Redford.


Who is Redford?

        Redford is a Delaware limited liability company recently organized and owned directly or indirectly by a group of equity investors including an affiliate of Macquarie Bank Limited, Kaupthing Bank hf. and other independent equity participants. Redford was formed to facilitate the acquisition of the Company by these equity investors.


What do I need to do now?

        We urge you to read this proxy statement carefully, including its appendices, and to consider how the merger affects you. Then sign, date and mail your proxy card in the enclosed prepaid return envelope as soon as possible. This will enable your shares to be represented and voted at the annual meeting. If you sign your proxy card without indicating your vote, your shares will be voted "FOR" the approval of the merger and "FOR" all other proposals including the adjournment of the annual meeting, if necessary, for the purpose, among others, of soliciting additional proxies.


What vote is needed to approve the merger?

        The affirmative vote of the holders of a majority of the outstanding shares of our common stock entitled to be cast at the annual meeting is required to approve the merger. Each holder of our common stock is entitled to one vote per share.

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Should I send in my stock certificates now?

        No. After the merger is completed, you will receive written instructions for exchanging your shares of our common stock for the merger consideration of $14.50 in cash, without interest and less applicable withholding taxes, for each share of our common stock that you own at the effective time of the merger.


Will the merger be a taxable transaction for me?

        For U.S. federal income tax purposes, your receipt of the merger consideration will generally be treated as a taxable sale of our common stock held by you. In general, for each share of our common stock owned by you, you will realize gain or loss as a result of your receipt of the merger consideration equal to the difference between (a) the merger consideration per share of our common stock exchanged in the merger and (b) your adjusted tax basis in that share. Under certain circumstances, we may be required to withhold a portion of the merger consideration payable to stockholders under applicable U.S. tax laws. Tax matters can be complicated, and the tax consequences of the merger to you will depend on your particular tax situation. We encourage you to consult your tax advisor regarding the tax consequences of the merger to you. You should read "Material U.S. Federal Income Tax Consequences of the Merger" for a more complete discussion of such consequences.


What about payment of dividends through closing?

        The merger agreement permits us to pay regular quarterly dividends for any calendar quarters prior to the quarter during which the merger is completed and a prorated dividend for the quarter in which the merger is completed. However, we may not pay any quarterly dividend in excess of $0.22 per share without the written consent of Redford. We expect to complete the merger shortly after the annual meeting. Immediately before the completion of the merger, we intend to declare a cash dividend covering (1) the quarterly dividend for any full calendar quarter that is completed before the completion of the merger and has not yet been declared at the time of the merger, if any, and (2) a quarterly prorated divided for the period from the first date of the quarter in which the merger is completed through the date of completion of the merger.


Will I have dissenters' rights in connection with the merger?

        No. Under Maryland law, which is the jurisdiction of our incorporation, holders of our common stock do not have rights to dissent from the merger and obtain an appraisal of the fair value of their shares.


When do you expect to complete the merger?

        We are working toward completing the merger as quickly as possible. We hope to complete the merger as soon as possible following the annual meeting, and the receipt of all required lender and other approvals. Although we cannot assure you when or if the merger will be completed, we are working toward completing the merger promptly after the annual meeting. In addition to receipt of stockholder, lender and other approvals, the other closing conditions contained in the merger agreement must be satisfied or waived.


What if the proposed merger is not completed?

        If the merger is not completed, we will continue our current operations and will remain a publicly held company, our charter will not be amended and you will not receive any of the merger consideration. Furthermore, the merger agreement provides that, in the event the merger agreement is terminated under specified circumstances, we may be required to pay Redford a $31 million

5



termination fee plus the reimbursement of certain expenses up to $2.25 million, or Redford may be required to reimburse certain of our expenses up to $2.25 million.


SUMMARY

        This summary highlights selected information regarding the merger from this proxy statement and may not contain all of the information that is important to you. To understand the merger fully and for a more complete description of the legal terms of the merger, you should read carefully this entire document, including the merger agreement, which is the legal document that governs the merger and is attached to this proxy statement as Appendix A, and the other documents to which we have referred you. Page references are included in this summary to direct you to a more complete description of the topics.

        Throughout this document, "Redford" refers to Redford Holdco, LLC, a Delaware limited liability company, "MergerCo" refers to Redford Merger Co., a Maryland corporation and wholly-owned subsidiary of Redford, and references to "we," "us," "our," the "Company" or "Spirit" refer to Spirit Finance Corporation. Also, we refer to our merger with MergerCo as the "merger," and the Agreement and Plan of Merger, dated as of March 12, 2007, by and among Redford, MergerCo and Spirit as the "merger agreement."


The Annual Meeting of Stockholders (Page 12)

        Date, Time and Place.    The annual meeting of stockholders will be held on Friday, June 15, 2007, at 9:00 a.m. local time, at the Four Seasons Resort, 10600 East Crescent Moon Drive, Scottsdale, Arizona 85262.

        Purpose of the Annual Meeting.    At the annual meeting, we will ask you to approve the merger. We will also ask you to approve a proposal to adjourn the annual meeting, if necessary, for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the time of the annual meeting to approve the merger. We will also ask you to elect ten directors to our board of directors and ratify the selection of Ernst & Young LLP as our independent registered public accountants for the fiscal year ending December 31, 2007.

        Record Date; Stock Entitled to Vote.    You are entitled to vote at the annual meeting if you owned shares of our common stock at the close of business on April 23, 2007, the record date for the annual meeting. You will have one vote at the annual meeting for each share of our common stock you owned at the close of business on the record date. As of the record date, there were 114,085,085 shares of our common stock entitled to be voted at the annual meeting.

        Quorum.    The presence, in person or by proxy, of the holders of a majority of the outstanding shares of the Company's common stock is necessary to establish a quorum for the meeting. On April 23, 2007, the record date, there were 114,085,085 shares of the Company's common stock outstanding. The presence, in person or by proxy, of 57,042,543 shares is necessary to establish a quorum for the meeting. Shares present, in person or by proxy, including shares as to which authority to vote on any proposal is withheld, shares abstaining as to any proposal, and broker non-votes (where a broker submits a properly executed proxy but does not have authority to vote a customer's shares on a proposal) on any proposal will be considered present at the meeting for purposes of establishing a quorum for the meeting. Each of these categories will be tabulated separately.

        Vote Required.    Assuming a quorum is present, the affirmative vote of a majority of the outstanding shares of our common stock is required to approve the merger. A plurality of the votes cast (the ten directors receiving the most votes) is required to elect each director. The affirmative vote of the majority of the votes cast at the meeting is required to ratify the selection of Ernst & Young

6



LLP as our independent registered public accountants and to adjourn the meeting to solicit additional votes to approve the merger.


Our Directors and Executive Officers Own Shares Which May Be Voted at the Annual Meeting (Page 70)

        As of the record date, our directors and executive officers beneficially owned approximately 3.3% of the outstanding shares of our common stock entitled to vote at the annual meeting.


Parties to the Proposed Merger

        Spirit.    Spirit Finance Corporation is a self-managed and self-advised real estate investment trust, or REIT. We were formed primarily to acquire single tenant, operationally essential real estate to be leased on a long-term, triple-net basis to retail, distribution and service-oriented companies. Single tenant, operationally essential real estate consists of properties that are free-standing real estate facilities that contain our customers' retail, distribution or service activities that are vital to the generation of their sales and profits. We target real estate of established companies in various industries located throughout the United States. The Company is located at 14631 N. Scottsdale Road, Suite 200, Scottsdale, Arizona 85254. For additional information, please visit our website at www.spiritfinance.com. The information found on, or otherwise accessible through, our website is not incorporated into, and does not form a part of, this proxy statement or any other document we file with or furnish to the Securities and Exchange Commission, or SEC. The Company's telephone number is (480) 606-0820.

        Redford.    Redford is a newly formed Delaware limited liability company owned directly or indirectly by a group of equity investors including an affiliate of Macquarie Bank Limited, Kaupthing Bank hf. and other independent equity participants to facilitate the acquisition of Spirit. Redford's address is c/o Macquarie Holdings (USA) Inc., 125 West 55th Street, New York, New York 10019. Redford's telephone number is (212) 231-1716.

        MergerCo.    MergerCo is a wholly owned subsidiary of Redford organized under the laws of Maryland. It was formed solely to facilitate the merger with Spirit and is engaged in no other business. MergerCo's address is c/o Macquarie Holdings (USA) Inc., 125 West 55th Street, New York, New York 10019. MergerCo's telephone number is (212) 231-1716.


Structure of the Merger (Page 30)

        We are proposing a merger whereby we will become a subsidiary of Redford. If the merger is approved, MergerCo will merge with Spirit, with Spirit as the surviving company. If approved by the stockholders, we expect to complete the proposed merger shortly after the annual meeting.


Pursuant to the Merger, Spirit Stockholders Will Receive $14.50 in Cash for Each Share of Spirit Common Stock Outstanding (Page 30)

        If the merger of MergerCo with Spirit is completed, each outstanding share of our common stock will be converted into the right to receive $14.50 in cash, without interest and less any applicable withholding taxes. Outstanding shares of Spirit's restricted common stock will vest in accordance with the terms of the applicable restricted stock agreements and the holders of shares that vest in connection with the merger will receive $14.50 per share in cash, without interest and less any applicable withholding taxes. Immediately before the completion of the merger, all unvested options to purchase common stock granted to our employees under our stock option plan will vest in full. Holders of outstanding options to purchase Spirit common stock granted by us will receive a cash payment equal to $14.50, less the exercise price of the option, multiplied by the number of shares of common stock covered by the option, without interest and less any applicable withholding taxes.

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Procedures for the Exchange of Spirit Common Stock Certificates (Page 30)

        You will need to surrender your common stock certificates representing your ownership of our common stock in order to receive the $14.50 in cash per share, less any applicable withholding taxes, after the completion of the merger, but you should not send in any certificates now. As soon as reasonably practicable after the effective time of the merger, MergerCo will cause a paying agent to send to our stockholders a letter of transmittal and instructions for surrendering certificates representing shares of our common stock in exchange for the merger consideration. The letter of transmittal should be completed and returned to the designated paying agent along with the stock certificates evidencing shares of our common stock. After the letter of transmittal has been received and processed, our stockholders will be sent the portion of the merger consideration, without interest and less applicable withholding taxes, to which they are entitled.


Market Price Information (Page 50)

        Our common stock is listed on the New York Stock Exchange, or NYSE, under the symbol "SFC." On March 12, 2007, the last trading day preceding public announcement of the proposed merger, the closing share price of our common stock was $13.05. On                , 2007, the last practicable trading date before the printing of this proxy statement, the closing share price of our common stock was $    .    .


Material United States Federal Income Tax Consequences of the Merger (Page 45)

        In general, the merger will be a taxable transaction for U.S. federal income tax purposes that will be treated as a sale or exchange of shares of our common stock for the merger consideration. In general, with respect to each share of our common stock owned, a stockholder will realize gain or loss as a result of the stockholder's receipt of the merger consideration equal to the difference between the merger consideration per share of our common stock exchanged in the merger and the stockholder's adjusted tax basis in that share. Such gain or loss will be capital gain or loss if such share is a capital asset in the hands of the stockholder and will be long-term gain or loss if the stockholder has held such share for more than 12 months as of the effective time of the merger. Under certain circumstances, we may be required to withhold a portion of the merger consideration payable to stockholders under applicable U.S. tax laws.

        Tax matters can be complicated, and the tax consequences of the merger to you, including the application and effect of any state, local or foreign income and other tax laws, will depend on the facts of your own situation. You are encouraged to consult your own tax advisor to understand fully the tax consequences of the merger to you. You should read "Material United States Federal Income Tax Consequences of the Merger" for a more complete discussion of such consequences.


Opinion of Wachovia Securities (Page 25)

        On March 11, 2007, Wachovia Capital Markets, LLC, one of our financial advisors whom we refer to as Wachovia Securities, rendered its opinion to our board of directors to the effect that, as of March 11, 2007, the merger consideration to be received by the holders of our common stock (other than Redford and its affiliates) pursuant to the merger agreement was fair, from a financial point of view, to such holders of our common stock.

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        Wachovia Securities' opinion was directed to the Company's board of directors and only addressed the fairness from a financial point of view of the consideration to be received by the holders of the Company's common stock (other than Redford and its affiliates) under the merger agreement and not any other aspect or implication of the merger. The summary of Wachovia Securities' opinion in this proxy statement is qualified in its entirety by reference to the full text of the written opinion which is included as Appendix B to this proxy statement and sets forth the procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by Wachovia Securities in preparing its opinion. We encourage you to carefully read the full text of Wachovia Securities' written opinion. However, neither Wachovia Securities' opinion nor the summary of its opinion and the related analyses set forth in this proxy statement are intended to be, and do not constitute, advice or a recommendation to you as to how you should vote or act on any matter relating to the merger.


Recommendation of Our Board of Directors (Page 14)

        Our board of directors has unanimously determined that the merger and the terms of the merger agreement are fair to, advisable and in the best interests of, our Company and our stockholders. Our board of directors has unanimously approved the merger and the merger agreement and unanimously recommends that you vote "FOR" the approval of the merger.


Spirit and Redford Must Meet Several Conditions to Complete the Merger (Page 31)

        Completion of the merger depends on meeting a number of conditions, including satisfaction or waiver of the following before the closing date of the merger:

        In addition to the conditions above, our obligation to complete the merger under the merger agreement is subject to the following conditions, which may be waived by us:

        In addition, the obligations of Redford and MergerCo to complete the merger are subject to the following conditions, which may be waived by Redford and MergerCo:

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        The parties cannot be certain whether or when any of the conditions to the merger will be satisfied, or waived where permissible, or that the merger will be completed.


Redford and Spirit May Terminate the Merger Agreement (Page 41)

        Redford, MergerCo and Spirit can mutually agree at any time to terminate the merger agreement before completing the merger, even if our stockholders have already voted to approve the merger.

        The merger agreement may also be terminated by:

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Termination Fee (Page 42)

        The merger agreement provides that in the event the merger agreement is terminated under specified circumstances, the Company may be required to pay a termination fee of $31 million to Redford plus reimburse Redford for certain of its expenses up to $2.25 million.


Redford and Spirit May Amend and Extend the Merger Agreement (Page 41)

        The parties may amend the merger agreement at any time before the merger is completed, and may agree to extend the time within which any action required by the merger agreement is to take place. However, if our stockholders approve the merger at the annual meeting, no amendment may thereafter be made that requires further approval of our stockholders without obtaining such approval.


Some of Our Directors and Executive Officers Have Interests in the Merger that are in Addition to or Different from the Interests of Our Stockholders (Page 43)

        In considering the recommendation of our board of directors with respect to the merger, you should be aware that some of the members of our senior management, two of whom are also our directors, have interests in the merger that are in addition to, or different from, your interests in the merger. These various interests are set forth in the section "The Merger—Interests of Our Directors and Executive Officers in the Merger" beginning on page 43.

        Our board of directors was aware of these interests and considered them, among other matters, in approving the merger and the transactions contemplated by the merger agreement.


We are Prohibited from Soliciting Other Offers (Page 37)

        We have agreed that, after April 9, 2007 and while the merger is pending, we will not initiate or, subject to some limited exceptions, engage in discussions with any third party regarding extraordinary transactions such as a merger, business combination or sale of a material amount of assets or stock.

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Our Stockholders Do Not Have Dissenters' Rights (Page 49)

        The holders of our common stock do not have rights under Maryland law, our jurisdiction of incorporation, to dissent from the merger and obtain an appraisal of the fair value of their shares.


Contact for our Stockholders Regarding Questions and Requests

        If you have more questions about the merger or how to submit your proxy, or if you need additional copies of the proxy statement or the enclosed proxy card, you should contact Georgeson Inc., our proxy solicitor, at (866) 574-4075.


THE ANNUAL MEETING

        We are furnishing this proxy statement to our stockholders as part of the solicitation of proxies by our board of directors for use at the annual meeting, and at any adjournment or postponement of the annual meeting.


Date, Time and Place

        The annual meeting of stockholders will be held on Friday, June 15, 2007, at 9:00 a.m. local time, at the Four Seasons Resort, 10600 East Crescent Moon Drive, Scottsdale, Arizona 85262.


Purpose of the Annual Meeting

        At the annual meeting, we will ask you to approve the merger. We will also ask you to approve a proposal to grant discretionary authority to adjourn the annual meeting, if necessary, for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the time of the annual meeting to approve the merger. We will also ask you to elect ten directors to our board of directors and ratify the selection of Ernst & Young LLP as our independent registered public accountants for the fiscal year ending December 31, 2007.


Record Date; Stock Entitled to Vote

        You are entitled to vote at the annual meeting if you owned shares of our common stock at the close of business on April 23, 2007, the record date for the annual meeting. You will have one vote at the annual meeting for each share of our common stock you owned at the close of business on the record date. As of the record date, there were 114,085,085 shares of our common stock entitled to be voted at the annual meeting.


Quorum

        The presence, in person or by proxy, of the holders of a majority of the outstanding shares of the Company's common stock, which is 57,042,543 shares, is necessary to establish a quorum at the meeting. Shares present, in person or by proxy, including shares as to which authority to vote on any proposal is withheld, shares abstaining as to any proposal, and broker non-votes (where a broker submits a proxy but does not have authority to vote a customer's shares on a proposal) on any proposal will be considered present at the meeting for purposes of establishing a quorum for the meeting. Each of these categories will be tabulated separately. If at the time for the convening of the annual meeting less than a quorum is present, it is expected that the annual meeting will be adjourned until a time and place to be announced at the time of the adjournment.


How to Vote Your Shares

        Our stockholders of record may vote by mail or by attending the annual meeting and voting in person. To vote by mail, simply mark the enclosed proxy card, date and sign it, and return it in the enclosed postage-paid, return-addressed envelope.

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        If your shares are held in the name of a bank, broker or other nominee, you will receive instructions from the holder of record that you must follow in order for your shares to be voted. Also, please note that if the holder of record of your shares is a broker, bank or other nominee and you wish to vote at the annual meeting, you must bring a letter from the broker, bank or other nominee confirming that you are the beneficial owner of the shares.

        The grant of a proxy on the enclosed form of proxy does not preclude a stockholder from voting in person at the annual meeting. A stockholder may revoke a proxy at any time prior to its exercise by:

        If you have instructed your bank, broker or other nominee to vote your shares, you must follow directions received from your bank, broker or other nominee to change or revoke your proxy.


Voting of Proxies

        All shares represented by properly executed proxies received prior to the annual meeting (and not revoked) will be voted at the annual meeting in the manner specified by the holders thereof. Properly executed proxies that do not contain voting instructions will be voted "FOR" all matters on the ballot including the approval of the merger and "FOR" approval of adjournment of the annual meeting, if deemed necessary, for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the time of the annual meeting to approve the merger. No proxy that is specifically marked "AGAINST" approval of the merger will be voted in favor of the adjournment proposal, unless it is specifically marked "FOR" the proposal to adjourn the annual meeting to a later date.


Votes Required

        A quorum, consisting of the holders of a majority of the shares of our outstanding common stock entitled to vote as of the record date, must be present in person or by proxy before any action may be taken at the annual meeting. Shares of our common stock represented at the annual meeting but not voting, including shares of our common stock for which proxies have been received but for which stockholders have abstained, will be treated as present at the annual meeting for purpose of determining the presence or absence of a quorum for the annual meeting but will not be counted as votes cast. Holders of record of our common stock on the record date are entitled to one vote per share on each matter to be considered at the annual meeting.

        The proposal to approve the merger requires the affirmative vote of the holders of a majority of the shares of our common stock outstanding on the record date and entitled to be cast at the annual meeting. If a holder of our common stock abstains from voting or does not vote, either in person or by proxy, it will have the effect of a vote against the approval of the merger. If you hold your shares in "street name" through a broker, bank or other nominee, you must direct your broker, bank or other nominee to vote in accordance with their instructions. Brokers, banks or other nominees who hold shares of our common stock in street name for customers who are the beneficial owners of those shares may not give a proxy to vote those customers' shares in the absence of specific instructions from those customers. These non-voted shares will have the effect of votes against approval of the merger.

        The proposal to approve adjournments of the annual meeting, if deemed necessary, for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the time of the annual meeting to approve the merger requires the affirmative vote of a majority of the votes cast

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at the annual meeting. Accordingly, abstentions and not voting at the annual meeting will have no effect on the outcome of this proposal.

        The election of each director nominee requires the affirmative vote of a plurality of the votes cast at the meeting (which means the ten nominees receiving the most votes). The Company's stockholders are not entitled to cumulate votes with respect to the election of directors. Accordingly, withheld votes and not voting at the annual meeting will have no effect on the outcome of this proposal and all other matters not described in this proxy statement and properly submitted to the stockholders at the annual meeting.

        The affirmative vote of a majority of the votes cast at the meeting is required for the ratification of the appointment of Ernst & Young LLP as the Company's independent registered public accounting firm and all other business not described in this proxy statement and properly submitted to the stockholders for their consideration at the meeting. Accordingly, abstentions and not voting at the annual meeting will have no effect on the outcome of this proposal and all other matters not described in this proxy statement and properly submitted to the stockholders at the annual meeting.

        As of the record date, our directors and executive officers beneficially owned and had the right to vote approximately 3.3% of the outstanding shares of common stock entitled to vote at the annual meeting. See "Security Ownership of Certain Beneficial Owners and Management" beginning on page 70.


Solicitation of Proxies

        We will pay the cost of this solicitation, which will be made primarily by mail. Proxies also may be solicited in person, or by telephone, facsimile, Internet or similar means, by our directors, officers or employees without additional compensation. We have retained Georgeson Inc. to assist us in soliciting proxies. We will pay the fees of Georgeson Inc., which we expect to be approximately $11,000 plus the reimbursement of expenses.

        We will, on request, reimburse stockholders who are brokers, banks or other nominees for their reasonable expenses in sending proxy materials to the beneficial owners of the shares they hold of record. Arrangements also will be made with custodians, nominees and fiduciaries to forward solicitation material to the beneficial owners of stock held of record by such persons, and we will reimburse such custodians, nominees and fiduciaries for their reasonable out-of-pocket expenses in connection with these arrangements.


Stock Certificates

        You should not send your stock certificates with your proxy. A letter of transmittal with instructions for the surrender of the common stock certificates you own will be mailed to you as soon as practicable after completion of the merger.


Recommendation of Our Board of Directors

        At a meeting of our board of directors on March 11, 2007, the board unanimously (a) approved the merger and the merger agreement; (b) determined that the merger agreement and the terms and conditions of the merger are fair to, advisable and in the best interests of, the Company and our stockholders; and (c) directed that the merger be submitted for approval at a meeting of our stockholders. Our board of directors unanimously recommends that you vote "FOR" all proposals on the ballot, including the approval of the merger and approval of adjournment of the annual meeting, if deemed necessary, for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the time of the annual meeting to approve the merger. See "The Merger—Reasons for the Merger" beginning on page 23.

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        You should be aware that certain members of our board of directors and our officers have interests in the merger that are different from, or in addition to, yours. See "The Merger—Interests of Our Directors and Executive Officers in the Merger" beginning on page 43.


Contact for Our Stockholders Regarding Questions and Requests

        If you have more questions about the merger agreement or the merger or how to submit your proxy, or if you need additional copies of the proxy statement or the enclosed proxy card, you should contact Georgeson Inc. by telephone at (866) 574-4075.


PROPOSAL 1
APPROVAL OF THE MERGER

        The following information describes the material aspects of the merger and the merger agreement. This description does not purport to be complete and is qualified in its entirety by reference to the appendices to this document, including the merger agreement. You are urged to carefully read the appendices in their entirety.


Description of the Merger

        Our board of directors has approved the merger whereby our Company will become a subsidiary of Redford. If the merger is approved and completed, MergerCo will merge with Spirit, with Spirit as the surviving company in the merger. If the merger is completed, you will be entitled to receive the merger consideration of $14.50 in cash, without interest and less applicable withholding taxes, in exchange for each share of our common stock that you own at the effective time of the merger. In addition, our charter will be amended and restated in its entirety to contain only the provisions of the charter of MergerCo except that the name of the Company will remain Spirit Finance Corporation. We encourage you to read carefully the merger agreement in its entirety, a copy of which is attached as Appendix A to this proxy statement, because it is the legal document that governs the merger.

        After the merger is completed, you will have the right to receive the merger consideration but you will no longer have any rights as a stockholder of Spirit. You will receive your portion of the merger consideration after exchanging your stock certificates representing our common stock or grants representing shares of restricted common stock in accordance with the instructions contained in a letter of transmittal to be sent to you shortly after completion of the merger.

        Our common stock is currently registered under the Securities Exchange Act of 1934 and is listed on the NYSE under the symbol "SFC." Following the merger, our common stock will no longer be listed on the NYSE and will no longer be publicly traded, and the registration of our common stock under the Exchange Act will be terminated.


Background of the Merger

        Beginning in late 2005, the Company began exploring options for more efficient sources of capital and other possible strategic alternatives for the Company to increase its competitive position in the market for single-tenant, operationally essential real estate. The Company's management believed that in order to compete with other financing sources at that time and in the future, the Company would need greater access to capital at lower costs. In connection with this effort, the Company's senior management consulted with over ten investment banks regarding the funding challenges the Company faced. The investment banks were encouraged to introduce the Company to parties with access to efficient capital that could offer the potential for a strategic relationship. Subsequently, the Company's senior management also had discussions with nearly 20 different entities regarding strategic alternatives for the Company in order to better address its markets and create greater stockholder value. Many of these meetings were arranged by the investment bankers with whom the Company consulted. These

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entities with whom the Company met included institutional investors, private equity funds, strategic investors and several public real estate and finance companies that had access to large amounts of capital to invest in real estate. Many of these discussions led to entering into confidentiality agreements and sharing limited information about the Company with these parties, but no formal transaction was proposed by any of these parties except as described below.

        Throughout 2006, the Company's board of directors reviewed and discussed the results of senior management's efforts to identify more efficient and extensive sources of capital and possible strategic alternatives for the Company. During these discussions, the board focused on the challenges facing the Company, including the divergence between the value of the Company and the trading price of its common stock, which in management's opinion, did not fully reflect its value. Some of the factors inhibiting a higher trading price for the Company's common stock cited by the Company's management included the Company's frequent stock offerings that were made to provide capital to fund the Company's growth in its real estate portfolio and the lack of other comparable public companies for analysts to benchmark Spirit's performance and growth. These discussions highlighted the challenges facing the Company in its efforts to achieve its strategic short- and long-term objectives. The board was also aware of new competitors entering the market for net lease real estate with lower borrowing costs and greater access to capital than the Company. The board did not take any formal action regarding these issues at these meetings, but instead agreed to carefully monitor these events and consider potential actions at future meetings.

        On September 14, 2006, the Company held an introductory meeting with Bidder A in New York, New York to discuss the Company's business plan and Bidder A's real estate investment strategy. Bidder A contacted the Company through prior contacts Bidder A had with one of the Company's consultants. In advance of this meeting, on September 13, 2006, the Company and Bidder A entered into a confidentiality agreement regarding the review of limited non-public information. Subsequent to this meeting, Bidder A received limited non-public information about the Company for Bidder A's preliminary diligence review.

        On September 21, 2006, representatives of Wachovia Securities met with the Company's senior management to discuss potential financing alternatives for the Company. Among other things, the representatives of Wachovia Securities and the Company's management discussed potential strategic capital solutions, including joint venture equity investors and a partnership with an institutional investor. At the conclusion of the meeting, the Company's senior management authorized Wachovia Securities to approach selected specialty finance and foreign real estate investors on a no-name basis to assess their interest in commencing a dialogue regarding forming a strategic business relationship with a company like Spirit.

        Over the next two weeks, Wachovia Securities held preliminary discussions on a no name basis with select specialty finance companies and foreign real estate investors.

        On October 16, 2006, Wachovia Securities provided the Company with an overview of the various parties contacted, including Macquarie Securities (USA) Inc., or Macquarie, an affiliate of an investor in Redford, and their initial levels of interest in engaging in strategic discussions with a company like Spirit. After the meeting, the Company requested that Wachovia Securities arrange an initial meeting between the Company and Macquarie.

        On October 26, 2006, the Company and Macquarie held an introductory meeting in New York, New York to discuss the Company's business plan and Macquarie's U.S. real estate investment strategy. The parties subsequently entered into a confidentiality agreement regarding the review of limited non-public information, which was similar in nature to the materials previously provided to Bidder A. The Company and Macquarie agreed to meet at a later date to further discuss the Company's business plan.

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        On November 3, 2006, Spirit's board of directors received an unsolicited letter of interest from Bidder A contemplating an all-cash offer to purchase all of the outstanding common stock of the Company at a price of $13.00 per share. Bidder A's letter requested a 30-day exclusivity period in which to conduct additional diligence and negotiate definitive agreements for the transaction. The letter stated that the transaction would be funded through a combination of a sale of equity by Bidder A and debt financing to be secured by the Company's assets.

        On November 9, 2006, Spirit's board of directors held a special meeting to discuss the letter of interest received from Bidder A. The board discussed challenges facing the Company, including the Company's continual need to raise equity capital to fund the Company's planned growth, and the negative effect of continual issuances of the Company's common stock on its market price. The board determined at this meeting to interview financial advisors to assist the board in evaluating all strategic alternatives available to the Company, including the transaction described in the letter of interest from Bidder A.

        On November 16 and 17, 2006, Spirit's board of directors held its regular quarterly meeting. At this meeting, the board invited Citigroup Global Markets Inc., which we refer to as Citi, and another nationally recognized financial advisor that had previous experience with the Company to attend the meeting. The financial advisors discussed strategic alternatives available to the Company as well as the letter of interest from Bidder A. These discussions included a preliminary valuation of the Company based on publicly available information, an overview of current market conditions and a review of selected potential strategic partners. After the discussion with the two financial advisors and management, the board determined not to formally respond to Bidder A at that time. The board also reviewed the qualifications of two additional financial advisors at this meeting. Subsequent to this meeting, the Company informed Bidder A of the board's decision not to take formal action with respect to Bidder A's offer at that time and that the board had determined to interview financial advisors to assist the board in evaluation strategic alternatives, including Bidder A's proposal. In addition, the board also discussed the Company's then current immediate need for additional equity capital to help fund the Company's planned real estate acquisitions through the first quarter of 2007. The board authorized the Company's senior management to commence an offering of the Company's common stock to meet such needs. A meeting of the independent directors was also held in connection with this meeting, at which the independent directors discussed the process for selection of a financial advisor, as well as the respective roles of the financial advisor, management and the directors.

        On November 20 and 21, 2006, the Company and representatives of Macquarie held a meeting in Scottsdale, Arizona to discuss the Company's business plan. Representatives of Wachovia Securities were also present at the meeting. In addition to discussing the Company's business plan, the Company inquired whether Macquarie would be interested in participating in the Company's future common stock offering, along with other potential investors the Company had identified, to fund additional real estate investments by the Company.

        On November 28, 2006, the Company had a follow-up telephone conference with Macquarie and continued to discuss the Company's desire to have Macquarie participate in a future common stock offering of the Company.

        On December 7, 2006, as part of the Company's ongoing efforts to raise capital to fund real estate investments, the Company completed a $100 million public offering of common stock underwritten by Wachovia Securities. An affiliate of Macquarie purchased approximately $56 million of common stock in this offering, which equaled approximately 4.4% of the Company's outstanding common stock following the offering.

        On December 15, 2006, the Company received a draft Memorandum of Understanding, or MOU, from Macquarie stating its interest in acquiring all of the outstanding shares of common stock of the Company for $14.16 per share in cash, which represented a 15.0% premium to the Company's closing

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stock price on December 13, 2006 and a 17.1% premium to the Company's 30-day average closing stock price. The letter requested a 30-day period, which could be extended to 60 days with the Company's consent if negotiations were continuing in a commercially reasonable manner, during which the Company and its advisors would not solicit or continue discussions with other potential buyers of the Company in order for Macquarie to conduct diligence and negotiate a definitive merger agreement. The MOU requested that the Company agree to reimburse Macquarie, under specified circumstances, an amount not to exceed $2.25 million for Macquarie's expenses incurred while pursuing the merger. After consulting with legal counsel and discussions with representatives of Citi and Wachovia Securities, the Company advised Macquarie that the offer price would likely be viewed by its board of directors to be insufficient to grant Macquarie the requested exclusive negotiation period and other terms requested and suggested that a price of $15.00 per share would be more likely to be acceptable to the Company's board of directors.

        On December 18, 2006, Macquarie submitted a revised draft MOU to the Company indicating its interest in acquiring all of the outstanding common stock of the Company at a price of $14.50 per share. Macquarie informed the Company that $14.50 was the highest price that Macquarie would be willing to pay for the Company. The offer represented an 18.5% premium to the Company's closing stock price on December 15, 2006, and a 19.7% premium to the Company's 30-day average stock price.

        On December 22, 2006, Spirit's board of directors held a special meeting at which Macquarie's MOU was discussed. At this meeting, Wachovia Securities discussed with the board its preliminary views with respect to certain strategic alternatives available to the Company. The discussions included a review of preliminary financial analyses with respect to the Company using publicly available information and selected information previously provided to Bidder A and Macquarie by the Company; an overview of certain strategic alternatives including a joint venture, the transformation of the Company to a finance company, a merger with other public companies and a sale to a strategic buyer; an overview of current market conditions; and a discussion of potential strategic and financial buyers. Wachovia Securities also discussed the terms of the transaction proposed by Macquarie in the December 18, 2006, MOU in light of recent comparable transactions.

        At the conclusion of the meeting, the board determined to engage Citi and Wachovia Securities as joint financial advisors to the Company because each had significant experience in providing financial advisory services for similarly situated companies, including REITs, and because of their knowledge of the Company and its business. The board requested that the financial advisors assist the board in evaluating all of the strategic alternatives available to the Company, including a possible sale. In addition, the board held a discussion with Wachovia Securities and legal counsel about entering into the MOU with Macquarie. The board considered the previous discussions the Company had held with other parties, the $13.00 per share offer received from Bidder A, the attractiveness of the $14.50 offer of Macquarie, the fact that Macquarie had told the financial advisors and the Company that it was not willing to participate in an auction for the Company and the potential ability of the Company to actively solicit alternative proposals following the public announcement of a definitive transaction, if any. Based on these factors, the board unanimously authorized the Company to negotiate the terms of the MOU with Macquarie based on the revised December 18, 2006 draft; provided that the MOU specify that if the Company did enter into a definitive merger agreement with Macquarie, such agreement would contain a relatively low termination fee and permit the Company to actively solicit alternative offers from third parties for a reasonable period following the execution of any definitive merger agreement.

        Subsequent to December 22, 2006, the Company's senior management continued to negotiate the terms of the MOU with Macquarie. The parties agreed that the MOU would provide a non-solicitation period of 30 days, extendable to 60 days with the consent of the Company if negotiations were continuing in a commercially reasonable manner, to conduct diligence and negotiate the terms of a definitive merger agreement. The Company also agreed in the MOU to reimburse Macquarie, under

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specified circumstances, in an amount not to exceed $2.25 million for expenses Macquarie incurred in pursuing the merger. The MOU provided that the Company would not reimburse Macquarie for its expenses if Macquarie elected not to pursue the transaction or could not obtain adequate financing for the transaction. In exchange for granting the Company an active solicitation period following execution of the merger agreement, Macquarie proposed a termination fee equal to 3% of the equity value of the transaction if the Company terminated the merger agreement. The Company informed Macquarie that it was not prepared to accept Macquarie's proposal that any definitive merger agreement have a 3% termination fee. After negotiation, the parties agreed in the MOU that any definitive merger agreement entered into by the parties would have a termination fee of 2% of the equity value of the transaction and would allow the Company to actively solicit parties interested in making alternative proposals for 28 days following execution of the merger agreement. The Company discussed the amount of the termination fee and the length of the active solicitation period with its financial advisors and compared those terms with other recent transactions in the market. Based on these discussions, the Company concluded that the termination fee and length of the active solicitation period would not deter another interested party from making an alternative proposal to the merger.

        On January 3, 2007, the eight independent members of Spirit's board of directors held a meeting to discuss the final terms of the MOU with Macquarie. The board of directors requested that the financial advisors continue to assist the board in evaluating other strategic alternatives available to the Company. Subsequent to the meeting and based on previous authority granted by the board of directors, the Company entered into the MOU and began providing diligence information to the Company's financial advisors to forward to Macquarie and its advisors.

        On January 16, 2007, our legal counsel, Kutak Rock LLP, provided an initial draft of a merger agreement to Macquarie and its counsel, Latham & Watkins LLP. The Company and Macquarie thereafter until March 12, 2007, negotiated the terms of the merger agreement.

        On January 29, 2007, Spirit's board of directors held a special meeting at which Citi and Wachovia Securities reviewed and discussed their preliminary financial analysis regarding the Company and strategic alternatives available to the Company. The strategic alternatives discussed included continuing under the current business plan, joint venture opportunities, a strategic acquisition of another company by Spirit, the transformation of the Company into a finance company, and a change of control transaction including an analysis of certain other potential strategic and financial buyers of the Company. The discussion also reviewed the potential benefits and challenges faced with each of the strategic alternatives discussed. The board also discussed with its legal counsel and financial advisors Macquarie's financing strategy for the proposed merger, the progress of Macquarie's diligence and the proposed terms of the merger agreement, including termination provisions and the proposed 28-day active solicitation period to follow signing a definitive merger agreement. A meeting of the independent directors was also held in connection with this meeting, at which the independent directors discussed the process for reviewing strategic alternatives and the proposed Macquarie transaction.

        On February 1, 2007, the Company and Macquarie agreed to extend the exclusivity period under the MOU to February 20, 2007 to allow Macquarie additional time to conduct diligence on the Company.

        During negotiation of the merger agreement, the Company requested that it have the ability to specifically enforce the merger agreement if Redford were to breach its terms, with such obligation fully guaranteed by Redford's investors. The Company also requested that Macquarie provide funding for the Company's real estate acquisitions following execution of the merger agreement until the completion of the transaction to avoid any disruption in the Company's real estate acquisition activities.

        On February 16, 2007, Spirit's board of directors held its regular quarterly meeting. Citi and Wachovia Securities updated the board of directors regarding the current status of negotiations related

19



to the merger agreement, Macquarie's expressed desire to reach mutually agreeable terms for the merger and the status of Macquarie's proposed sources of equity and debt financing for the merger.

        On February 20, 2007, the Company and Macquarie agreed to extend the exclusivity period under the MOU to March 3, 2007 to allow Macquarie additional time to conduct diligence on the Company and arrange its proposed equity and debt financing for the merger.

        On February 28, 2007, the Company and Macquarie held a meeting in New York, New York to discuss certain terms of the merger agreement. Based on Macquarie's diligence review conducted up to that meeting, Macquarie proposed to reduce the per share merger consideration from $14.50 to $14.00 per share. Subsequent to this meeting and after negotiations with the Company and further exchange of diligence information supplied by the Company, the parties agreed to keep the merger consideration at $14.50 per share. The parties also agreed that Redford would enter into a stock purchase agreement concurrently with execution of the merger agreement to purchase common stock from the Company to provide equity capital to partially fund the Company's real estate acquisitions until the merger was completed. The parties also agreed that Redford's obligations under the merger agreement would generally not be specifically enforceable by the Company against Redford, but the Company could seek damages against Redford if Redford failed to perform its obligations under the merger agreement, which obligations would be severally guaranteed by Redford's investors, up to $312 million in the aggregate.

        On March 4, 2007, Spirit's board of directors held a special meeting to discuss the proposed terms of the merger agreement. The board of directors reviewed the material terms of the merger agreement with the Company's legal counsel and financial advisors. The financial advisors also discussed the status of Macquarie's sources of equity and debt financing for the merger. The board determined at this meeting to extend the exclusivity period under the MOU to March 11, 2007, at the request of Macquarie. This extension effectively extended the MOU beyond the 60 day period allowed under the terms of the initial MOU. The board of directors elected to allow this extension based on the amount of work performed by Macquarie to date and the perceived likelihood of Macquarie organizing its equity consortium of investors. In exchange for this concession, the board of directors required the removal of any expense reimbursement obligations of the Company to Macquarie under the MOU.

        During the period of time when Macquarie was arranging the equity consortium of investors for Redford, certain members of the equity consortium recognized the importance of the continued involvement of certain key members of the Company's management team in the surviving entity and insisted on a condition that the Company's senior management agree to continue with the surviving entity in the merger in order for those members of the consortium to proceed with the transaction. On March 7, 2007, Macquarie informed the Company of this requirement and that Macquarie would require members of the Company's senior management to exchange all of the Spirit common stock they held for equity units in Redford on the same terms and conditions as the other equity investors in Redford. Macquarie also indicated that it would require members of the Company's senior management to waive any provision in their employment agreements that could have been triggered by the merger or any transaction contemplated by the merger that would have permitted them to terminate their employment with good reason and receive cash severance payments. Macquarie also presented Morton Fleischer and Christopher Volk with a summary of proposed terms pertaining to the equity investment requirement and proposed Redford equity incentive plan that set aside up to 10% of the outstanding equity interests in Redford for incentive awards, with 6% initially allocated to such awards. In delivering the summary proposed equity incentive terms, Macquarie requested that the Company's senior management team engage in discussions regarding their future employment arrangements, but the Company declined to engage in any discussions related to an equity incentive plan or employment arrangements at that time. The Company proposed that it would be acceptable for the equity investment and employment agreement waiver requirements to apply solely to Morton Fleischer and Christopher Volk, but not the other members of the Company's management team.

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Macquarie agreed with this proposal and informed the Company that the execution of commitment letters by Morton Fleischer and Christopher Volk reflecting these investment and waiver requirements would be required before Macquarie would execute a definitive merger agreement, but that the performance by Morton Fleischer and Christopher Volk of those commitments would not be a condition to completion of the merger.

        On March 9, 2007, the eight independent members of Spirit's board held a special meeting to discuss the requirement by Macquarie that Morton Fleischer and Christopher Volk make an equity investment in Redford immediately before completion of the merger and waive certain provisions in their employment agreements with the Company. Additionally, Citi and Wachovia Securities provided the independent directors with an overview of the process to be conducted during the active solicitation period as well as an update on the negotiation of the merger agreement. The independent members of the board again had a discussion with legal counsel and financial advisors as to whether or not independent legal counsel or financial advisors for the independent directors was warranted. The independent members of the board of directors concluded that independent counsel or advisors were not warranted noting that the value of the merger consideration and the material terms of the merger agreement had already been fully negotiated before Macquarie notified the Company of the requirement for the equity investment and employment agreement waivers by members of the Company's management. They also agreed to permit Morton Fleischer and Christopher Volk to negotiate the amount of the required equity investment, which they expected would range between 50 and 100 percent of the common stock owned by Morton Fleischer and Christopher Volk, and the waivers under their employment agreements on the condition they report back to the independent directors the outcome of such discussions. The independent directors, after consulting with the Company's legal counsel and financial advisers, also requested that Morton Fleischer, Christopher Volk and other members of senior management delay commencement of negotiation of any employment agreements until after the conclusion of the active solicitation period. The independent directors resolved to have the lead independent director preside over and be actively involved in the 28-day solicitation period and in any discussions or negotiations with any other potential bidder. During the active solicitation period, the independent directors received periodic status reports directly from the financial advisors as well as from the lead independent director.

        On March 10 and 11, 2007, Morton Fleischer and Christopher Volk continued to negotiate the terms of the equity investment and employment agreement waiver requirement. Macquarie agreed to Morton Fleischer and Christopher Volk investing less than all of their common stock in the Company that Macquarie had originally requested and agreed with each of Morton Fleischer and Christopher Volk that it would require Morton Fleischer to exchange 1,075,270 of the shares of Spirit common stock he owned and Christopher Volk to exchange 626,306 of the shares of Spirit common stock he owned for equity units in Redford. Morton Fleischer and Christopher Volk also agreed to waive certain provisions of their employment agreement that would have allowed them to terminate their employment for good reason because the surviving company in the merger was not a public company and potentially would not be an internally managed REIT.

        On March 11, 2007, Spirit's board of directors held a special meeting to consider the proposed merger. At this meeting, the Company's legal counsel reviewed and discussed the material terms of the merger agreement and the stock purchase agreement. Wachovia Securities reviewed and discussed with the board its financial analyses with respect to the Company and the proposed merger and rendered its opinion, as of March 11, 2007, with respect to the fairness from a financial point of view to the holders of Spirit common stock other than Redford and its affiliates of the merger consideration to be received by such holders pursuant to the merger agreement. The board also discussed the risks and perceived benefits of entering into the merger agreement. The independent members of the board held an executive session during this meeting without the presence of management. During this executive session, the independent directors discussed the matters presented and the final terms of the

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requirement by the Redford investors to have Morton Fleischer and Christopher Volk exchange shares of Spirit common stock they owned for equity units in Redford and to waive certain provisions under their existing employment agreements with the Company. The independent directors took note of the fact that Morton Fleischer and Christopher Volk had previously indicated that they would be willing to make similar arrangements with any other entity that submits a superior proposal to the merger. The independent directors also discussed the process for the active solicitation period following the execution of the merger agreement, including a discussion with the Company's legal counsel and financial advisors about the practical willingness and legal ability under the terms of the merger agreement of other potential bidders to participate in the active solicitation period following execution of the merger agreement.

        Following consideration of the merger agreement, the discussion of risks and benefits of the merger and the rendering of the fairness opinion, the board unanimously voted to enter into the merger agreement with Redford provided that Macquarie finalize Redford's equity consortium by March 12, 2007. In addition, the board reviewed and approved a stock purchase agreement between the Company and Redford, where the Company would issue 6,150,000 shares of its common stock to Redford at $12.99 per share, the last closing price of the Company's common stock before the board meeting, to provide funds for the Company's near-term real estate acquisitions, provided that the merger agreement and stock purchase agreement were executed no later than March 12, 2007. The board determined that it was advisable to raise additional capital through this stock sale so that the Company would have adequate resources to continue its regular business following the execution of the merger agreement and until the merger was completed. The board wanted to take appropriate action to minimize any interruption of the Company's business due to inadequate funds to complete real estate acquisitions, which could result in the Company being less valuable to another acquiror or if the merger is not completed.

        On March 11 and 12, 2007, Redford continued to finalize the terms of its equity financing with its consortium of investors and its debt financing with its lender to arrange proceeds to fund the merger consideration at the completion of the merger.

        On the evening of March 12, 2007, the Company and Redford entered into the merger agreement and the stock purchase agreement and Messrs. Morton Fleischer and Volk entered into commitments with Redford to make an equity investment in Redford and waive certain provisions of their employment agreements. The Company and Redford issued a press release announcing the merger on the morning of March 13, 2007, prior to the opening of trading on the NYSE.

        Following the announcement of the merger on March 13, 2007, and through April 9, 2007, the Company's financial advisors contacted 37 potential strategic and financial buyers soliciting their interest in reviewing diligence materials in connection with submitting an alternative proposal to the merger. April 9, 2007 was the last day the Company and its advisors were permitted to actively solicit parties potentially interested in making an alternative proposal under the merger agreement. Following April 9, 2007, the Company can not actively solicit additional bids, but may have discussions with potential bidders, regardless of whether those bidders were contacted before April 9, 2007, under the limited conditions specified in the merger agreement as described in this proxy statement under the heading "No Solicitation." The list of contacted parties included Bidder A, other parties with whom the Company had conducted previous discussions and additional parties that the Company had not had discussions with previously. Additionally, the financial advisors received one unsolicited inquiry. The Company entered into five confidentiality agreements with parties potentially interested in making an alternative proposal. After reviewing diligence materials, each of the parties who had signed confidentiality agreements declined to make an alternative proposal. The materials made available during the active solicitation period were substantially similar and of the same scope and nature as those previously provided to both Bidder A and to Macquarie prior to entering into the MOU.

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        Subsequent to the execution of the merger agreement, Macquarie renewed its request to have discussions with the Company's senior management (in addition to Morton Fleischer and Christopher Volk) regarding future employment arrangements with the Company and exchange of Spirit shares of common stock held by management for equity units in Redford. The Company's senior management informed Macquarie that they would not participate in any such discussions until the conclusion of the active solicitation period and any negotiations with a party that was contemplating submitting an alternative proposal to the merger.

        On March 21, 2007, the Company issued to Redford 6,150,000 shares of the Company's common stock at $12.99 per share in accordance with the stock purchase agreement.

        On April 10, 2007, after conclusion of the active solicitation period, Spirit's board of directors held a special meeting to review the results of the solicitation performed at the Company's request by its financial advisors. Following a review and discussion with its legal counsel and financial advisors regarding the communications between its financial advisors and potential strategic and financial buyers, the board concluded that it had not received any alternative proposals as defined in the merger agreement and that there were no entities that were reasonably expected to submit a superior proposal known to the board of directors at that time. A meeting of the independent directors was also held in connection with this meeting, at which these issues were discussed.

        On April 16, 2007, the Company's senior management received consent from Redford to engage a compensation advisor to consult with Spirit's senior management in the negotiation of the terms of employment arrangements with Redford.

        On April 23, 2007, upon request, the Company's senior management received a term sheet detailing the investment terms of Redford's equity units. As of the date of this proxy statement, the Company's senior management had not agreed to make any additional equity investment in Redford or agreed to any future employment arrangements with Redford.


Reasons for the Merger

        Our board of directors, at its meeting on March 11, 2007, considered the merger agreement and determined it to be fair to, advisable and in the best interests of the Company and our stockholders. In evaluating the merger, our board of directors consulted with management, as well as our legal counsel and financial advisors, and considered a number of factors. Listed below are the material factors that our board of directors considered in its decision:

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        The foregoing discussion of the factors considered by our board of directors is not intended to be exhaustive but, rather, includes the material factors considered by our board of directors. In reaching its decision to approve the merger agreement, the merger and the other transactions contemplated by the merger agreement, our board of directors did not quantify or assign any relative weights to the factors considered, and individual directors may have given different weights to different factors. Our

24


board of directors considered all these factors as a whole and, overall, considered the factors to be favorable to, and supportive of, its determination to approve the merger.

        For the reasons set forth above, our board of directors unanimously determined that the merger agreement and the terms and conditions of the merger are fair to, advisable and in the best interests of, the Company and our stockholders, and approved the merger and the merger agreement. Our board of directors unanimously recommends that you vote "FOR" the approval of the merger. Our board of directors also unanimously recommends that you vote "FOR" approval of adjournment of the annual meeting, if deemed necessary, for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the time of the annual meeting to approve the merger.


Opinion of Wachovia Securities

        On March 11, 2007, Wachovia Securities rendered its opinion to the Spirit board of directors to the effect that, as of March 11, 2007, the merger consideration to be received by the holders of Spirit common stock other than Redford and its affiliates pursuant to the merger agreement was fair, from a financial point of view, to such holders of Spirit common stock.

        Wachovia Securities' opinion was directed to the Spirit board of directors and only addressed the fairness from a financial point of view of the consideration to be received by the holders of Spirit common stock (other than Redford and its affiliates) under the merger agreement and not any other aspect or implication of the merger. The summary of Wachovia Securities' opinion in this proxy statement is qualified in its entirety by reference to the full text of its written opinion which is included as Appendix B to this proxy statement and sets forth the procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by Wachovia Securities in preparing its opinion. Spirit encourages its stockholders to carefully read the full text of Wachovia Securities' written opinion. However, neither Wachovia Securities' opinion nor the summary of its opinion and the related analyses set forth in this proxy statement are intended to be, and do not, constitute advice or a recommendation to any Spirit stockholder as to how such stockholder should vote or act with respect to any matter relating to the merger.

        Procedures Followed.    In connection with the preparation of its opinion, Wachovia Securities made such reviews, analyses and inquiries as it deemed necessary and appropriate under the circumstances. Among other things, Wachovia Securities:

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        Material Assumptions Made and Qualifications and Limitations on the Review Undertaken.    In connection with its review, Wachovia Securities assumed and relied upon the accuracy and completeness of the financial and other information described above, including all information, analyses and assumptions relating to accounting, legal and tax matters, and Wachovia Securities did not assume any responsibility for, nor independently verify, such information. Wachovia Securities relied upon the assurances of the management of Spirit that they were not aware of any facts or circumstances that would make such information inaccurate or misleading. Wachovia Securities relied upon financial forecasts regarding Spirit that were furnished to Wachovia Securities by the management of Spirit and Wachovia Securities was advised and assumed that such financial forecasts, as well as the estimates, judgments, allocations and assumptions upon which such financial forecasts were based were reasonably formulated and reflected the best currently available estimates, judgments, allocations and assumptions of the management of Spirit regarding the future financial performance of Spirit. Wachovia Securities assumed no responsibility for, and expressed no view as to, any such financial forecasts or the estimates, judgments, allocations or assumptions upon which they were based. In arriving at its opinion, Wachovia Securities did not prepare or obtain any independent evaluations or appraisals of the assets or liabilities of Spirit, including any contingent liabilities, nor was Wachovia Securities provided with any such evaluations or appraisals.

        In rendering its opinion, Wachovia Securities assumed that the merger would be consummated on the terms set forth in the merger agreement, without waiver of any material terms or conditions, and that in the course of obtaining any legal, regulatory or third-party consents and/or approvals, no restrictions would be imposed or other actions taken that would adversely effect the merger in any manner material to its analysis. Wachovia Securities also assumed that the merger agreement and the stock purchase agreement, when executed and delivered by the parties thereto, would conform to the drafts reviewed by it in all respects material to its analyses. Wachovia Securities' opinion was necessarily based upon economic, market, financial and other conditions and information available to it as of the date of its opinion. Although subsequent developments may affect its opinion, Wachovia Securities does not have any obligation to update, revise or reaffirm its opinion. Wachovia Securities' opinion only addresses the fairness, from a financial point of view of the consideration to be received by the holders of shares of Spirit common stock other than Redford and its affiliates under the merger agreement and does not address any other terms of the merger or any other agreements, arrangements or understandings entered into in connection with the merger or otherwise. In addition, Wachovia Securities' opinion does not address the relative merits of the merger as compared with other business strategies or transactions that may be available to or may have been considered by Spirit's management, its board of directors or any committee thereof. Other than with respect to the preliminary discussions on a no-name basis with parties that might be interested in discussing a strategic business relationship with a company like Spirit prior to the Company entering into the MOU

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with Macquarie, Wachovia Securities was not requested to, and did not, solicit the interest of third parties in acquiring all of the outstanding common stock of Spirit before the execution of the merger agreement.

        Wachovia Securities' opinion was provided for the information and use of the board of directors of Spirit in connection with the board's consideration of the merger. Wachovia Securities' opinion does not address the merits of the underlying decision by Spirit to enter into the merger agreement or any related transaction and does not and shall not be deemed to constitute a recommendation to any holder of Spirit common stock as to how such holder should vote or act on any matter relating to the merger.

        Summary of Analyses.    In preparing its opinion to the Spirit board of directors, Wachovia Securities performed a variety of analyses, including those described below. The preparation of a fairness opinion is a complex process involving various quantitative and qualitative judgments and determinations with respect to the financial, comparative and other analytic methods employed and the adaptation and application of these methods to the unique facts and circumstances presented. As a consequence, neither a fairness opinion nor its underlying analyses is readily susceptible to partial analysis or summary description. Wachovia Securities arrived at its opinion based on the results of all analyses undertaken by it and assessed as a whole and did not draw, in isolation, conclusions from or with regard to any individual analysis, analytic method or factor. Wachovia Securities made its determination as to fairness on the basis of its experience and professional judgment after considering the results of all of its analyses. Accordingly, Wachovia Securities believes that its analyses must be considered as a whole and selecting portions of Wachovia Securities' analyses, analytic methods and factors or focusing on information presented in tabular format, without considering the narrative description of the analyses, the underlying methodologies and the assumptions, qualifications and limitations affecting each analysis could create a misleading or incomplete view of the processes underlying its opinion. Wachovia Securities did not assign specific weights to any particular analyses.

        No company or business used in Wachovia Securities' analyses for comparative purposes is identical to Spirit and no transaction used in Wachovia Securities' analyses for comparative purposes is identical to the merger. The estimates contained in Wachovia Securities' analyses and the reference valuation ranges indicated by any particular analysis are illustrative and not necessarily indicative of actual values or predictive of future results or values, which may be significantly more or less favorable than those suggested by the analyses. In addition, the analyses relating to the value of businesses or securities do not purport to be appraisals or to reflect the prices at which businesses or securities actually may be purchased or sold, which may depend on a variety of factors, many of which are beyond Spirit's control and the control of Wachovia Securities. Much of the information used in, and accordingly the results of, Wachovia Securities' analyses are inherently subject to substantial uncertainty and, therefore, none of Spirit, Wachovia Securities or any other person assumes any responsibility if future results are materially different from those estimated or indicated.

        Wachovia Securities' opinion was provided to the Spirit board of directors in connection with the board's consideration of the merger and was only one of many factors considered by the Spirit board of directors in evaluating the merger. The merger consideration was determined through negotiations between the Company and Redford.

        The following is a summary of the material valuation analyses prepared in connection with Wachovia Securities' opinion rendered on March 11, 2007.

        For purposes of its analyses, Wachovia Securities reviewed a number of financial metrics including funds from operations, or FFO, which generally is the amount of the relevant company's net earnings after taxes adjusted to include real estate depreciation and amortization for a specified period of time.

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        Unless the context indicates otherwise, equity values used in the selected companies analysis described below were calculated using the closing price of the common stock of the selected real estate companies listed below as of March 9, 2007 and the equity values for the target companies used in the selected transactions analysis described below were calculated as of the announcement date of the relevant transaction based on the purchase prices paid in the selected transactions. Estimates of 2007 FFO for Spirit were based on estimates provided by Spirit's management. Estimates of 2007 FFO for the selected real estate companies listed below were based on publicly available research analyst estimates for those real estate companies.

        Wachovia Securities calculated equity value as a multiple of FFO for selected real estate companies.

        The calculated percentages and multiples included:

        The selected real estate companies were:

        The selected companies analysis indicated the following:

Metric Description

  Low
  High
  Mean
  Median
 
Equity Value as a Multiple of:                  
2006 FFO   11.6 x 16.7 x 13.8 x 12.8 x
2007E FFO   10.6 x 15.2 x 13.5 x 14.3 x

        Wachovia Securities applied multiple ranges based on the selected companies analysis to corresponding financial data for Spirit, including estimates with respect to Spirit's future financial performance provided by Spirit's management. The selected companies analysis indicated an implied reference range value per share of Spirit common stock of $11.76 to $16.86 based on 2006 FFO multiples and $12.25 to $17.52 based on 2007E FFO multiples, as compared to the merger consideration of $14.50 per share of Spirit common stock.

        Wachovia Securities calculated equity value as a multiple of FFO based on the purchase prices paid in selected transactions involving net lease real estate companies. The multiples were based on current year FFO estimates if the transaction had been announced in the first half of the year and estimates of next year's FFO if the transaction had been announced in the second half of the year and were based on publicly available research analyst estimates for those real estate companies.

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        The selected net lease real estate company transactions were:

Target

  Acquiror

Trustreet Properties, Inc.   General Electric Company
Government Properties Trust, Inc.   Record Realty (US) LLC
CentraCore Properties Trust   The GEO Group, Inc.
Newkirk Realty Trust, Inc.   Lexington Realty Trust
Capital Automotive REIT   DRA Advisors, LLC

        The selected transactions analysis indicated the following:

Metric Description

  Low
  High
  Mean
  Median
 
Equity Value as a multiple of:                  
FFO   7.9 x 15.3 x 12.8 x 13.2 x

        Wachovia Securities applied multiple ranges based on the selected transactions analysis to 2007E FFO for Spirit. The selected transactions analysis indicated an implied reference range value per share of Spirit common stock of $9.10 to $17.63, as compared to the merger consideration of $14.50 per share of Spirit common stock.

        Wachovia Securities also calculated the net present value of Spirit's un-levered, after-tax debt-free cash flows based on estimates with respect to Spirit's future financial performance provided by Spirit's management. In performing this analysis, Wachovia Securities used discount rates ranging from 8.20% to 8.60% based on Spirit's estimated weighted average cost of capital and exit capitalization rates of 8.25% to 8.75% based on current market conditions and property characteristics. The discounted cash flow analysis indicated an implied reference range value per share of Spirit common stock of $12.22 to $16.04 as compared to the merger consideration of $14.50 per share of Spirit common stock.

        Wachovia Securities also calculated the net present value of Spirit's projected future dividends based on estimates of Spirit's FFO and dividends per share of Spirit common stock for 2007 through 2011 provided by Spirit's management and a compound annual FFO growth rate of 7.4% and a compound annual dividend growth rate of 7.7% thereafter based on discussions with Spirit management who confirmed such growth rates were reasonable. The discounted dividend analysis indicated an implied reference range value per share of Spirit common stock of $12.94 to $15.31 as compared to the merger consideration of $14.50 per share of Spirit common stock.

        Using information provided by the Company, Wachovia Securities calculated the implied net asset value per share of the Company's common stock by applying a range of blended capitalization rates from 7.75% to 8.25% to Spirit's existing asset portfolio and assets under contract to be acquired and scheduled to close prior to the end of the second quarter of 2007. These capitalization rates were based on, among other things, industry sources, a review of real estate transactions Wachovia Securities deemed relevant, current property characteristics and conditions in the market and Spirit's projected 12-month forward cash net operating income. The net asset valuation analysis indicated an implied reference range value per share of $10.44 to $12.45 as compared to the merger consideration of $14.50 per share of Spirit common stock.

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        Other Matters.    Wachovia Securities is a trade name of Wachovia Capital Markets, LLC, an investment banking subsidiary and affiliate of Wachovia Corporation. We engaged Wachovia Securities pursuant to a letter agreement dated December 22, 2006, to act as our financial advisor with respect to certain transactions including a possible sale of Spirit. We selected Wachovia Securities as our financial advisor based on its qualifications, experience and reputation, and its familiarity with us and our business. Wachovia Securities is regularly engaged in the valuation of businesses and securities in connection with mergers and acquisitions, leveraged buyouts, negotiated underwritings, competitive biddings, secondary distributions of listed and unlisted securities, private placements and valuations for corporate and other purposes. Wachovia Securities will receive a fee of $8.5 million for its services, payable upon consummation of the merger. Wachovia Securities also became entitled to receive a fee of $1.0 million upon delivery of its opinion, a portion of which will be credited against the fee payable upon consummation of the merger. In addition, Spirit has agreed to reimburse Wachovia Securities' expenses and to indemnify Wachovia Securities and certain related parties against certain liabilities arising out of its engagement.

        Wachovia Securities and its affiliates provide a full range of investment and commercial banking advice and services, including financial advisory services; securities underwritings and placements; securities sales and trading; brokerage advice and services; and commercial loans. In that regard, Wachovia Securities and/or its affiliates served as a joint-lead manager of Spirit's $185 million follow-on common equity offering in June 2006 and served as the underwriter in connection with Spirit's offering of $100 million of common stock in December 2006, for which services Wachovia Securities received compensation. In the future, Wachovia Securities and its affiliates may provide investment and commercial banking advice and services to, and otherwise seek to expand or maintain its business and commercial relationships with Spirit, Redford, and/or certain of their affiliates, for which they would expect to receive compensation. In the ordinary course of their business, Wachovia Securities and its affiliates may trade in the securities and other financial instruments, including bank loans, of Spirit, Redford and/or certain of their affiliates for their own accounts and for the accounts of customers and, accordingly, may at any time hold a long or short position in such securities and financial instruments.


Structure of the Merger and Merger Consideration

        We encourage you to read carefully the merger agreement in its entirety, a copy of which is attached as Appendix A to this proxy statement, because it is the legal document that governs the merger.

        Structure.    We are proposing a merger whereby MergerCo will merge with Spirit, with Spirit as the surviving entity. As a result of the transactions, Spirit will become a direct subsidiary of Redford and will continue to operate its business under the name Spirit Finance Corporation.

        Merger Consideration.    The merger agreement provides that each share of our common stock will be converted into the right to receive $14.50 in cash, without interest and less applicable withholding taxes.

        You should not return your stock certificates with the enclosed proxy, and stock certificates should not be forwarded to us, Redford or any other party until you have received the letter of transmittal, which will be sent to you after we complete the merger.


Procedures for Submitting Certificates

        As soon as possible after the completion of the merger, but in no event more than three business days after the merger, the paying agent, selected by Redford, will mail to each holder of record of shares of our common stock a letter of transmittal and instructions for surrendering certificates representing shares of our common stock in exchange for the merger consideration. Upon surrender of a stock certificate of our common stock for cancellation to the paying agent in accordance with terms

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of the letter of transmittal and instructions provided, together with a duly executed letter of transmittal, the holder of such stock certificate will be entitled to receive the merger consideration and the stock certificate for our common stock so surrendered will be canceled.

        After completion of the merger, no transfers of our common stock issued and outstanding immediately prior to the completion of the merger will be allowed. Any stock certificates representing shares of our common stock that are presented for transfer after the completion of the merger will be canceled and exchanged for the merger consideration, without interest and less applicable withholding taxes.


Treatment of Restricted Stock and Stock Options

        Certain shares of our restricted common stock that we issued pursuant to our stock option and incentive plan will become fully vested and will be cancelled in exchange for a cash payment equal to $14.50 per share, less any applicable withholding taxes. Holders of options to purchase our common stock granted under our stock option and incentive plan will become fully vested and each holder thereof will receive a cash payment equal to $14.50, less the exercise price of the option, multiplied by the number of shares of common stock covered by the option, without interest and less any applicable withholding taxes.


Conditions to the Merger

        Completion of the merger is subject to the satisfaction of certain conditions set forth in the merger agreement, or the waiver of such conditions by the party entitled to do so, at or before the closing date of the merger. Each of the parties' obligations to consummate the merger under the merger agreement is subject to the following conditions:

        In addition to the conditions set forth above, our obligation to complete the merger under the merger agreement is subject to the following conditions, which may be waived by us:

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        In addition to the foregoing conditions, the obligations of Redford and MergerCo to complete the merger under the merger agreement are subject to the following conditions, which may be waived by Redford and MergerCo:

        Under the merger agreement, the term "material adverse effect" means, for us, a material adverse effect on (1) the assets, liabilities, condition (financial or otherwise), business or results of operations of the Company and its subsidiaries, taken as a whole, (2) the ability of the Company to complete the transactions contemplated by, or to perform its obligations under, the merger agreement before the outside date, or (3) the ability of (i) the Company to qualify as a REIT prior to the effective time of the merger, or (ii) the Company to qualify as a REIT after the effective time of the merger, assuming solely for this purpose that the merger was not consummated; provided, however, that none of the

32


following, in and of itself or themselves, shall be considered in determining whether a material adverse effect shall have occurred under clause (1) of this definition:


Regulatory Approvals

        The merger agreement provides that the merger cannot be completed until the period of time for any applicable review process by the Committee on Foreign Investment in the United States, or CFIUS, under Section 721 of the Defense Production Act of 1950 shall have expired or CFIUS (or a related governmental authority) has provided written notice to the effect that review (if any) of the proposed merger has been concluded. The parties to the merger agreement do not believe there is any review process by CFIUS applicable to the merger.

        No other regulatory approvals are required for consummation of the merger.


Business Pending the Merger

        The merger agreement contains certain covenants of Spirit regarding the conduct of its business pending consummation of the merger. These covenants, which are contained in Article V of the merger agreement included as Appendix A hereto, are briefly described below.

        Except for certain actions provided for in the merger agreement, until the merger is consummated or the merger agreement is terminated, we will use our commercially reasonable efforts to carry on our business in the usual, regular and ordinary course consistent with past practice and will use our commercially reasonable efforts to preserve intact our present business organizations, the services of our present officers and employees consistent with past practice and our goodwill and relationships with tenants and others with whom we have business dealings. We will also comply in all material respects with all applicable laws, including the timely filing of reports, forms or other documents with the Securities and Exchange Commission required pursuant to the Securities Act of 1933 and the Exchange Act.

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        Unless previously agreed to by Redford or otherwise expressly contemplated or permitted by the merger agreement, pending consummation of the merger, we may not, and will cause each of our subsidiaries not to take the following actions without the prior written consent of Redford:

34


35


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No Solicitation

        Under the merger agreement, we were allowed to solicit other prospective bidders for the purpose of gauging their interest in making an alternative proposal (as defined below) until April 9, 2007. As discussed above in "Background of the Merger," our board concluded that it did not receive any alternative proposals during this active solicitation period.

        Under the terms of the merger agreement, we agreed to cease all existing activities, discussions or negotiations with any parties, except for certain excluded parties described in the merger agreement (of which there are none), after April 9, 2007, that were ongoing with respect to any alternative proposal. Except as otherwise permitted in the merger agreement, we will not (and will cause our representatives not to) directly or indirectly:

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        Notwithstanding the above, if prior to the annual meeting (A) the Company receives an unsolicited bona fide written alternative proposal that did not result from a breach of the merger agreement which the board determines in good faith, after consultation with legal counsel and financial advisors, constitutes or would reasonably be expected to result in a superior proposal (as defined below), and (B) the board determines in good faith, after consultation with legal counsel and financial advisors, that the failure of the board to take the actions set forth in clauses (x) and (y) below with respect to such alternative proposal would be inconsistent with the directors' exercise of their duties to the Company or the Company's stockholders under applicable law, then the Company may take the following actions: (x) furnish non-public information to the third party making such alternative proposal (if, and only if, prior to so furnishing such information, the Company receives from the third party an executed confidentiality agreement with confidentiality and standstill provisions in form no more favorable to such person than those confidentiality and standstill provisions contained in the confidentiality agreement between Macquarie Securities (USA) Inc. and the Company) and simultaneously provides to Redford any non-public information not previously made available to Redford and (y) engage in discussions or negotiations with such third party with respect to such alternative proposal.

        Except as described below, our board of directors may not:

        The board may, in response to the receipt of a superior proposal that has not been withdrawn or abandoned at any time prior to stockholder approval of the merger, change its recommendation with respect to the merger in response to the superior proposal if all of the following conditions are met:

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        The term "alternative proposal" is defined in the merger agreement as any bona fide offer made by a person or group of persons (other than a proposal or offer by Redford or any of its subsidiaries) for:

        The term "superior proposal" is defined as an alternative proposal (where the percentages in the definition thereof are increased to 50%) on terms our board of directors determines in good faith, after consultation with the Company's or the board's financial advisors and legal counsel, and considering all relevant factors as the board considers to be appropriate (including, but not limited to, the timing, ability to finance, financial and regulatory aspects and likelihood of consummation of such proposal, and any alterations to the merger agreement agreed to in writing by Redford in response thereto), is more favorable from a financial point of view (taking into account the foregoing factors) to the Company's stockholders than the merger.


Covenant to Hold a Stockholders' Meeting and to Recommend the Merger

        Pursuant to the merger agreement, we are required to call a meeting of our stockholders to consider and vote upon approval of the merger. Also, our board of directors is required at all times prior to and during the meeting of stockholders at which the merger is to be considered to recommend that our stockholders approve the merger and to take all reasonable action to solicit such approval of our stockholders. Notwithstanding the foregoing, our board of directors may withdraw or modify its recommendation as described above.


Commercially Reasonable Efforts Covenant

        Spirit, Redford and MergerCo have agreed to use their respective commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper, or advisable to consummate and make effective, as promptly as practicable, the merger.


Certain Other Covenants

        The merger agreement contains additional covenants of each of the parties, including covenants relating to:

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Representations and Warranties of the Parties

        The Company, Redford and MergerCo made certain customary representations and warranties in the merger agreement relating to their respective companies, subsidiaries, businesses and matters related to the merger. For detailed information concerning these representations and warranties, reference is made to Articles III and IV of the merger agreement included as Appendix A hereto.

        The representations and warranties of each party set forth in the merger agreement have been made solely for the benefit of the other parties to the merger agreement. The assertions embodied in our representations and warranties have been qualified by information in a confidential disclosure schedule that we provided Redford in connection with the signing of the merger agreement. While we do not believe that the confidential disclosure schedule contains material information that is required to be disclosed publicly other than information that has already been so disclosed, the disclosure schedule does contain information that modifies, qualifies and creates exceptions to our representations and warranties contained in the merger agreement, including certain nonpublic information. Accordingly, you should not rely on our representations and warranties as characterizations of the actual state of facts, since they are modified in part by the underlying disclosure schedule. In addition, such representations and warranties (a) will not survive consummation of the merger and cannot be the basis for any claims under the merger agreement by the other party after termination of the merger agreement except for liabilities or damages arising out of any fraud or willful breach, (b) are subject in certain respects to the materiality standards contained in the merger agreement which may differ from what may be viewed as material by investors, and (c) were made only as of the date of the merger agreement or such other date as is specified in the merger agreement, may have changed since the date of the merger agreement and will not reflect any such subsequent changes in facts. Such representations and warranties generally must remain accurate through the completion of the merger unless the fact or facts that caused a breach of a representation and warranty has not had or would not reasonably be likely to have, individually or in the aggregate, a material adverse effect on the party making the representation and warranty. See "Conditions to the Merger" beginning on page 31.

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Effective Time of the Merger

        The merger will become effective upon the time when the articles of merger are filed with and accepted for record by the Maryland Department of Assessments and Taxation, unless a different date and time are specified as the effective time in such document. The articles of merger will be filed on or before the merger closing date, which will be either (a) within five business days following satisfaction or waiver of all conditions to the merger set forth in the merger agreement, other than those conditions that must be satisfied or waived at the consummation of the merger, or (b) on such other date as the parties may mutually agree. We are working to complete the merger promptly following the annual meeting.


Amendment of the Merger Agreement

        The merger agreement may be amended or modified at any time by written agreement of the parties whether before or after the approval of our stockholders, except that after the annual meeting, no amendment which by law requires further approval by our stockholders may be made without obtaining such approval.


Termination of the Merger Agreement

        The merger agreement may be terminated by:

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Effect of Termination

        In the event the merger agreement is terminated as described above, neither we nor Redford will have any liability thereunder, except as set forth under "Termination Fees" below or in respect of specified covenants that survive termination. However, termination of the merger agreement will not relieve either us or Redford of any liability for fraud or willful breach of the representations, warranties, covenants or other agreements contained in the merger agreement.


Termination Fees

        The merger agreement provides that we must pay Redford a $31 million termination fee under the circumstances and in the manner described below:


Other Fees, Expenses and Damages; Limitations on Liability

        If the merger agreement is terminated because Spirit's stockholders have not approved the merger or pursuant to clauses (b)(iii), (c), (e) or (f) above under "Termination of the Merger Agreement," Spirit must reimburse Redford all documented reasonable out-of-pocket fees and expenses incurred by Redford or MergerCo in connection with the merger; provided, however that such fees and expenses may not exceed $2.25 million. If the merger agreement is terminated by the Company pursuant to clause (d) above under "Termination of the Merger Agreement," Redford must reimburse the Company all documented reasonable out-of-pocket fees and expenses incurred by Spirit in connection with the merger; provided, however that such fees and expenses may not exceed $2.25 million. Pursuant to the merger agreement, we have agreed that, to the extent we or our subsidiaries have incurred losses or damages of any kind in connection with the merger agreement, (i) the maximum aggregate liability

42



of Redford, MergerCo and the guarantors of the merger consideration for such losses or damages of any kind shall be limited to $312 million, (ii) the maximum liability of the guarantors, directly or indirectly, shall be limited to the respective obligations of such guarantors under the guaranties and (iii) in no event will we or our subsidiaries be entitled to seek to recover any money damages from Redford, MergerCo or the guarantors in excess of such amount.


Specific Performance

        Redford and MergerCo are entitled to seek specific performance of the terms of the merger agreement, but we are not entitled to seek specific performance except with respect to certain of Redford's and MergerCo's confidentiality, publicity and notification obligations.


Interests of Our Directors and Executive Officers in the Merger

        General.    Some of the members of our management, two of whom are also members of our board of directors, have interests in the merger that are in addition to, or different from, the interests of our stockholders generally, which are described below. Our board of directors was aware of these interests and considered them, among other matters, before approving the merger agreement and the transactions contemplated by the merger agreement.

        Existing Employment Agreements.    We have employment agreements with the members of our senior management team, who include:

        These employment agreements provide the officers specified payments and benefits if the officers are terminated without cause or terminate their employment with good reason (each as defined in the employment agreement), including in certain cases in connection with a change of control of Spirit. For a more detailed description of the terms of these employment agreements see the section entitled "Executive Compensation—Employment Agreements" below. For a detailed description of the payments and benefits these officers could receive in connection with a termination see the section entitled "Executive Compensation—Compensation Discussion and Analysis—Severance Benefits" below. The Redford equity investor consortium required that Morton Fleischer and Christopher Volk waive certain provisions in their employment agreements that would have permitted them to terminate their employment with good reason and receive cash payments upon Spirit ceasing to be a public company.

        Payments to Directors.    Our non-employee directors will not receive any compensation that is payable upon the completion of the merger other than the receipt of the merger consideration for any shares of our common stock those directors hold, including shares of restricted stock that will vest at or before completion of the merger. At or prior to the completion of the merger, we will deliver the written resignation of each of our directors and officers, if such resignations are requested by Redford.

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        Accelerated Vesting of Restricted Stock.    Immediately before the completion of the merger, all unvested restricted stock held by our directors and executive officers will vest in full and will be treated as common stock for the purposes of receiving the merger consideration (less any applicable withholding taxes). The table below sets forth, as of April 9, 2007, for any person who was a director or executive officer of the Company since January 1, 2006, the number of unvested restricted shares the director or officer held on April 9, 2007 and the value of such restricted shares determined by multiplying the number of shares by the merger consideration of $14.50 per share before any amounts that will be withheld for taxes. The table below does not include any amounts with respect to the payment of the merger consideration our directors or executive officers will receive for other shares of our common stock they own.

Directors and Executive Officers

  Unvested Shares of
Restricted Stock Owned

  Dollar Value at
$14.50 per Share

Morton H. Fleischer   200,943   $ 2,913,674
Christopher H. Volk   209,033     3,030,979
Linda J. Blessing   5,655     81,998
Willie R. Barnes   3,988     57,826
Dennis E. Mitchem   3,988     57,826
Paul F. Oreffice   3,988     57,826
Jim Parish   3,988     57,826
Kenneth B. Roath   3,988     57,826
Casey J. Sylla   3,988     57,826
Shelby Yastrow   3,988     57,826
Catherine Long   98,449     1,427,511
Michael T. Bennett   76,334     1,106,843
Jeffrey M. Fleischer   76,334     1,106,843
Gregg A. Seibert   76,334     1,106,843

        Accelerated Vesting of, and Payments Related to, Stock Options.    Immediately before the completion of the merger, all unvested options to purchase our common stock granted to our employees under our stock option plan will vest in full. The holder of each of these options will receive a cash payment equal to the merger consideration of $14.50 per share, less the exercise price of each option, multiplied by the number of shares of common stock covered by each option, less any applicable withholding taxes. We have not granted our directors any options to purchase our common stock. The table below sets forth, as of April 9, 2007, the options held by any person who was an executive officer of the Company since January 1, 2006, and the cash payments to be received for such options at the completion of the merger, before withholding for taxes:

Executive Officers

  Unvested
Stock
Options

  Dollar Value at
$14.50 per Share

  Vested
Stock
Options

  Dollar Value at
$14.50 per Share

  Total Payment to
be Received for
Stock Options

Morton H. Fleischer   192,000   $ 864,000   288,000   $ 1,296,000   $ 2,160,000
Christopher H. Volk   192,000     864,000   288,000     1,296,000     2,160,000
Catherine Long         90,000     405,000     405,000
Michael T. Bennett                
Jeffrey M. Fleischer         90,000     405,000     405,000
Gregg A. Seibert         90,000     405,000     405,000

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        Equity Investment in Redford by Senior Management.    Morton H. Fleischer and Christopher H. Volk have agreed to make an equity investment in the membership interests of Redford immediately before completion of the merger. Mr. Fleischer and Mr. Volk's equity investment will be made on the same terms and price as the investments in Redford made by the members of the equity consortium. Mr. Fleischer has agreed to exchange a minimum of 1,075,270 shares of Spirit common stock he owns for which he would receive $14.50 per share in the merger for $15.6 million of equity interests in Redford. Mr. Volk has agreed to exchange a minimum of 626,306 shares of Spirit common stock he owns for which he would receive $14.50 per share in the merger for $9.1 million of equity interests in Redford. Other members of the Company's senior management and other employees of the Company may also be eligible to exchange shares of common stock of Spirit they own for equity interests in Redford immediately before completion of the merger, but are not obligated to do so and have not committed to do so as of the date of this proxy statement.

        Indemnification and Insurance.    Redford and MergerCo have agreed that all rights to indemnification existing in favor of, and all limitations on the personal liability of, the directors, officers, and employees of Spirit or any of its subsidiaries provided for in the charter or bylaws (or other applicable organizational documents) of Spirit or its subsidiaries, in effect as of March 12, 2007, will survive the merger and continue in full force and effect for a period of six years from the closing date of the merger with respect to any matters arising before the closing of the merger. However, all rights to indemnification with respect to any claims asserted or made within such period will continue until the final disposition of such claim. From and after the closing date of the merger, Spirit, as the surviving company in the merger, must also indemnify and hold harmless the present and former officers and directors of Spirit with respect to acts or omissions occurring prior to the closing date of the merger to the extent provided for in any written indemnification agreements disclosed to Redford between Spirit and its subsidiaries and its officers and directors.

        Prior to the closing date of the merger, we will purchase a non-cancelable extended reporting period endorsement under our existing directors' and officers' liability insurance coverage for our directors and officers in the same form (other than immaterial deviations) as presently maintained by us, with the same or comparably rated insurers as our current insurers, which will provide such directors and officers with coverage in respect of any matter arising prior to the consummation of the merger for six years following the closing date of the merger of not less than the existing coverage under, and have other terms not less favorable to, the insured persons than the directors' and officers' liability insurance coverage presently maintained by us, subject to specified limits on the cost of such policy. Redford will, and will cause MergerCo to, maintain such policies in full force and effect, and continue to honor all obligations thereunder.


Certain Employee Matters

        Spirit has a change of control severance plan applicable to its vice presidents which provides that in the event of an involuntary termination of a vice president without cause or termination by the vice president for good reason following a change in control, such as the merger, the employee will receive a severance benefit equal to the amount of the employee's annual base salary plus the maximum bonus the employee received in the past three years, subject to certain adjustments for vice presidents involved in the sales of the Company's products and services.


Material United States Federal Income Tax Consequences of the Merger

        The following is a general summary of the material U.S. federal income tax considerations of the merger to holders of our common shares who exchange their shares pursuant to the merger. This summary is based upon interpretations of the Internal Revenue Code of 1986, as amended, which we refer to in this proxy statement as the Code, Treasury Regulations promulgated thereunder, judicial decisions and administrative rulings of the Internal Revenue Service, which we refer to in this proxy

45



statement as the IRS, in each case as of the date of this proxy statement, all of which are subject to change and differing interpretations, including changes and interpretations with retroactive effect. We have not requested, and do not plan to request, any ruling from the IRS concerning the tax treatment of the merger. The U.S. federal income tax consequences contained in this summary are not binding on the IRS or any court, and we can provide no assurance that the U.S. federal income tax consequences contained in this summary may not be challenged by the IRS or if challenged whether the IRS challenge would be sustained by a court. This discussion assumes that our common shares are held as a capital asset within the meaning of Section 1221 of the Code. The discussion below does not address all U.S. federal income tax considerations, or any state, local or foreign tax consequences, of the merger. Also, this summary does not address all of the tax considerations that may be relevant to particular holders of our common stock in light of their particular circumstances and does not address various tax rules that may apply if you are a stockholder subject to special treatment under the Code, including, for example:

        If any entity that is treated as a partnership for U.S. federal income tax purposes holds our common shares, the tax treatment of its partners or members generally will depend upon the status of the partner or member and the activities of the entity. If you are a partner of a partnership or a member of a limited liability company or other entity classified as a partnership for U.S. federal income tax purposes and that entity holds our common shares, you should consult your tax advisor.

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        For purposes of this discussion, a "U.S. stockholder" is a beneficial owner of our common shares that is for U.S. federal income tax purposes one of the following:


        For purposes of this discussion, a "non-U.S. stockholder" is a beneficial owner of our common shares that is not a U.S. stockholder.

        THIS DISCUSSION OF U.S. FEDERAL INCOME TAX CONSIDERATIONS IS FOR GENERAL INFORMATION PURPOSES ONLY, DOES NOT PURPORT TO BE A COMPLETE DESCRIPTION OF THE POTENTIAL TAX CONSIDERATIONS RELATING TO THE MERGER AND IS NOT TAX ADVICE. YOU ARE URGED TO CONSULT YOUR TAX ADVISOR AS TO THE SPECIFIC TAX CONSEQUENCES TO YOU OF THE MERGER, INCLUDING THE APPLICABILITY OF UNITED STATES FEDERAL, STATE, LOCAL, FOREIGN AND OTHER TAX LAWS.

        Consequences to Us of the Merger.    For federal income tax purposes, we will treat the merger as a sale of our shares of common stock by our stockholders. Thus, we will not recognize gain or loss as a result of the merger.

        Consequences to You of the Merger—U.S. Stockholders.    The merger will be treated for U.S. federal income tax purposes as a taxable sale by you of your shares of our common stock in exchange for the merger consideration. As a result, you will recognize capital gain or loss with respect to each share exchanged, measured by the difference between your adjusted tax basis in such share and the amount of cash received for such share. Your gain or loss generally will constitute long-term capital gain or loss if you held your shares for more than one year as of the effective time of the merger. However, if you have held some or all our shares for six months or less at the effective time of the merger, taking into account certain holding period rules, and you recognize a loss with respect to such shares, you will be treated as recognizing long-term capital loss to the extent, with respect to such shares, you received distributions from the Company which were required to be treated as long-term capital gains or on your share of any designated retained capital gains of the Company.

        If you are a non-corporate holder, you will be subject to tax on any net long-term capital gain at a maximum U.S. federal income tax rate of 15%. Capital gains of corporate holders generally will be subject to tax at the regular rates applicable to corporations. The deductibility of a capital loss recognized as a result of the merger may be subject to limitations under the Code. In addition, the IRS has the authority to prescribe, but has not yet prescribed, regulations that would apply a tax rate of 25% to a portion of capital gain realized by a non-corporate stockholder on the sale of REIT shares that would correspond to the REIT's "unrecaptured Section 1250 gain."

        If you hold blocks of shares which were acquired separately at different times and/or prices, you must separately calculate your gain or loss for each block of shares. Stockholders are urged to consult with their own tax advisors with respect to their potential capital gain tax liability with respect to the merger.

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        Consequences to You of the Merger—Non-U.S. Stockholders.    If you are a non-U.S. stockholder, generally you will be required to compute the amount of your capital gain or loss with respect to your shares of our common stock calculated in the same manner as U.S. stockholders. Subject to the discussion of backup withholding below, you should not be subject to U.S. federal income taxation on any gain or loss from the merger unless (a) the gain is effectively connected with a trade or business that you conduct in the United States or, if an applicable income tax treaty applies, the gain is attributable to a permanent establishment maintained by the non-U.S. stockholder in the United States, (b) you are an individual who has been present in the United States for 183 days or more during the taxable year of the merger and certain other conditions are satisfied or (c) your shares constitute a "U.S. real property interest" under the Foreign Investment in Real Property Tax Act of 1980, which we refer to in this proxy statement as FIRPTA.

        Income Tax Treaties.    If you are eligible for treaty benefits under an income tax treaty with the United States, you may be able to reduce or eliminate certain of the U.S. federal income tax consequences discussed above. You should consult your tax advisor regarding possible relief under an applicable income tax treaty.

        Information Reporting and Backup Withholding.    Under certain circumstances you may be subject to information reporting and backup withholding at a rate of 28% with respect to your merger consideration. Backup withholding generally will not apply if you furnish a correct taxpayer identification number and certify that you are not subject to backup withholding on IRS Form W-9 (if you are a U.S. stockholder) or on the applicable Form W-8 (if you are a non-U.S. stockholder) or an appropriate substitute form and you comply with certain other requirements or otherwise establish an exemption. If you are subject to backup withholding, the amount withheld is not an additional tax. Any amounts withheld under the backup withholding rules may be allowed as a refund or credit against your U.S. federal income tax liability provided a proper request is made to the IRS. You should consult

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your tax advisor regarding the availability of, and the procedures for obtaining, an exemption from backup withholding.


Litigation Related to the Merger

        On March 14, 2007, the day after the proposed merger was announced, stockholder Doris Staehr filed a complaint in Arizona Superior Court, Maricopa County, against the Company and its directors. The Arizona complaint alleges self-dealing and breach of fiduciary duty against the individual directors based on the claim that the proposed consideration for the stockholders in the merger is inadequate. The complaint alleges that the board of directors "failed to maximize stockholder value" in connection with the proposed merger. Although the complaint alleges that the directors engaged in "self-dealing," it provides no factual basis for the allegation.

        The Arizona complaint requests the court to certify a class action on behalf of all similarly situated stockholders. Although the complaint does not seek an award of money damages, it requests that the court issue an injunction prohibiting the merger from going forward in its present form. The complaint also seeks a constructive trust on any benefits improperly received by the defendants.

        The Arizona action was served on the Company on March 16, 2007. Counsel for the plaintiff has agreed to extend the defendants' time to answer or otherwise respond to the complaint until at least April 26, 2007.

        On March 14, 2007, a complaint was also filed in the Circuit Court for Baltimore City, Baltimore, Maryland, by stockholder Shalom Rechdiener. The Maryland complaint alleges violations similar to those in the Arizona lawsuit described above. The complaint names the Company, its directors, The Macquarie Group and Kaupthing Bank, as defendants. The Maryland complaint requests that the court certify a class action on behalf of all similarly situated stockholders. The complaint alleges claims for breach of fiduciary duty, conspiracy, and aiding and abetting. The complaint seeks injunctive relief, rescissory damages, and compensatory damages. The Company and its directors filed a motion to dismiss the Maryland complaint on April 25, 2007. As of the date of this proxy statement, the plaintiff has not yet responded to that motion.

        The Company and its board of directors believe the $14.50 per share cash offer to the stockholders represents fair value for the outstanding shares of the Company's common stock. The basis for this belief is discussed in detail above. Accordingly, the Company and the individual directors intend to vigorously defend the Arizona and Maryland actions.


No Dissenters' Rights

        Under the Maryland General Corporation Law, holders of our common stock are not entitled to dissent from the merger and obtain the fair value of their shares.


Delisting and Deregistration of Our Common Stock

        If the merger is completed, our common stock will cease trading on the NYSE and will be deregistered under the Exchange Act.

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MARKET PRICE AND DIVIDEND DATA

Market Information

        Our common stock is traded on the NYSE under the symbol "SFC." The following table sets forth, for the periods indicated, the high and low sale prices in dollars on the NYSE for our common stock.

2007

  High
  Low
First Quarter   $ 14.98   $ 11.93

2006

 

 

 

 

 

 
Fourth Quarter   $ 12.67   $ 11.22
Third Quarter   $ 11.73   $ 10.23
Second Quarter   $ 12.15   $ 10.61
First Quarter   $ 12.60   $ 11.11

2005

 

 

 

 

 

 
Fourth Quarter   $ 11.70   $ 10.20
Third Quarter   $ 12.05   $ 10.07
Second Quarter   $ 11.75   $ 10.03
First Quarter   $ 12.76   $ 10.60

        The following table sets forth the closing sales price per share of the Company's common stock, as reported on the NYSE, for (a) December 31, 2006, the end of our last fiscal year, (b) March 12, 2007, the last full day of trading before the public announcement of the proposed merger, and (3)             , 2007, the last practicable date before the printing of this proxy statement:

December 31, 2006   $ 12.47
March 12, 2007   $ 13.05
                       , 2007   $     .    


Stockholder Information

        As of April 23, 2007, there were 42 record holders of our common stock. This figure does not reflect the beneficial ownership of shares held in nominee name.

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Distribution Information

        Distributions declared during 2007, 2006 and 2005 are summarized as follows:

 
   
  Dividends Declared
Per Common Share

Declaration Date

  Payment Date
  Dividend
  Nondividend
Distribution

  Total
2007                      
March 26, 2007   April 25, 2007     (a )   (a ) $ 0.22
                   
                    $ 0.22
                   

2006

 

 

 

 

 

 

 

 

 

 

 
December 19, 2006   January 25, 2007     (a )   (a ) $ 0.22
September 25, 2006   October 25, 2006   $ 0.21   $     0.21
June 26, 2006   July 25, 2006     0.21         0.21
March 27, 2006   April 25, 2006     0.21         0.21
                   
                    $ 0.85
                   

2005

 

 

 

 

 

 

 

 

 

 

 
December 27, 2005   January 25, 2006   $ 0.21   $   $ 0.21
September 26, 2005   October 25, 2005     0.11     0.08     0.19
June 27, 2005   July 25, 2005     0.11     0.08     0.19
March 25, 2005   April 25, 2005     0.11     0.08     0.19
                   
                    $ 0.78
                   

(a)
Characterization of the distribution will be determined in connection with 2007 activity.

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PROPOSAL 2
ELECTION OF DIRECTORS

        It is intended that the shares of the Company's common stock represented by properly granted proxies will be voted to elect the director nominees, unless authority to so vote is withheld. Each nominee is currently a member of the board of directors and all of the nominees have indicated a willingness to serve as a director if elected. If elected, each nominee will serve until the earlier of (1) completion of the merger described in Proposal 1, (2) if the merger is not completed, the 2008 Annual Meeting of Stockholders (and until the director's successor is duly elected and qualifies), or (3) the director's earlier removal or resignation. The board of directors has no reason to believe that any of the director nominees will be unable to serve as a director or become unavailable for any reason. If, at the time of the meeting, any of the director nominees shall become unavailable for any reason, the persons entitled to vote the proxy will vote, as such persons shall determine in his or her discretion, for such substituted nominee or nominees, if any, nominated by the board of directors. Mr. Morton H. Fleischer, Chairman of the Board, is an officer and director of the Company, and his son, Mr. Jeffrey M. Fleischer, Senior Vice President—Acquisitions, Assistant Secretary and Assistant Treasurer, is an officer of the Company. There are no other family relationships among officers and directors of the Company.

        The affirmative vote of a plurality of the outstanding shares of the Company's common stock present or represented at the meeting is necessary to elect each director nominee. Stockholders of the Company will have an opportunity on their proxy to vote in favor of one or more director nominees while withholding authority to vote for one or more director nominees.


THE BOARD OF DIRECTORS RECOMMENDS THAT
STOCKHOLDERS VOTE FOR THE ELECTION OF ALL OF THE
NOMINEES TO THE BOARD OF DIRECTORS

Directors

        The following table sets forth certain information with respect to the directors of the Company:

Name and Age

  Principal Occupation or Employment During the
Past Five Years; Other Directorships

  Director of the
Company Since

Morton H. Fleischer
(70)
  Mr. Morton H. Fleischer is one of our two founders and served as our Chairman of the Board and Chief Executive Officer since our formation in August 2003 through September 2005. Mr. Fleischer retired as Chief Executive Officer in September 2005 and continues to serve as our Chairman of the Board. Mr. Fleischer previously served as the President, Chief Executive Officer and a director of Franchise Finance Corporation of America, or FFCA, a NYSE listed company, prior to its acquisition in 2001, and its predecessor companies since Mr. Fleischer formed those companies beginning in 1980. Mr. Fleischer was FFCA's Chairman of the Board and Chief Executive Officer at the time FFCA was acquired by GE Capital Corporation, or GECC, in 2001. FFCA was listed on the NYSE from 1994 to 2001, and was sold to GECC in August 2001. Mr. Fleischer has served as a director of Flying J Inc., a privately-held company, since August of 2003. Mr. Fleischer received his Bachelor of Arts from Washington University in Saint Louis, Missouri from which he was awarded its Distinguished Business Alumni Award in 1993.   August 2003
         

52



Christopher H. Volk
(50)

 

Mr. Volk is one of our two founders and served as President, Chief Operating Officer and a director since our formation in August 2003 through September 2005. Mr. Volk was elected Chief Executive Officer in September 2005 and also continues to serve as our President. Mr. Volk also serves on the board of directors of Paladin Realty Income Properties, Inc., a real estate investment trust. Mr. Volk has an extensive background in finance and asset management. Prior to forming us, Mr. Volk served for over 16 years in numerous capacities with FFCA and its successor, GE Franchise Finance, or GEFF, including President and Chief Operating Officer and a member of FFCA's board of directors. Mr. Volk continued with GEFF until December 2002, serving as Chief Operating Officer of GEFF. Mr. Volk has been widely published in the areas of finance, credit analysis and valuation and has frequently served as a guest lecturer and conference speaker. Mr. Volk received his Bachelor of Arts from Washington and Lee University and his MBA from Georgia State University.

 

August 2003

Linda J. Blessing, Ph.D.
(56)

 

Dr. Blessing has a history of public service in both education and government. From May 1999 until June 2004, she served as the Executive Director of the Arizona Board of Regents, the governing body of Arizona's public university system, including Arizona State University, the University of Arizona and Northern Arizona University, with combined enrollment of over 100,000 students and annual operating budgets of $2.5 billion. Upon retirement from that position, she was named Executive Director Emerita and received the Regents' Medal. Prior to the Board of Regents, Dr. Blessing was the longest serving Director of the Arizona Department of Economic Security. Dr. Blessing also formerly spent ten years with the Arizona Office of the Auditor General and was Deputy Auditor General for six years. Dr. Blessing earned a Bachelor of Science in Business Administration from Cal Poly University, Pomona and her MBA from California State University, San Bernardino. She earned her Ph.D. in Public Administration from Arizona State University and attended the Program for Senior Executives at the JFK School of Government, Harvard University. Dr. Blessing is licensed as a certified public accountant.

 

July 2004

Willie R. Barnes, Esq.
(75)

 

Mr. Barnes has been a partner at the law firm of Musick, Peeler & Garrett LLP since 1992. He is also secretary of American Shared Hospital Services (AMEX: AMS), where he has served on the audit committee and compensation committee of the board of directors. Mr. Barnes was also a Director of FFCA from 1994 until its sale to GECC in 2001. Mr. Barnes is a member of the Section of Business Law of the American Bar Association and a member of the following committees: the Federal Regulation of Securities Committee, the State Regulation of Securities Committee, and the Futures Regulation Committee. In addition to a general transactional and securities practice, Mr. Barnes was appointed and served as the Commissioner of Corporations for the State of California from 1975 to 1979 and was a member of the California Senate Commission on Corporate Governance, Shareholder Rights and Securities Transactions from 1986 to 1991. From 1979 to 1988, he was a senior partner of Manatt, Phelps, Rothenberg & Phillips and served as Chairman of its Corporate and Securities Department. Mr. Barnes was a partner at Wyman Bautzer Kutchel & Silbert from January 1989 until its dissolution in March 1991 and a partner of Katten Muchin Zavis & Weitzman from March 1991 to January 1992. Mr. Barnes received his Bachelor of Arts degree from the University of California at Los Angeles in 1953 and his law degree from the UCLA Law School in 1959.

 

December 2003
         

53



Dennis E. Mitchem
(75)

 

Mr. Mitchem has been the Director of Corporate Relations, Northern Arizona University since October 1998. Mr. Mitchem has also served as Executive Director of Habitat for Humanity, Valley of the Sun, from April 1996 to October 1998, and prior to that time was an independent management consultant for privatization and financial services projects. Mr. Mitchem was also a director of FFCA from 1996 until its sale to GECC in 2001. From March 1994 to December 1995, Mr. Mitchem worked in Moscow, serving as a consultant to establish Russian Privatization Centers. From July 1992 to February 1994, he was managing director of a joint venture between a national accounting firm and a private business entity that provided accounting services to the Resolution Trust Corporation and also managed the Denver, Colorado, financial processing center of the Resolution Trust Corporation. From 1954 to June 1993, he was employed by the international accounting firm of Arthur Andersen, where he became a partner in 1967 and retired as a senior partner in June 1993. From 1959 to 1992, Mr. Mitchem served as committee chairman, officer or director of local, state or national certified public accountant organizations. For seven years, he represented the State of Arizona on the governing counsel of the American Institute of Certified Public Accountants. Mr. Mitchem is a past chairman of the Arizona Society of Certified Public Accountants, and has served that organization, among other things, as chairman of the Professional Ethics committee, Auditing Standards committee and Accounting Principles committee. Mr. Mitchem is a Life Member of the American Institute of Certified Public Accountants and the Arizona Society of Certified Public Accountants. Mr. Mitchem received the degree of Bachelor of Science in Business Administration (Accounting Major) from the University of Nebraska.

 

December 2003
         

54



Paul F. Oreffice
(79)

 

Mr. Oreffice is currently Chairman of the Board and one of the principal owners of Fairfield Homes of Arizona. He is on the International Advisory Board of Marsh & McLennan Companies (NYSE: MMC) and Chairman of the Board of the National Parkinson Foundation. He is also on the Board of Visitors of MD Anderson Cancer Center. Mr. Oreffice is also a trustee of the American Enterprise Institute for Public Policy Research, Washington, D.C. Mr. Oreffice retired as Chairman of the Board of The Dow Chemical Co. (NYSE: DOW) in 1992 after almost 40 years with the company. Mr. Oreffice joined Dow in 1953 following service in the US Army and was named Chief Financial Officer in 1970. He was elected to the board of directors and the Executive Committee in 1971. In 1975 he became President of Dow USA, and in 1978 he took over as President and Chief Executive Officer of The Dow Chemical Co. In 1986 he was also named Chairman of the Board. Mr. Oreffice also previously served on the boards of the CIGNA Corporation (NYSE: CI) (1979-1998), The Coca Cola Company (NYSE: KO) (1984-2003), Morgan Stanley (NYSE: MS) (1987-1995), and Nortel Networks Corporation (NYSE: NT) (1983-1998). Mr. Oreffice received the degree of Bachelor of Science in Chemical Engineering from Purdue University in 1949.

 

December 2003

Jim Parish
(60)

 

Since 1991, Mr. Parish has been a principal of Parish Partners, Inc., an investment, advisory and consulting firm and provides executive level strategic expertise to a wide range of restaurant industry executives in quick, casual, full and fine dining areas. Mr. Parish serves on the board of directors of McCormick & Schmick's Seafood Restaurants, Inc. (Nasdaq: MSSR) and Bertucci's Corporation. Mr. Parish also serves on the boards of directors of several private companies including Fishbowl Marketing, Inc. and TB Holdings, the parent company of the Taco Bueno restaurant chain. Mr. Parish has served as Chairman and Chief Executive Officer of Sfuzzi, Inc. and Z'Tejas, Inc. Mr. Parish also served as a member of the board of directors of Taco Bueno Inc. from 2001 until July 2005. Prior to forming Parish partners in 1991, Mr. Parish was Executive Vice President, Chief Financial Officer, Director and member of the Executive Committee of Chili's, Inc., the predecessor company to Brinker International (NYSE: EAT), now one of the largest multi-concept companies in the restaurant industry. Mr. Parish received a Bachelor of Science in Journalism and an MBA in Finance from Drake University.

 

December 2003
         

55



Kenneth B. Roath
(71)

 

Mr. Roath is currently the Chairman Emeritus of the Board of Health Care Property Investors, Inc. (NYSE: HCP), a real estate investment trust organized in 1985 to invest, on a net lease basis, in health care properties. Mr. Roath joined Health Care Property Investors, Inc. at its inception in 1985, and served as the company's Chief Executive Officer until May 2003, when he retired. Mr. Roath was a director of Arden Realty, Inc. (NYSE: ARI), a real estate investment trust that operates commercial real estate in Southern California, from 1996 to 2003. Mr. Roath was a member of the executive committee of the National Association of Real Estate Investment Trusts, Inc., or NAREIT, from 1987 to 1997 and was the Chairman of NAREIT from 1994 to 1995. Mr. Roath is an Ex-Officio member of the Board of Governors of NAREIT. Mr. Roath was also a director of FFCA from 1994 until its sale to GECC in 2001. Mr. Roath received a Bachelor of Science in Accounting from San Diego State University.

 

December 2003

Casey J. Sylla
(63)

 

On March 31, 2007, Mr. Sylla retired from his position as President of the Allstate Life Insurance Company, a principal division of the Allstate Insurance Company engaged in the business of life insurance, annuities and other related retirement and savings products. Mr. Sylla also retired from his position as a member of the senior management team of Allstate Insurance Company. The Allstate Corporation (NYSE: ALL) serves as the holding company for Allstate Insurance Company. Mr. Sylla joined Allstate in 1995 and served until 2002 as its Chief Investment Officer where he was responsible for the management of over $86 billion. From 1992 until July 1995, Mr. Sylla was an Executive Officer and Vice President and head of the Securities Department of The Northwestern Mutual Life Insurance Company. Mr. Sylla currently serves on the board of directors, and is a member of the audit committee and the compensation committee, of GATX Corporation (NYSE: GMT), a railcar, locomotive and aircraft leasing company. Mr. Sylla was also a director of FFCA from 1994 until its sale to GECC in 2001. Mr. Sylla received a Bachelor of Science Social Science degree from the University of Wisconsin—Eau Claire in 1966 and a Master of Science Economics degree from the University of Missouri in 1969.

 

December 2003
         

56



Shelby Yastrow
(71)

 

Mr. Yastrow is the lead independent director of our board of directors. Mr. Yastrow had been an attorney and counsel to the law firm of Gallagher & Kennedy in Phoenix, Arizona since 2001 until his resignation in September 2004. He joined McDonald's Corporation (NYSE: MCD) in 1978 as Vice President, Chief Counsel of Litigation and Assistant Secretary. He was appointed Vice President, General Counsel of McDonald's in 1982 and Senior Vice President in 1988, before being named Executive Vice President in 1995. He retired from McDonald's in April 1998. As general counsel of McDonald's, he was responsible for all legal functions, including real estate, franchise and franchisee relations, marketing and advertising, securities and litigation. In addition to his legal responsibility, Mr. Yastrow was the senior officer responsible for insurance, governmental relationships, environmental matters, internal control systems, transportation and non-restaurant real estate matters. Mr. Yastrow was the sole senior officer responsible for corporate governance and ethics. Mr. Yastrow was also a senior officer of McDonald's for its corporate governance and ethics program. Mr. Yastrow was a director of FFCA from 1997 until its sale to GECC in 2001. Mr. Yastrow also currently serves as a director of two privately-owned franchising companies. Mr. Yastrow received his law degree from Northwestern University in 1959.

 

December 2003

        Each of the persons named above has been nominated for election to the board of directors of the Company.


Governance Policies

        Corporate Governance Guidelines.    On the recommendation of the nominating and governance committee, the board of directors adopted corporate governance guidelines. The guidelines address matters such as board size, director qualifications, board and director responsibility, frequency of board meetings, director tenure, director compensation, communication with and among the directors, related party transactions, and continuing education.

57


        Lead Independent Director.    The Company's independent directors meet in regularly scheduled executive sessions without management present and also have special meetings without management present from time to time as they deem appropriate. The board of directors has established the position of lead independent director and has elected Shelby Yastrow to serve in that position. In his role as lead independent director, Mr. Yastrow's primary duties and responsibilities include:

        Code of Business Conduct and Ethics.    The board of directors has established a code of business conduct and ethics. Among other matters, the code of business conduct and ethics is designed to deter wrongdoing and to promote: (1) honest and ethical conduct, including the ethical handling of actual or apparent conflicts of interest in personal and professional relationships; (2) full, fair, accurate, timely and understandable disclosure in our Securities and Exchange Commission reports and other public communications; (3) compliance with all applicable laws, rules and regulations of federal, state and local governments, and other appropriate regulatory agencies; (4) protection of our assets, including proprietary information; (5) honest and accurate recording and reporting of information; (6) prompt internal reporting of violations of the code to appropriate persons identified by management; and (7) accountability for adherence to the code and our internal controls.

        Any waiver of the code of business conduct and ethics for executive officers or directors may be made only by the board of directors or a committee of the board of directors and will be promptly disclosed as required by law. Other waivers must be approved by a member of senior management, in accordance with any applicable Company policy, and must be promptly reported in writing to our disclosure committee, which consists of various officers and employees of the Company. Waivers of the code of business conduct and ethics can be made by a simple majority of the board of directors and do not require any minimum number of independent directors.

        Public Availability of Corporate Governance Documents.    Our corporate governance guidelines, code of business conduct and ethics and the charters of our audit committee, compensation committee and nominating and governance committee are available on our website, www.spiritfinance.com, and are available in print to any stockholder who requests a copy.


Policy Regarding Directors' Attendance at Annual Meeting

        The Company expects each of its directors to attend the Company's annual meetings of stockholders. All of the directors of the Company attended the 2006 Annual Meeting of Stockholders.


Board of Directors Meetings

        The board of directors met ten times during the fiscal year ended December 31, 2006. The board of directors also took action by written consent twice during the year ended December 31, 2006. No director attended fewer than 75% of the aggregate of (1) the total number of board of directors meetings held in 2006, and (2) the total number of committee meetings for committees on which that director served.


Committees of the Board of Directors

        Audit Committee.    The audit committee of the board of directors currently consists of three directors, Messrs. Mitchem, chairman, and Parish and Dr. Blessing, all of whom meet the independence

58


standards for audit committee members adopted by the NYSE. The board of directors has determined that all of the members of the audit committee qualify as audit committee financial experts as defined in applicable SEC and NYSE regulations. The audit committee has adopted an audit committee charter, which details the audit committee's primary duties, including: (1) serving as an independent and objective body to monitor and assess the Company's compliance with legal and regulatory accounting requirements, the Company's financial reporting processes and related internal control systems and the performance generally of the Company's internal audit function; (2) overseeing the audit and other services of the Company's independent registered public accounting firm and being directly responsible for the appointment, independence, qualifications, compensation and oversight of the Company's independent registered public accounting firm, who report directly to the audit committee; (3) providing an open means of communication among the Company's independent registered public accounting firm, other accountants, the Company's senior management, the Company's internal auditors and the board of directors; (4) resolving any disagreements between the Company's management and the independent registered public accounting firm regarding the Company's financial reporting; (5) meeting at least quarterly with senior executives, internal auditors and the Company's independent registered public accounting firm; and (6) preparing the audit committee report for inclusion in the Company's annual proxy statement for the Company's annual stockholders meeting. The audit committee charter also mandates that the Company's audit committee approve all audit, audit related, tax and other non-audit services conducted by the Company's independent registered public accounting firm. The audit committee charter is available on our website, www.spiritfinance.com.

        The audit committee members may not be professional accountants or auditors, and the functions of the committee are not intended to duplicate or to certify the activities of management and the Company's independent registered public accounting firm. The audit committee serves in an oversight role, in which it provides advice, counsel and direction to management and the independent registered public accounting firm on the basis of the information it receives, discussions with management and the independent registered public accounting firm and the experience of the audit committee's members in business, financial and accounting matters. The audit committee met nine times during the year ended December 31, 2006. The audit committee also took action by written consent once during the year ended December 31, 2006.

        Executive Committee.    The executive committee of the board of directors currently consists of three directors, Messrs. Morton Fleischer, chairman, Volk and Yastrow, the lead independent director of our board of directors. The executive committee will perform the duties and exercise the powers delegated to it by the board of directors. The executive committee meets only when board action on a significant matter is required and it is impractical or not feasible to convene a full meeting of the board. The executive committee met twice and also took action by written consent twice during the year ended December 31, 2006.

        Compensation Committee.    The compensation committee of the board of directors currently consists of two directors, Messrs. Roath, chairman, and Oreffice, both of whom are independent directors under the independence standards of the NYSE. The compensation committee has adopted a compensation committee charter, which is available on our website, www.spiritfinance.com. The compensation committee charter defines the compensation committee's primary duties to include: (1) annually establishing guidelines, objectives and standards for determining the compensation of the Company's executive officers; (2) setting the compensation level for the Company's Chief Executive Officer; (3) evaluating the performance of the Company's Chief Executive Officer and other senior executives; (4) reviewing the Company's executive compensation policies; (5) consulting with the Chief Executive Officer regarding the Chief Executive Officer's recommendation to the compensation committee with respect to compensation of other executive officers; (6) approving any new employment agreements; (7) recommending to the board of directors compensation for the Company's senior executive officers;

59



(8) developing, administering and implementing the Company's existing and future equity incentive and 401(k) plans; (9) determining the number of shares underlying, and the terms of, restricted common stock awards and stock options to be granted to the Company's directors, executive officers and other employees under equity incentive plans; (10) preparing a report on executive compensation for inclusion in the Company's annual proxy statement for the Company's annual stockholders meeting; and (11) seeking input from the full board of directors on the foregoing matters. The compensation committee met twice during the year ended December 31, 2006. The compensation committee also took action by written consent seven times during the year ended December 31, 2006.

        Nominating and Governance Committee.    The nominating and governance committee of the board of directors currently consists of two directors, Messrs. Barnes, chairman, and Sylla, both of whom are independent directors under the independence standards of the NYSE. The nominating and governance committee has adopted a nominating and governance committee charter, a copy of which is available on our website, www.spiritfinance.com. The nominating and governance committee charter defines the nominating and governance committee's primary duties to include: (1) generally overseeing all board of directors governance matters; (2) establishing standards for service on the board of directors; (3) reviewing and evaluating the role of the board of directors, its committees and each member; (4) identifying individuals qualified to become members of the board of directors and recommending director candidates for election or re-election to the board of directors; (5) considering and making recommendations to the board of directors regarding board size and composition, committee composition and structure and procedures affecting directors; (6) reviewing and updating the Company's code of business conduct and ethics, which includes the Company's conflicts of interests policies; and (7) monitoring the Company's corporate governance principles and practices. The nominating and governance committee met three times during the year ended December 31, 2006. The nominating and governance committee also took action by written consent once during the year ended December 31, 2006.


Director Nominations

        General.    The nominating and governance committee has been delegated the responsibility to identify and recommend individuals qualified to become board of directors members and members of committees of the board of directors, develop and recommend to the board of directors a set of effective corporate governance policies and procedures applicable to the Company, and oversee the evaluation of the board of directors, committees of the board of directors, and management.

        The goal of the nominating and governance committee's nominating process is to assist the Company in attracting competent individuals with the requisite management, financial, and other expertise who will act as directors in the best interests of the Company and its stockholders. The nominating and governance committee consults with other board of directors members, the Company's Chief Executive Officer, and other Company personnel in implementing this process. The nominating and governance committee will consider an individual recommended by a stockholder for nomination as a new director provided the stockholder making the recommendation follows the procedures for submitting a proposed nominee's name and the required information described below.

        Director Qualifications and Nomination Process.    The nominating and governance committee has developed a process for identifying and evaluating nominees in light of the standards discussed below and such other factors as the nominating and governance committee deems appropriate. These standards, and the nominating and governance committee's evaluation process, apply to all proposed nominees for directors, including those nominees recommended by stockholders. This process is based on the nominating and governance committee's familiarity with the composition of the current board of directors, its awareness of anticipated openings, and its assessment of desirable talents or expertise.

60



        The nominating and governance committee regularly reviews the composition of the board of directors in light of its understanding of the backgrounds, industry, and professional experience, and the various communities, both geographic and demographic, represented by current members. It also monitors the expected service dates of board of directors members, any planned retirement dates, and other anticipated events that may affect a director's continued ability to serve. The nominating and governance committee periodically reviews information with respect to the business and professional expertise represented by current directors in order to identify any specific skills desirable for future board of directors members.

        The nominating and governance committee will consider, in evaluating any candidate for nomination as a director, the current composition of the board of directors in light of the diverse communities and geographies served by the Company and the interplay of the candidate's experience with the experience of the other board of directors members, as well as such other factors as the nominating and governance committee considers appropriate. Although the nominating committee has not adopted specific minimum qualifications to serve on the Company's board of directors, in considering a director candidate the committee will consider, among other factors, the extent to which each director candidate:


        Director Nominees Recommended by Stockholders.    The nominating and governance committee will consider nominees recommended by stockholders. Recommendations for the Company's 2008 Annual Meeting of Stockholders must be submitted in writing to the Company's Secretary at 14631 N. Scottsdale Road, Suite 200, Scottsdale, AZ 85254. Such recommendations must include the name, address and principal business occupation of the candidate for the last five years, and must be received at the Company's offices between the dates of January 15, 2008 and February 14, 2008. The nominating committee has the right to request, and the stockholder will be required to provide, such additional information with respect to the stockholder nominee as the committee may deem appropriate or desirable to evaluate the proposed nominee in accordance with the nomination process described above, including information about the proposed nominee that would be required to be disclosed by the Company in a proxy statement under Regulation 14A of the Exchange Act.


Director Independence Determination

        At its meeting on February 16, 2007, the board of directors reviewed information regarding the transactions or relationships between each director or any member of his or her immediate family, on the one hand, and the Company, on the other, for the purpose of determining a director's independence from the Company. Based on this review, the board of directors has concluded that except for Messrs. Morton H. Fleischer and Volk, who are officers of the Company, each director satisfied the NYSE independence tests as well as the board of directors' subjective review of independence described below.

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        Standards of Director Independence.    The board of directors has at least a majority of directors, who, in the business judgment of the board of directors, meet the criteria for independence required by the NYSE and/or the SEC or other regulatory agency or agencies having jurisdiction over the activities of the Company. After considering the recommendations of the board of directors' nominating and governance committee, the board of directors will determine affirmatively whether a director is "independent" on an annual basis and the Company will disclose these determinations in its annual proxy statement. A director will not be independent unless the board of directors determines that the director does not have a material relationship with the Company, considering all relevant circumstances including direct relationships or ones arising from the director being a partner, stockholder or officer of a company that has a material relationship with the Company. A director will not be independent if (1) during the preceding three years, the director was employed by, or any of the director's immediate family members was employed as an executive officer by, the Company, its subsidiaries or any of its affiliates; (2) during the preceding three years, the director or any of the director's immediate family members received more than $100,000 per year in direct compensation from the Company, its subsidiaries or any of its affiliates, other than director and committee fees and pension or other forms of deferred compensation for prior service (provided such compensation is not contingent in any way on continued service); (3) (A) the director or an immediate family member is a current partner of a firm that is the company's internal or external auditor; (B) the director is a current employee of such a firm; (C) the director has an immediate family member who is a current employee of such a firm and who participates in the firm's audit, assurance or tax compliance (but not tax planning) practice; or (D) the director or an immediate family member was within the last three years (but is no longer) a partner or employee of such a firm and personally worked on the listed company's audit within that time; (4) during the preceding three years, the director was part of an interlocking directorate in which an executive officer of the Company served on the compensation committee of the board of another company that concurrently employed the director or any of the director's immediate family members as an executive officer; or (5) during any of the preceding three years, the director was an employee of, or any of the director's immediate family members was an executive officer of, any organization to which the Company, its subsidiaries or any of its affiliates made, or from which the Company, its subsidiaries or any of its affiliates received, payments (other than those arising solely from investments in the Company's securities) that exceeded the greater of 2% of the recipient's (i.e., the Company's or the other organization's) consolidated gross revenues or $1,000,000.


Compensation Committee Interlocks and Insider Participation

        None of our executive officers serves on the compensation or similar committee of any other entity. None of the members of the compensation committee of our board of directors serves as an executive officer of another company where one of our executive officer's serves as a director.


Director Compensation

        Any member of the board of directors who is also our employee will not receive any additional compensation for serving on the board of directors. Our non-employee directors each receive an annual retainer of $25,000 in cash, paid quarterly in advance. The Company also pays its independent directors the following additional fees, as applicable:

Annual retainer for lead independent director   $ 10,000
Annual retainer for audit committee chairman   $ 7,500
Annual retainer for compensation committee chairman   $ 6,000
Annual retainer for other committee chairman   $ 5,000
Fee for each board of directors meeting attended   $ 1,500
Fee for each committee meeting attended   $ 1,000

        The Company also reimburses its directors for their reasonable travel expenses incurred in connection with their attendance at board of directors' meetings.

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        Upon initial election to the board of directors, each of the independent directors receives a grant of 5,000 restricted shares of the Company's common stock. Each of our independent directors also receives annual grants of restricted stock with a value of $35,000 following their re-election to the board of directors at the annual meeting of stockholders in May of each year. These restricted stock grants are made under the Company's 2003 Stock Option and Incentive Plan.

        The following table shows information regarding the fees earned by and restricted stock awards granted to each director during 2006.

Name

  Fess
earned or
paid in
cash
($)

  Stock
awards
($)(1)

  Option
awards
($)

  Non-equity
incentive
plan
compensation
($)

  Change in
pension value
and non-
qualified
deferred
compensation
earnings
($)

  All other
compensation
($)

  Total ($)
Willie R. Barnes   46,500   34,962           81,462
Linda Blessing   48,000   34,962           82,962
Dennis E. Mitchem   52,500   34,962           87,462
Paul F. Oreffice   43,000   34,962           77,962
James R. Parish   45,000   34,962           79,962
Kenneth B. Roath   49,000   34,962           83,962
Casey J. Sylla   41,500   34,962           76,462
Shelby Yastrow   52,000   34,962           86,962

(1)
The values of the restricted stock granted are based on $11.55 per share which excludes $0.01 per share paid by the director on the date of grant. The restricted stock awards vest subject to continued service over time.


Communication with the Board of Directors

        Stockholders and other interested parties may send correspondence directed to the board of directors, individual directors or the lead independent director c/o Corporate Secretary, Spirit Finance Corporation, 14631 N. Scottsdale Road, Suite 200, Scottsdale, Arizona 85254. The Secretary will review all correspondence addressed to the board of directors, individual directors or the lead independent director for any inappropriate correspondence and correspondence more suitably directed to management. The Secretary will summarize all correspondence not forwarded and make the correspondence available for review at the request of the intended recipient. The Secretary will forward stockholder and interested party communications to the board of directors, individual directors or the lead independent director prior to the next regularly scheduled meeting of the board of directors following the receipt of the communication as appropriate. Correspondence intended for our independent directors as a group should be addressed to the Company at the address above, Attention: Independent Directors.

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Executive Officers

        Set forth below is information about the executive officers of the Company who are not also directors of the Company, including age, principal occupation during the last five years and the date each became an executive officer of the Company. Similar information about Mr. Morton Fleischer and Mr. Volk is provided above under "—Directors."

Name/Age

  Present Executive Office
  Executive Officer
of the
Company Since

Catherine Long
(50)
  Chief Financial Officer, Senior Vice President and Treasurer. Ms. Long joined us as our Chief Financial Officer, Senior Vice President, Secretary and Treasurer in August 2003. Ms. Long has an extensive background in accounting, finance and asset servicing. Prior to joining us, Ms. Long served since 1990 in various capacities with FFCA and its successor, GEFF. During much of her career at FFCA, Ms. Long was the Principal Accounting Officer and worked closely with FFCA's audit committee. As Senior Vice President—Finance, Ms. Long developed and implemented FFCA's accounting, reporting and internal control policies and procedures, including those related to the servicing of loan and lease payments and the reporting of loan securitization transactions. Ms. Long supervised the cash management, monthly payment servicing and investor reporting of approximately $5.9 billion in originated loans and leases. Prior to her employment with FFCA, Ms. Long was a senior manager specializing in the real estate industry with the international public accounting firm of Arthur Andersen in Phoenix, Arizona. She received her degree in accounting from Southern Illinois University and has been a certified public accountant since 1980.   August 2003

Michael T. Bennett
(49)

 

Senior Vice President—Operations, Chief Compliance Officer and Secretary. Mr. Bennett joined us as our Senior Vice President—Operations in April 2005. Mr. Bennett has a securities, corporate finance and transactional legal background. During his 25-year legal career, he has worked in a private law practice and served as a member of the senior management team of an emerging growth public company. Prior to joining us in April 2005, he was a partner in private law practice focusing on corporate law, securities transactions and capital formation. From 1991 until his return to private practice in 2000, he served as Vice President, General Counsel and Corporate Secretary of Farmer Mac, a NYSE-listed public company. He began his corporate legal career with a New York-based law firm where he concentrated on complex structured finance transactions. Mr. Bennett received his Bachelor of Arts in Government and Foreign Affairs in 1979 from Hampden-Sydney College and his law degree in 1982 from the University of Virginia.

 

April 2005
         

64



Jeffrey M. Fleischer
(39)

 

Senior Vice President—Acquisitions, Assistant Secretary and Assistant Treasurer. Mr. Jeffrey Fleischer joined us as Senior Vice President—Acquisitions in August 2003. Before joining us, Mr. Fleischer was Managing Director of Trefethen & Company, an investment banking firm providing services for mergers, acquisitions and financial restructuring for multi-unit retail operators. From 1993 to 2002, Mr. Fleischer was a senior officer at FFCA and its successor, GEFF, with responsibility for lending and commercial real estate investments. Prior to joining FFCA, Mr. Fleischer was employed by The Chase Manhattan Bank, N.A. with responsibility for middle market commercial loan and retail residential loan underwriting and origination. Mr. Fleischer received a Bachelor of Arts in Economics and a minor in Philosophy from Boston University, and earned an MBA in finance from Washington University in St. Louis, Missouri. Mr. Jeffrey M. Fleischer is the son of Mr. Morton H. Fleischer, our Chairman of the Board.

 

August 2003

Gregg A. Seibert
(43)

 

Senior Vice President—Underwriting, Assistant Secretary and Assistant Treasurer. Mr. Seibert joined us as Senior Vice President—Underwriting in September 2003. Prior to joining us, Mr. Seibert served for over nine years in various capacities with FFCA and its successor, GEFF. Mr. Seibert's positions ranged from senior underwriter, vice president, director of underwriting and, most recently, senior vice president. Prior to his employment with FFCA, Mr. Seibert was a vice president with Bank of America from 1989 to 1994 in the commercial real estate lending group. Mr. Seibert was also an investment analyst with the Travelers Insurance Company from 1988 to 1989. In the past ten years, Mr. Seibert has been involved with over $5.0 billion in real estate financings. Mr. Seibert received a Bachelor of Science degree in Business Administration from the University of Missouri in 1986 and an MBA in Finance from the University of Missouri Graduate School of Business in 1987.

 

September 2003
         

65



Catherine L. Stevenson
(50)

 

Vice President and Chief Accounting Officer. Ms. Stevenson joined us as Vice President and Controller in December 2003. From March 2002 until she joined us, Ms. Stevenson had been working as a consultant assisting various companies in accounting and reporting, evaluating and documenting internal control policies and procedures and various operational projects. From 1987 through February 2002, Ms. Stevenson served in various capacities with Viad Corp (NYSE: VVI), a company providing payment services and tradeshow and convention and event services to businesses. From April 1999 to February 2002, Ms. Stevenson served as Vice President—Controller for Viad, where she was its Principal Accounting Officer responsible for the development and implementation of accounting, reporting and internal control policies and procedures. From 1984 to 1987, Ms. Stevenson was the Chief Financial Officer for Paragon Homes, a residential home builder in the Phoenix, Arizona area. Prior to that, Ms. Stevenson was an audit manager with the international public accounting firm of Arthur Andersen in Phoenix. She received the degree of Bachelor of Science in Business Administration (Accounting Major) from the University of New Mexico and has been a certified public accountant since 1981.

 

December 2003

66



PROPOSAL 3
RATIFICATION OF APPOINTMENT OF THE
INDEPENDENT REGISTERED PUBLIC ACCOUNTING FIRM

        The audit committee has appointed Ernst & Young LLP to serve as the independent registered public accounting firm of the Company for the fiscal year ending December 31, 2007. The stockholders of the Company are being asked to ratify this appointment at the meeting. Ernst & Young LLP has served as the Company's independent registered public accounting firm since the Company's inception in August of 2003. A representative of Ernst & Young LLP is expected to be present at the meeting and will have the opportunity to make a statement if he or she so desires and will be available to respond to appropriate questions.

        Although it is not required to do so, the board of directors is submitting the appointment of the Company's independent registered public accounting firm to the stockholders at the meeting in order to ascertain the views of stockholders regarding such appointment. A majority of the votes cast at the meeting, if a quorum is present, will be sufficient to ratify the appointment of Ernst & Young LLP as the Company's independent registered public accounting firm for the fiscal year ending December 31, 2007. Whether the proposal is approved or defeated, the audit committee may reconsider its appointment.


THE BOARD OF DIRECTORS RECOMMENDS THAT THE STOCKHOLDERS VOTE
"FOR" PROPOSAL 3

Audit Committee Pre-Approval Policies and Procedures

        The audit committee is responsible for the appointment, compensation, and oversight of the work of the Company's independent registered public accounting firm. The audit committee has adopted policies and procedures that require audit committee pre-approval of all audit and permissible non-audit services provided to the Company by Ernst & Young LLP. The audit committee pre-approves on an annual basis services that are of a recurring nature. Changes in the scope of services that have been pre-approved on an annual basis are deemed to be pre-approved by the audit committee provided they do not result in fee increases in excess of a relatively small amount established by the audit committee. The audit committee must pre-approve any scope changes resulting in fee increases in excess of this amount. New recurring services and services that are not recurring in nature are pre-approved by the audit committee from time to time throughout the year. Actual fees incurred for services provided to the Company by Ernst & Young LLP are reported to the audit committee. In determining whether to pre-approve the provision by Ernst & Young LLP of a permissible non-audit service, the audit committee considers whether the provision of the service by Ernst & Young LLP could impair the independence of Ernst & Young LLP with respect to the Company. As part of this process, the audit committee considers the facts and circumstances of the proposed engagement, including whether Ernst & Young LLP can provide the service more effectively and economically than other firms because of its familiarity with the Company's business and operations. The audit committee also considers the proposed engagement in light of the other non-audit services provided to the Company by Ernst & Young LLP and the fees paid to Ernst & Young LLP for those services.


Report of the Audit Committee

        The audit committee of Spirit Finance Corporation's (the "Company") board of directors is comprised of independent directors as required by the listing standards of the New York Stock Exchange. The board of directors has approved a charter of the audit committee, which is attached to this proxy statement as Appendix A, as required by the NYSE and the rules and regulations of the Securities and Exchange Commission.

67



        The role of the audit committee is to oversee the Company's financial reporting process on behalf of the board of directors. In fulfilling our oversight responsibilities, we approve the appointment of the Company's independent registered public accounting firm and review and discuss the audited financial statements included in the Company's Annual Report on Form 10-K with management, including the reasonableness of significant judgments and the clarity of the disclosures in the financial statements. Management of the Company has the primary responsibility for the Company's financial statements as well as the Company's financial reporting process, principles and internal controls. The independent registered public accounting firm is responsible for performing an audit of the Company's financial statements and expressing an opinion as to the conformity of such financial statements with accounting principles generally accepted in the United States of America.

        We discussed with Ernst & Young LLP, the Company's independent registered public accounting firm, the overall scope of their respective audits. We meet with Ernst & Young LLP, with and without management present, to discuss the results of their examinations, their evaluations of the Company's internal control over financial reporting, and the overall quality of the Company's financial reporting. In the performance of our oversight function, the members of our committee necessarily relied upon the information, opinions, reports and statements presented to them by management of the Company and by Ernst & Young LLP.

        In this context, we have reviewed and discussed the audited consolidated financial statements of the Company as of and for the year ended December 31, 2006 with management and Ernst & Young LLP. We have discussed with Ernst & Young LLP the matters required to be discussed by Statement on Auditing Standards No. 61 (Communication with Audit Committees), as currently in effect. In addition, we have received the written disclosures and the letter from Ernst & Young LLP required by Independence Standards Board Standard No. 1 (Independence Discussions with Audit Committees), as currently in effect, and have discussed with Ernst & Young LLP their independence from the Company. We have also considered whether Ernst & Young LLP's provision of tax preparation and tax consulting services to the Company is compatible with maintaining Ernst & Young LLP's independence.

        Based on the reviews and discussions referred to above, we recommended to the board of directors that the audited consolidated financial statements referred to above be included in the Company's Annual Report on Form 10-K for the year ended December 31, 2006, for filing with the SEC.


AUDIT COMMITTEE OF THE BOARD OF DIRECTORS*

Dennis E. Mitchem, Chair
Linda J. Blessing, Ph.D.
James R. Parish

March 13, 2007


*
The material in this Audit Committee Report is not soliciting material, is not deemed filed with the SEC and is not incorporated by reference in any filing of the Company under the Securities Act or the Exchange Act, whether made before or after the date of this proxy statement and irrespective of any general incorporation language in such filing.


Audit Fees

        During 2006, Ernst & Young LLP performed certain non-audit services for the Company. The audit committee has considered whether the provision of these non-audit services is compatible with

68



maintaining the accountants' independence. During 2006 and 2005, Ernst & Young LLP provided services and received fees in the following categories and amounts:

 
  2006
  2005
Audit fees   $ 836,986   $ 570,236
Audit-related fees     242,106     136,965
Tax fees     255,934     131,108
All other fees     2,435     1,500
   
 
Total   $ 1,337,461   $ 839,809
   
 

        The audit committee of the board of directors has approved all of the fees in the table above.

        Audit fees consist of fees billed for professional services rendered in connection with the audit of the Company's consolidated financial statements for the years ended December 31, 2006 and 2005, together with the audit of the Company's internal control over financial reporting, and review of periodic reports and other documents filed with the SEC, including the quarterly financial statements included in Forms 10-Q. Audit fees shown above also include $186,000 in 2006 and $15,000 in 2005 related to the Company's registration statements and related prospectuses, comfort letters and consents, and $35,000 in 2006 related to special audits and reports required under certain of the Company's debt agreements.

        Audit related fees consist of assurance and related services that are reasonably related to the performance of the audit or review of the Company's financial statements. This category of fees includes fees related to agreed-upon procedures performed in connection with the issuance of net-lease mortgage notes, due diligence related to property acquisitions and investments and advisory services related to financial accounting and reporting matters.

        Tax fees consist of the aggregate fees billed in 2006 and 2005 for professional services rendered for tax compliance, preparation and advisory services.


PROPOSAL 4
ADJOURNMENT OF THE ANNUAL MEETING

The Adjournment Proposal

        We are asking you to vote on a proposal to approve any adjournments of the annual meeting for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the annual meeting to approve the merger.


Vote Required and Recommendation of Our Board of Directors

        The affirmative vote of a majority of the votes cast at the meeting is required for the approval of Proposal 4. No proxy that is specifically marked "AGAINST" Proposal 1 will be voted in favor of Proposal 4, unless it is specifically marked "FOR" Proposal 4. Our board of directors believes that if the number of shares of our common stock present or represented at the annual meeting and voting in favor Proposal 1 is insufficient to approve that proposal, it is in the best interests of our company to enable our board of directors to continue to seek to obtain a sufficient number of additional votes in favor of approval of the merger to bring about Proposal 1's approval.

Our board of directors unanimously recommends that you vote "FOR" Proposal 4 to adjourn the annual meeting for the purpose, among others, of soliciting additional proxies.


Postponement of the Annual Meeting

        At any time prior to convening the annual meeting, our board of directors may postpone the meeting for any reason without the approval of our stockholders. If postponed, as required by law, we will provide at least 10 days' notice of the new meeting date.

69



SECURITY OWNERSHIP

        The following table contains information as of April 9, 2007, regarding beneficial ownership of our common stock by (1) each person known to us to be the beneficial owner of more than five percent of our outstanding common stock, (2) each of our directors, (3) each of our named executives (defined below), and (4) all directors and executive officers as a group. As of April 9, 2007, we had 114,085,085 shares of our common stock issued and outstanding. The persons as to whom information is given have sole voting and investment power over the shares beneficially owned, unless otherwise noted in the footnotes following the table.

 
  As of April 9, 2007
 
Name

  Aggregate Number
of Shares
Beneficially
Owned(1)

  Percent of
Class(2)

 
5% Holders:          

Redford Holdco, LLC
c/o Macquarie Holdings (USA) Inc.
125 West 55th Street, Level 22
New York, New York 10019

 

10,877,000

(3)

9.5

%
Cohen & Steers Capital Management, Inc.
280 Park Avenue, 10th Floor
New York, New York 10017
  8,457,300 (4) 7.4 %
Davis Selected Advisers, L.P.
2949 East Elvira Road, Suite 101
Tucson, Arizona 85706
  6,375,193 (5) 5.6 %
The Vanguard Group, Inc.
P.O. Box 2600
100 Vanguard Boulevard
Malvern, Pennsylvania 19355
  6,283,058 (6) 5.5 %

Directors and Executive Officers:

 

 

 

 

 
Morton H. Fleischer   2,929,545 (7)(8) 2.6 %
Christopher H. Volk   1,863,250 (7)(9) 1.6 %
Catherine Long   245,598 (10)   *
Michael T. Bennett   95,489     *
Jeffrey M. Fleischer   217,067     *
Gregg A. Seibert   210,615     *
Linda J. Blessing   9,468     *
Willie R. Barnes   9,468     *
Dennis E. Mitchem   32,247     *
Paul F. Oreffice   76,468     *
Jim Parish   20,218     *
Kenneth B. Roath   35,318     *
Casey J. Sylla   29,468     *
Shelby Yastrow   36,268     *
Directors and executive officers as a group (15 persons)   4,606,458   4.0 %

*
Less than 1.0%

(1)
All shares not outstanding but which may be acquired by the stockholder within 60 days of April 9, 2007 by the exercise of any stock option or any other right are deemed to be outstanding for the purposes of calculating beneficial ownership and computing the percentage of the class

70


(2)
All percentages are rounded to the nearest tenth of a percent.

(3)
Based solely on a Schedule 13D filed March 22, 2007 with the SEC, Redford Holdco, LLC ("Redford") directly owns 6,150,000 shares of the Company's common stock. Under the rules of the SEC, Redford may also be deemed to own 4,727,000 shares of the Company's common stock held by Macquarie Technology Investment Pty Limited ("MTIPL"), an affiliate of one of the unitholders of one of the members of Redford. Redford expressly disclaimed beneficial ownership of the shares owned by MTIPL The members of Redford are Redford Australian Investment Trust (the "Trust"), OZ Domestic Partners, L.P., OZ Domestic Partners II, L.P., OZ Asia Domestic Partners, L.P., OZ Global Special Investments, L.P. and TPG-Axon Partners, LP. The unitholders of the Trust are Macquarie European Investment Pty Limited, Kaupthing Bank hf., TPG-Axon Partners (Offshore), Ltd., Gandhara Master Fund Limited, OZ Overseas Fund, Ltd., OZ Overseas Fund II, Ltd., OZ Asia Overseas Fund, Ltd. and OZ Global Special Investments Intermediate Fund, L.P. The trustee of the Trust is Macquarie Direct Investment A Limited.

(4)
Based solely on a Schedule 13G filed February 13, 2007 with the SEC, Cohen & Steers, Inc. holds a 100% interest in Cohen & Steers Capital Management, Inc., an investment advisor registered under Section 203 of the Investment Advisers Act and under the rules of the SEC may be deemed to own the shares held by Cohen & Steers Capital Management, Inc.

(5)
Based solely on a Schedule 13G filed January 11, 2007 with the SEC.

(6)
Based solely on a Schedule 13G filed February 14, 2007 with the SEC. Vanguard Fiduciary Trust Company ("VFTC"), a wholly-owned subsidiary of The Vanguard Group, Inc., is the beneficial owner of 183,758 of these shares as a result of its serving as investment manager of collective trust accounts. VFTC directs the voting of these shares.

(7)
As of April 9, 2006, Spirit Finance Holdings owned 1,252,612 shares of our outstanding common stock. Messrs. Fleischer and Volk each own 50% of the voting control of Spirit Finance Holdings. Under the rules of the SEC, Messrs. Fleischer and Volk are each deemed to be the beneficial owners of Spirit Finance Holdings' shares.

(8)
Mr. Fleischer owns 1,601,665 shares directly, 1,252,612 shares through his voting power over Spirit Finance Holdings and is deemed to own 75,268 shares owned by his wife, Donna Fleischer.

(9)
Mr. Volk owns 610,638 shares directly and 1,252,612 shares through his voting power over Spirit Finance Holdings.

(10)
Ms. Long owns 244,989 shares directly, and is the custodian for 609 shares held by minors.

71



EXECUTIVE COMPENSATION

Compensation Discussion and Analysis

Overview

        The goal of our named executive officer compensation program is the same as our goal for operating the company: to create long-term value for our stockholders. We have designed and implemented our compensation programs for our named executives to reward those executives for sustained financial and operating performance and to align their interests with those of our stockholders, while providing incentives for them to remain employed with us for the long term. Our named executives consist of our Chief Executive Officer (our CEO, who is also referred to as our principal executive officer or PEO), our Chief Financial Officer (our CFO, who is also referred to as our principal financial officer or PFO), our Chairman of the Board and our three other most highly-compensated executive officers, which are our three Senior Vice Presidents other than our CFO. Most of our compensation elements simultaneously fulfill one or more of our performance, alignment and retention objectives. These elements consist of base salary and annual bonus, long-term equity-based incentive compensation and other customary benefits. In deciding on the type and amount of compensation for each executive, we focus on both current pay and the opportunity to realize future value on equity awards. We allocate the overall compensation to each element in a manner we believe maximizes the achievement of our compensation goal.


Compensation Objectives

        Performance.    The named executives have over 150 years of combined experience in the real estate investment and finance business, having invested over $9.0 billion in single-tenant real estate assets since 1980. The amount of compensation for each named executive reflects their superior management experience and continued high level of performance over a long period of time. The key elements of our compensation program that award performance include:

        Annual performance bonuses are designed to reward annual achievements and be commensurate with each executive's scope of responsibilities, leadership abilities and management experience and effectiveness. Our other elements of performance-based compensation focus on motivating and challenging the executive to achieve superior, longer-term, sustained results for our stockholders.

        Alignment.    We recognize that while the annual bonus programs provide awards for achieving positive performance for near-term goals, equity-based incentives create an essential long-term alignment of the interests of the named executives and our stockholders. The key element of compensation that aligns the interests of our named executives with our stockholders is:


        Retention.    Our named executives have developed unique expertise and extensive relationships with financial institutions and existing and prospective customers. These relationships and expertise are critical to our business and may not be able to be easily replaced if we lost the services of one or more of the named executives. In light of this, we attempt to retain our executives by linking a significant

72


portion of their compensation with continued service requirements. The key element of compensation that requires continued service is:


Implementing Our Objectives

        Determining Compensation.    We use our judgment in making compensation decisions after reviewing the performance of the company and carefully evaluating an executive's performance during the year against established goals, business responsibilities, current compensation arrangements, long-term potential to increase stockholder value and compensation of similar executives in a group of peer companies in our industry (which we refer to as our peer group).

        We generally do not adhere to rigid formulas or react to short-term changes in business performance in determining the amount and mix of compensation components. We do rely on a specific formula for awarding cash performance bonuses. At the beginning of each year, we set specific performance hurdles that form the basis for the payment of cash bonuses. We generally set goals for three levels of performance bonus payments (threshold, target and maximum amounts) which are discussed in further detail below.

        We consider competitive market compensation paid by other companies, such as other REITs, and generally seek to set compensation around the middle of our peer group. We do, however, retain flexibility in our compensation programs and in the assessment process to respond to and adjust for the evolving business environment, individual executive performance and circumstances unique to our Company.

        Allocation Among Components.    Under our compensation structure, the mix of base salary, annual cash performance bonus and equity-based incentive compensation varies depending upon the title and duties of each named executive. We strive to achieve an appropriate mix between equity incentive awards and cash payments in order to meet our objectives. The apportionment goals are not applied rigidly and do not control our compensation decisions; we use them as a guide to assess an executive's total compensation and whether we have provided the appropriate mix of incentives to accomplish our compensation objectives. Our mix of compensation components is designed to reward recent results, create incentive for continued service with the company and encourage long-term company performance through a combination of cash and equity incentive awards. We also seek to balance compensation components that are based on financial, operational and long-term strategy measures with other measures that are based on total returns to our stockholders. We believe the most important indicator of whether our compensation objectives are being met is our ability to motivate our named executives to deliver superior performance and continue to retain them on a cost-effective basis. For 2006, the named executives' compensation was generally allocated among base salary, performance bonus and equity awards as shown in the following table.

 
  Typical Base
Salary

  Typical Performance
Bonus Target

  Typical Equity
Target

 
Chief Executive Officer and Chairman of the Board   20 % 30 % 50 %
Senior Vice Presidents   30 % 30 % 40 %

        Role of Compensation Consultant and Executive Officers.    From time to time, we retain compensation and other consultants to assist us in carrying out our duties. In evaluating performance bonus awards for 2006, as well as setting base salaries and determining long-term equity-based incentive awards for 2007, we retained a compensation consultant to assist us in (1) identifying a peer group of companies and gathering information about executive officer compensation at those companies, (2) analyzing the information gathered about the peer companies, and (3) considering the reasonableness of the level of

73



information and form of compensation proposed for the named executives. In connection with renewing the employment agreements of our named executives in October of 2006, we also retained the same compensation consultant to assist us in evaluating our existing employment agreements with our named executives and gathering and analyzing information about similar employment arrangements with other officers in our peer group.

        In addition to discussions with consultants we retain, we also discuss compensation of the named executives with the CEO and the Chairman of the Board. We seek input from these individuals in setting appropriate performance goals for the company. We also seek input from these individuals regarding compensation levels of the company's other named executives and analysis of other companies in the peer group.

        Equity Grant Practices.    Under our stock option and incentive plan, each award granted is made at the fair market value of our common stock on the date of the grant. The stock option and incentive plan defines the fair market value to be the average of the closing price of our common stock on the NYSE for the five trading days before the date of the grant. All equity-based compensation granted in 2006 were grants of restricted stock which vest solely over time. Stock options granted, if any, have an exercise price equal to the fair market value of our common stock on the date of grant. Annual awards of equity-based incentive compensation are generally made at the beginning of each year in January. The compensation committee schedules its meetings without regard to market factors affecting our common stock, such as earnings announcements or the declaration of distributions. We have not re-priced, and do not intend to re-price, any stock options.

        Tax Deductibility of Compensation.    Section 162(m) of the Internal Revenue Code of 1986, as amended, disallows a tax deduction for any publicly held corporation for individual compensation of more than $1.0 million in any taxable year to any named executive officer, other than compensation that is performance-based under a plan that is approved by the stockholders and that meets certain other technical requirements. Our policy with respect to Section 162(m) is to make every reasonable effort to ensure that compensation is deductible to the extent permitted while simultaneously providing our named executives with appropriate rewards for their performance. In the appropriate circumstances, however, we are prepared to exceed the limit on deductibility under Section 162(m) to the extent necessary to ensure our named executives are compensated in a manner consistent with the objectives of our compensation program and in the best interests of our stockholders. For 2006, the grants of restricted stock and the payments of annual cash performance bonuses were designed to satisfy the requirements for deductible compensation.

        Potential Impact on Compensation from Misconduct or Restatements.    If the board of directors determines that an executive officer has engaged in fraudulent or intentional misconduct, the board would take action to remedy the misconduct, prevent its recurrence and impose such discipline on the wrongdoers as would be appropriate. Discipline would vary depending on the facts and circumstances and may include, without limit, (a) termination of employment, (b) initiating an action for breach of duties to the Company and the stockholders, and (c) if the misconduct resulted in a material restatement of the company's financial results, seeking reimbursement of any portion of performance-based or incentive compensation paid or awarded to the executive that is greater than would have been paid or awarded if calculated based on the restated financial results. These remedies would be in addition to, and not in lieu of, any actions imposed by law enforcement agencies, regulators or other authorities.


Elements Used to Achieve Compensation Objectives

        Base Salaries.    We want to provide our senior management with a level of assured cash compensation in the form of base salary that facilitates an appropriate lifestyle given their professional status and accomplishments. The base salary levels were not objectively determined with a formula, but

74


instead reflect levels that we concluded were appropriate based upon our general experience. The total compensation for the CEO and Chairman is allocated more toward performance bonus and equity awards to incentivize and emphasize rewards for company performance, and to a lesser extent, individual performance.

        We performed a similar analysis with respect to our Senior Vice Presidents. At the Senior Vice President level, we have a significant level of competition for employees with real estate finance expertise. Therefore, we provide a slightly larger portion of the compensation to our Senior Vice Presidents in the form of base salary than we otherwise would provide in order to improve our ability to attract and retain qualified officers.

        Annual Cash Performance Bonuses.    Our practice is to award cash bonuses based upon performance objectives. These performance targets are determined by the compensation committee at the beginning of each fiscal year based on various performance levels of the prior year and projected performance levels for the current year with varying degrees of probability of success. The amount of the bonus is determined based upon meeting one of the three levels of performance and will equal the percentages of base salary of each executive shown in the table below. The compensation committee also has the discretion to increase any bonus amounts to the extent they believe an executive's performance warrants additional reward despite whether or not one or more numerical targets were achieved. The percentage of base salary that will be awarded for meeting one of the three targets is as follows:

 
  Threshold
  Target
  Maximum
 
Chief Executive Officer and Chairman   50 % 100 % 150 %
Senior Vice Presidents   40 % 75 % 110 %

        The bonus performance goals for our executives include a targeted range of funds from operations, or FFO, and a targeted range of gross real estate investments for the year. We selected an FFO target because we believe FFO is a measure of our operating performance, cash flows and profitability and is a common measure of financial performance for REITs. We selected a target real estate acquisition level to incentivize our executives relative to one of our primary goals, which is to grow the size of our real estate portfolio, which in turn should result in increased returns to our stockholders. For the 2006 bonuses, the amount of the bonus was split 70% based on meeting the FFO targets and 30% based on meeting the real estate acquisition targets. The numerical targets set by the compensation committee in January of 2006 for fiscal year 2006 are shown in the table below.

 
  Threshold
  Target
  Maximum
FFO Goals per Share of Common Stock   $ 0.93   $ 0.95   $ 0.97
Gross Real Estate Acquisition Goals   $ 600,000,000   $ 800,000,000   $ 1,000,000,000

        Based on these goals, our executives earned the maximum bonus amounts for 2006 as both our FFO per share and gross real estate acquisitions exceeded the maximum targets.

        Equity-Based Incentive Compensation.    The primary form of equity compensation that we award is restricted shares of common stock. We make equity-based incentive awards to more closely align the financial interests of our executives with those of our stockholders. We primarily use restricted stock instead of options as we concluded that granting shares of restricted stock to employees, particularly members of senior management, provides an equally motivating form of equity-based incentive compensation while permitting us to issue fewer shares, thereby reducing potential dilution. In addition, options tend to be less efficient for senior management of a REIT because the amount of cash that must be annually distributed to stockholders in order to maintain REIT status means that REITs have less potential for share price appreciation than companies capable of retaining their earnings. The restricted stock we grant to our executives generally vests over a five-year vesting period following the date of grant based on continued employment with us.

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        Once we determine the dollar amount of equity-based compensation that we want to award, the number of shares granted is determined based on the fair market value of our common stock on the date of grant, as defined in our stock option and incentive plan. Our stock option and incentive plan defines fair market value as the average closing price of our common stock on the NYSE for the five trading days preceding the date of determination.

        Severance Benefits.    We believe that companies should provide reasonable severance benefits to employees. With respect to senior management, these severance benefits should reflect the fact that it may be difficult for employees to find comparable employment within a short period of time. In addition, our senior management and our other employees are responsible for having built the Company into the successful enterprise that it is today in a short period of time, and we believe that it is important to protect them from the economic effects of the loss of their employment for reasons beyond their control, including in the event of a change in control.

        The amount of each executive's severance would be determined by the terms of each of their employment agreements. Under the employment agreements, if the Company terminates the agreements without cause (as defined in the employment agreement), or if the executive terminates employment with good reason (as defined in the employment agreement), the Company will be obligated to pay to the executive (1) a lump sum payment of severance ranging from two (in the case of the Senior Vice Presidents) to three (in the case of the CEO or Chairman) times the annual salary and bonus payable under the employment agreements, (2) the maximum cash performance bonus prorated for the year in which the termination occurred, (3) payment of premiums for certain group health coverage, and (4) other benefits as provided for in the agreements. In the event of a termination by the Company for any reason other than for cause, or if the executive terminates employment with good reason, all of the unvested options and restricted shares granted to the executive will become fully vested.

        Some of the events constituting good reason under the employment agreements include (1) an adverse change or reduction in the executive's job, (2) a reduction in the executive's annual base salary or maximum target cash bonus, and (3) on and after the occurrence of a change of control:

        We use a double trigger event for the receipt of severance in the event of a change of control instead of a single trigger. We believe that the executives should not be entitled to severance payments merely because the ownership of our Company changes (a single trigger), but rather the executives should be entitled to receive severance benefits upon the occurrence of a change of control only if there is an adverse change in the executive's job or compensation following the change of control (a double trigger). We have provided, however, that all equity-based awards granted to the named executives will vest upon a change in control to allow our named executives to receive the full potential value of those awards in the event of such a transaction that may be in the best interests of the Company and our stockholders.

76


        The following table illustrates the dollar value of the benefits and payments the officers listed in the table would receive in the event of a hypothetical termination of employment on March 1, 2007 by each of our named executives for good reason, including in the event of a termination in connection with a change of control, or by us without cause.

 
  Christopher H.
Volk
(PEO)

  Catherine
Long
(PFO)

  Morton H.
Fleischer

  Michael T.
Bennett

  Jeffrey M.
Fleischer

  Gregg A.
Seibert

Base salary(1)   $ 1,500,000   $ 680,000   $ 1,350,000   $ 620,000   $ 620,000   $ 620,000
Bonus(2)     1,362,500     579,833     1,293,750     528,083     528,083     528,083
Equity-based incentives(3)     3,525,000     1,100,000     3,375,000     850,000     850,000     850,000
Accelerated vesting of prior equity awards(4)     1,439,604     611,336     1,372,204     474,082     474,082     474,082
Continuation of benefits(5)     107,858     74,708     52,817     107,881     68,844     72,155
   
 
 
 
 
 
Subtotal     7,934,962     3,045,877     7,443,771     2,580,046     2,541,009     2,544,320
Excise tax gross-up     3,288,715     1,002,085     3,038,103     801,429     792,965     789,845
   
 
 
 
 
 
Total   $ 11,223,677   $ 4,047,962   $ 10,481,874   $ 3,381,475   $ 3,333,974   $ 3,334,165
   
 
 
 
 
 

(1)
Depending on the named executive, includes two times or three times the named executive's 2007 base salary.

(2)
Includes a portion of the named executive's 2007 maximum target bonus, pro-rated from January 1, 2007 to March 1, 2007 (the date of hypothetical termination of employment), plus two times or three times, depending on the named executive, the average annual bonus the named executive actually received in 2006 and 2007 (in the case of Mr. Bennett, the amount he would have received had he been employed for the full 2005 fiscal year).

(3)
Depending on the named executive, includes two times or three times the average fair market value (determined on the date of grant) of the restricted stock awards granted to the named executive in 2006 and 2007.

(4)
Includes the dollar value associated with the accelerated vesting of certain long-term incentive awards, plus an additional amount reflecting the lapse of the obligation to continue to perform services.

(5)
Includes the dollar amount associated with the continuation of benefits currently provided to the named executive for 36 months following termination of employment.

        Other Compensation.    In addition to the compensation described above, the Company also provides the named executives with other benefits to assist the company in remaining competitive in the marketplace and to encourage the named executives to remain with the company. In addition to medical and other group insurance coverage and retirement plan benefits in our 401(k) plan generally available to all of our full time employees, we also provide our named executives with the following:


Compensation for the Named Executives in 2006

        Strength of Company Performance.    The specific compensation decisions made for each of the named executives for 2006 reflect the strong performance of the company against our key financial and

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operational performance objectives. A more detailed analysis of our financial and operational performance is contained in the section entitled "Management's Discussion & Analysis of Financial Condition and Results of Operations" in our 2006 Annual Report on Form 10-K filed with the SEC.

        CEO Compensation.    In determining Mr. Volk's total compensation for 2006, the compensation committee considered his performance against his financial, strategic and operational goals for the year, as follows:

        Mr. Volk was awarded a bonus payment of $600,000 for 2006, which represents a significant increase in his bonus of $225,000 for 2005. The increase in Mr. Volk's bonus over 2005 resulted from achieving the maximum performance targets under the cash bonus plan. In addition, in January of 2007 we also determined to award Mr. Volk 109,225 shares of restricted stock, which shares vest over a five-year period based on continued service with the Company. The potential value of these restricted shares, based on the fair market value of our common stock on the date of grant ($12.36 on January 9, 2007) was approximately $1.4 million. We set Mr. Volk's 2007 annual base salary at $500,000, which represents a 25% increase over his base annual salary of $400,000 set at the beginning of 2006. We believe that his compensation is consistent with the Company's objective to reward, align, motivate and challenge Mr. Volk to continue his successful leadership of the Company.

        As a further indication of Mr. Volk's alignment with our stockholders, Mr. Volk beneficially owned 1,863,250 shares of our common stock as of April 9, 2007, including 209,033 shares of unvested restricted stock and exercisable options to purchase 288,000 shares of common stock he holds.

        Chairman of the Board Compensation.    In determining Mr. Morton Fleischer's total compensation for 2006, the compensation committee considered his performance against his financial, strategic and operational goals for the year, as follows:

        Mr. Fleischer was awarded a bonus payment of $562,500 for 2006, which represents a significant increase in his bonus of $225,000 for 2005. The increase in Mr. Fleischer's bonus over 2005 resulted from achieving the maximum performance targets under the cash bonus plan. We also determined to award Mr. Fleischer 101,135 shares of restricted stock, which shares vest over a five year period based on continued service with the Company. The potential value of these restricted shares, based on the fair market value of our common stock on the date of grant ($12.36 on January 9, 2007) was approximately $1.3 million. We set Mr. Fleischer's 2007 annual base salary at $450,000, which represents a 20% increase over his base annual salary of $375,000 set at the beginning of 2006. We believe that his compensation is consistent with the company's objective to reward, align, motivate and challenge Mr. Fleischer to continue his successful leadership of the Company.

        As a further indication of Mr. Fleischer's alignment with our stockholders, Mr. Fleischer beneficially owned 2,929,545 shares of our common stock as of April 9, 2007, including 200,943 shares of unvested restricted stock and options to purchase 288,000 shares of common stock he holds.

        CFO and Senior Vice President Compensation.    In determining the compensation for 2006 of Ms. Long, our CFO, and Messrs. Bennett, Jeffrey Fleischer and Seibert, our other Senior Vice Presidents, we considered their performance against financial, strategic and operational goals for the year, as follows:

        In light of achieving the maximum performance targets under the cash bonus plan, Ms. Long was awarded a bonus of $330,000 and each other Senior Vice President was awarded bonus payments of $302,500 for 2006, which represents a 76% and 79% increase in these officers' annual bonuses for 2005, respectively. The increase in these bonus amounts over 2005 resulted from achieving the maximum performance targets under the cash bonus plan. We also determined to award Ms. Long 48,545 shares of restricted stock and each other Senior Vice President 36,410 shares of restricted stock, which shares vest over a five year period based on continued service with the company. The potential value of these restricted shares, based on the fair market value of our common stock on the date of grant was

78



approximately $600,000 with respect to Ms. Long and $450,000 for each other Senior Vice President. We set Ms. Long's 2007 annual base salary at $340,000, which represents a 13% increase of her base annual salary set at the beginning of 2006. We set the 2007 annual base salary of each Senior Vice President at $310,000, which also represents a 13% increase of each Senior Vice President's base annual salary set at the beginning of 2006. We believe that the compensation for these individuals is consistent with the Company's compensation objectives.


Compensation Committee Report*

        The compensation committee has reviewed the Compensation Discussion and Analysis and discussed that Analysis with management. Based on its review and discussions with management, the committee recommended to our board of directors that the Compensation Discussion and Analysis be included in the Company's proxy statement for the 2007 annual meeting of stockholders. This report is provided by the following independent directors, who comprise the committee:


*
The material in this Compensation Committee Report is not soliciting material, is not deemed filed with the SEC and is not incorporated by reference in any filing of the Company under the Securities Act or the Exchange Act, whether made before or after the date of this proxy statement and irrespective of any general incorporation language in such filing.

        Kenneth B. Roath (Chairman)

        Paul Oreffice

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Summary Compensation Table

        The following table sets forth the salary and other compensation paid to our named executives for the fiscal years ended December 31, 2006, 2005 and 2004. The amounts included in the table include both compensation directly paid or accrued by us.

Name and principal position

  Year
  Salary
($)(1)

  Bonus
($)

  Stock
awards
($)(3)

  Option
awards
($)

  Non-equity
incentive
plan
compensation
($)

  Change in
pension value
and non-
qualified
deferred
compensation
earnings
($)

  All other
compensation
($)(4)

  Total ($)
Christopher H. Volk
President and Chief
Executive Officer
  2006
2005
2004
  400,000
375,000
375,000
 

  999,127
590,000
 

  600,000
225,000
 

  29,949
8,400
8,200
(5)

2,029,076
1,198,400
383,200

Catherine Long
Senior Vice President,
Chief Financial
Officer and Treasurer

 

2006
2005
2004

 

300,000
250,000
200,000

 




 

499,564
295,000

 




 

330,000
187,500
80,000

 




 

21,612
8,400
6,000

(6)


1,151,176
740,900
286,000

Morton H. Fleischer
Chairman of the
Board

 

2006
2005
2004

 

375,000
375,000
375,000

 




 

999,127
590,000

 




 

562,500
225,000

 




 




 

1,936,627
1,190,000
375,000

Michael T. Bennett
Senior Vice President—
Operations, Chief
Compliance Officer
and Secretary

 

2006
2005

 

275,000
158,654


(2)




 

399,651
231,000

 




 

302,500
120,000


(2)



 

69,792


(7)


1,046,943
509,654

Jeffrey M. Fleischer
Senior Vice President—
Acquisitions, Assistant
Secretary and
Assistant Treasurer

 

2006
2005
2004

 

275,000
225,000
200,000

 




 

399,651
236,000

 




 

302,500
168,750
80,000

 




 

8,800
8,400
6,000

 

985,951
638,150
286,000

Gregg A. Seibert
Senior Vice President—
Underwriting, Assistant
Secretary and
Assistant Treasurer

 

2006
2005
2004

 

275,000
225,000
200,000

 




 

399,651
236,000

 




 

302,500
168,750
80,000

 




 

8,800
8,400
6,000

 

985,951
638,150
286,000

(1)
On January 9, 2007, the Compensation Committee of our board of directors set the base salaries of Christopher H. Volk at $500,000, Catherine Long at $340,000, Morton H. Fleischer at $450,000, Michael T. Bennett at $310,000, Jeffrey M. Fleischer at $310,000 and Gregg A. Seibert at $310,000, each effective January 1, 2007.

(2)
Mr. Bennett's employment with the Company began in April 2005, and therefore he was not paid a full year's salary or performance bonus in 2005.

(3)
The values of the restricted stock are based on $11.45 per share in 2006 and $11.80 per share in 2005 (except for Mr. Bennett, whose restricted stock grant value in 2005 was $11.55 per share) which excludes $0.01 per share paid by the executive on the date of grant. The restricted stock granted in 2006 vests subject to continued service over time. The restricted stock granted in 2005 vests subject to continued service and performance conditions; fifty percent of this grant vests over time and the other fifty percent vests based on performance criteria. Dividends are paid on restricted stock at the same rate as is paid on all shares of our common stock. Unvested restricted stock holdings of our each of our named executives are included in the Outstanding Equity Awards At Fiscal Year-End table.

(4)
All other compensation for 2006 includes a matching company contribution under our 401(k) plan of $8,800 for each executive except Mr. Morton Fleischer.

(5)
Includes supplemental disability insurance premiums of $15,191 including tax gross-up, monthly country club membership dues and the cost of an annual physical exam.

(6)
Includes supplemental disability insurance premiums of $12,812 including tax gross-up.

(7)
Includes relocation expense reimbursement paid in 2006 of $41,994, monthly country club membership dues and supplemental disability insurance premiums including tax gross-up.

80


        The foregoing compensation table does not include certain fringe benefits made available on a nondiscriminatory basis to all Company employees such as group health insurance, dental insurance, short- and long-term disability insurance, parking, vacation and sick leave. In addition, we make available certain non-monetary benefits to our executive officers with a view to acquiring and retaining qualified personnel and facilitating job performance. We consider such benefits to be ordinary and incidental business costs and expenses. The aggregate value of such benefits in the case of each executive officer is not included in the table because the aggregate value for each officer is less than the lesser of (a) ten percent of the cash compensation paid to each such executive officer, or (b) $25,000.


Grants of Plan-Based Awards in 2006

        The following table provides information about equity and non-equity plan-based awards granted to the named executives in 2006.

 
   
  Estimated future payouts under non-equity incentive
plan awards

  Estimated future payouts under equity incentive
plan awards

   
   
   
Name

  Grant
Date

  Threshold
($)(1)

  Target
($)(1)

  Maximum
($)(1)

  Threshold
(#)

  Target
(#)

  Maximum
(#)

  All other stock awards:
Number of
shares of stock or units (#)

  All other option awards:
Number of
securities underlying options (#)

  Exercise or base price of option awards
($/Sh)

Christopher H. Volk  
1/6/2006
  200,000
  400,000
  600,000
 
 
 
 
87,260
 
 

Catherine Long

 


1/6/2006

 

120,000

 

225,000

 

330,000

 



 



 



 


43,630

 



 



Morton H. Fleischer

 


1/6/2006

 

187,500

 

375,000

 

562,500

 



 



 



 


87,260

 



 



Michael T. Bennett

 


1/6/2006

 

110,000

 

206,250

 

302,500

 



 



 



 


34,904

 



 



Jeffrey M. Fleischer

 


1/6/2006

 

110,000

 

206,250

 

302,500

 



 



 



 


34,904

 



 



Gregg A. Seibert

 


1/6/2006

 

110,000

 

206,250

 

302,500

 



 



 



 


34,904

 



 



(1)
The actual 2006 performance bonus amounts paid based on our 2006 performance are reported in the Non-equity Incentive Plan Compensation column in the Summary Compensation Table.

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Outstanding Equity Awards at 2006 Fiscal Year-End

        The following table provides information on the holdings of stock options and restricted stock awards for the named executives at December 31, 2006.

 
   
   
   
   
  Stock awards
 
  Option awards
 
   
  Market
value of
shares or
units of
stock that
have not
vested
($)(1)

  Equity
incentive
plan awards:
Number of
unearned
shares,
units or other rights that have not
vested (#)(1)

   
Name

  Number of
securities
underlying
unexercised
options
(#)
Exercisable

  Number of
securities
underlying
unexercised
options
(#)
Unexercisable

  Option
exercise
price
($)

  Option
expiration
date

  Number of
shares or
units of
stock that
have not
vested (#)

  Equity
incentive
plan awards:
Market or
payout value of unearned shares, units or other rights that have not vested
($)(2)

Christopher H. Volk   288,000   192,000   10.00   12/17/2013   132,260   1,649,282    
Catherine Long   90,000     10.00   12/17/2013   74,480   928,766    
Morton H. Fleischer   288,000   192,000   10.00   12/17/2013   132,260   1,649,282    
Michael T. Bennett           52,904   659,713    
Jeffrey M. Fleischer   90,000     10.00   12/17/2013   61,254   763,837    
Gregg A. Seibert   90,000     10.00   12/17/2013   61,254   763,837    

(1)
On January 20, 2007, the following number of restricted shares vested: Christopher H. Volk—32,452 shares; Catherine Long—24,576 shares; Morton H. Fleischer—32,452 shares; Michael T. Bennett—12,980 shares; Jeffrey M. Fleischer—21,330 shares; and Gregg A. Seibert—21,330 shares.

(2)
The amounts in this column are calculated using a per share value of $12.47, the closing market price of a share of our common stock on December 29, 2006, the last business day of the year.


Option Exercises and Stock Vested in 2006

        The following table provides information concerning the named executives related to (1) stock option exercises in 2006 and the value realized upon exercise, and (2) the number of shares of restricted common stock that vested in 2006 and the value realized upon vesting, each before payment of any applicable withholding taxes.

 
  Option awards
  Stock awards
Name

  Number of
shares
acquired on
exercise
(#)

  Value
realized on
exercise
($)

  Number of
shares
acquired on
vesting
(#)

  Value
realized on
vesting
($)(1)

Christopher H. Volk       5,000   57,200
Catherine Long       10,850   124,124
Morton H. Fleischer       5,000   57,200
Michael T. Bennett       2,000   22,880
Jeffrey M. Fleischer       10,350   118,404
Gregg A. Seibert       10,350   118,404

(1)
The amounts in this column are calculated using a per share value of $11.45, the closing market price of a share of our common stock on the vesting date, less $0.01 per share paid by the executive on the date of grant.


Employment Agreements

        We have employment agreements with Morton H. Fleischer, Christopher H. Volk, Catherine Long, Michael T. Bennett, Jeffrey M. Fleischer and Gregg A. Seibert. The employment agreements provide

82



for annual base salaries and maximum bonuses, and continue in effect until October 16, 2009; provided, that on each annual anniversary of the date of the agreement, the term will be automatically extended for one additional year unless terminated sooner, or notice of non-renewal is given prior to extension, by either party. The employment agreements provide that base salaries and annual bonuses will be reviewed each year by the compensation committee of our board of directors, which has the discretion to increase any or all of the base salaries and bonuses in additional amounts as it deems appropriate.

        The base salaries and maximum bonuses for our named executives set by the compensation committee of our board of directors for 2007 are shown in the table below:

Name and Title of Executive Officer

  2007 Annual
Base Salary

  2007 Maximum
Bonus(1)

Morton H. Fleischer
Chairman of the Board
  $ 450,000   $ 675,000

Christopher H. Volk
President and Chief Executive Officer

 

$

500,000

 

$

750,000

Catherine Long
Chief Financial Officer, Senior Vice President and Treasurer

 

$

340,000

 

$

374,000

Michael T. Bennett
Senior Vice President—Operations, Chief Compliance Officer and Secretary

 

$

310,000

 

$

341,000

Jeffrey M. Fleischer
Senior Vice President—Acquisitions, Assistant Secretary and Assistant Treasurer

 

$

310,000

 

$

341,000

Gregg A. Seibert
Senior Vice President—Underwriting, Assistant Secretary and Assistant Treasurer

 

$

310,000

 

$

341,000

(1)
Actual bonuses will be paid based on performance criteria and targets set by the compensation committee of our board of directors at the beginning of each year. The compensation committee of our board of directors has the discretion to award additional bonus amounts as it deems appropriate based on the performance of each officer.

        These employment agreements provide that the executive officers agree to devote substantially all of their professional time to our operations. The agreements permit us to terminate the executives' employment, with appropriate notice, with or without "cause." "Cause" is generally defined to mean:

83


        Under the employment agreements, the executive officers receive four weeks of paid vacation annually and various other customary benefits. The employment agreements referred to above provide that the executive officers are eligible to participate in our Stock Option Plan and are eligible to receive the same benefits, including medical insurance coverage and retirement plan benefits in a 401(k) plan, to the same extent as other similarly situated employees, and such other benefits as are commensurate with their positions. Participation in employee benefit plans will be subject to the terms of the benefit plans as in effect from time to time. If the executive's employment ends for any reason, we will pay accrued salary, bonuses and incentive payments already determined, and other existing obligations. In addition, if we terminate the executive's employment without cause, or if the executive officer terminates employment with good reason as defined in the agreement, we will be obligated to pay (1) a lump sum payment of severance equal to three times, in the case of Morton H. Fleischer and Christopher H. Volk, or two times in the case of Catherine Long, Michael T. Bennett, Jeffrey M. Fleischer and Gregg A. Seibert, the annual salary and annual maximum bonus payable under the agreement, (2) the incentive bonus prorated for the year in which the termination occurred, (3) payment of premiums for certain group health coverage, and (4) other benefits as provided for in the employment agreement. Additionally, in the event of a termination by us for any reason other than for cause, or if the executive terminates employment with good reason, all of the options and restricted shares granted to the executive will become fully vested, and the executive will have a period of two years in which to exercise all vested options.

        If a change in control of our Company occurs, including the change of control that will result if the merger is completed, the executive officers will become fully vested in their options and restricted shares. In general terms, a change of control occurs:

        If payments become due as a result of a change in control and the excise tax imposed by Internal Revenue Code Section 4999 applies, the terms of the employment agreements require us to gross up the executive for the amount of this excise tax plus the amount of income and other taxes due as a result of the gross up payment.

        For a 24-month period in the case of Messrs. Morton Fleischer and Volk, and 12 months in the case of Ms. Long and Messrs. Bennett, Jeffrey Fleischer and Seibert, after termination of an executive's employment for any reason except for cause, the executive will agree not to compete with us by working with or investing in (subject to limited exceptions) any enterprise engaged in a business

84



substantially similar to our business during the period of the executive's employment with us. In the event the executive is terminated for cause, the executive will agree not to compete with us for a 12-month period.


2003 Stock Option and Incentive Plan

        General.    The Stock Option Plan provides for the ability to make grants of incentive stock options and non-qualified stock options and awards of restricted common stock. The Stock Option Plan also provides for the ability to make grants of share appreciation rights, performance units, dividend equivalents and other equity-based awards. The maximum number of shares of common stock that may be subject to grants to any individual in any calendar year is 500,000 shares of common stock.

        If any grant terminates, expires or is forfeited without having been exercised or is cancelled without the delivery of shares of common stock, the common stock covered by such grant will again be available for issuance under the Stock Option Plan, as well as any shares of common stock that are delivered by the grantee or withheld by us upon the exercise of the option or other award under the Stock Option Plan in payment of the exercise price. In connection with certain extraordinary events, the compensation committee of our board of directors is able to make adjustments to the total number of shares of common stock offered under the Stock Option Plan, the maximum number of shares of common stock that may be awarded to an individual in a calendar year, the number and kind of shares of common stock covered by outstanding awards and the purchase prices specified in outstanding grants as may be determined to be appropriate.

        Administration.    The compensation committee has the sole authority to determine who will receive awards, the types of awards that will be granted and the number of shares of common stock subject to each such award. The compensation committee also interprets the Stock Option Plan and award agreements and sets the terms and conditions for each grant. The compensation committee is not able to amend the terms of any previously granted option to reprice, replace or regrant the option through cancellation or by lowering the exercise price of the previously granted option, unless our stockholders provide prior approval. The determinations of the compensation committee are made in its sole discretion and are final, binding and conclusive.

        Eligibility for Participation.    Grants under the Stock Option Plan may be made to our employees and consultants and to those employees and consultants of our subsidiaries and affiliates and to any non-employee member of the board of directors. The compensation committee determines which employees, consultants and non-employee members of the board of directors receive grants under the Stock Option Plan.

        Stock Options.    The compensation committee may grant options intended to qualify as incentive stock options, or ISOs, within the meaning of Section 422 of the Internal Revenue Code, as amended, or non-qualified stock options, or NQSOs, that are not intended to so qualify, or any combination of ISOs or NQSOs. Grants of NQSOs under the Stock Option Plan may be made to any of the Company's employees and consultants and those employees and consultants of our subsidiaries and affiliates and to any non-employee member of the board of directors. Grants of ISOs under the Stock Option Plan may be made only to the Company's employees and employees of our 50% or more owned subsidiaries.

        The compensation committee will fix the exercise price per common share on the date of grant. The exercise price for NQSOs and ISOs may not be less than the fair market value of the underlying shares of common stock on the date of grant. However, if the grantee of an ISO is a person who holds more than 10% of the combined voting power of all classes of our outstanding shares of common stock or our subsidiaries, the exercise price per share of an ISO must be at least 110% of the fair market value of a share of common stock on the date of grant. To the extent that the aggregate fair market

85



value of shares of common stock, determined on the date of grant, with respect to which ISOs become exercisable for the first time by a grantee during any calendar year exceeds $100,000, such ISOs must be treated as NQSOs. For purposes of the Stock Option Plan, fair market value of a share of common stock on the date of grant is the average of the daily market price for the five consecutive trading days immediately preceding the grant date.

        The compensation committee will determine the term of each option; provided, however, that the exercise period for ISOs may not exceed 10 years from the date of grant and, if the grantee of an ISO is a person who holds more than 10% of the combined voting power of all classes of our outstanding shares of common stock or our subsidiaries, the term may not exceed five years from the date of grant. The vesting period for options will commence on the date of grant and end on a date as is determined by the compensation committee, in its sole discretion, which is specified in the award agreement. The compensation committee may provide in an award agreement that an option may become exercisable earlier than the date the option vests, and if the option is exercised prior to such vesting date, the grantee will receive restricted shares that vest over the remaining vesting period of the option.

        A grantee may exercise an option by delivering notice of the exercise to us and by paying the exercise price, plus any withholding tax due, (1) in cash or certified check, (2) with approval of the compensation committee: (A) by delivering shares of common stock already owned by the grantee and having a fair market value on the date of exercise equal to the exercise price, (B) surrendering of shares of common stock issuable upon exercise of the option, (C) making payment through the delivery of property of any kind which constitutes good and valuable consideration or (D) any combination of the permitted exercise methods or by such other method the compensation committee may approve that is permitted by applicable law.

        Restricted Shares.    The compensation committee may grant restricted shares to anyone eligible to participate in the Stock Option Plan. The compensation committee may require that grantees pay consideration for the restricted shares and may establish conditions under which restrictions on the restricted shares will lapse over a period of time or according to such other criteria as the compensation committee determines appropriate. The compensation committee will determine the number of shares of common stock subject to the grant of restricted shares and the other terms and conditions of the grant. Unless the compensation committee determines otherwise, during the restriction period, the grantee will have the right to vote the shares of common stock subject to the restricted share grant and to receive any dividends or other distributions paid on such shares of common stock, subject to any restrictions determined to be appropriate by the compensation committee.

        Performance Units.    Performance units may be granted under the Stock Option Plan. The compensation committee may grant units to anyone eligible to participate in the Stock Option Plan. Each unit provides the grantee with the right to receive an amount based on the value of the unit, which will be determined by the compensation committee, if performance goals established by the compensation committee are met. Units will be based on the fair market value of the shares of common stock or such other measurement base that the compensation committee determines to be appropriate. The compensation committee will determine the number of units that will be granted, the requirements applicable to the units, the performance period during which performance will be measured, the performance goals applicable to the units and such other conditions as the compensation committee determines appropriate. The applicable performance goals may relate to our financial performance or that of our subsidiaries, the performance of the shares of common stock, the grantee's performance or such other criteria that the compensation committee determines appropriate. If the performance goals are met, units will be paid to the grantee in cash, in shares of common stock or a combination of cash and shares of common stock, as determined by the compensation committee.

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        Dividend Equivalents.    The compensation committee may grant dividend equivalents in connection with options granted under the Stock Option Plan. The compensation committee may grant dividend equivalents to anyone eligible to participate in the Stock Option Plan. Dividend equivalents are payable in cash or shares of common stock and may be paid currently or accrued as contingent obligations. The terms and conditions of dividend equivalents are determined by the compensation committee.

        Other Equity-Based Awards.    The compensation committee may grant other types of stock-based awards (including the grant of unrestricted shares of common stock), cash-based awards or other equity-based awards under the Stock Option Plan. The compensation committee may grant other equity-based awards to anyone eligible to participate in the Stock Option Plan. Equity-based awards are payable in cash, shares of common stock or other equity determined by the compensation committee. The terms and conditions of other equity-based awards are determined by the compensation committee.

        Qualified-Performance Compensation.    The Stock Option Plan permits the compensation committee to impose and identify specific performance goals that must be met with respect to grants of options, stock appreciation rights, restricted shares, units, dividend equivalents and other equity-based awards. The compensation committee will determine the performance periods for the performance goals. Forfeiture of all or part of any such grant will occur if the performance goals are not met, as determined by the compensation committee. Prior to, or soon after the beginning of, the performance period, the compensation committee will establish in writing the performance goals that must be met, the applicable performance periods, the amounts to be paid if the performance goals are met and any other conditions.

        The performance goals will be based on one or more of the following measures related to the Company's operations: pre-tax income, operating income, cash flow, earnings per share, return on equity, return on invested capital or assets, cost reductions or savings, funds from operations, stock price, sales or new investments funded, distributions to stockholders, dividend yield and/or such other identifiable and measurable performance objectives determined by the compensation committee.

        Deferrals.    The compensation committee may permit or require grantees to defer receipt of the payment of cash or the delivery of shares of common stock that would otherwise be due to the grantee in connection with an award under the Stock Option Plan. The compensation committee will establish the rules and procedures applicable to any deferrals.

        Change of Control.    If a merger, consolidation, sale, transfer, exchange or other disposition of all or substantially all of our assets or other event occurs that affects the shares of common stock, the compensation committee may take any of the following actions to provide: (1) for the purchase of any outstanding award for the payment of an amount of cash equal to the amount that would have been attained upon the exercise of such award or realization of the grantee's rights (net of any required payments by the grantee) had such award been currently exercisable, payable, fully vested or the restrictions lapsed or replace such award with other rights or property selected by the compensation committee, (2) that the award cannot be exercised after such event, (3) for a specified period of time prior to such transaction or event such award will be fully exercisable, (4) that the award will be assumed by the successor or surviving corporation, or a parent or subsidiary thereof or substituted for similar awards, (5) that the restrictions on restricted shares will be terminated, or (6) for such further provisions or limitations as the compensation committee deems appropriate and in our best interests, including adjustments in the number or type of shares subject to the award.

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        Amendment and Termination of the Stock Option Plan.    The board of directors or the compensation committee may amend or terminate the Stock Option Plan at any time, subject to stockholder approval if required to comply with applicable law, regulation or rule. Unless sooner terminated, the Stock Option Plan will terminate on December 15, 2013.

        The following table shows information related to our compensation plans that authorize the issuance of equity securities as of December 31, 2006.

Plan Category

  Number of Securities to be Issued Upon Exercise of Outstanding Options, Warrants and Rights
(a)

  Weighted-Average Exercise Price of Outstanding Options, Warrants and Rights
(b)

  Number of Securities Remaining Available for Future Issuance Under Equity Compensation Plans (Excluding Securities Reflected in Column (a))
(c)

 
Equity compensation plans approved by stockholders(1)   1,260,000   $ 10.00   2,051,746 (2)
Equity compensation plans not approved by stockholders          
   
 
 
 
Total   1,260,000   $ 10.00   2,051,746 (2)
   
 
 
 

(1)
Our 2003 Stock Option and Incentive Plan was approved by our then sole stockholder on December 15, 2003. The plan was amended and restated and approved by our stockholders on May 20, 2005.

(2)
Subsequent to December 31, 2006, awards of restricted stock relating to 419,219 shares (net of forfeitures) of our common stock were granted by the compensation committee of our board of directors.


401(k) Plan

        We adopted a defined contribution savings plan, or "401(k) Plan," to provide retirement income to the Company's employees, including the Company's executive officers. The 401(k) Plan is qualified under Section 401(a) of the Internal Revenue Code and incorporates features permitted under Section 401(k) of the Internal Revenue Code.

        The 401(k) Plan is available to full-time employees who have completed at least six months of service with us. The 401(k) Plan allows participants to elect to contribute up to 100% of annual compensation on a pre-tax basis with a maximum pre-tax contribution of $15,500 for 2007. In addition, the 401(k) Plan allows individuals who are at least 50 years of age by the end of the tax year to make additional contributions, known as catch-up contributions, in the maximum amount of $5,000 for 2007. We provide a matching contribution in cash, equal to 100% of each participant's elective deferral that does not exceed 3% of compensation, plus 50% of the elective deferral that exceeds 3% of compensation but does not exceed 5% of compensation, subject to a $9,000 limit, which matching contributions vest immediately.

        Any additional company matching contributions or any profit sharing contributions by us are subject to a vesting schedule and will be 100% vested after three years of service. Participant contributions are fully vested at all times and all contributions are invested as directed by each participant in investment funds available under the 401(k) Plan. At the termination of employment, the distribution will be based on the total account balance that is vested and will be payable in a lump-sum as soon as practical or at a later date elected by the participant or the participant's beneficiary.

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CERTAIN RELATIONSHIPS AND RELATED TRANSACTIONS

        From time to time our senior management may be presented with various real estate investment opportunities related to our business. In order to mitigate potential conflicts, if one of our affiliates has an investment opportunity that fits within our real estate investment objectives and a majority of our independent directors determines that it is in our best interests, we will not permit our affiliates to make that investment. Our affiliates generally consist of our directors, our officers, our employees, Spirit Finance Holdings, LLC, Fleischer Ranches, LLC, any entity controlled by these individuals or entities and any entity or person that becomes affiliated with us in the future. Generally, we will permit our affiliates to make these real estate investments if:

        The Company purchased four Flying J interstate travel plaza facilities for approximately $37.5 million in December 2003. The properties were leased back to the seller under an operating lease; rental revenues totaled approximately $3.6 million during each of the past three years. Mr. Morton Fleischer, our Chief Executive Officer until September 2005, and our current Chairman of the Board, is a member of the board of directors of Flying J.

        One of the Company's independent directors, Jim Parish, was a member of the board of directors of Taco Bueno, Inc. from 2001 until July, 2005, and joined the board of directors of TB Holdings, the parent company of the Taco Bueno restaurant chain, in June of 2006. Taco Bueno is a customer operating the underlying properties that secure approximately $25.3 million of our real estate and mortgage loan investments held at December 31, 2006. Interest income on the mortgage loans receivable and rental revenue on the leases aggregated $2.2 million in 2006, $2.2 million in 2005 and 2.0 million in 2004.


SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE

        Section 16(a) of the Exchange Act requires our officers and directors, and the persons who own more than 10% of our common stock, to file with the SEC initial reports of ownership and reports of changes in ownership of common stock of the Company. Officers, directors and greater than 10% stockholders are required by regulation of the SEC to furnish the Company with copies of all Section 16(a) forms they file.

        Based solely on our review of copies of Forms 3, 4 and 5, and the amendments thereto, received by the Company for the year ended December 31, 2006, or written representations from certain reporting persons that no Form 5s were required to be filed by those persons, we believe that during the year ended December 31, 2006, all filing requirements were complied with by our executive officers, directors and beneficial owners of more than ten percent of our stock except that Christopher H. Volk, inadvertently failed to file a Form 4 on a timely basis with respect to five separate transactions, Catherine Long inadvertently failed to file a Form 4 on a timely basis with respect to two separate transactions, and Dennis E. Mitchem inadvertently failed to file a Form 4 on a timely basis with respect to four separate transactions.

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SOLICITATION OF PROXIES

        This solicitation is being made by mail on behalf of the board of directors, but may also be made without additional remuneration by officers or employees of the Company by telephone, telegraph, facsimile transmission or personal interview. The expense of the preparation, printing and mailing of this proxy statement and the enclosed form of proxy and Notice of Annual Meeting, and any additional material relating to the meeting which may be furnished to stockholders by the board of directors subsequent to the furnishing of this proxy statement, has been or will be borne by the Company. To obtain the necessary representation of stockholders at the meeting, supplementary solicitations may be made by mail, telephone or interview by officers of the Company or selected securities dealers. We have retained Georgeson Inc. to assist us in soliciting proxies. We will pay the fees of Georgeson Inc., which we expect to be approximately $11,000 plus the reimbursement of expenses. The Company may pay additional amounts if other supplementary solicitations are made.


ANNUAL REPORT

        The Company is mailing its Annual Report on Form 10-K for the 2006 fiscal year to stockholders with the mailing of this proxy statement. If you would like a copy of the Company's Annual Report on Form 10-K filed with the SEC, you may obtain it without charge by writing to:


STOCKHOLDER PROPOSALS FOR 2008 ANNUAL MEETING

        Stockholders are entitled to present proposals for action at stockholders' meetings if they comply with the requirements of the Company's then current bylaws and applicable SEC rules and regulations. In connection with this year's meeting, no stockholder proposals were presented. Stockholders' proposals intended to be presented at the Company's Annual Meeting of Stockholders to be held in the year 2008 must be received at the Company's offices prior to January 15, 2008 in order to be considered for inclusion in the Company's proxy statement and form of proxy relating to such meeting.

        In addition, if you desire to bring a proposal (including director nominations) before the Company's 2008 Annual Meetings you must comply with our bylaws. Under the Company's current bylaws, in order for a stockholder to submit a proposal at the Company's 2008 Annual Meeting of Stockholders, the stockholder's notice of the proposal, including all information required by the bylaws, must be received by the Company between January 15, 2008 and 5:00 p.m. Scottsdale, Arizona time on February 14, 2008.

        Proposals should be sent to Corporate Secretary, Spirit Finance Corporation, 14631 N. Scottsdale Road, Suite 200, Scottsdale, AZ 85254.


OTHER MATTERS

        The board of directors is not aware of any matters to come before the meeting, other than those specified in the 2007 Notice of Annual Meeting. However, if any other matter requiring a vote of the stockholders should arise at the meeting, it is the intention of the persons named in the accompanying proxy to vote the shares covered by the proxy in accordance with their discretion.

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NOTICE TO BANKS, BROKER-DEALERS
AND VOTING TRUSTEES AND THEIR NOMINEES

        Please advise the Company whether other persons are the beneficial owners of the shares of the Company's common stock for which proxies are being solicited from you, and, if so, the number of copies of this proxy statement and other soliciting materials you wish to receive in order to supply copies to the beneficial owners of the shares.

        IT IS IMPORTANT THAT PROXIES BE RETURNED PROMPTLY. STOCKHOLDERS, WHETHER OR NOT THEY EXPECT TO ATTEND THE MEETING IN PERSON, ARE URGED TO COMPLETE, DATE AND SIGN THE ENCLOSED PROXY CARD AND RETURN IT PROMPTLY IN THE ENVELOPE PROVIDED FOR THAT PURPOSE. BY RETURNING YOUR PROXY CARD PROMPTLY YOU CAN HELP THE COMPANY AVOID THE EXPENSE OF FOLLOW-UP MAILINGS TO ENSURE A QUORUM SO THAT THE MEETING CAN BE HELD. STOCKHOLDERS WHO ATTEND THE MEETING MAY REVOKE A PRIOR PROXY AND VOTE THEIR PROXY IN PERSON AS SET FORTH IN THIS PROXY STATEMENT.


ATTENDANCE AT THE MEETING

        If you intend on attending the meeting in person, please return the enclosed proxy indicating in the appropriate space your intention.

    By Order of the Board of Directors

Scottsdale, Arizona
                        , 2007

 

Michael T. Bennett,
Secretary

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APPENDIX A



AGREEMENT AND PLAN OF MERGER

by and among

REDFORD HOLDCO, LLC,

and

REDFORD MERGER CO.,

and

SPIRIT FINANCE CORPORATION

Dated as of March 12, 2007



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TABLE OF CONTENTS

 
   
ARTICLE I
THE MERGER

1.1

 

The Merger
1.2   Charter and Bylaws
1.3   Effective Time
1.4   Closing
1.5   Directors and Officers of the Surviving Company

ARTICLE II
MERGER CONSIDERATION; EFFECT OF THE MERGER ON THE SHARES OF THE CONSTITUENT COMPANIES

2.1

 

Effect on Stock
2.2   Exchange of Certificates
2.3   Withholding Rights
2.4   Dissenters' Rights
2.5   Adjustment of Merger Consideration
2.6   Subsequent Actions

ARTICLE III
REPRESENTATIONS AND WARRANTIES OF THE COMPANY

3.1

 

Organization and Qualification; Subsidiaries and Other Interests
3.2   Capitalization
3.3   Authority Relative to this Agreement; Stockholder Approval
3.4   Reports; Financial Statements
3.5   No Undisclosed Liabilities
3.6   Events Subsequent to Most Recent Fiscal Quarter End
3.7   Consents and Approvals; No Violations
3.8   Litigation
3.9   Properties
3.10   Employee Plans
3.11   Labor Matters
3.12   Environmental Matters
3.13   Tax Matters
3.14   Material Contracts
3.15   Opinion of Financial Advisor
3.16   Brokers
3.17   Takeover Statutes
3.18   Transactions With Affiliates
3.19   Investment Company Act of 1940
3.20   Intellectual Property
3.21   Insurance
3.22   Definition of the Company's Knowledge
3.23   Proxy Statement; Company Information
3.24   Permits
3.25   WKSI Status
3.26   Certain Regulatory Matters
     

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ARTICLE IV
REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

4.1

 

Corporate Organization
4.2   Authority Relative to this Agreement
4.3   Consents and Approvals; No Violations
4.4   Litigation
4.5   Available Funds; Performance Guarantee
4.6   Ownership of Merger Sub; No Prior Activities
4.7   No Ownership of Company Capital Stock
4.8   Proxy Statement

ARTICLE V
CONDUCT OF BUSINESS PENDING THE MERGER

5.1

 

Conduct of Business by the Company

ARTICLE VI
COVENANTS

6.1

 

Preparation of the Proxy Statement; Stockholders' Meeting
6.2   Other Filings
6.3   Additional Agreements
6.4   Permitted Solicitation
6.5   Officers' and Directors' Exculpation and Indemnification
6.6   Access to Information; Confidentiality
6.7   Public Announcements
6.8   Employee Benefit Arrangements
6.9   Certain Tax Matters
6.10   Interim Period Dividends
6.11   Resignation of Company's Directors
6.12   Additional Acquisitions
6.13   Financing
6.14   Takeover Laws
6.15   Notification of Certain Matters

ARTICLE VII
CONDITIONS TO THE MERGER

7.1

 

Conditions to the Obligations of Each Party to Effect the Merger
7.2   Additional Conditions to Obligations of Parent and Merger Sub
7.3   Additional Conditions to Obligations of the Company
7.4   Frustration of Closing Conditions

ARTICLE VIII
TERMINATION, AMENDMENT AND WAIVER

8.1

 

Termination
8.2   Effect of Termination
8.3   Fees and Expenses
8.4   Amendment
8.5   Extension; Waiver
     

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ARTICLE IX
GENERAL PROVISIONS

9.1

 

Notices
9.2   Certain Definitions
9.3   Terms Defined Elsewhere
9.4   Interpretation
9.5   Non-Survival of Representations, Warranties, Covenants and Agreements
9.6   Performance Guaranty
9.7   Transfer Taxes
9.8   Enforcement
9.9   Miscellaneous
9.10   Assignment; Benefit
9.11   Severability
9.12   Choice of Law/Consent to Jurisdiction
9.13   Counterparts
9.14   Non-Recourse

EXHIBIT A    FORM OF LIMITED GUARANTY

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AGREEMENT AND PLAN OF MERGER

        This AGREEMENT AND PLAN OF MERGER, dated as of March 12, 2007 (this "Agreement"), is made by and among REDFORD HOLDCO, LLC, a Delaware limited liability company ("Parent"), REDFORD MERGER CO., a Maryland corporation ("Merger Sub"), and SPIRIT FINANCE CORPORATION, a Maryland corporation (the "Company"). All capitalized terms used in this Agreement shall have the meanings assigned to such terms in Section 9.2 or as otherwise defined elsewhere in this Agreement unless the context clearly indicates otherwise.

W I T N E S S E T H :

        WHEREAS, the parties wish to effect a combination through a merger of Merger Sub with and into the Company (the "Merger") on the terms and conditions set forth in this Agreement and in accordance with the Maryland General Corporation Law, as amended (the "MGCL"), pursuant to which each issued and outstanding share of common stock, par value $.01 per share, of the Company (collectively, the "Company Shares"), shall be converted into the right to receive the Merger Consideration (as defined herein) upon the terms and subject to the conditions provided herein;

        WHEREAS, Parent and the Company have entered into a Stock Purchase Agreement (the "Stock Purchase Agreement") dated the date hereof whereby Parent has agreed to purchase 6,150,000 Company Shares on the terms and conditions set forth therein;

        WHEREAS, the Board of Directors of the Company (the "Company Board") has approved this Agreement, the Stock Purchase Agreement, the Merger and the other transactions contemplated by this Agreement and the Stock Purchase Agreement and deems it advisable and in the best interests of the Company's stockholders to enter into this Agreement and to consummate the Merger on the terms and conditions set forth herein;

        WHEREAS, the Board of Directors of Merger Sub and Parent, as the sole stockholder of Merger Sub, have declared advisable, authorized and approved this Agreement, the Merger and the transactions contemplated by this Agreement in accordance with the requirements of the MGCL and the charter and bylaws of Merger Sub; and

        WHEREAS, Parent, Merger Sub and the Company desire to make certain representations, warranties, covenants and agreements in connection with the Merger, and also to prescribe various conditions to the Merger.

        NOW, THEREFORE, in consideration of the mutual representations, warranties, covenants and agreements set forth herein, and intending to be legally bound, Parent, Merger Sub and the Company hereby agree as follows:


ARTICLE I

THE MERGER

        1.1    The Merger.     Subject to the terms and conditions of this Agreement, at the Effective Time (as defined herein), the Company and Merger Sub shall consummate the Merger, pursuant to which (i) Merger Sub shall be merged with and into the Company and the separate corporate existence of Merger Sub shall thereupon cease and (ii) the Company shall be the surviving corporation in the Merger (the "Surviving Company") and shall become a direct wholly-owned Subsidiary of Parent by virtue of ownership of all of the Company Shares. The corporate existence of the Company, with all its purposes, rights, privileges, franchises, powers and objects, shall continue unaffected and unimpaired by the Merger and, as the Surviving Company, it shall be governed by the laws of the State of Maryland. The Merger shall have the effects specified in Section 3-114 of the MGCL.

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        1.2
    Charter and Bylaws.     


        1.3
    Effective Time.     


        1.4
    Closing.     The closing of the Merger (the "Closing") shall occur as promptly as practicable (but in no event later than the fifth Business Day) after all of the conditions set forth in Article VII (other than conditions that by their terms are required to be satisfied or waived as of the Closing, but subject to the satisfaction or waiver of such conditions at the Closing) shall have been satisfied or, to the extent permitted by applicable Law, waived by the party entitled to the benefit of the same (unless extended by the mutual agreement of the parties hereto) or on such other day as the parties hereto may mutually agree, and, subject to the foregoing, shall take place at such time and on a date to be specified by the parties (the "Closing Date"). The Closing shall take place at the offices of Kutak Rock LLP, or at such other place as mutually agreed to by the parties hereto.


        1.5
    Directors and Officers of the Surviving Company.     The directors of Merger Sub immediately prior to the Effective Time shall become the directors of the Surviving Company as of the Effective Time and the officers of Merger Sub immediately prior to the Effective Time shall become the officers of the Surviving Company as of the Effective Time, each to hold office in accordance with the Surviving Company Charter and Surviving Company Bylaws. The current directors of the Company shall resign, effective as of the Effective Time, and the directors of Merger Sub shall be elected as directors of the Surviving Company in accordance with Maryland law.

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ARTICLE II

MERGER CONSIDERATION; EFFECT OF THE MERGER
ON THE SHARES OF THE CONSTITUENT COMPANIES

        2.1    Effect on Stock.     At the Effective Time, by virtue of the Merger and without any action on the part of any holder of any Company Shares or any shares of stock of Merger Sub:

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        2.2
    Exchange of Certificates.     

A-8



        2.3
    Withholding Rights.     The Surviving Company, Parent or the Paying Agent, as applicable, shall be entitled to deduct and withhold from the consideration otherwise payable pursuant to this Agreement to any holder of Company Shares or Company Stock Options, such amounts as it is required to deduct and withhold with respect to the making of such payment under the Code (as defined herein), and the rules and regulations promulgated thereunder, or any provision of state, local or foreign tax Law. To the extent that amounts are so withheld by the Surviving Company or the Paying Agent, as applicable, such withheld amounts shall be treated for all purposes of this Agreement as having been paid to the holder of Company Shares or Company Stock Options, in respect of which such deduction and withholding was made by the Surviving Company, Parent or the Paying Agent, as applicable.

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        2.4
    Dissenters' Rights.     No dissenters' or appraisal rights shall be available with respect to the Merger or any other transaction contemplated hereby.


        2.5
    Adjustment of Merger Consideration.     In the event that, subsequent to the date of this Agreement but prior to the Effective Time, the Company Shares issued and outstanding shall, through a reorganization, recapitalization, reclassification, stock dividend, stock split, reverse stock split or other similar change in the capitalization of the Company increase or decrease in number or be changed into or exchanged for a different kind or number of securities, then an appropriate and proportionate adjustment shall be made to the Merger Consideration, provided, however, that nothing set forth in this Section 2.5 shall be construed to supersede or in any way limit the prohibitions set forth in Section 5.1 hereof.


        2.6
    Subsequent Actions.     If at any time after the Effective Time any deeds, bills of sale, assignments, assurances or any other actions or things are necessary to continue, vest, perfect or confirm of record or otherwise the Surviving Company's right, title or interest in, to or under any of the rights, properties, privileges, franchises or assets of the Company as a result of, or in connection with, the Merger, or otherwise to carry out the intent of this Agreement, the officers and directors of the Surviving Company shall be authorized to execute and deliver, in the name and on behalf of the Company, all such deeds, bills of sale, assignments and assurances and to take and do, in the name and on behalf of the Company or otherwise, all such other actions and things as may be necessary to vest, perfect or confirm any and all right, title and interest in, to and under such rights, properties, privileges, franchises or assets in the Surviving Company or otherwise to carry out the intent of this Agreement.


ARTICLE III

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

        The Company represents and warrants to Parent and Merger Sub that the statements contained in this Article III are true and correct except as set forth in the disclosure schedule attached to this Agreement (the "Company Disclosure Schedule"). The Company Disclosure Schedule shall be arranged in paragraphs corresponding to the numbered and lettered paragraphs contained in this Article III and the disclosure in any paragraph shall qualify and apply to other paragraphs in this Article III to the extent reasonably apparent that such disclosure would relate to such other paragraphs.


        3.1
    Organization and Qualification; Subsidiaries and Other Interests.     

A-10


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        3.2
    Capitalization.     

A-12



        3.3
    Authority Relative to this Agreement; Stockholder Approval.     

A-13



        3.4
    Reports; Financial Statements.     

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        3.5
    No Undisclosed Liabilities.     Except (i) as set forth in Section 3.5 of the Company Disclosure Schedule, (ii) as reserved for in the December 31, 2006 balance sheet, or as specifically disclosed in the notes thereto, included in the Company SEC Reports filed with or furnished to the SEC after January 1, 2007 and prior to the date hereof (the "Company Filed SEC Reports"), and (iii) liabilities incurred on behalf of the Company or any Company Subsidiary in connection with this Agreement in accordance herewith, none of the Company or any Company Subsidiary had any liabilities or obligations of any nature (whether accrued, absolute, contingent or otherwise) required by GAAP to be set forth in a consolidated balance sheet of the Company or in the notes thereto, except for any such liabilities or obligations which would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect.


        3.6
    Events Subsequent to Most Recent Fiscal Quarter End.     Except as set forth in Section 3.6 of the Company Disclosure Schedule, from December 31, 2006 through the date hereof, the Company and the Company Subsidiaries have conducted their business in the ordinary course consistent with past practice and there has not been any event, change, development, condition or occurrence which has had or would be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect or any action by the Company or a Company Subsidiary that would have required Parent's consent pursuant to Section 5.1 of this Agreement had such action been taken after the date hereof.


        3.7
    Consents and Approvals; No Violations.     Except as set forth in Section 3.7 of the Company Disclosure Schedule, assuming the receipt of the Company Stockholder Approval, and except (a) for filings, reports, permits, authorizations, consents and approvals as may be required under, and other applicable requirements of, the Exchange Act, the Securities Act, the NYSE, state securities or state "blue sky" laws, the HSR Act (as hereinafter defined) or any other antitrust law, (b) for the filing of the Articles of Merger, and (c) for such filings that have already been made or such consents that

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already have been received, none of the execution, delivery or performance of this Agreement by the Company, the consummation by the Company of the Merger or compliance by the Company with any of the provisions hereof will (i) conflict with or result in any breach of any provision of the organizational documents of the Company or any of its Material Subsidiaries, (ii) require any filing by the Company or any of the Company Subsidiaries with, notice to, or permit, authorization, consent or approval of, any state, federal, foreign, supranational, provincial, local or other government or governmental authority or by any United States, state, foreign, supranational, provincial, local or other court of competent jurisdiction (a "Governmental Entity"), (iii) require any consent or notice under, result in a violation or breach by the Company or any of the Company Subsidiaries of, constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under, result in the triggering of any payment or any termination, buy-sell, transfer, option, right of first refusal, right of first offer, tag-along or any similar right by any party, or result in the creation of any Lien or other encumbrance on any property or asset of the Company or any of the Company Subsidiaries or otherwise give rise to any material obligation on the part of the Company, any Company Subsidiary or any other party pursuant to, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, Permit or other instrument or obligation or Material Contract or Company Lease to which the Company or any of the Company Subsidiaries is a party or by which they or any of their respective properties or assets may be bound or (iv) violate any law, order, writ, injunction, decree, statute, rule or regulation applicable to the Company or any of the Company Subsidiaries or any of their respective properties or assets (each, a "Law" and collectively, the "Laws"), excluding from the foregoing clauses (ii), (iii) and (iv) such filings, notices, permits, authorizations, consents, approvals, violations, breaches, trigger events, creation of liens or defaults which, individually or in the aggregate, would not either (A) prevent or materially delay consummation of the Merger, (B) otherwise prevent or materially delay performance by the Company of its obligations under this Agreement or (C) reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect.


        3.8
    Litigation.     Except as set forth in Section 3.8 of the Company Disclosure Schedule and except for suits, claims, actions, proceedings or investigations arising from the usual, regular and ordinary course of operations of the Company and its Subsidiaries involving collection matters or personal injury or other tort litigation which are covered by adequate insurance (subject to customary deductibles) (a) there is no suit, claim, action, proceeding, arbitration, mediation or investigation pending or, to the knowledge of the Company, threatened against the Company or any Company Subsidiary or any officer or director thereof in connection with his or her status as an officer or director that involves amounts in excess of $100,000 individually or in excess of $1,000,000 in the aggregate (or involving any allegation of criminal activity) and (b) neither the Company nor any Company Subsidiary is subject to any outstanding order, writ, judgment, injunction, stipulation, award or decree of any Governmental Entity which, in the case of (a) or (b), (i) questions the validity of this Agreement or any action to be taken by the Company in connection with the consummation of the Merger or (ii) would reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge of the Company, there are no SEC inquiries or investigations, other governmental inquiries or investigations or internal investigations pending or threatened, in each case regarding any accounting practices of the Company or any Company Subsidiary or any malfeasance by any executive officer of the Company or any Company Subsidiary.


        3.9
    Properties.     

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        3.10
    Employee Plans.     

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        3.11
    Labor Matters.     


        3.12
    Environmental Matters.     

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        As used in this Agreement:

        "Environmental Claims" means any and all administrative, regulatory, judicial or third-party claims, demands, notices of violation or non-compliance, directives, proceedings, investigations, orders, decrees, judgments or other allegations of noncompliance with or liability or potential liability, or any responsibility, relating in any way to any Environmental Law or any Company environmental permit, as the case may be.

        "Environmental Laws" means all applicable federal, state, and local Laws, rules and regulations, orders, judgments, decrees and other legal requirements including, without limitation, common law relating to pollution or the regulation and protection of human health, safety, the environment or natural resources, including, but not limited to, the Comprehensive Environmental Response, Compensation, and Liability Act of 1980, as amended (42 U.S.C. Section 9601 et seq.) ("CERCLA"); the Hazardous Materials Transportation Act, as amended (49 U.S.C. Section 5101 et seq.); the Federal Insecticide, Fungicide, and Rodenticide Act, as amended (7 U.S.C. Section 136 et seq.); the Resource Conservation and Recovery Act, as amended (42 U.S.C. Section 6901 et seq.); the Toxic Substances Control Act, as amended (42 U.S.C. Section 7401 et seq.); the Clean Air Act, as amended (42 U.S.C. Section 7401 et seq.); the Federal Water Pollution Control Act, as amended (33 U.S.C. Section 1251 et seq.); the Occupational Safety and Health Act, as amended (29 U.S.C. Section 651 et seq.); the Safe Drinking Water Act, as amended (42 U.S.C. Section 300f et seq.); and their state and local counterparts or equivalents and any transfer of ownership notification or approval statute.

        "Hazardous Material" means all substances, pollutants, chemicals, compounds, wastes, including, without limitation, petroleum and any fraction thereof or substances otherwise potentially injurious to human health and the environment, including without limitation asbestos or asbestos containing material, bacteria, mold, fungi or other toxic growth, regulated under Environmental Laws.

        The Company and its Subsidiaries have made available to Parent all material environmental audits, reports and other material environmental documents and reports in their possession or control relating to their current and, to the extent the Company or its Subsidiaries have knowledge that they are potentially liable, their or any of their respective predecessors' formerly owned or operated properties, facilities or operations.


        3.13
    Tax Matters.     

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        3.14
    Material Contracts.     

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        3.15
    Opinion of Financial Advisor.     The Company has received a written opinion (or an oral opinion to be confirmed in writing) of Wachovia Capital Markets, LLC ("Wachovia Securities") to the effect that, subject to the procedures followed, assumptions made, qualifications and limitations on the review undertaken and other matters considered by Wachovia Securities, the Merger Consideration to be received by the holders of Company Shares (other than Parent and its affiliates) pursuant to this Agreement is fair, from a financial point of view, to such holders. An informational copy of such opinion shall be delivered to Parent promptly after the date hereof; it being agreed that neither Parent nor Merger Sub shall have any rights with respect to such opinion.


        3.16
    Brokers.     The Company has not entered into any contract, arrangement or understanding with any Person or firm which may result in the obligation of the Company, any Company Subsidiary,

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Parent or Merger Sub or any of their Affiliates to pay any finder's fees, brokerage or agent's commissions or other like payments in connection with the negotiations leading to this Agreement or consummation of the Merger, except that the Company has retained Wachovia Securities and Citigroup Global Markets Inc. ("Citigroup") as its financial advisors in connection with the Merger. The Company has furnished to Parent a true, complete and correct copy of all agreements between the Company and each of Wachovia Securities and Citigroup for such advisory services relating to the Merger.


        3.17
    Takeover Statutes.     The Company has taken all action required to be taken by it in order to exempt this Agreement, the Merger, the Stock Purchase Agreement and the transactions contemplated hereby and thereby from, and this Agreement, the Merger, the Stock Purchase Agreement and the transactions contemplated hereby and thereby are exempt from, the requirements of any Maryland "moratorium," "control share," "fair price," "affiliate transaction," "business combination" or other takeover Laws and regulations, including the Maryland Business Combination Act and Maryland Control Share Acquisition Act (collectively "Takeover Statutes") or any takeover provision in the Company Charter, Company Bylaws or other organizational document to which the Company is a party.


        3.18
    Transactions With Affiliates.     Except as set forth in Section 3.18 of the Company Disclosure Schedule or as disclosed in the Company Filed SEC Reports (other than compensation benefits and advances received in the ordinary course of business as an employee or director of the Company or the Company Subsidiaries), no director, officer or other Affiliate of the Company or any Company Subsidiary or any entity in which, to the knowledge of the Company, any such director, officer or other Affiliate, owns any beneficial interest (other than a publicly held corporation whose stock is traded on a national securities exchange or in the over-the-counter market and less than 1% of the stock of which is beneficially owned by any such persons), has any interest in: (i) any contract, arrangement or understanding with, or relating to the business or operations of Company or any Company Subsidiary; (ii) any loan, arrangement, understanding, agreement or contract for or relating to indebtedness of the Company or any Company Subsidiary; or (iii) any property (real, personal or mixed), tangible, or intangible, used or currently intended to be used in, the business or operations of the Company or any Company Subsidiary. As used in this Agreement, the term "Affiliate" shall have the same meaning as such term is defined in Rule 405 promulgated under the Securities Act.


        3.19
    Investment Company Act of 1940.     Neither the Company nor any of the Company's Subsidiaries are, or at the Closing Date will be, required to be registered under the Investment Company Act of 1940, as amended.


        3.20
    Intellectual Property.     Except as has not had or would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect, the Company does not have knowledge of any claims or any valid grounds for any claims: (i) to the effect that the manufacture, sale, licensing or use of any product as now used, sold or licensed or proposed for use, sale or license by the Company or any Company Subsidiary, infringes on any copyright, patent, trademark, trade name, service mark or trade secret of any Third Party; (ii) against the use by the Company or any Company Subsidiary of any copyrights, patents, trademarks, trade names, service marks, trade secrets, technology, know-how or computer software programs and applications used in the business of the Company or any Company Subsidiary as currently conducted or as proposed to be conducted; (iii) challenging the ownership, validity or effectiveness of any of the Company Intellectual Property Rights material to the Company and the Company Subsidiaries, taken as a whole; or (iv) challenging the license or legally enforceable right to use of the Third-Party Intellectual Property Rights by the Company or any Company Subsidiary. Except as has not had or would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect, the Company and each Company Subsidiary owns, or is licensed under valid and enforceable licenses to use (in each case free and clear of any Liens), all Intellectual Property currently used in its business as presently conducted.

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        As used in this Agreement, the term (i) "Intellectual Property" means all patents, trademarks, trade names, service marks, copyrights and any applications therefor, technology, know-how, trade secrets, computer software programs or applications, and other proprietary or confidential information or materials, trademarks, trade names, service marks and copyrights, (ii) "Third-Party Intellectual Property Rights" means any rights to Intellectual Property owned by any Third Party, and (iii) "Company Intellectual Property Rights" means the Intellectual Property owned or used by the Company or any Company Subsidiary.


        3.21
    Insurance.     The Company and the Company Subsidiaries maintain, or cause their tenants to maintain, insurance coverage with reputable insurers in such amounts and covering such risks as are in accordance with normal industry practice for companies engaged in businesses similar to that of the Company and the Company Subsidiaries. Section 3.21 of the Company Disclosure Schedule contains a list that is true and complete in all material respects of all material insurance policies in force maintained by the Company or a Company Subsidiary naming the Company, any Company Subsidiary or any employees thereof as an insured or beneficiary or as a loss payable payee or for which the Company or any Company Subsidiary has paid or is obligated to pay all or part of the premiums. The Company and each of the Company Subsidiaries have paid, or caused to be paid, all premiums due under such policies and are not in default with respect to any obligations under such policies other than as do not have or would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect. Prior to the date hereof, neither the Company nor any Company Subsidiary has received any written notice of cancellation or termination with respect to any existing insurance policy that is held by, or for the benefit of, any of the Company or any of the Company Subsidiaries or that relates to any Company Property. No claim by the Company or any Company Subsidiary under any insurance policy has been denied or disputed by the insurer other than denials and disputes in the ordinary course of business consistent with past practice.


        3.22
    Definition of the Company's Knowledge.     As used in this Agreement, the phrase "to the knowledge of the Company," "to the knowledge of the Subsidiary" or any similar phrase means the actual (as opposed to constructive or imputed) knowledge of those individuals identified in Section 3.22 of the Company Disclosure Schedule or knowledge that any of such persons would be expected to have in the course of such individual carrying out their normal duties for the Company in the manner of a reasonably prudent person in a similar position.


        3.23
    Proxy Statement; Company Information.     The information relating to the Company and the Company Subsidiaries to be contained in the Proxy Statement and other documents to be filed with the SEC in connection herewith will not, on the date the Proxy Statement is first mailed to holders of Company Shares or at the time of the Company Stockholders' Meeting, contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make statements therein not false or misleading at the time and in light of the circumstances under which such statement is made, except that no representation is made by the Company with respect to the information supplied in writing by Parent or Merger Sub specifically for inclusion therein. All documents that the Company is responsible for filing with the SEC in connection with the Merger or the other transactions contemplated by this Agreement will comply as to form and substance in all material respects with the applicable requirements of the Securities Act and the rules and regulations thereunder and the Exchange Act and the rules and regulations thereunder.


        3.24
    Permits.     The Company and the Company Subsidiaries hold all permits, franchises, grants, licenses, certificates, authorizations and approvals of all Governmental Entities necessary for the lawful conduct of their respective businesses ("Permits"), except for failures to hold such Permits that, individually or in the aggregate, would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect. The Company and the Company Subsidiaries are in compliance with the terms of their Permits, except where the failure to be in compliance would not be reasonably likely to have, individually or in the aggregate, a Company Material Adverse Effect. To the knowledge

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of the Company, no suspension or cancellation of any Permits is pending or threatened, and no such suspension or cancellation will result from the transactions contemplated by this Agreement, except as would not reasonably be likely to have, individually or in the aggregate, a Company Material Adverse Effect.


        3.25
    WKSI Status.     The Company is a "well-known seasoned issuer" and is not an "ineligible issuer" (as such terms of defined in Rule 405 under the Securities Act).


        3.26
    Certain Regulatory Matters.     


ARTICLE IV

REPRESENTATIONS AND WARRANTIES OF PARENT AND MERGER SUB

        Parent and Merger Sub hereby jointly and severally represent and warrant to the Company as follows:


        4.1
    Corporate Organization.     

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        4.2
    Authority Relative to this Agreement.     

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        4.3
    Consents and Approvals; No Violations.     Except (a) for filings, permits, authorizations, consents and approvals as may be required under, and other applicable requirements of, the Exchange Act, the Securities Act, state securities or state "blue sky" laws, the HSR Act or any other antitrust law and (b) for filing of the Articles of Merger, none of the execution, delivery or performance of this Agreement by Parent or Merger Sub, the consummation by Parent or Merger Sub of the Merger or compliance by Parent or Merger Sub with any of the provisions hereof will (i) conflict with or result in any breach of any provision of the organizational documents of Parent, Merger Sub or any other Subsidiary of Parent, (ii) require any filing by Parent, Merger Sub or any of Parent's other Subsidiaries with, notice to, or permit, authorization, consent or approval of, any Governmental Entity, (iii) require any consent or notice under, result in a violation or breach by Parent, Merger Sub or any of Parent's other Subsidiaries of, constitute (with or without due notice or lapse of time or both) a default (or give rise to any right of termination, amendment, cancellation or acceleration) under, result in the triggering of any payment, or result in the creation of any Lien or other encumbrance on any property or asset of Parent, Merger Sub or any of Parent's other Subsidiaries pursuant to, any of the terms, conditions or provisions of any note, bond, mortgage, indenture, lease, license, contract, agreement, Permit or other instrument or obligation or material contract to which Parent, Merger Sub or any of Parent's other Subsidiaries is a party or by which they or any of their respective properties or assets may be bound or (iv) violate any Laws, excluding from the foregoing clauses (ii), (iii) and (iv) such filings, notices, permits, authorizations, consents, approvals, violations, breaches or defaults which, individually or in the aggregate, (A) would not prevent or materially delay consummation of the Merger, (B) would not otherwise prevent or materially delay performance by Parent or Merger Sub of its material obligations under this Agreement or (C) do not have and would not reasonably be likely to have, individually or in the aggregate, a Parent Material Adverse Effect.


        4.4
    Litigation.     There is no suit, claim, action, proceeding or investigation pending or, to the knowledge of Parent or Merger Sub, threatened against Parent or Merger Sub that (i) questions the validity of this Agreement or any action to be taken by Parent or Merger Sub in connection with the consummation of the Merger, or (ii) would, individually or in the aggregate, reasonably be likely to have a Parent Material Adverse Effect or a Company Material Adverse Effect.


        4.5
    Available Funds; Performance Guarantee.     

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        4.6
    Ownership of Merger Sub; No Prior Activities.     Merger Sub is a direct wholly-owned Subsidiary of Parent. Merger Sub has not conducted any activities other than in connection with its organization, the negotiation and execution of this Agreement and the consummation of the transactions contemplated hereby. Merger Sub has no Subsidiaries.


        4.7
    No Ownership of Company Capital Stock.     As of the date of this Agreement, neither Parent nor any of its Subsidiaries, including Merger Sub, own any Company Shares or other securities of the Company. For the avoidance of doubt, the Company acknowledges that Parent as well as certain Affiliates of Parent and/or the members of Parent own as of the date hereof 4,727,000 Company Shares (excluding those Company Shares to be purchased pursuant to the Stock Purchase Agreement).


        4.8
    Proxy Statement.     The information, if any, regarding Parent, Merger Sub or their Affiliates supplied by Parent or Merger Sub in writing to the Company specifically for inclusion in the Proxy Statement or other documents to be filed with the SEC in connection herewith will not contain any untrue statement of material fact or omit to state any material fact required to be stated therein or necessary in order to make statements therein not false or misleading at the time and in light of the circumstances under which such statement is made.


ARTICLE V

CONDUCT OF BUSINESS PENDING THE MERGER

        5.1    Conduct of Business by the Company.     During the period (the "Interim Period") from the date of this Agreement to the earlier of the Closing Date or the termination of this Agreement in accordance with Section 8.1 hereof, except as otherwise expressly contemplated or permitted by this Agreement, the Company shall (i) use its commercially reasonable efforts to, and shall cause each Company Subsidiary to use its commercially reasonable efforts to, carry on its business in the usual, regular and ordinary course, consistent with past practice (except as otherwise set forth in Section 5.1 of the Company Disclosure Schedule), and use its commercially reasonable efforts to preserve intact its present business organization, the services of its present officers and employees consistent with past practice and its goodwill and relationships with tenants and others having business dealings with it and (ii) comply in all material respects with, and shall cause each Company Subsidiary to comply in all material respects with, all applicable Laws wherever its business is conducted, including the timely filing

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of reports, forms or other documents with the SEC required pursuant to the Securities Act or the Exchange Act. Without limiting the generality of the foregoing, during the Interim Period, neither the Company nor any Company Subsidiary will (except as expressly permitted by this Agreement, as expressly contemplated by the transactions contemplated hereby, as set forth in Section 5.1 of the Company Disclosure Schedule or to the extent that Parent shall otherwise consent, such consent not to be unreasonably withheld, delayed or conditioned, in writing (it being understood that Parent shall respond within five Business Days following receipt of the Company's written request soliciting such consent from Parent, and failure to respond by Parent after five Business Days shall be deemed to be approval by Parent)):

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ARTICLE VI

COVENANTS

        6.1    Preparation of the Proxy Statement; Stockholders' Meeting.     

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        6.2
    Other Filings.     As soon as reasonably practicable, the Company, Parent and Merger Sub each shall properly prepare and file any other filings (other than the Proxy Statement) required under the Exchange Act or any other federal, state or foreign law relating to the Merger (including filings, if any, required under the HSR Act) (collectively, the "Other Filings"). To the extent Parent deems such a filing necessary or appropriate, the Company and Parent shall file as promptly as practicable a joint voluntary notice in respect of the transactions contemplated hereby under Section 721 of the Defense Production Act of 1950, as amended, and the rules and regulations thereunder (the "Exon-Florio Amendment"). Each of the Company, Parent and Merger Sub shall promptly notify the other of the receipt of any comments on, or any request for amendments or supplements to, any of the Other Filings by the SEC or any other Governmental Entity or official, and each of the Company, Parent and Merger Sub shall supply the other with copies of all correspondence between it and each of its Representatives, on the one hand, and the SEC or the members of its staff or any other appropriate governmental official, on the other hand, with respect to any of the Other Filings. The Company, Parent and Merger Sub each shall promptly obtain and furnish the other (a) the information which may be reasonably required in order to make such Other Filings and (b) any additional information which may be requested by a Governmental Entity and which the parties reasonably deem appropriate.


        6.3
    Additional Agreements.     Subject to the terms and conditions herein provided, but subject to the obligation to act in good faith, each of the parties hereto agrees to use its commercially reasonable efforts to take, or cause to be taken, all actions and to do, or cause to be done, all things necessary, proper or advisable to consummate and make effective as promptly as practicable the Merger. The parties shall cooperate with each other in connection with the foregoing, including the taking of such actions as are necessary to obtain any necessary consents, approvals, orders, exemptions and authorizations by or from any public or private Third Party, including, without limitation, any that are required to be obtained under any federal, state or local law or regulation or any contract, agreement or instrument to which the Company or any Company Subsidiary is a party or by which any of their respective properties or assets are bound, to defend all lawsuits or other legal proceedings challenging this Agreement or the consummation of the Merger, and to effect all necessary registrations and Other Filings and submissions of information requested by a Governmental Entity. The parties will use their commercially reasonable efforts to cause to be lifted or rescinded any injunction or restraining order or other order adversely affecting the ability of the parties to consummate the Merger. In the event that the Company shall fail to obtain any Third Party consent described above, the Company shall use its commercially reasonable efforts, and shall take such actions as are reasonably requested by Parent, to minimize any adverse effect upon the Company and the Company Subsidiaries and their respective businesses resulting, or which would reasonably be expected to result, after the Effective Time, from the failure to obtain such consent. Notwithstanding anything to the contrary in this Agreement, in connection with obtaining any approval or consent from any Person (other than a Governmental Entity) with respect to any transaction contemplated by this Agreement, (i) unless expressly required by the applicable agreement, without the prior written consent of Parent, none of the Company or any of the Company Subsidiaries shall pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation due to such Person and (ii) unless expressly required by the applicable agreement, Parent, Merger Sub and their Affiliates shall not be required to pay or commit to pay to such Person whose approval or consent is being solicited any cash or other consideration, make any commitment or incur any liability or other obligation. For the avoidance of doubt, and without limiting the generality of the foregoing, neither the Company nor any of the Company Subsidiaries shall make any payments or commit to make payments under provisions in applicable agreements setting forth minimum payments in connection with consent to or waiver of defaults or breaches under such agreements, or under prepayment or defeasance provisions, without the prior written consent of Parent, and none of Parent, Merger Sub or any of their Affiliates shall be required to make or commit to make any such payments.

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The Company shall use its commercially reasonably efforts to assist Parent in providing any notices required under the CMBS Agreements as promptly as practicable after the date hereof.


        6.4
    Permitted Solicitation.     

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        6.5
    Officers' and Directors' Exculpation and Indemnification.     

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        6.6
    Access to Information; Confidentiality.     


        6.7
    Public Announcements.     The Company and Parent shall consult with each other before issuing any press release or otherwise making any public statements with respect to this Agreement or the Merger and shall not issue any such press release or make any such public statement without the prior consent of the other party, which consent shall not be unreasonably withheld, delayed or conditioned; provided, however, that a party may, without the prior consent of the other party, issue such press release or make such public statement as may be required by Law or the applicable rules of any stock exchange or quotation system if the party issuing such press release or making such public

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statement has used its commercially reasonable efforts to consult with the other party and to obtain such party's consent but has been unable to do so in a timely manner. In this regard, the parties shall make a joint public announcement of the Merger contemplated hereby no later than the opening of trading on the NYSE on the Business Day following the date on which this Agreement is fully executed.


        6.8
    Employee Benefit Arrangements.     

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        6.9
    Certain Tax Matters.     During the Interim Period, each of the Company and the Company Subsidiaries shall: (a) continue to operate in such a manner as to permit the Company to continue to qualify as a REIT throughout the Interim Period; (b) prepare and timely file all material Tax Returns required to be filed by them on or before the Closing Date ("Post-Signing Returns") in a manner consistent with past practice, except as otherwise required by applicable Laws; and (c) fully and timely pay all material Taxes due and payable in respect of such Post-Signing Returns that are so filed.


        6.10
    Interim Period Dividends.     At or prior to the Closing Date, the Company shall declare a quarterly prorated cash dividend covering the period from the first date of the quarter in which the Closing occurs up to and including the Effective Date at a rate not to exceed the rate per Company Share set forth in Section 5.1.


        6.11
    Resignation of Company's Directors.     If so requested by Parent, the Company shall deliver to Parent, at or prior to the Closing Date, the resignation, in form and substance reasonable satisfactory to Parent, of each director of the Company.


        6.12
    Additional Acquisitions.     In accordance with Section 5.1 of this Agreement, during the Interim Period, the Company shall, consistent with past practices and in the ordinary course of business, continue to source, underwrite and evaluate additional properties for acquisition (the "Additional Property"). Should the Company identify a potential Additional Property as a potential acquisition, the Company may, but is not required to, seek Parent's agreement in writing to provide debt or equity financing to consummate the acquisition of the Additional Property, such agreement to be granted in Parent's sole discretion (it being understood that Parent shall respond within five Business Days of receipt of the Company's written request soliciting such agreement to provide debt or equity financing from Parent, and failure to respond by Parent after five Business Days shall be deemed to be agreement to provide debt or equity financing by Parent).


        6.13
    Financing.     

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        6.14
    Takeover Laws.     If any Takeover Statute is or may become applicable to the Merger or the other transactions contemplated by this Agreement, the Company shall, upon the request of Parent or Merger Sub, take all reasonable steps to exclude the applicability of, or to assist, at Parent's cost and expense, in any challenge to the validity or applicability to the Merger or any other transaction contemplated by this Agreement, of such Takeover Statute.


        6.15
    Notification of Certain Matters.     The Company shall give prompt written notice to Parent, and Parent shall give prompt written notice to the Company, of (i) the occurrence or non occurrence of any event which is likely (a) to cause any representation or warranty of such party contained in this Agreement to be untrue or inaccurate in any material respect if made as of the Effective Time so that the Closing condition in Section 7.2(a) or 7.3(a), as applicable, would not be satisfied or (b) to result in any material failure of such party to comply with or satisfy any covenant, condition or agreement to be complied with or satisfied hereunder, (ii) any communication from any Person alleging that the consent of such Person (or another Person) is or may be required in connection with the transactions contemplated by this Agreement, (iii) any communication from any Governmental Entity in connection with the transactions contemplated by this Agreement, and (iv) any suit, claim, action or proceeding threatened or commenced against or otherwise affecting such party or its Subsidiaries that are related to the transactions contemplated by this Agreement; provided, however, that the delivery of any notice pursuant to this Section 6.15 shall not limit or otherwise affect the remedies available hereunder to any of the parties receiving such notice.


ARTICLE VII

CONDITIONS TO THE MERGER

        7.1    Conditions to the Obligations of Each Party to Effect the Merger.     The respective obligations of each party to effect the Merger are subject to the satisfaction or waiver by written consent of the other party, at or prior to the Closing Date, of each of the following conditions:

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        7.2
    Additional Conditions to Obligations of Parent and Merger Sub.     The obligations of Parent and Merger Sub to effect the Merger are further subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by Parent at or prior to the Closing Date:

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        7.3
    Additional Conditions to Obligations of the Company.     The obligations of the Company to effect the Merger are further subject to the satisfaction of the following conditions, any one or more of which may be waived in writing by the Company at or prior to the Closing Date:


        7.4
    Frustration of Closing Conditions.     No party may rely on the failure of any condition set forth in this Article VII to be satisfied if such failure was caused by such party's failure to use its own commercially reasonable efforts to consummate the Merger and the other transactions contemplated hereunder.

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ARTICLE VIII

TERMINATION, AMENDMENT AND WAIVER

        8.1    Termination.     This Agreement may be terminated and abandoned at any time prior to the Closing Date, whether before or after the receipt of Company Stockholder Approval:

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        8.2
    Effect of Termination.     

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        8.3
    Fees and Expenses.     

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        8.4
    Amendment.     This Agreement may be amended by the parties hereto by an instrument in writing signed on behalf of each of the parties hereto at any time before or after any approval hereof by holders of the Company Shares; provided, however, that after any such approval, no amendment shall be made which by Law requires further approval by such stockholders without obtaining such approval.


        8.5
    Extension; Waiver.     At any time prior to the Closing Date, the parties hereto may, to the extent legally allowed, (a) extend the time for the performance of any of the obligations or other acts of the other parties hereto, (b) waive any inaccuracies in the representations and warranties of the other parties contained herein or in any document delivered pursuant hereto and (c) waive compliance by the other parties with any of the agreements or conditions contained herein. Any agreement on the part of a party hereto to any such extension or waiver shall be valid only if set forth in a written instrument signed on behalf of the party against which such waiver or extension is to be enforced. Except as so waived, no action taken or omitted to be taken pursuant to this Agreement, including, without limitation, any investigation by or on behalf of any party, shall be deemed to constitute a waiver by the party taking such action of compliance with any representations, warranties, covenants or agreements contained in this Agreement. The waiver by any party hereto of a breach of any provision hereunder shall not operate or be construed as a waiver of any prior or subsequent breach of the same or any other provision hereunder.


ARTICLE IX

GENERAL PROVISIONS


        9.1
    Notices.     All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered or sent if delivered personally or sent by facsimile (providing confirmation of transmission), on the next Business Day if sent by prepaid overnight carrier (providing proof of delivery), on the fifth Business Day following the date of mailing if delivered by registered or certified mail (postage prepaid, return receipt requested) or on the date delivered if sent by email (providing confirmation of receipt) to the parties at

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the following addresses or facsimile numbers (or at such other addresses or facsimile numbers as shall be specified by the parties by like notice):


        9.2
    Certain Definitions.     For purposes of this Agreement, the term:

        "BUSINESS DAY" means any day other than (a) a Saturday or Sunday or (b) a day on which United States banking and savings and loan institutions are authorized or required by law to be closed.

        "CMBS Agreements" means the financing agreements related to long-term borrowings by a Company Subsidiary secured by the real estate properties of that Subsidiary.

        "CODE" means the Internal Revenue Code of 1986, as amended.

        "COMPANY CHARTER" means the Articles of Amendment and Restatement of the Company, as the same may be amended from time to time.

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        "ERISA" means the Employee Retirement Income Security Act of 1974, as amended.

        "ERISA AFFILIATE" means any trade or business that is considered a single employer together with the Company under ERISA Section 4001(b) or part of the same "controlled group" with the Company for purposes of ERISA Section 302(d)(8)(C).

        "HSR ACT" means the Hart-Scott-Rodino Antitrust Improvements Act of 1976, as amended, and the rules and regulations thereunder.

        "INTERNAL REVENUE CODE" means the Internal Revenue Code of 1986, as amended.

        "PERSON" means an individual, corporation, limited liability company, partnership, association, trust, unincorporated organization, other entity or group (as defined in Section 13(d) of the Exchange Act).

        "REPRESENTATIVE" of a Person means any officer, trustee, director, Affiliate, employee, investment banker, financial advisor, financing source, attorney, accountant, consultant, broker, finder or other agent or representative of such Person.

        "SEC" means the Securities and Exchange Commission.

        "SUBSIDIARY" means any corporation more than 50% of whose outstanding voting securities, or any partnership, limited liability company, joint venture or other entity more than 50% of whose total equity interest, is directly or indirectly owned by Parent or the Company, as the case may be, or any Person that would otherwise be deemed a "subsidiary" under Rule 12b-2 promulgated under the Exchange Act.


        9.3
    Terms Defined Elsewhere.     The following terms are defined elsewhere in this Agreement, as indicated below:

"ADDITIONAL PROPERTY"   Section 6.12
"AGREEMENT"   Preamble
"AFFILIATE"   Section 3.18
"ALTERNATIVE PROPOSAL"   Section 6.4(g)
"ARTICLES OF MERGER"   Section 1.3(a)
"BHC ACT"   Section 3.26(a)
"BREAK-UP FEE"   Section 8.2(b)
"BUSINESS EMPLOYEES"   Section 6.8(a)
"CAMELBACK"   Section 3.13(p)
"CERCLA"   Section 3.12
"CERTIFICATE"   Section 2.2(b)
"CHANGE OF RECOMMENDATION"   Section 6.4(d)
"CHANGE OF RECOMMENDATION NOTICE"   Section 6.4(d)
"CITIGROUP"   Section 3.16
"CLAIM"   Section 6.5(b)
"CLOSING"   Section 1.4
"CLOSING DATE"   Section 1.4
"COMPANY"   Preamble
"COMPANY BOARD"   Recitals
"COMPANY BYLAWS"   Section 3.1(e)
"COMPANY DISCLOSURE SCHEDULE"   Article III
"COMPANY FILED SEC REPORTS"   Section 3.5
"COMPANY INTELLECTUAL PROPERTY RIGHTS"   Section 3.20
"COMPANY LEASES"   Section 3.9(a)
"COMPANY MATERIAL ADVERSE EFFECT"   Section 3.1(a)
     

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"COMPANY PROPERTY"   Section 3.9(a)
"COMPANY RECOMMENDATION"   Section 6.1(c)
"COMPANY RESTRICTED SHARES"   Section 2.1(e)
"COMPANY SEC REPORTS"   Section 3.4(a)
"COMPANY SHARES"   Recitals
"COMPANY STOCKHOLDER APPROVAL"   Section 3.3(b)
"COMPANY STOCKHOLDERS' MEETING"   Section 6.1(c)
"COMPANY SUBSIDIARY"   Section 3.1(b)
"COMPANY STOCK OPTIONS"   Section 2.1(e)
"COMPANY STOCK OPTION PLAN"   Section 2.1(e)
"COMPANY TITLE INSURANCE POLICY"   Section 3.9(c)
"CONFIDENTIALITY AGREEMENT"   Section 6.6(b)
"DEBT COMMITMENT LETTER"   Section 4.5(b)
"DISCLOSURE CONTROLS"   Section 3.4(b)
"EFFECTIVE TIME"   Section 1.3(a)
"EMPLOYEE BENEFIT PLAN"   Section 6.8(a)
"EMPLOYEE PROGRAMS"   Section 3.10(a)
"ENVIRONMENTAL CLAIMS"   Section 3.12
"ENVIRONMENTAL LAWS"   Section 3.12
"EQUITY COMMITMENT LETTER"   Section 4.5(b)
"EXCHANGE ACT"   Section 3.4(a)
"EXCLUDED PARTY"   Section 6.4(b)
"EXCLUDED SHARES"   Section 2.1(c)
"EXON-FLORIO AMENDMENT"   Section 6.2
"FEDERAL RESERVE"   Section 3.26(a)
"GAAP"   Section 3.4(a)
"GOVERNMENTAL ENTITY"   Section 3.7
"GRANT"   Section 2.2(b)
"GROUND LEASES"   Section 3.9(a)
"GUARANTOR"   Section 4.5(c)
"GUARANTY"   Section 4.5(c)
"HAZARDOUS MATERIAL"   Section 3.12
"HOLA"   Section 3.26(a)
"INDEMNIFIED PARTY"   Section 6.5(a)
"INTELLECTUAL PROPERTY"   Section 3.20
"INTERIM PERIOD"   Section 5.1
"INTERNAL CONTROLS"   Section 3.4(b)
"IRS"   Section 3.10(a)
"LAWS"   Section 3.7
"LENDER"   Section 4.5(b)
"LIEN"   Section 3.1(c)
"MARYLAND COURTS"   Section 9.12(a)
"MATCHING PERIOD"   Section 6.4(d)
"MATERIAL CONTRACT"   Section 3.14(a)
"MATERIAL SUBSIDIARY"   Section 3.1(b)
"MERGER"   Recitals
"MERGER CONSIDERATION"   Section 2.1(b)
"MERGER SUB"   Preamble
"MERGER SUB PREFERRED STOCK"   Section 2.1(a)
"MGCL"   Recitals
"NYBL"   Section 3.26(a)
     

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"NYSE"   Section 3.1(a)
"OPTION CONSIDERATION"   Section 2.1(e)
"OUTSIDE DATE"   Section 8.1(b)
"OTHER FILINGS"   Section 6.2
"PARENT"   Preamble
"PARENT MATERIAL ADVERSE EFFECT"   Section 4.1(a)
"PAYING AGENT"   Section 2.2(a)
"PAYMENT FUND"   Section 2.2(a)
"PERMITS"   Section 3.24
"PERMITTED ENCUMBRANCES"   Section 3.9(a)
"PERMITTED LIENS"   Section 3.9(a)
"POST-SIGNING RETURNS"   Section 6.9
"PREFERRED SHARES"   Section 3.2(a)
"PROPERTY RESTRICTIONS"   Section 3.9(a)
"PROXY STATEMENT"   Section 6.1(a)
"REIT"   Section 3.13(b)
"RESTRICTED ENTITIES"   Section 3.26(a)
"REQUIRED INFORMATION"   Section 6.14(a)
"S-O ACT"   Section 3.4(a)
"SDAT"   Section 1.3(a)
"SECURITIES ACT"   Section 3.2(f)
"SHOPKO"   Section 3.13(p)
"SOLICITATION PERIOD END DATE"   Section 6.4(a)
"STOCK PURCHASE AGREEMENT"   Recitals
"SUPERIOR PROPOSAL"   Section 6.4(h)
"SURVIVING COMPANY"   Section 1.1
"SURVIVING COMPANY BYLAWS"   Section 1.2(c)
"SURVIVING COMPANY CHARTER"   Section 1.2(b)
"SURVIVING COMPANY PREFERRED STOCK"   Section 2.1(a)
"TAKEOVER STATUTES"   Section 3.17
"TAX" AND "TAXES"   Section 3.13(o)
"TAX RETURNS"   Section 3.13(o)
"THIRD PARTY"   Section 3.14(a)
"THIRD-PARTY INTELLECTUAL PROPERTY RIGHTS"   Section 3.20
"WACHOVIA SECURITIES"   Section 3.15


        9.4
    Interpretation.     The headings contained in this Agreement are for reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement. Wherever used herein, a pronoun in the masculine gender shall be considered as including the feminine gender unless the context clearly indicates otherwise and the word "including" shall mean "including without limitation." References to any statute, rule or regulation are to the statute, rule or regulation as amended, modified, supplemented or replaced from time to time (and, in the case of statutes, include any rules and regulations promulgated under the statute) and to any section of any statute, rule or regulation include any successor to the section. The parties have participated jointly in negotiating and drafting this Agreement. In the event that an ambiguity or a question of intent or interpretation arises, this Agreement shall be construed as if drafted jointly by the parties, and no presumption or burden of proof shall arise favoring or disfavoring any party by virtue of the authorship of any provision of this Agreement.


        9.5
    Non-Survival of Representations, Warranties, Covenants and Agreements.     Except for Articles I and II, Sections 6.5, 6.8 and 6.9 and any covenant or agreement of the parties which by its terms contemplates performance after the Closing Date (a) none of the representations, warranties, covenants

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and agreements contained in this Agreement or in any instrument delivered pursuant to this Agreement shall survive the Closing Date and (b) thereafter there shall be no liability on the part of any of Parent, Merger Sub or the Company or any of their respective officers, trustees, directors or stockholders in respect thereof. Except as expressly set forth in this Agreement, there are no representations or warranties of any party hereto, express or implied.


        9.6
    Performance Guaranty.     Parent hereby guarantees the due, prompt and faithful performance and discharge by, and compliance with, all of the obligations, covenants, terms, conditions and undertakings of Merger Sub under this Agreement in accordance with the terms hereof.


        9.7
    Transfer Taxes.     All transfer, documentary, sales, use, stamp, registration and other such Taxes and fees (including penalties and interest) incurred in connection with the Merger shall be paid by the Parent when due, and the Parent shall, at its own expense, file all necessary Tax returns and other documentation with respect to all such Taxes and fees, and, if required by applicable Law, the Parent shall, and shall cause its affiliates to, join in the execution of any such Tax returns and other documentation. The Company and Parent shall cooperate to minimize the amount of any such Taxes.


        9.8
    Enforcement.     The parties hereto agree that irreparable damage to Parent and Merger Sub would occur in the event that any of the provisions of this Agreement were not performed in accordance with their specific terms or were otherwise breached by the Company. It is accordingly agreed that, prior to termination of this Agreement in accordance with Section 8.1, Parent and Merger Sub shall be entitled to an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions hereof in the federal and state courts located in Maryland, this being in addition to any other remedy to which Parent or Merger Sub are entitled at law or in equity. The parties acknowledge that the Company shall not be entitled to seek an injunction or injunctions to prevent breaches of this Agreement by Parent or Merger Sub or any remedy to enforce specifically the terms and provisions of this Agreement and that the Company's sole and exclusive remedies with respect to any such breach shall be the remedies set forth in the following sentence and the Guaranties; provided, however, that the Company shall be entitled to enforce specifically Sections 6.6, 6.7, the last sentence of 6.13(a) and 6.15. The Company agrees that, to the extent it or its Subsidiaries have incurred losses or damages of any kind in connection with this Agreement, (i) the maximum aggregate liability of Parent, Merger Sub and the Guarantors for such losses or damages of any kind shall be limited to $312,000,000, (ii) the maximum liability of the Guarantors, directly or indirectly, shall be limited to the respective several obligations of such Guarantors under the Guaranties and (iii) in no event shall the Company or its Subsidiaries seek to recover any money damages in excess of such amount in clause (i) from the Parent, Merger Sub or the Guarantors (subject to clause (ii)) or any of their respective Representatives in connection therewith.


        9.9
    Miscellaneous.     This Agreement (a) constitutes, together with the Confidentiality Agreement, the Company Disclosure Schedule and the Stock Purchase Agreement, the entire agreement and supersedes all of the prior agreements and understandings, both written and oral, among the parties, or any of them, with respect to the subject matter hereof including, but not limited to, the Memorandum of Understanding between the Company and Macquarie Securities (USA) Inc. dated January 3, 2007, and (b) shall be binding upon and inure to the benefit of the parties hereto and their respective successors and assigns and is not intended to confer upon any other Person (except as set forth below) any rights or remedies hereunder.


        9.10
    Assignment; Benefit.     Except as expressly permitted by the terms hereof, neither this Agreement nor any of the rights, interests or obligations hereunder shall be assigned by any of the parties hereto without the prior written consent of the other parties, except that Parent or Merger Sub may assign, in their sole discretion, any or all of their rights, interests and obligations under this Agreement (i) to Parent or to any direct or indirect wholly owned Subsidiary or Affiliate of Parent, (ii) to a lender or financial institution as collateral for indebtedness or (iii) after the Effective Time, in

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connection with a merger, consolidation or sale of all or substantially all of the assets of Parent, the Surviving Company or their Subsidiaries, but no such assignment shall relieve Parent or Merger Sub of any of its obligations under this Agreement if such assignee does not perform such obligations. Notwithstanding anything contained in this Agreement to the contrary (except for the provisions of Section 6.5 hereof which shall inure to the benefit of the Persons or entities benefiting therefrom who are expressly intended to be third-party beneficiaries thereof and who may enforce the covenants contained therein), nothing in this Agreement, expressed or implied, is intended to confer on any Person other than the parties hereto or their respective heirs, successors, executors, administrators and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement.


        9.11
    Severability.     If any provision of this Agreement or the application thereof to any Person or circumstance is held invalid or unenforceable, the remainder of this Agreement, and the application of such provision to other Persons or circumstances, shall not be affected thereby, and to such end, the provisions of this Agreement are agreed to be severable. The parties further agree to negotiate in good faith to replace such invalid or unenforceable provision of this Agreement with a valid and enforceable provision that will achieve, to the greatest extent possible, the economic, business and other purposes of such invalid or unenforceable provision.


        9.12
    Choice of Law/Consent to Jurisdiction.     


        9.13
    Counterparts.     This Agreement may be executed in counterparts, all of which shall be considered one and the same agreement and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party. Facsimile transmission of any signed original document shall be deemed the same as delivery of an original. At the request of any party, the parties will confirm facsimile transmission by signing a duplicate original document.


        9.14
    Non-Recourse.     Any claim or cause of action based upon, arising out of, or related to this Agreement may only be brought against Persons that are expressly named as parties hereto, and then only with respect to the specific obligations set forth herein. No past, present or future incorporator, member, partner, stockholder or Representative of the Company, Parent or Merger Sub or any of their respective Affiliates shall have any liability or obligation for any of the representations, warranties, covenants, agreements, obligations or liabilities of the Company, Parent or Merger Sub under this Agreement or of or for any action, suit, arbitration, claim, litigation, investigation, or proceeding based on, in respect of, or by reason of, the transactions contemplated hereby (including the breach,

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termination or failure to consummate such transactions), in each case whether based on contract, tort, strict liability, other Laws or otherwise and whether by piercing the corporate veil, by a claim by or on behalf of a party hereto or another Person or otherwise.

[Remainder of page intentionally left blank]

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        IN WITNESS WHEREOF, the parties have caused this Agreement to be executed as of the date first written above by their respective officers thereunto duly authorized.

    REDFORD HOLDCO, LLC

 

 

By

 

/s/  
MICHAEL DORRELL      
        Name   Michael Dorrell
        Title   Treasurer

 

 

REDFORD MERGER CO.

 

 

By

 

/s/  
MICHAEL DORRELL      
        Name   Michael Dorrell
        Title   Treasurer

 

 

SPIRIT FINANCE CORPORATION

 

 

By

 

/s/  
MORTON H. FLEISCHER      
        Name   Morton H. Fleischer
        Title   Chairman of the Board

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EXHIBIT A

FORM OF LIMITED GUARANTY

LIMITED GUARANTY

        Limited Guaranty, dated as of March 12, 2007 (this "Limited Guaranty"), by                        (the "Guarantor") in favor of Spirit Finance Corporation, a Maryland corporation (the "Guaranteed Party"). Reference is hereby made to the Agreement and Plan of Merger among Redford Holdco, LLC, a Delaware limited liability company ("Parent"), Redford Merger Co., a Maryland corporation ("Merger Sub"), and the Guaranteed Party, dated as of March 12, 2007 (as the same may be amended from time to time, the "Merger Agreement"). Capitalized terms used herein but not otherwise defined have the meanings ascribed to them in the Merger Agreement.


        1.
    Limited Guaranty.     The Guarantor hereby irrevocably and unconditionally guarantees to the Guaranteed Party, as and to the extent provided in Section 2 below, the payment and performance of    % of Parent's and Merger Sub's payment obligations (collectively, the "Guaranteed Obligations") to the Guaranteed Party arising under, or in connection with, the Merger Agreement; provided that the maximum aggregate liability of the Guarantor hereunder shall not exceed $            (the "Maximum Amount"), it being understood that this Guarantee may not be enforced without giving effect to the Maximum Amount. The Guaranteed Party hereby agrees that the Guarantor shall in no event be required to pay to any Person more than the Maximum Amount under, or in respect of, or in connection with this Limited Guaranty and the Guarantor shall not have any obligation or liability to any Person under this Limited Guaranty other than as expressly set forth herein. Notwithstanding anything to the contrary contained in this Limited Guaranty or any other document, the obligations of Guarantor under this Agreement and of any other parties under any other limited guaranties in favor of the Guaranteed Party in connection with the Merger Agreement and the transactions contemplated thereby (collectively, the "Other Limited Guaranties") shall be several and not joint. Notwithstanding anything else to the contrary herein, this Limited Guaranty is only a guaranty to provide the Guaranteed Party monetary damages in respect of the Guaranteed Obligations and shall not provide injunctive relief or specific performance of any obligations under the Merger Agreement by the Guarantor or any of its Affiliates as a remedy to the Guaranteed Party in respect of such Guaranteed Obligations.


        2.
    Terms of Limited Guaranty.     

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        3.
    Sole Remedies.     The Guaranteed Party acknowledges and agrees that the sole cash asset of Parent and Merger Sub is cash in a de minimis amount and that no additional funds are expected to be contributed to Parent or Merger Sub unless the Closing occurs. The Guaranteed Party further agrees that it has no right of recovery in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby against the Guarantor, any former, current or future, direct or indirect, Representative of the Guarantor, any former, current or future, direct or indirect, holder of any equity interests or securities of the Guarantor (whether such holder is a limited or general partner, member, stockholder or otherwise), any former, current or future assignee of the Guarantor or any former, current or future Representative or assignee of any of the foregoing (each such Person, a "Related Person"), through Parent, Merger Sub or otherwise, whether by or through attempted piercing of the corporate, limited liability company or limited partnership veil, by or through a claim by or on behalf of Parent or Merger Sub against the Guarantor or any Related Person, or otherwise, except for its rights against the Guarantor under this Limited Guaranty; provided, however, that this provision shall not limit the liability of any other guarantor to the Guaranteed Party pursuant to the Other Limited Guaranties in respect of liabilities or obligations arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby. Recourse against the Guarantor under this Limited Guaranty shall be the sole and exclusive remedy of the Guaranteed Party and all of its Affiliates against the Guarantor and any Related Person in respect of any liabilities or obligations arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby. The Guaranteed Party hereby covenants and agrees that it shall not institute, and shall cause its Affiliates and stockholders not to institute, any proceeding or bring any other claim arising under, or in connection with, the Merger Agreement or the transactions contemplated thereby, against the Guarantor or any Related Person, except for claims of the Guaranteed Party against the Guarantor under this Limited Guaranty. Nothing set forth in this Limited Guaranty shall affect any liability of Parent or Merger Sub or any other guarantor under the Other Limited Guaranties to the Guaranteed Party or shall confer or give to any Person other than the Guaranteed Party any rights or remedies against any Person, including the Guarantor, except as expressly set forth herein.


        4.
    Termination.     This Limited Guaranty shall terminate and the Guarantor shall have no further obligation under this Limited Guaranty as of the earliest to occur of (i) the Effective Time; (ii) the termination of the Merger Agreement in accordance with its terms by mutual consent of the parties; (iii) ninety (90) days following the termination of the Merger Agreement under any circumstance other than pursuant to clause (ii) of this paragraph unless the Guaranteed Party provides written notice to the Guarantor within such 90-day period of its intent to seek recovery under this Guaranty; and (iv) the one-year anniversary of the date hereof. Notwithstanding the foregoing, if on the date of

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termination of this Limited Guaranty any proceeding to enforce this Limited Guaranty has been commenced or written notice of intent to seek recovery has been sent by the Guaranteed Party to the Guarantor, Guarantor's obligations hereunder shall survive such termination until such proceeding is finally and conclusively resolved.


        5.
    Continuing Guarantee.     Until terminated pursuant to the provisions of Section 4 hereof, this Limited Guaranty shall be a continuing one and shall remain in full force and effect until the indefeasible payment and satisfaction in full of the Guaranteed Obligations, shall be binding upon the Guarantor, its successors and assigns, and shall inure to the benefit of, and be enforceable by, the Guaranteed Party and its successors, transferees and assigns. All obligations to which this Limited Guaranty applies or may apply under the terms hereof shall be conclusively presumed to have been created in reliance hereon.


        6.
    Entire Agreement.     This Limited Guaranty constitutes the entire agreement with respect to the subject matter hereof and supersedes any and all prior discussions, negotiations, proposals, undertakings, understandings and agreements, whether written or oral, among Parent, Merger Sub and the Guarantor or any of their Affiliates, on the one hand, and the Guaranteed Party or any of its Affiliates, on the other hand, except for the Merger Agreement, the Other Limited Guaranties, the Stock Purchase Agreement and the Confidentiality Agreement.


        7.
    Amendments and Waivers.     No amendment or waiver of any provision of this Limited Guaranty will be valid and binding unless it is in writing and signed, in the case of an amendment, by the Guarantor and the Guaranteed Party or, in the case of waiver, by the party against whom the waiver is to be effective. No waiver by any party of any breach or violation of, or default under, this Limited Guaranty, whether intentional or not, will be deemed to extend to any prior or subsequent breach, violation or default hereunder or affect in any way any rights arising by virtue of any prior or subsequent such occurrence. No delay or omission on the part of any party in exercising any right, power or remedy under this Limited Guaranty will operate as a waiver thereof.


        8.
    Counterparts.     This Limited Guaranty may be executed in any number of counterparts, each of which will be deemed an original, but all of which together will constitute but one and the same instrument. This Limited Guaranty will become effective when duly executed by each party hereto.


        9.
    Notices.     All notices and other communications given or made pursuant hereto shall be in writing and shall be deemed to have been duly given or made as of the date delivered or sent if delivered personally or sent by facsimile (providing confirmation of transmission), on the next Business Day if sent by prepaid overnight carrier (providing proof of delivery), on the fifth Business Day following the date of mailing if delivered by registered or certified mail (postage prepaid, return receipt requested) or on the date delivered if sent by email (providing confirmation of receipt) to the parties at the following addresses or facsimile numbers (or at such other addresses or facsimile numbers as shall be specified by the parties by like notice):

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        10.
    Governing Law.     This Limited Guaranty, the rights of the parties and all actions arising in whole or part under or in connection herewith will be governed by and construed in accordance with the laws of the State of New York.


        11.
    Jurisdiction; Venue; Waiver of Service of Process.     

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        12.
    Representations and Warranties.     The Guarantor hereby represents and warrants to the Guaranteed Party that (a) it has all power and authority to execute, deliver and perform this Limited Guaranty; (b) the execution, delivery and performance of this Limited Guaranty by the Guarantor has been duly and validly authorized and approved by all necessary action, and no other proceedings or actions on the part of the undersigned are necessary therefor; (c) this Limited Guaranty has been duly and validly executed and delivered by it and constitutes a valid and legally binding obligation of it, enforceable against the undersigned in accordance with its terms, subject to (i) the effects of bankruptcy, insolvency, fraudulent conveyance, reorganization, moratorium or other similar laws affecting creditors' rights generally, and (ii) general equitable principles (whether considered in a proceeding in equity or at law); (d) the execution, delivery and performance by the undersigned of this Limited Guaranty do not and will not (i) violate the organizational documents of the undersigned or (ii) violate any applicable Law; and (e) the Guarantor has the financial capacity to pay and perform its obligations under this Limited Guaranty, and all funds necessary for the Guarantor to fulfill its Guaranteed Obligations under this Limited Guaranty shall be available to the Guarantor for so long as this Limited Guaranty shall remain in effect in accordance with Section 5 hereof.


        13.
    No Assignment.     Neither the Guarantor nor the Guaranteed Party may assign its rights, interests or obligations hereunder to any other Person (except by operation of Law) without the prior written consent of the Guaranteed Party (in the case of an assignment by the Guarantor) or the Guarantor (in the case of an assignment by the Guaranteed Party), except that if all or a portion of the Guarantor's equity commitment is assigned in accordance with the terms thereof, then a corresponding portion of its Guaranteed Obligations hereunder may be assigned to the same assignee; provided that any such assignment shall not relieve the Guarantor of its obligations hereunder. [Notwithstanding the foregoing, Macquarie Bank Limited may assign all or a portion of its Guaranteed Obligations hereunder to an Affiliate (and Macquarie Bank Limited shall be relieved of its obligations hereunder with respect to such assigned portion of its Guaranteed Obligations) without the Guaranteed Party's consent if the Affiliate assignee assumes this Guaranty and Macquarie Bank Limited's obligations hereunder in writing and such assignment is made in connection with an internal restructuring of the Macquarie Group's operations and at the time of such assignment such Affiliate has been assigned at least an investment grade credit rating from either Standard & Poor's Rating Group or Moody's Investors Services, Inc.](1)


(1)
For Macquarie's Limited Guaranty only.


        14.
    Waiver of Jury Trial.     TO THE EXTENT NOT PROHIBITED BY APPLICABLE LAW THAT CANNOT BE WAIVED, THE PARTIES HEREBY WAIVE, AND COVENANT THAT THEY WILL NOT ASSERT (WHETHER AS PLAINTIFF, DEFENDANT OR OTHERWISE), ANY RIGHT TO TRIAL BY JURY IN ANY ACTION ARISING IN WHOLE OR IN PART UNDER OR IN CONNECTION WITH THIS LIMITED GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY, WHETHER NOW EXISTING OR HEREAFTER ARISING, AND WHETHER SOUNDING IN CONTRACT, TORT OR OTHERWISE. THE PARTIES AGREE THAT ANY OF THEM MAY FILE A COPY OF THIS PARAGRAPH WITH ANY COURT AS WRITTEN EVIDENCE OF THE KNOWING, VOLUNTARY AND BARGAINED-FOR AGREEMENT AMONG THE PARTIES IRREVOCABLY TO WAIVE ITS RIGHT TO TRIAL BY JURY IN ANY PROCEEDING WHATSOEVER BETWEEN THEM RELATING TO THIS LIMITED GUARANTY OR ANY OF THE TRANSACTIONS CONTEMPLATED HEREBY AND THAT ANY SUCH PROCEEDING WILL INSTEAD BE TRIED IN A COURT OF COMPETENT JURISDICTION BY A JUDGE SITTING WITHOUT A JURY.


        15.
    Severability.     Any term or provision of this Limited Guaranty that is invalid or unenforceable in any situation in any jurisdiction will not affect the validity or enforceability of the remaining terms and provisions hereof or the validity or enforceability of the offending term or provision in any other situation or in any other jurisdiction; provided, however, that this Limited Guaranty may not be enforced without giving effect to the limitation of the amount payable hereunder to the Maximum

A-69


Amount provided in Section 1 hereof and to the provisions of Sections 3 and 4 hereof. No party hereto shall assert, and each party shall cause its respective Affiliates not to assert, that this Limited Guaranty or any part hereof is invalid, illegal or unenforceable. The Guaranteed Party agrees that it will not assert any claim against Guarantor with respect to the Guaranteed Obligations in excess of the Maximum Amount.


        16.
    Headings.     The headings contained in this Limited Guaranty are for convenience purposes only and will not in any way affect the meaning or interpretation hereof.


        17.
    Subrogation.     Upon receipt by the Guaranteed Party of the Guaranteed Obligations in full (up to $312,000,000 as set forth in the Merger Agreement) in cash owing to the Guaranteed Party by the Guarantor, the guarantors under the Other Limited Guaranties and by Parent and Merger Sub, the Guarantor shall be subrogated to the rights of the Guaranteed Party against Parent and Merger Sub for claims related to the Guaranteed Obligations, and the Guaranteed Party agrees to take, at the Guarantor's expense, such steps as the Guarantor may reasonably request to implement such subrogation.

[Remainder of page intentionally left blank]

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        IN WITNESS WHEREOF, the undersigned have executed and delivered this Limited Guaranty as of the date first written above.

GUARANTOR:   [  
]

 

 

 

 

 

 

 

By:

 

[

 


]

 

 

 

 

 

 

 

By:

 

 

 


 
                    Name:      
                    Title:      

GUARANTEED PARTY:

 

 

 

 

 

 

 

 

 

SPIRIT FINANCE CORPORATION

 

 

 

 

 

 

 

 

 

By:

 

 


 

 

 

 

 

 

 

 

 
    Name:                      
    Title:                      

A-71



APPENDIX B
Opinion of Wachovia Securities

March 11, 2007

The Board of Directors
Spirit Finance Corporation
14631 North Scottsdale Road, Suite 200
Scottsdale, Arizona 85254

Members of the Board:

        You have asked Wachovia Capital Markets, LLC ("Wachovia Securities") to advise you with respect to the fairness, from a financial point of view, to the holders of shares of common stock, par value $0.01 per share ("Company Common Shares"), of Spirit Finance Corporation (the "Company") other than Redford Holding Co. LLC ("Parent") and its affiliates of the Merger Consideration (as defined below) to be received by such holders pursuant to the Agreement and Plan of Merger, draft dated as of March 11, 2007 (the "Agreement"), by and among Parent, Redford Merger Co., a wholly owned subsidiary of Parent ("Merger Sub"), and the Company. Pursuant to the Agreement, the Company will merge with Merger Sub (the "Merger") and each outstanding Company Common Share will be converted into the right to receive $14.50 in cash (the "Merger Consideration").

        In arriving at our opinion, we have, among other things:

B-1


        In connection with our review, we have assumed and relied upon the accuracy and completeness of the foregoing financial and other information, including all information, analyses and assumptions relating to accounting, legal and tax matters, and we have not assumed any responsibility for, nor independently verified; such information. We have relied upon the assurances of the management of the Company that they are not aware of any facts or circumstances that would make such information inaccurate or misleading. We have relied upon financial forecasts regarding the Company that were furnished to us by the management of the Company and we have been advised and have assumed that such financial forecasts, as well as the estimates, judgments, allocations and assumptions upon which such financial forecasts are based have been reasonably formulated and reflect the best currently available estimates, judgments, allocations and assumptions of the management of the Company regarding the future financial performance of the Company. We assume no responsibility for, and express no view as to, any such financial forecasts or the estimates, judgments, allocations or assumptions upon which they are based. In arriving at our opinion, we have not prepared or obtained any independent evaluations or appraisals of the assets or liabilities of the Company, including any contingent liabilities nor have we been provided with any such evaluations or appraisals.

        In rendering our opinion, we have assumed that the Merger will be consummated on the terms set forth in the Agreement, without waiver of any material terms or conditions, and that in the course of obtaining any legal, regulatory or third-party consents and/or approvals, no restrictions will be imposed or other actions taken that will adversely effect the Merger in any manner material to our analysis. We also assumed that the Agreement and the Stock Purchase Agreement, when executed and delivered by the parties thereto, would conform to the drafts reviewed by us in all respects material to our analyses. Our opinion is necessarily based upon economic, market, financial and other conditions and information available to us as of the date hereof. Although subsequent developments may affect this opinion, we do not have any obligation to update, revise or reaffirm this opinion. Our opinion only addresses the fairness from a financial point of view of the Merger Consideration to be received by holders of Company Common Shares other than Parent and its affiliates and does not address any other terms of the Merger or any other agreements, arrangements or understandings entered into in connection with the Merger or otherwise. In addition, our opinion does not address the relative merits of the Merger as compared with other business strategies or transactions that may be available to or may have been considered by the Company's management, its Board of Directors or any committee thereof. We were not requested to, and did not, solicit third party indications of interest in acquiring all or any part of the Company.

        Wachovia Securities is a trade name of Wachovia Capital Markets, LLC, an investment banking subsidiary and affiliate of Wachovia Corporation. We have been engaged to render certain financial advisory services to the Company in connection with the Agreement and will receive a fee for such advisory services, payable upon consummation of the Merger. We will also receive a fee upon delivery of this opinion, a portion of which may be credited against our fee for advisory services. In addition, the Company has agreed to reimburse our expenses and to indemnify us and certain related parties against certain liabilities arising out of our engagement.

        We and our affiliates provide a full range of investment and commercial banking advice and services, including financial advisory services, securities underwritings and placements, securities sales and trading; brokerage advice and services; and commercial loans. In that regard, Wachovia Securities and/or its affiliates served as a joint-lead manager of the Company's $185 million follow-on common equity offering in June 2006 and served as the underwriter in connection with the Company's equity offering of $100 million of Company Common Shares in December 2006, for which services we received compensation. In the future we may provide investment and commercial banking advice and services to, and otherwise seek to expand or maintain our business and commercial relationships with the Company, Parent, and/or certain of their affiliates, for which we would expect to receive compensation. In the ordinary course of our business, we may trade in the securities and other financial

B-2



instruments including bank loans of the Company, Parent and/or certain of their affiliates for our own account and for the accounts of our customers and, accordingly, may at any time hold a long or short position in such securities and financial instruments.

        This opinion is for the information and use of the Board of Directors of the Company in connection with their consideration of the Merger. Our opinion does not address the merits of the underlying decision by the Company to enter into the Agreement or any related transaction and does not and shall not be deemed to constitute a recommendation to any holder of the Company Common Shares as to how such holder should vote or act on any matter relating to the Merger.

        Based upon and subject to the foregoing, our experience as investment bankers, our work as described above, and such other factors that we deem relevant, it is our opinion that, as of the date hereof, the Merger Consideration to be received by holders of Company Common Shares other than Parent and its affiliates pursuant to the Agreement is fair, from a financial point of view, to such holders.

Very truly yours,

Wachovia Capital Markets, LLC

B-3



PROXY/VOTING INSTRUCTION CARD

SPIRIT FINANCE CORPORATION
14631 N. Scottsdale Road, Suite 200, Scottsdale, Arizona 85254

ANNUAL MEETING DATE: June 15, 2007
THIS PROXY IS SOLICITED ON BEHALF OF THE COMPANY'S BOARD OF DIRECTORS

        The undersigned stockholder of Spirit Finance Corporation (the "Company"), a Maryland corporation, hereby constitutes and appoints Christopher H. Volk and Catherine Long, and each of them, proxies, with full power of substitution in each of them, for and on behalf of the undersigned to attend and vote on behalf of the undersigned, as designated below, according to the number of shares of the Company's common stock, $.01 par value per share, held of record by the undersigned at the close of business on April 23, 2007, and otherwise to represent the undersigned with all powers possessed by the undersigned if personally present, at the Annual Meeting of Stockholders to be held at the Four Seasons Resort, 10600 East Crescent Moon Drive, Scottsdale, Arizona on Friday, June 15, 2007, 9:00 a.m. local time, and at any postponements or adjournments thereof.

        This Proxy when properly executed will be voted in the manner directed herein by the undersigned. If properly executed and no direction is made, this Proxy will be voted IN FAVOR of the election of all listed nominees to the Board of Directors and FOR each of the other items set forth on the Proxy.

        Please mark boxes /x/ in ink. Sign, date and return this Proxy promptly, using the enclosed envelope.

1.
Proposal to approve the merger of Redford Merger Co. with the Company on substantially the terms and conditions set forth in the Agreement and Plan of Merger dated as of March 12, 2007, by and among Redford Holdco, LLC, Redford Merger Co. and the Company.

o    FOR   o    AGAINST   o    ABSTAIN
2.
Election of Directors.

o   FOR ALL NOMINEES LISTED BELOW
(except as marked to the contrary below)
  o   WITHHOLD AUTHORITY
as to all nominees listed below

(INSTRUCTION: To withhold authority to vote for any individual nominee, write that nominee's name on the space provided below.)


Nominees:
Morton H. Fleischer, Christopher H. Volk, Willie R. Barnes, Linda J. Blessing, Dennis E. Mitchem, Paul F. Oreffice, James R. Parish, Kenneth B. Roath, Casey J. Sylla and Shelby Yastrow

3.
Proposal to consider the ratification of the appointment of Ernst & Young LLP as the Company's independent registered public accounting firm for the fiscal year ending December 31, 2007.

o    FOR   o    AGAINST   o    ABSTAIN
4.
Proposal to approve any adjournments of the annual meeting for the purpose, among others, of soliciting additional proxies if there are not sufficient votes at the annual meeting to approve the merger.

o    FOR   o    AGAINST   o    ABSTAIN
5.
In the discretion of such proxy holders, upon such other business as may properly come before the meeting or any and all postponements or adjournments thereof.

        The undersigned hereby acknowledges receipt of the Notice of Annual Meeting of Stockholders, dated                        , 2007 and the Proxy Statement furnished therewith, the terms of each of which are incorporated by reference, and revokes any proxy heretofore given with respect to such meeting.

    Dated       , 2007
       
   

 

 


Authorized Signature

 

 


Title

 

 


Authorized Signature

 

 


Title

        Please sign exactly as your name appears hereon. When shares are held by joint tenants, both should sign. Executors, administrators, trustees and other fiduciaries, and persons signing on behalf of corporations or partnerships, should so indicate when signing.

        To save the Company additional vote solicitation expenses, please sign, date and return this Proxy promptly, using the enclosed envelope.


NON-VOTING INSTRUCTIONS

        o    ANNUAL MEETING. Please check here to indicate that you plan to attend the Annual Meeting of Stockholders on June 15, 2007.