EXHIBIT 10.6
May 14, 1998
Board of Directors
New Plan Realty Trust
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attention: Chief Executive Officer
Gentlemen:
As an inducement to New Plan Realty Trust, a Massachusetts business trust
("New Plan"), to enter into the Agreement and Plan of Merger (the "Merger
Agreement") dated May 14, 1998 among New Plan, Excel Realty Trust, Inc., a
Maryland corporation (the "Company"), and ERT Merger Sub, Inc., a Maryland
corporation, and consummate the transactions contemplated thereby, I hereby
agree as follows:
During the period from and after the Effective Time (as defined in the
Merger Agreement) and continuing until (x) I either do not Beneficially Own (as
defined herein) any Voting Securities (as defined herein) or (y) my employment
with the Company terminates as a result of a termination by the Company without
Cause (as defined in the Employment Agreement to be effective as of the
Effective Time between the Company and me) or (z) my termination for Good Reason
(as defined in my Employment Agreement), I:
(a) will not, without the prior approval of the Company's Board of
Directors:
(i) submit any proposal for the vote of stockholders of the Company;
(ii) become a member of a "group" within the meaning of
Section 13(d)(3) of the Securities Exchange Act of 1934, as amended (the
"Exchange Act") with respect to any Voting Securities;
(iii) induce or attempt to induce or give encouragement to any other
person to initiate any
proposal or tender or exchange offer for Voting Securities or a change of
control of the Company, or make or in any way participate in any solicitation
of proxies with respect to Voting Securities;
(iv) publicly propose or make any public statement with respect to the
foregoing;
(b) will, as a stockholder, be present in person or be represented by proxy
at all shareholder meetings of the Company so that all Voting Securities of
which I am the Beneficial Owner may be counted for the purpose of determining
the presence of a quorum at such meetings;
(c) will, as a stockholder, vote or cause to be voted all Voting Securities
of which I am the Beneficial Owner (i) for the Board of Directors' nominees for
election to the Board of Directors of the Company and (ii) in accordance with
the recommendation of the Board of Directors on all other matters submitted to a
vote of stockholders of the Company; and will not take any position contrary to
the position of the Board of Directors of the Company on any matter.
I acknowledge that you would not have an adequate remedy at law. For any
breach by me of this letter and agree that in addition to any other you may
have, the Company shall be entitled to seek injunctive relief.
As used herein: I will be deemed to "Beneficially Own" or be the
"Beneficial Owner" of any Voting Securities (i) in accordance with the term
"beneficial ownership" as defined in Rule 13d-3 under the Exchange Act as in
effect on the date hereof and (ii) which I have the right to acquire or vote
pursuant to any agreement, arrangement or understanding or upon exercise of
conversion rights, warrants, options or otherwise; and "Voting Securities" means
any shares of capital stock of the Company entitled to vote for the election of
directors of the Company, and any securities or rights convertible into or which
represent the right to acquire such shares and includes, without limitation,
shares of common stock, par value $.01 per share of the Company, in any case now
or hereinafter outstanding.
It is a condition precedent to the effectiveness of this letter that the
Effective Time shall have occurred.
Very truly yours,
/s/ Xxxx X. Xxxxx
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Xxxx X. Xxxxx
