EXHIBIT 10.5
May 14, 1998
Board of Directors
Excel Realty Trust, Inc.
00000 Xxx Xxx Xxxxx
Xxx Xxxxx, XX 00000
Attention: Chief Executive Officer
Gentlemen:
As an inducement to Excel Realty Trust, Inc., a Maryland corporation (the
"Company"), to enter into the Agreement and Plan of Merger (the "Merger
Agreement") dated May 14, 1998 among the Company, New Plan Realty Trust, a
Massachusetts business trust, and ERT Merger Sub, Inc., a Maryland corporation,
and consummate the transactions comtemplated thereby, I hereby agree as follows:
During the period 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 remedy 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, 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/ Xxxxxx Xxxxxxx
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Xxxxxx Xxxxxxx
