LOCK-UP AGREEMENT
Exhibit 5
February 27, 2006
Xxxxx & Xxxxx Realty Advisors, Inc.
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
0000 Xxxxxxx Xxxx, Xxxxx 000
Xxxxxxxxxx, Xxxxxxxx 00000
Deutsche Bank Securities Inc.
As Representative of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
As Representative of the
Several Underwriters
c/o Deutsche Bank Securities Inc.
00 Xxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxx, Xxx Xxxx 00000
Ladies and Gentlemen:
The undersigned understands that Deutsche Bank Securities Inc., as representative (the
“Representative”) of the several underwriters (the “Underwriters”), propose to enter into an
Underwriting Agreement (the “Underwriting Agreement”) with Xxxxx & Xxxxx Realty Advisors, Inc. (the
“Company”), providing for the public offering by the Underwriters, including the Representative, of
units of the Company (the “Units”), with each unit consisting of one share of the Company’s common
stock, $.0001 par value (the “Common Stock”), and two warrants (the “Warrants”) to purchase Common
Stock (the “Public Offering”).
To induce the Underwriters that may participate in the Public Offering to continue their
efforts in connection with the Public Offering, the undersigned agrees that, without the prior
written consent of the Representative, the undersigned will not, directly or indirectly, offer,
sell, pledge, contract to sell (including any short sale), grant any option to purchase or
otherwise dispose of any Units, shares of Common Stock or Warrants (including, without limitation,
Units, shares of Common Stock or Warrants of the Company which may be deemed to be beneficially
owned by the undersigned on the date hereof in accordance with the rules and regulations of the
Securities and Exchange Commission, shares of Common Stock which may be issued upon exercise of the
Units, Warrants and any other security convertible into or exchangeable for Common Stock) or enter
into any Hedging Transaction (as defined below) relating to the Units, Common Stock or the Warrants
(each of the foregoing referred to as a “Disposition”) during the period specified in the following
paragraph (the “Lock-Up Period”). The foregoing restriction is expressly intended to preclude the
undersigned from engaging in any Hedging Transaction or other transaction which is designed to or
reasonably expected to lead to or result in a Disposition during the Lock-Up Period even if the
securities would be disposed of by someone other than the undersigned. “Hedging Transaction” means
any short sale (whether or not against the box) or any purchase, sale or grant of any right
(including, without limitation, any put or call option) with respect to any security (other than a
broad-based market basket or index) that includes, relates to or derives any significant part of
its value from the Units, Common Stock or Warrants.
The initial Lock-Up Period will commence on the date hereof and continue until, and include,
the date of the consummation of an acquisition by the Company, through a purchase, asset
acquisition or other business combination, of one or more commercial real estate properties and/or
assets, including by acquisition of an operating company (the “Initial Lock-Up Period”);
provided, however, that if (1) during the last 17 days of the Initial Lock-Up
Period, (A) the Company releases earnings results or (B) material news or a material event relating
to the Company occurs, or (2) prior to the expiration of the Initial Lock-Up Period, the Company
announces that it will release earnings results during the 16-day period following the last day of
the Initial Lock-Up Period, then in each case the Lock-Up Period will be extended until the
expiration of the 18-day period beginning on the date of the release of the earnings results or the
occurrence of material news or a material event relating to the Company, as the case may be, unless
the Representative waives, in writing, such extension.
Notwithstanding the foregoing, the undersigned may transfer (a) Units, Warrants and shares of
Common Stock acquired in open market transactions by the undersigned after the completion of the
Public Offering, and (b) any or all of the Units, Warrants and shares of Common Stock or other
Company securities if the transfer is by (i) gift, will or intestacy, or (ii) distribution to
partners, members or shareholders of the undersigned; provided, however, that in
the case of a transfer pursuant to clause (b) above, it shall be a condition to the transfer that
the transferee execute an agreement stating that the transferee is receiving and holding the
securities subject to the provisions of this Lock-Up Agreement.
The undersigned agrees that the Company may, and that the undersigned will, (i) with respect
to any Units, Warrants, shares of Common Stock or other Company securities for which the
undersigned is the record holder, cause the transfer agent for the Company to note stop transfer
instructions with respect to such securities on the transfer books and records of the Company and
(ii) with respect to any Units, Warrants, shares of Common Stock or other Company securities for
which the undersigned is the beneficial holder but not the record holder, cause the record holder
of such securities to cause the transfer agent for the Company to note stop transfer instructions
with respect to such securities on the transfer books and records of the Company.
In addition, the undersigned hereby waives any and all notice requirements and rights with
respect to registration of securities pursuant to any agreement, understanding or otherwise setting
forth the terms of any security of the Company held by the undersigned, including any registration
rights agreement to which the undersigned and the Company may be party; provided that such
waiver shall apply only to the proposed Public Offering, and any other action taken by the Company
in connection with the proposed Public Offering.
The undersigned hereby agrees that, to the extent that the terms of this Lock-Up Agreement
conflict with or are in any way inconsistent with any registration rights agreement to which the
undersigned and the Company may be a party, this Lock-Up Agreement supersedes such registration
rights agreement.
The undersigned hereby represents and warrants that the undersigned has full power and
authority to enter into this Lock-Up Agreement. All authority herein conferred or agreed to be
conferred shall survive the death or incapacity of the undersigned and any obligations of the
undersigned shall be binding upon the heirs, personal representatives, successors and assigns of
the undersigned.
Notwithstanding anything herein to the contrary, if the closing of the Public Offering has not
occurred prior to March 31, 2006, this agreement shall be of no further force or effect.
| KOJAIAN HOLDINGS, LLC | ||||
| a Michigan limited liability company | ||||
| BY: KOJAIAN MANAGEMENT | ||||
| CORPORATION | ||||
| a Michigan corporation | ||||
| its Sole Member | ||||
| /s/ C. Xxxxxxx Xxxxxxx | ||||
| Name: | C. Xxxxxxx Xxxxxxx | |||
| Title: | Executive Vice President | |||
