-----BEGIN PRIVACY-ENHANCED MESSAGE----- Proc-Type: 2001,MIC-CLEAR Originator-Name: webmaster@www.sec.gov Originator-Key-Asymmetric: MFgwCgYEVQgBAQICAf8DSgAwRwJAW2sNKK9AVtBzYZmr6aGjlWyK3XmZv3dTINen TWSM7vrzLADbmYQaionwg5sDW3P6oaM5D3tdezXMm7z1T+B+twIDAQAB MIC-Info: RSA-MD5,RSA, IKaLtDDhLT1bJU42CVbIO/dF272kSxLlZpekVnm9h1eCvD7ePgn0vea0y9fOl5jG 3BO9yIQ2es7NER+boZzfAw== 0001193805-06-001782.txt : 20060725 0001193805-06-001782.hdr.sgml : 20060725 20060724181810 ACCESSION NUMBER: 0001193805-06-001782 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 3 CONFORMED PERIOD OF REPORT: 20060723 ITEM INFORMATION: Other Events ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20060725 DATE AS OF CHANGE: 20060724 FILER: COMPANY DATA: COMPANY CONFORMED NAME: Winthrop Realty Trust CENTRAL INDEX KEY: 0000037008 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 346513657 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-06249 FILM NUMBER: 06977383 BUSINESS ADDRESS: STREET 1: 7 BULFINCH PLACE STREET 2: SUITE 500 PO BOX 9507 CITY: BOSTON STATE: MA ZIP: 02114 BUSINESS PHONE: 6175704614 MAIL ADDRESS: STREET 1: 7 BULFINCH PLACE STREET 2: SUITE 500 PO BOX 9507 CITY: BOSTON STATE: MA ZIP: 02114 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION REAL ESTATE EQUITY & MORTGAGE INVESTMENTS DATE OF NAME CHANGE: 19920703 FORMER COMPANY: FORMER CONFORMED NAME: FIRST UNION REALTY DATE OF NAME CHANGE: 19691012 8-K 1 e600824_8k-winthrop.txt CURRENT REPORT SECURITIES AND EXCHANGE COMMISSION Washington, DC 20549 FORM 8-K Current Report Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934 Date of report (Date of earliest event reported) July 23, 2006 WINTHROP REALTY TRUST ------------------------------------------------------ (Exact Name of Registrant as Specified in Its Charter) Ohio ---------------------------------------------- (State or Other Jurisdiction of Incorporation) 001-06249 34-6513657 - ------------------------ ------------------------------------ (Commission File Number) (I.R.S. Employer Identification No.) 7 Bulfinch Place, Suite 500, P.O. Box 9507, Boston, Massachusetts 02114 - -------------------------------------------------------------------------------- (Address of Principal Executive Offices) (Zip Code) (617) 570-4614 ---------------------------------------------------- (Registrant's Telephone Number, Including Area Code) n/a ------------------------------------------------------------- (Former Name or Former Address, if Changed Since Last Report) Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligations of the registrant under any of the following provisions |_| Written communications pursuant to Rule 425 under the Securities Act (17 CFT|R 230.425) |_| Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |_| Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |_| Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c)) Item 8.01 - Other Events Lexington Corporate Properties Trust ("Lexington") and Newkirk Realty Trust, Inc. ("Newkirk") announced that they have entered into a definitive Agreement and Plan of Merger (the "Merger Agreement") dated as of July 23, 2006. Pursuant to the Merger Agreement, Newkirk will be merged with and into Lexington (the "Merger"). Winthrop Realty Trust (the "Company") holds 4.375.000 shares of common stock of Newkirk. In connection with the Merger, the Company has entered into a Voting Agreement with Lexington, attached hereto as Exhibit 10.1, pursuant to which the Company shall vote the shares of Newkirk held by it in favor of the Merger and any other matter contemplated under the Merger Agreement that could reasonably be expected to facilitate the Merger; provided that the Voting Agreement shall terminate upon the earlier of: the effective date of the Merger, the termination of the Merger Agreement in accordance with its terms, the public withdrawal by the Newkirk Board of its recommendation of the Merger or its public approval of an acquisition proposal other than the Merger. The Company has agreed to amend, at the effective time of the Merger, the previously entered into Acquisition Agreement and the Assignment as respects net lease assets of the Company's exclusivity agreement with Michael L. Ashner, the Company's Chairman and Chief Executive Officer, both as currently in effect between the Company and Newkirk, to permit the assignment and assumption of Newkirk's rights and obligations thereunder to and by Lexington. In addition, at the effective time of the Merger, all the shares of Newkirk common stock held by the Company would immediately vest and no longer be subject to forfeiture and the lock-up agreement with respect to such shares, currently in effect until November 2008, would thereupon terminate. Further, upon consummation of the Merger, the Company will be entitled to offset against the fees payable by the Company under the advisory agreement with FUR Advisors $4.4 million of the fee to be paid to NKT Advisors due to the termination of its advisory agreement with Newkirk in connection with the Merger. In addition, in connection with the Merger, Mr. Ashner will continue as a trustee and executive officer of the merged company. In this regard, the Company has entered into an agreement with Mr. Ashner relative to a proposed form of employment agreement between Mr. Ashner and Lexington to become effective upon the Merger. The agreement between the Company and Mr. Ashner is attached hereto as Exhibit 10.2 and provides that, among other things, in the event Lexington makes a real estate investment other than in a net-lease asset and Mr. Ashner shall thereby have the right to terminate his employment with Lexington, that Mr. Ashner is obligated to terminate his employment and other positions with Lexington, unless a majority of the independent trustees of the Company consent to his remaining with Lexington. Further, Mr. Ashner shall not agree to certain amendments to his employment agreement without the consent of the majority of the independent trustees of the Company. ITEM 9.01. Financial Statements and Exhibits (d) Exhibits 10.1 Voting Agreement between the Company and Lexington dated July 23, 2006 10.2 Agreement between Michael L. Ashner and Company dated July 23, 2006. SIGNATURE Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized on this 24th day of June, 2006. WINTHROP REALTY TRUST By: /s/ Peter Braverman ----------------------------- Peter Braverman President EX-10.1 2 e600824_ex10-1.txt VOTING AGREEMENT EXECUTION COPY VOTING AGREEMENT This Voting Agreement ("Agreement") is made and entered into as of July 23, 2006, by and between Lexington Corporate Properties Trust, a Maryland real estate investment trust (the "Company"), and the undersigned stockholder ("Stockholder") in Newkirk Realty Trust, Inc., a Maryland corporation ("NRT"). Certain capitalized terms used in this Agreement are defined in Section 6 hereof and certain other capitalized terms used in this Agreement that are not defined herein shall have the meaning given to such terms in the Merger Agreement (as defined below). RECITALS WHEREAS, the Stockholder is the holder of record and/or the "beneficial owner" (within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended) of NRT Common Stock; WHEREAS, concurrently with the execution and delivery of this Agreement, the Company and NRT are entering into an Agreement and Plan of Merger (the "Merger Agreement") which provides, upon the terms and subject to the conditions set forth therein, for the merger of NRT with and into the Company (the "Merger"); and WHEREAS, as a condition and inducement to the Company's willingness to enter into the Merger Agreement, Stockholder has agreed to execute and deliver this Agreement. AGREEMENT NOW, THEREFORE, the parties to this Agreement, intending to be legally bound, agree as follows: 1. Agreement to Vote Subject Securities. Prior to the Termination Date (as defined in Section 6), at every meeting of the stockholders of NRT and/or the unitholders of MLP called with respect to any of the following, and at every adjournment or postponement thereof, and on every action or approval by written consent of the stockholders of NRT with respect to any of the following, Stockholder shall vote or cause to be voted the Subject Securities: (a) in favor of approval and adoption of (i) the Merger Agreement including, without limitation, the Exchange Ratio (as defined therein), (ii) the Merger, (iii) the Second Amended and Restated Agreement of Limited Partnership of the Lexington Master Limited Partnership (formerly know as The Newkirk Master Limited Partnership), and (iv) any other matter contemplated under the Merger Agreement or that could reasonably be expected to facilitate the Merger that is put to a vote of the NRT Stockholders or holders of the NRT OP Units; (b) against any NRT Acquisition Proposal, other than in connection with the Merger, between NRT and any Person other than the Company; and (c) against any other action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of NRT under the Merger Agreement or which would result in any of the conditions to the consummation of the Merger under the Merger Agreement not being fulfilled. 2. Irrevocable Proxy. Concurrently with the execution of this Agreement, Stockholder agrees to deliver to the Company a proxy in the form attached hereto as Exhibit A (the "Proxy"), which shall be irrevocable to the fullest extent permitted by law, with respect to the Subject Securities referred to therein. 3. Agreement to Retain Subject Securities. (a) Restriction on Transfer. During the period from the date of this Agreement through the Termination Date, Stockholder shall not, directly or indirectly, cause or permit any Transfer, including without limitation, the pledge of Subject Securities in accordance with the provisions of that certain Lock-up Agreement, dated as of November 1, 2005, between the Stockholder and certain underwriters (the "Lock-up Agreement"), of any of the Subject Securities to be effected, unless, as a precondition to such Transfer, the transferee agrees in a writing, reasonably satisfactory in form and substance to the Company, to be bound by the terms of this Agreement and delivers a proxy to the Company in substantially the form of Exhibit A. , Notwithstanding the foregoing, nothing herein shall restrict or prohibit the transfer of Subject Securities upon foreclosure of any pledge listed on Schedule 4(c) attached hereto. (b) Restriction on Transfer of Voting Rights. During the period from the date of this Agreement through the Termination Date, Stockholder shall ensure that, without the Company's written consent: (a) none of the Subject Securities is deposited into a voting trust; and (b) no proxy (other than the Proxy granted herein) is granted, and no voting agreement or similar agreement is entered into, with respect to any of the Subject Securities. 4. Representations, Warranties and Covenants of Stockholder. Stockholder hereby represents and warrants to the Company as follows: (a) Due Authorization, Etc. All consents, approvals, authorizations and orders necessary for the execution and delivery by Stockholder of this Agreement and the Proxy have been obtained, and Stockholder has full right, power and authority to enter into this Agreement and the Proxy. This Agreement and the Proxy have been duly executed and delivered by Stockholder and constitute valid and binding agreements of Stockholder enforceable in accordance with their terms, except as the same may be limited by bankruptcy, insolvency, reorganization, moratorium or similar laws now or hereafter in effect relating to creditors' rights generally and subject to general principles of equity. (b) No Conflict. The execution and delivery of this Agreement and the Proxy by Stockholder do not, and the performance of and under this Agreement and the Proxy by Stockholder will not, conflict with or violate any law, rule, regulation, order, decree or judgment applicable to the Subject Securities held by the Stockholder. (c) Title to Securities. As of the date of this Agreement: (a) Stockholder holds of record (free and clear of any encumbrances or restrictions other than pursuant to pledges listed on Schedule 4(c) attached hereto) the number of outstanding shares of NRT Common Stock and NRT OP Units, respectively, set forth under the headings "Shares Held of Record" on the signature page hereof; (b) Stockholder Owns the additional securities of NRT set forth under the heading "Additional Securities Beneficially Owned" on the signature page -2- hereof; and (c) Stockholder does not directly or indirectly Own any shares of capital stock or other securities of NRT, or any option, warrant or other right to acquire (by purchase, conversion or otherwise) any shares of capital stock or other securities of NRT, other than the shares and options, warrants and other rights set forth on the signature page hereof. 5. Additional Covenants of Stockholder. (a) Further Assurances. From time to time and without additional consideration, Stockholder shall (at Stockholder's sole expense) execute and deliver, or cause to be executed and delivered, such additional transfers, assignments, endorsements, proxies, consents and other instruments, and shall (at Stockholder's sole expense) take such further actions, as the Company may reasonably request for the purpose of carrying out and furthering the intent of this Agreement. 6. Certain Definitions. For purposes of this Agreement, (a) "NRT Common Stock" means the common stock, $.01 par value per share, of NRT. (b) "NRT OP Units" means the partnership units of MLP. (c) Stockholder is deemed to "Own" or to have acquired "Ownership" of a security if Stockholder is the "beneficial owner" of such security within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended. (d) "Person" means any (i) individual, (ii) corporation, limited liability company, partnership or other entity, or (iii) Governmental Authority. (e) "Subject Securities" means: (i) all securities of NRT (including all shares of NRT Common Stock, NRT OP Units and all options, warrants and other rights to acquire shares of NRT Common Stock or NRT OP Units) Owned by Stockholder as of the date of this Agreement; and (ii) all additional securities of NRT (including all additional shares of NRT Common Stock, NRT OP Units and all additional options, warrants and other rights to acquire shares of NRT Common Stock or NRT OP Units) of which Stockholder acquires Ownership during the period from the date of this Agreement through the Termination Date including, without limitation, NRT Common Stock acquired in connection with the redemption or exchange of NRT OP Units. (f) "Termination Date" means the earlier to occur of the date (i) the Merger shall become effective in accordance with the terms and provisions of the Merger Agreement, (ii) the Merger Agreement terminates in accordance with its terms, (iii) upon which the NRT Board publicly withdraws its recommendation of the Merger, or (iv) upon which the NRT Board publicly recommends or approves any NRT Acquisition Proposal other than that contemplated in the Merger Agreement. (g) A Person is deemed to have effected a "Transfer" of a security if such Person directly or indirectly: (i) sells, pledges (other than as permitted under the Lock-up Agreement), encumbers, grants an option with respect to, transfers or disposes of such security or any interest in such security to any Person other than the Company or MLP; (ii) enters into an agreement or commitment contemplating the possible sale of, pledge of, encumbrance of, grant of an option with respect to, transfer of or disposition of such security or any -3- interest therein to any Person other than the Company; or (iii) reduces such Person's beneficial ownership of, interest in or risk relating to such security; provided, however, that, notwithstanding anything in this Agreement to the contrary, nothing herein shall restrict any redemption of NRT OP Units in exchange for NRT Common Stock in accordance with the terms of the currently effective amended and restated limited partnership agreement of MLP (which NRT Common Stock shall also be Subject Securities). 7. Miscellaneous. (a) Assignment; Binding Effect. Except as provided herein, neither this Agreement nor any of the interests or obligations hereunder may be assigned or delegated by Stockholder, and any attempted or purported assignment or delegation of any of such interests or obligations shall be void. Subject to the preceding sentence, this Agreement shall be binding upon Stockholder and his heirs, estate, executors and personal representatives and his or its successors and assigns, and shall inure to the benefit of the Company and its successors and assigns. Without limiting any of the restrictions set forth in Section 3(a) or elsewhere in this Agreement, this Agreement shall be binding upon any Person to whom any Subject Securities are transferred. Nothing in this Agreement is intended to confer on any Person (other than the Company and its successors and assigns) any rights or remedies of any nature. (b) Specific Performance. The parties agree that irreparable damage would occur in the event that any of the provisions of this Agreement or the Proxy were not performed in accordance with its specific terms or were otherwise breached and in the event of any breach or threatened breach by Stockholder of any covenant or obligation contained in this Agreement or in the Proxy, the Company shall be entitled (in addition to any other remedy that may be available to it, including monetary damages) to seek (a) a decree or order of specific performance to enforce the observance and performance of such covenant or obligation, and (b) an injunction restraining such breach or threatened breach. (c) Waiver. No failure on the part of the Company to exercise any power, right, privilege or remedy under this Agreement, and no delay on the part of the Company in exercising any power, right, privilege or remedy under this Agreement, shall operate as a waiver of such power, right, privilege or remedy; and no single or partial exercise of any such power, right, privilege or remedy shall preclude any other or further exercise thereof or of any other power, right, privilege or remedy. The Company shall not be deemed to have waived any claim available to the Company arising out of this Agreement, or any power, right, privilege or remedy of the Company under this Agreement, unless the waiver of such claim, power, right, privilege or remedy is expressly set forth in a written instrument duly executed and delivered on behalf of the Company; and any such waiver shall not be applicable or have any effect except in the specific instance in which it is given. (d) Governing Law; Venue. This Agreement and all acts and transactions pursuant hereto and the rights and obligations of the parties hereto shall be governed, construed and interpreted in accordance with the laws of the State of New York, without giving effect to principles of conflicts or choice of law. Any legal action or other legal proceeding relating to this Agreement or the Proxy or the enforcement of any provision of this Agreement or the Proxy may be brought or otherwise commenced in any state or federal court located in the State of New York. -4- (e) Counterparts. This Agreement may be executed in two or more counterparts (including by facsimile), each of which shall be deemed an original and all of which together shall constitute one instrument. (f) Entire Agreement. This Agreement and the Proxy constitute the entire agreement between the parties with respect to the subject matter hereof and supersede all prior agreements and understandings between the parties with respect thereto. No addition to or modification of any provision of this Agreement shall be binding upon either party unless made in writing and signed by both parties. (g) Notices. Any notice required or permitted by this Agreement shall be in writing and shall be deemed sufficient upon receipt, when delivered personally or by courier, overnight delivery service or confirmed facsimile, or forty-eight (48) hours after being deposited in the regular mail as certified or registered mail (airmail if sent internationally) with postage prepaid, if such notice is addressed to the party to be notified at such party's address or facsimile number as set forth below, or as subsequently modified by written notice. [Signature page follows.] -5- The parties have caused this Agreement to be duly executed on the date first above written. LEXINGTON CORPORATE PROPERTIES TRUST: By: ------------------------------------- Name: ----------------------------------- Title: ---------------------------------- Address for notices: Lexington Corporate Properties Trust One Penn Plaza, Suite 4015 New York, New York 10119-4015 Fax: (212) 594-6600 Attention: T. Wilson Eglin Joseph S. Bonventre with a copy (which shall not constitute notice) to: Paul, Hastings, Janofsky & Walker LLP 75 East 55th Street New York, New York 10022 Attn: Mark Schonberger, Esq. Facsimile: (212) 319-4090 [SIGNATURES CONTINUED ON FOLLOWING PAGE] -6- STOCKHOLDER: WRT REALTY, L.P. By: Winthrop Realty Trust its general partner By ---------------------------------- Peter Braverman President Address for notices: Winthrop Realty Trust 7 Bulfinch Place, Suite 500 P.O. Box 9507 Boston, Massachusetts 02114 Fax: (617) 742-4643 Attention: Carolyn Tiffany with a copy (which shall not constitute notice) to: Hahn Loeser & Parks LLP 3300 BP Tower 200 Public Square Cleveland Ohio 44114 Attn: F. Ronald O'Keefe Facsimile: (216) 241-2824 NRT Common Stock NRT OP Units Additional Securities Shares Held of Record Held of Record Beneficially Owned - --------------------- -------------- ------------------ 4,375,000 -- -- -7- EXECUTION COPY EXHIBIT A IRREVOCABLE PROXY The undersigned stockholder (the "Stockholder") of Newkirk Realty Trust, Inc., a Maryland corporation ("NRT") and/or a unit holder of The Newkirk Master Limited Partnership, a Delaware limited partnership ("MLP"), hereby irrevocably (to the fullest extent permitted by law) appoints Mr. Joseph S. Bonventre and Mr. Patrick Carroll, and Lexington Corporate Properties Trust, a Maryland real estate investment trust (the "Company"), and each of them, as the sole and exclusive attorneys and proxies of the undersigned, with full power of substitution and resubstitution, to vote and exercise all voting and related rights expressly provided herein (to the full extent that the undersigned is entitled to do so) and subject to all the limitations and restrictions provided herein with respect to the Subject Securities. For purposes of this Irrevocable Proxy (the "Proxy"), (a) "Subject Securities" means: (i) all securities of NRT (including all shares of common stock of NRT ("NRT Common Stock"), partnership units of MLP ("MLP Units") and all options, warrants and other rights to acquire shares of NRT Common Stock or MLP Units) Owned by Stockholder as of the date of this Proxy; and (ii) all additional securities of NRT (including all additional shares of NRT Common Stock, MLP Units and all additional options, warrants and other rights to acquire shares of NRT Common Stock or MLP Units) of which Stockholder acquires Ownership during the period from the date of this Proxy through the Termination Date, and (b) any Stockholder is deemed to "Own" or to have acquired "Ownership" of a security if such Stockholder is the "beneficial owner" of such security within the meaning of Rule 13d-3 under the Securities Exchange Act of 1934, as amended. Upon the undersigned's execution of this Proxy, any and all prior proxies given by the undersigned with respect to any Subject Securities are hereby revoked and the undersigned agrees not to grant any subsequent proxies with respect to the Subject Securities at any time prior to the Termination Date (as defined below). This Proxy is irrevocable (to the fullest extent permitted by law), is coupled with an interest and is granted pursuant to that certain Voting Agreement of even date herewith, by and between the Company and the undersigned stockholder, and is granted in consideration of the Company entering into that certain Agreement and Plan of Merger (the "Merger Agreement"), of even date herewith, by and among NRT and the Company. The Merger Agreement provides for the merger of NRT with and into the Company (the "Merger"). As used herein, the term "Termination Date" shall mean the earlier to occur of the date (i) the Merger shall become effective in accordance with the terms and provisions of the Merger Agreement, (ii) the Merger Agreement terminates in accordance with its terms, (iii) upon which the NRT Board publicly withdraws its recommendation of the Merger, or (iv) upon which the NRT Board publicly recommends or approves any NRT Acquisition Proposal other than as contemplated in the Merger Agreement. The attorneys and proxies named above, and each of them, are hereby authorized and empowered by the undersigned, at any time prior to the Termination Date, to act as the undersigned's attorney and proxy to vote the Subject Securities, and to exercise all voting and other rights of the undersigned with respect to the Subject Securities (including, without limitation, the power to execute and deliver written consents pursuant to Maryland General Corporation Law), at every annual, special or adjourned meeting of the stockholders of NRT or MLP and in every written consent in lieu of such meeting: (i) in favor of approval and adoption of (A) the Merger Agreement including, without limitation, the Exchange Ratio (as defined therein), (B) the Merger, (C) the Second Amended and Restated Agreement of Limited Partnership of the Lexington Master Limited Partnership (formerly known as The Newkirk Master Limited Partnership), and (D) any other matter contemplated under the Merger Agreement or that could reasonably be expected to facilitate the Merger; (ii) against any NRT Acquisition Proposal (as defined in the Merger Agreement), other than the Merger, between NRT and any person or entity (other than the Company or Merger Sub); and (iii) against any other action or agreement that would result in a breach of any covenant, representation or warranty or any other obligation or agreement of NRT under the Merger Agreement or which could result in any of the conditions to the consummation of the Merger under the Merger Agreement not being fulfilled. This Proxy shall be binding upon the heirs, estate, executors, personal representatives, successors and assigns of the Stockholder (including any transferee of any of the Subject Securities). Dated: [___________], 2006 WRT REALTY, L.P. By: Winthrop Realty Trust its general partner By ` --------------------------------- Number of shares of common stock of NRT owned of record as of the date of this proxy: 4,375,000 ---------------------------------------- Number of partnership units of MLP owned of record as of the date of this proxy: 0 ---------------------------------------- Schedule 4(c) LIENS AND RESTRICTIONS Lock-up Agreement, dated November 7, 2005, from First Union Real Estate Equity and Mortgage Investments (now known as Winthrop Realty Trust) in favor of Bear, Stearns & Co. Inc. and Credit Suisse First Boston LLC, as Representatives of the several underwriters. 486,111 shares are subject to forfeiture pursuant to the terms of that certain Acquisition Agreement, dated as of November 7, 2005, between Newkirk Realty Trust, Inc. and First Union Real Estate Equity and Mortgage Investments (now known as Winthrop Realty Trust) EX-10.2 3 e600824_ex10-2.txt AGREEMENT BETWEEN MICHAEL L. ASHNER AND COMPANY AGREEMENT AGREEMENT, dated as of July 23, 2006, between WINTHROP REALTY TRUST (formerly First Union Real Estate Equity and Mortgage Investments), an Ohio business trust (the "Company") and MICHAEL L.ASHNER ("Ashner"), an individual. RECITALS WHEREAS, pursuant to that certain Exclusivity Services Agreement, dated December 31, 2003, between the Company and Ashner (the "Exclusivity Agreement"), Ashner agreed to offer to the Company all Business Opportunities offered to Ashner during the term of the Agreement; WHEREAS, the Exclusivity Agreement was amended in certain respects by that certain Amendment No. 1 to the Exclusivity Agreement, dated October 27, 2005, which provided, among other things, that "Business Opportunity" shall mean an investment in real property or assets related thereto other than certain specified investments; WHEREAS, pursuant to that certain Assignment made as of November 7, 2005, (the "Exclusivity Assignment"), the Company assigned to Newkirk Realty Trust, Inc. ("Newkirk") its rights under the Exclusivity Agreement solely with respect to "Net Lease Assets," as that term is defined in the Acquisition Agreement dated as of November 7, 2005 by and between the Company and Newkirk (the "Acquisition Agreement"); WHEREAS, Newkirk and Lexington Corporate Properties Trust, a Maryland real estate investment trust ("Lexington") are, simultaneously herewith, entering into that certain Agreement and Plan of Merger, dated of even date herewith (the "Merger Agreement"), pursuant to which Newkirk shall be merged with and into Lexington, among other things (the "Merger"); WHEREAS, it is a condition to the consummation of the Merger that, at the effective time of the Merger (the "Effective Time"), Newkirk assign to Lexington, and Lexington assume all of Newkirk's rights and obligations under the Acquisition Agreement, which assignment and assumption by Lexington shall include Newkirk's rights and obligations under the Exclusivity Assignment, and which assignment and assumption is to be evidenced by that certain proposed form of Amendment to Acquisition Agreement and Assignment and Assumption attached as Annex __ to the Merger Agreement (the "Amendment, Assignment and Assumption"), a copy of which is attached hereto as Exhibit A; WHEREAS, it is further a condition to the consummation of the Merger that upon the Effective Time, Ashner become an employee of Lexington pursuant to the terms of that certain proposed form of Employment Agreement by and between Lexington and Ashner attached as Annex __ to the Merger Agreement ("Employment Agreement"), a copy of which attached hereto as Exhibit B; 1 WHEREAS, Lexington and Ashner have requested that the Company consent to Ashner's entering into of the Employment Agreement upon the consummation of the Merger; NOW THEREFORE, in consideration of the foregoing and the mutual provisions and agreements contained herein, the parties hereto agree as follows: 1. Capitalized terms used herein and not otherwise defined herein shall have the respective meanings set forth in the Amendment, Assignment and Assumption. 2. The parties acknowledge and agree that certain provisions have been included in the Employment Agreement and the Amendment, Assignment and Assumption for the direct or indirect benefit of the Company or in furtherance of the rights and obligations of the parties to the Exclusivity Agreement, as amended, including but not limited to the following: (i) The Employment Agreement provides that Ashner may terminate his employment thereunder with Good Reason (as defined therein) in the event that Lexington acquires or makes an Investment in Real Property (as defined therein) other than a Net Lease Asset (except for certain Investments in Real Property specified therein) without prior written notice to, and the participation or consent of the Company (such event to be referred to hereinafter as a "Nonconforming Investment Event"), provided that Ashner first gives Lexington written notice of his intention to terminate and of the grounds for such termination within 90 days of such event (the "Termination Notice"). (ii) The Amendment, Assignment and Assumption provides that if Ashner shall have terminated the Employment Agreement for Good Reason, the "Reversion Date" under the amended Acquisition Agreement shall be the date on which Ashner ceases to be a trustee of Lexington and that, upon the occurrence of the Reversion Date, the Exclusivity Assignment shall immediately terminate without any further action on the part of either party and all rights assigned to Newkirk pursuant to the Acquisition Agreement (and further assigned to Lexington as of the Effective Time under the Amendment, Assignment and Assumption) and any assignment delivered in connection therewith (including as a result of the assignment of the Exclusivity Assignment to Lexington as of the Effective Time) shall revert to the Company. 3. In consideration of the covenants and agreements set forth in Section 4 hereof, the Company hereby consents to Ashner entering into the Employment Agreement at such time as the Merger is consummated. 4. Ashner hereby covenants and agrees that: (i) in the event that Ashner has the right to terminate his employment under the Employment Agreement for Good Reason due to the occurrence of a Nonconforming Investment Event, Ashner shall promptly (1) 2 resign and terminate his employment for Good Reason under the Employment Agreement, and shall take all steps necessary to effectuate such termination, including providing promptly to Lexington a Termination Notice specifying the Nonconforming Investment Event as the grounds for such termination, provided that in no event shall Ashner provide such Termination Notice to Lexington later than 90 days after the occurrence of a Nonconforming Investment Event, (2) resign as a trustee of Lexington, and (3) resign all of his positions with Lexington and its affiliated entities; provided, that if Ashner has received the consent of a majority of the independent trustees of the Board of Trustees of the Company with respect to a specific Nonconforming Investment Event, which consent may be granted or withheld in such trustee's sole discretion, Ashner shall not be obligated to take the actions provided in this subparagraph (i) with respect to said Nonconforming Investment Event. (ii) he will not, without the prior written consent from a majority of the independent trustees of the Board of Trustees of the Company, which consent may be granted or withheld in such trustee's sole discretion, consent to any modification or amendment to the Employment Agreement from and after the date hereof that would have the effect of modifying the provisions thereof which directly or indirectly benefit the Company, including but not limited to an amendment that would: (1) adversely affect his ability to serve as the Chief Executive Officer and as a trustee of the Company, (2) modify Section 5(b)(ii) of the Employment Agreement or the procedure for termination for Good Reason, or (3) extend the time period for which the restrictive covenants in Section 7(a) of the Employment Agreement are applicable. 5. In the event that any party threatens to take any action prohibited by this Agreement, the parties agree that there may not be an adequate remedy at law. Accordingly, in such an event, a party may seek and obtain preliminary and permanent injunctive relief (without the necessity of posting any bond or undertaking). Such remedies shall, however, be cumulative and not exclusive and shall be in addition to any other remedies which any party may have under this Agreement or otherwise. 6. The terms and conditions of this Agreement shall inure to the benefit of and be binding upon the respective successors and assigns of the parties hereto. Nothing in this Agreement, express or implied, is intended to confer upon any party other than the parties hereto or their respective successors and assigns any rights, remedies, obligations or liabilities under or by reason of this Agreement, except as expressly provided in this Agreement. 7. This Agreement shall be governed by the laws of the State of New York, without regard to the conflicts of law provisions thereof. [SIGNATURE PAGE FOLLOWS] 3 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the date and year first above written. WINTHROP REALTY TRUST By: --------------------------- Peter Braverman President --------------------------- Michael L. Ashner 4 -----END PRIVACY-ENHANCED MESSAGE-----