-----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, DCYdubcFIYna07K9aoFreDVlH9ciXoOVP2Ii65L762AaaImLSF6i1Jkz0YZJuBLL Vbctzn4zy86ekvp7aJ1kmg== 0001116679-08-000807.txt : 20080324 0001116679-08-000807.hdr.sgml : 20080324 20080324082555 ACCESSION NUMBER: 0001116679-08-000807 CONFORMED SUBMISSION TYPE: 8-K PUBLIC DOCUMENT COUNT: 5 CONFORMED PERIOD OF REPORT: 20080320 ITEM INFORMATION: Termination of a Material Definitive Agreement ITEM INFORMATION: Departure of Directors or Principal Officers; Election of Directors; Appointment of Principal Officers ITEM INFORMATION: Regulation FD Disclosure ITEM INFORMATION: Financial Statements and Exhibits FILED AS OF DATE: 20080324 DATE AS OF CHANGE: 20080324 FILER: COMPANY DATA: COMPANY CONFORMED NAME: LEXINGTON REALTY TRUST CENTRAL INDEX KEY: 0000910108 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 133717318 STATE OF INCORPORATION: MD FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: 8-K SEC ACT: 1934 Act SEC FILE NUMBER: 001-12386 FILM NUMBER: 08705832 BUSINESS ADDRESS: STREET 1: ONE PENN PLAZA STREET 2: SUITE 4015 CITY: NEW YORK STATE: NY ZIP: 10119 BUSINESS PHONE: (212) 692-7200 MAIL ADDRESS: STREET 1: ONE PENN PLAZA STREET 2: SUITE 4015 CITY: NEW YORK STATE: NY ZIP: 10119 FORMER COMPANY: FORMER CONFORMED NAME: LEXINGTON CORPORATE PROPERTIES TRUST DATE OF NAME CHANGE: 19980625 FORMER COMPANY: FORMER CONFORMED NAME: LEXINGTON CORPORATE PROPERTIES INC DATE OF NAME CHANGE: 19930816 8-K 1 lex8k-032108.htm PERIOD OF REPORT: MARCH 20, 2008 lex8k-032108.htm
 
 
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) March 20, 2008

LEXINGTON REALTY TRUST
(Exact Name of Registrant as Specified in Its Charter)
     
Maryland
1-12386
13-3717318
(State or Other Jurisdiction
of Incorporation)
(Commission File Number)
(IRS Employer
Identification
Number)
 
One Penn Plaza, Suite 4015, New York, New York
10119-4015
(Address of Principal Executive Offices) 
(Zip Code) 


 
(212) 692-7200
(Registrant's Telephone Number, Including Area Code)

                                                                                                                    
(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 1.02.    Entry into a Material Definitive Agreement.
 
Separation and General Release
 
On March 20, 2008, we entered into a Separation and General Release with Michael L. Ashner, pursuant to which he stepped down as Executive Chairman and Director of Strategic Acquisitions.  The Separation and General Release is summarized in Item 5.02 and attached hereto as Exhibit 99.1.
 
Services and Non-Compete Agreement
 
On March 20, 2008, we entered into a Services and Non-Compete Agreement with Mr. Ashner and FUR Advisors LLC.  The Services and Non-Compete Agreement is summarized in Item 5.02 and attached hereto as Exhibit 10.1.
 
Amendment to Voting Trustee Agreement
 
On March 20, 2008, we entered into an amendment to the Voting Trustee Agreement, dated as of December 31, 2006, with The Lexington Master Limited Partnership and NKT Advisors LLC.  The amendment provides that we will (i) notify the holders of Special Voting Partnership Units (defined therein) regarding any matter as to which votes or consents are sought by Lexington from the holders of Special Voting Preferred Stock, (ii) provide such holders with copies of materials provided to common shareholders in connection with such vote or consent and (iii) provide such holders with the means with which to indicate their votes.
 
The foregoing description of the amendment is qualified in its entirety by reference to the Amendment No. 1 to Voting Trustee Agreement attached as Exhibit 10.2 to this Current Report on Form 8-K.
 
Item 5.02.    Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
 
On March 20, 2008, we announced that E. Robert Roskind, who previously served as Chairman from 1993 to 2006, as Chairman of our Board of Trustees, to replace Michael L. Ashner, who has resigned as Executive Chairman and Director of Strategic Acquisitions.
 
Biographical information for Mr. Roskind is contained in our Annual Report on Form 10-K filed on February 29, 2008.
 
Pursuant to a Separation and General Release, we will accelerate the vesting on 16,867 restricted shares previously granted to Mr. Ashner. The Separation and General Release also contains customary terms and conditions, including, without limitation, a mutual release of claims each party may have against the other, if any.
 

 
 

 

 
The foregoing description of the Separation and General Release is qualified in its entirety by reference to the Separation and General Release attached as Exhibit 99.1 to this Current Report on Form 8-K.
 
On March 20, 2008, we also entered into a Services and Non-Compete Agreement with Mr. Ashner and FUR Advisors LLC, which provides that Mr. Ashner and FUR Advisors LLC will provide us with certain asset management services in exchange for $1.5 million to be paid out monthly until December 31, 2008.
 
The Services and Non-Compete Agreement provides that the Exclusivity Services Agreement with Mr. Ashner, which requires Mr. Ashner to offer us all of his net lease investment opportunities, will terminate on December 31, 2008.
 
The Services and Non-Compete Agreement also provides that prior to December 31, 2008, Mr. Ashner, FUR Advisors LLC and their controlled affiliates, including, without limitation, Winthrop Realty Trust, will not, subject to certain exceptions, effect (i) any acquisition of our securities or assets; (ii) any tender or exchange offer, merger or other business combination involving us; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to us; or (iv) any “solicitation” of “proxies” to vote any voting securities of Company.
 
The foregoing description of the Services and Non-Compete is qualified in its entirety by reference to the Services and Non-Compete attached as Exhibit 10.1 to this Current Report on Form 8-K.
 
Item 7.01.     Regulation FD Disclosure.
 
On March 20, 2008, we issued a press release announcing the appointment of E. Robert Roskind as our Chairman and the resignation of Michael L. Ashner. A copy of the press release is attached as Exhibit 99.2 to this Current Report on Form 10-K.
 
Item 9.01.    Financial Statements and Exhibits.
 
 
(d)         Exhibits 
 
     
 
10.1
Services and Non-Compete Agreement, dated March 20, 2008
     
 
10.2
Amendment No. 1 to Voting Trustee Agreement, dated March 20, 2008
     
 
99.1
Separation and General Release, dated March 20, 2008
     
 
99.2
Press Release issued March 20, 2008.
 

 
 
 

 
 
 
 

 
SIGNATURES

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.

 
  Lexington Realty Trust   
     
     
Date: March 24, 2008 
By:
/s/ T. Wilson Eglin   
   
T. Wilson Eglin
 
   
Chief Executive Officer
 

 
 
 
 
 
 
 

 
 
 

 
Exhibit Index

 
 
10.1
Services and Non-Compete Agreement, dated March 20, 2008
     
 
10.2
Amendment No. 1 to Voting Trustee Agreement, dated March 20, 2008
     
 
99.1
Separation and General Release, dated March 20, 2008
     
 
99.2
Press Release issued March 20, 2008.
 
 
 
 
 
 
 
 
 


 

EX-10.1 2 ex10-1.htm SERVICES AND NON-COMPETE AGREEMENT ex10-1.htm
 
Exhibit 10.1
 
SERVICES AND NON-COMPETE AGREEMENT
 
Services And Non Compete Agreement (this “Agreement”), dated as of March 20, 2008, by and among Lexington Realty Trust, a Maryland real estate investment trust (together with its subsidiaries and affiliates, “Company”), FUR Advisors LLC, a Delaware limited liability company (“FUR”), and Michael L. Ashner, an individual. (“Ashner”)  Company, FUR and Ashner are each referred to herein as a “Party” and collectively as the “Parties.” FUR and Ashner are sometimes referred to herein as the “Ashner Parties.”
 
Recitals
 
Whereas, Company desires to obtain certain services from the Ashner Parties for the purpose of enabling Company to manage the operation of the properties and businesses owned and conducted by The Lexington Master Limited Partnership (the “MLP”) and certain strategic transactions previously entered into by the Company (“Strategic Transactions”); and
 
Whereas, Ashner is the Chairman and Chief Executive Officer of each of FUR and Winthrop Realty Trust, an unincorporated association in the form of an Ohio business trust (“Winthrop”); and
 
Whereas, FUR is the external advisor to Winthrop.
 
Now, Therefore, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, Company and FUR hereby agree as follows:
 
Agreement
 
1.           Scope of Agreement.  In accordance with the terms and conditions of this Agreement, (i) FUR hereby agrees to provide certain asset management support services to Company, the nature and scope of which are described in Section 4 of this Agreement; and (ii) the Ashner Parties and Winthrop, as applicable, hereby agree to (a) the standstill provisions set forth in Section 6, and (b) the continuation of the exclusivity and non-compete provisions currently in effect in favor of the Company.
 
2.           Consideration.  In exchange for providing the Services (defined below) and the other obligations to be undertaken pursuant to this Agreement, Company shall pay to FUR $1,500,000, as follows:
 
Payment Date
Payment Amount
4/1/08
$166,666
5/1/08
$166,666
6/2/08
$166,666
7/1/08
$166,667
8/1/08
$166,667
9/2/08
$166,667
10/1/08
$166,667
11/3/08
$166,667

 
 

 
 
 
12/1/08
$166,667
 
 
3.           Term.  The term of this Agreement (the Term) shall commence on the date hereof and shall end on December 31, 2008 (the “Termination Date”).
 
4.           Services to be Provided by FUR.  Until the Termination Date, FUR shall provide Company with support of the asset management functions of Company relating to MLP’s assets and the Strategic Transactions (the “Services”).
 
5.           Level of Services.  FUR will use the same degree of care in rendering the Services under this Agreement as it utilizes in rendering such Services for its own operations and its other clients.  Company shall cooperate with FUR to permit FUR to perform its duties and obligations under this Agreement in a timely manner (including, without limitation, providing to FUR any reports or other information required by FUR to discharge its duties hereunder).
 
6.           Standstill. Each of the Ashner Parties agrees that until the Termination Date, unless such shall have been specifically invited in writing by Company, neither the Ashner Parties nor any of their respective controlled affiliates (as such term is defined under the rules and regulations promulgated under the Securities Exchange Act of 1934, as amended (collectively, the “1934 Act”)), including, without limitation, Winthrop, will in any manner, directly or indirectly, (a) effect or seek, offer or propose (whether publicly or otherwise) to effect, or cause or participate in or in any way assist any other person to effect or seek, offer or propose (whether publicly or otherwise) to effect or participate in, (i) any acquisition of securities (or beneficial ownership thereof) or assets (unless such assets are otherwise being marketed by Company) of Company or any of its subsidiaries, affiliates or divisions; (ii) any tender or exchange offer, merger or other business combination involving Company or any of its subsidiaries, affiliates or divisions; (iii) any recapitalization, restructuring, liquidation, dissolution or other extraordinary transaction with respect to Company or any of its subsidiaries, affiliates or divisions; or (iv) any “solicitation” of “proxies” (as such terms are used in the proxy rules of the Securities and Exchange Commission) or consents to vote any voting securities of Company; (b) form, join or in any way participate in a “group” (as defined under the 1934 Act); (c) otherwise act, alone or in concert with others, to seek to control or influence the management, Board of Directors or Trustees or policies of Company or any of its subsidiaries, affiliates or divisions; (d) take any action which might force Company to make a public announcement regarding any of the types of matters set forth in (a) above; (e) request Company, directly or indirectly, to amend or waive any provision of this Section 6; or (f) enter into any discussions or arrangements with any third party with respect to any of the foregoing. Notwithstanding anything herein to the contrary, the obligations of this Section 6 shall immediately terminate at such time, if at all, in the event there is a public announcement by Company that a third party or group has made an offer to acquire (in any manner), directly or indirectly, (i) control of Company or its Board of Trustees (including, without limitation, through a solicitation of proxies); (ii) control of any voting securities of Company; or (iii) all or substantially all of the businesses or assets of Company.
 

 
2

 
 

 
7.           Amended and Restated Exclusivity Services Agreement and Acquisition Agreement and Assignment and Assumption.  Notwithstanding anything to the contrary contained herein, in the Amended and Restated Exclusivity Services Agreement, dated as of December 31, 2006, between Company and Ashner (the “Exclusivity Agreement”), or in the Acquisition Agreement, dated as of November 7, 2005, as amended by the Amendment to Acquisition Agreement, Assignment and Assumption on December 31, 2006, between Newkirk Realty Trust, Inc., Winthrop and Company (collectively, as amended, the “Acquisition Agreement”), (a) the Exclusivity Agreement and Acquisition Agreement shall remain in full force and effect, (b) the Exclusivity Period (as defined in the Exclusivity Agreement) shall end on the Termination Date, and (c) the Reversion Date (as defined in the Acquisition Agreement) shall be the Termination Date.
 
8.           Miscellaneous.
 
8.1           Amendment and Modification.  This Agreement may not be amended, modified or supplemented in any manner, whether by course of conduct or otherwise, except by an instrument in writing signed on behalf of each Party and otherwise as expressly set forth herein.
 
8.2           Waiver.  No failure or delay of any Party in exercising any right or remedy hereunder shall operate as a waiver thereof, nor shall any single or partial exercise of any such right or power, or any abandonment or discontinuance of steps to enforce such right or power, or any course of conduct, preclude any other or further exercise thereof or the exercise of any other right or power.  The rights and remedies of the Parties hereunder are cumulative and are not exclusive of any rights or remedies which they would otherwise have hereunder.  Any agreement on the part of any Party to any such waiver shall be valid only if set forth in a written instrument executed and delivered by a duly authorized officer on behalf of such Party.
 
8.3           Notices.  All notices and other communications hereunder shall be in writing and shall be deemed duly given (a) on the date of delivery if delivered personally, or if by facsimile, upon written confirmation of receipt by facsimile, e-mail or otherwise, (b) on the first business day following the date of dispatch if delivered by a recognized next-day courier service or (c) on the earlier of confirmed receipt or the fifth business day following the date of mailing if delivered by registered or certified mail, return receipt requested, postage prepaid.  All notices hereunder shall be delivered to the addresses set forth below, or pursuant to such other instructions as may be designated in writing by the Party to receive such notice:
 
                      if to Winthrop, FUR or Ashner, to:
 
FUR Realty Trust
7 Bulfinch Place
Suite 500
Boston, MA  02114
Facsimile:  (617) 570-4746
Attention:  Michael L. Ashner
 
                      with copies (which shall not constitute notice) to:

 
3

 


Katten Muchin Rosenman LLP
575 Madison Avenue
New York, NY 10022
Fax No:  (212) 940-8776
Attention:    Mark I. Fisher, Esq.

                      if to Company, to:
 
Lexington Realty Trust
One Penn Plaza
Suite 4015
New York, New York 10119-4015
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
Fax No.:  (212) 319-4090
Attention:     Mark Schonberger, Esq.

8.4           Interpretation.  The headings contained in this Agreement or in any Exhibit are for convenience of reference purposes only and shall not affect in any way the meaning or interpretation of this Agreement.  All words used in this Agreement will be construed to be of such gender or number as the circumstances require.  Any capitalized terms used in any Exhibit but not otherwise defined therein shall have the meaning as defined in this Agreement.  The word “including” and words of similar import when used in this Agreement will mean “including, without limitation”, unless otherwise specified.
 
8.5           Entire Agreement.  Other than the Separation Agreement and General Release between Company and Ashner of even date herewith, this Agreement constitutes the entire agreement, and supersedes all prior written agreements, arrangements, communications and understandings and all prior and contemporaneous oral agreements, arrangements, communications and understandings among the Parties with respect to the subject matter of this Agreement.  Notwithstanding any oral agreement of the Parties or their representatives to the contrary, no Party to this Agreement shall be under any legal obligation to enter into or complete the transactions contemplated hereby unless and until this Agreement shall have been executed and delivered by each of the Parties.
 
8.6           No Third Party Beneficiaries.  This Agreement shall be binding upon and inure solely to the benefit of each Party and their respective successors and assigns, and nothing in this
 

 
4

 

Agreement, express or implied, is intended to or shall confer upon any other person any legal or equitable right, benefit or remedy of any nature under or by reason of this Agreement.
 
8.7           Governing Law.  This Agreement and all disputes or controversies arising out of or relating to this Agreement or the transactions contemplated hereby shall be governed by, and construed in accordance with, the internal laws of the State of New York, without regard to the laws of any other jurisdiction that might be applied because of the conflicts of laws principles of the State of New York other than Section 5-1401 of the New York General Obligations Law.
 
8.8           Submission to Jurisdiction.  Each of the Parties irrevocably agrees that any legal action or proceeding arising out of or relating to this Agreement or for recognition and enforcement of any judgment in respect hereof brought by any other Party or its successors or assigns may be brought and determined in any New York State or federal court sitting in New York, New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), and each of the Parties hereby irrevocably submits to the jurisdiction of the aforesaid courts for itself and with respect to its property, generally and unconditionally, with regard to any such action or proceeding arising out of or relating to this Agreement and the transactions contemplated hereby (and agrees not to commence any action, suit or proceeding relating thereto except in such courts).  Each of the Parties further agrees to accept service of process in any manner permitted by such courts.  Each of the Parties hereby irrevocably and unconditionally waives, and agrees not to assert, by way of motion or as a defense, counterclaim or otherwise, in any action or proceeding arising out of or relating to this Agreement or the transactions contemplated hereby, (a) any claim that it is not personally subject to the jurisdiction of the above-named courts for any reason other than the failure lawfully to serve process, (b) that it or its property is exempt or immune from jurisdiction of any such court or from any legal process commenced in such courts (whether through service of notice, attachment prior to judgment, attachment in aid of execution of judgment, execution of judgment or otherwise) and (c) to the fullest extent permitted by law, that (i) the suit, action or proceeding in any such court is brought in an inconvenient forum, (ii) the venue of such suit, action or proceeding is improper or (iii) this Agreement, or the subject matter hereof, may not be enforced in or by such courts.
 
8.9           Assignment.  No Party shall be permitted to assign any of its rights or delegate any of its obligations under this Agreement without the prior written consent of each other Party; except that (i) Company may, without such consent, assign all such rights to any affiliate(s) of Company or to any Person providing financing to Company as collateral security for such financing; provided that no such assignment shall relieve Company of any of its obligations hereunder; and (ii) FUR may, without such consent, assign all such rights to (A) any affiliate controlling FUR; provided that no such assignment shall relieve FUR of any of its obligations hereunder or (B) any person that acquires, directly or indirectly, all or any substantial portion of the assets or securities of FUR.  Any unauthorized assignment or transfer shall be null and void.  Subject to the preceding sentences, this Agreement will be binding upon, inure to the benefit of, and be enforceable by, the parties and their respective successors and assigns.
 
8.10           Enforcement.  The Parties agree that irreparable damage 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.  Accordingly, each of the Parties shall be entitled to
 

 
5

 

specific performance of the terms hereof, including an injunction or injunctions to prevent breaches of this Agreement and to enforce specifically the terms and provisions of this Agreement in any New York State or federal court sitting in New York, New York (or, if such court lacks subject matter jurisdiction, in any appropriate New York State or federal court), this being in addition to any other remedy to which they are entitled at law or in equity.  Each of the Parties further hereby waives (a) any defense in any action for specific performance that a remedy at law would be adequate and (b) any requirement under any law to post security as a prerequisite to obtaining equitable relief.
 
8.11           Severability.  Whenever possible, each provision or portion of any provision of this Agreement shall be interpreted in such manner as to be effective and valid under applicable law, but if any provision or portion of any provision of this Agreement is held to be invalid, illegal or unenforceable in any respect under any applicable Law or rule in any jurisdiction, such invalidity, illegality or unenforceability shall not affect any other provision or portion of any provision in such jurisdiction, and this Agreement shall be reformed, construed and enforced in such jurisdiction as if such invalid, illegal or unenforceable provision or portion of any provision had never been contained herein.
 
8.12           Waiver of Jury Trial.  EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT OF OR RELATING TO THIS AGREEMENT OR THE TRANSACTIONS CONTEMPLATED HEREBY.
 
8.13           Counterparts.  This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the Parties and delivered to the other Parties.
 
8.14           Facsimile Signature.  This Agreement may be executed by facsimile signature and a facsimile signature shall constitute an original for all purposes.
 
8.15           No Agency.  Nothing in this Agreement shall constitute or be deemed to constitute a partnership or joint venture between or among the Parties or constitute or be deemed to constitute any Party the agent or employee of any other Party for any purpose whatsoever and no Party shall have authority or power to bind any other Party or to contract in the name of, or create a liability against, the other in any way or for any purpose.
 
8.16           Information.  Subject to any applicable laws and privileges, each Party covenants and agrees to provide each other Party with all information regarding itself and the transactions under this Agreement that each other Party reasonably believes is required to comply with all applicable federal, state, county, and local laws, ordinances, regulations, and codes, and to satisfy the requesting Partys obligations hereunder.
 
[SIGNATURE PAGE FOLLOWS]
 

 
6

 

In Witness Whereof, the Parties have caused this Agreement to be executed as of the date first written above.
 

 
  Lexington Realty Trust   
     
     
 
By:
/s/  T. Wilson Eglin   
 
Name:   
T. Wilson Eglin   
 
Title:
Chief Executive Officer   
 
 
 
 

 

 
  /s/ Michael L. Ashner   
  Michael L. Ashner   
     
 
 
 
AGREED AND CONSENTED TO
 
FOR PURPOSES OF SECTION 7 ONLY
 
Winthrop Realty Trust
 
 
By:
/s/ Peter Braverman 
  Peter Braverman 
  President 
 
 
 
 
 

 

EX-10.2 3 ex10-2.htm AMDT NO. 1 TO VOTING TRUSTEE AGREEMENT ex10-2.htm
 
Exhibit 10.2
 
AMENDMENT NO. 1 TO VOTING TRUSTEE AGREEMENT
 

 
THIS AMENDMENT NO. 1 TO VOTING TRUSTEE AGREEMENT, is made as of March 20, 2008, among LEXINGTON REALTY TRUST, a Maryland real estate investment trust (“Lexington”), THE LEXINGTON MASTER LIMITED PARTNERSHIP (formerly known as The Newkirk Master Limited Partnership), a Delaware limited partnership (the “Operating Partnership” and together with Lexington, the “Company”), and NKT ADVISORS LLC (the “Advisor”).
 
WHEREAS, pursuant to that certain Voting Trustee Agreement, dated as of December 31, 2007, among Lexington, the Operating Partnership and the Advisor (the “Agreement”), the parties set forth certain rights and obligations in connection with the Special Preferred Stock, $.01 par value per share of Lexington (the “Special Voting Preferred Stock”);
 
WHEREAS, the parties desire to amend the Agreement as hereinafter provided;
 
NOW, THEREFORE, in consideration of the premises and of the mutual agreements herein set forth, the parties hereto agree as follows:
 
1.         Capitalized Terms.  Capitalized terms used herein and not otherwise defined shall have the respective meanings ascribed thereto in the Agreement.
 
2.         Amendments.  The Agreement is hereby amended by deleting Section 2 thereof in its entirety and inserting the following in lieu therof;
 
 
2.           Voting Procedure. Lexington agrees to (i) notify the holders of Special Voting Partnership Units regarding any matter as to which votes or consents are sought by Lexington from the holders of Special Voting Preferred Stock, (ii) provide such holders with copies of materials provided to common shareholders in connection with such vote or consent and (iii) provide such holders with the means with which to indicate their LP Direction Votes.
 
 
3.           Miscellaneous.             (a)  Except as modified hereby, the Agreement remains in full force and effect and the provisions thereof are hereby ratified and confirmed.

(b)           All references in the Agreement to “this Agreement”, “hereunder”, “hereto” or similar references, and all references in all other documents to the Agreement shall hereinafter be deemed references to the Agreement as amended hereby.

(c)           This Amendment may be executed in one or more counterparts, all of which together shall for all purposes constitute one amendment, binding on all parties hereto, notwithstanding that the parties have not signed the same counterparts.
 
 

 
 
 

 

IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of the date and year first above written.
 
 
 
LEXINGTON REALTY TRUST 
 
     
 
By:
/s/ T. Wilson Eglin   
    Name:  T. Wilson Eglin   
    Title:  Chief Executive Officer   
 
 
  THE LEXINGTON MASTER LIMITED PARTNERSHIP   
     
  By:   Lex GP-1 Trust, its General Partner    
         
    By: /s/ T. Wilson Eglin   
   
 
Name:  T. Wilson Eglin 
 
   
 
Title:  President   

 
 
 
NKT ADVISORS LLC 
   
 
By:
FUR Holdings LLC,  its Managing Member
       
   
By:
WEM-FUR Investors LLC, its Managing Member
     
 
 
     
By:
/s/ Michael L. Ashner   
        Michael L. Ashner   
     
 
Managing Member   
 
 

 


EX-99.1 4 ex99-1.htm SEPARATION AND GENERAL RELEASE ex99-1.htm
 
Exhibit 99.1
 
SEPARATION AGREEMENT AND GENERAL RELEASE

 
THIS SEPARATION AGREEMENT AND GENERAL RELEASE, is made this 20th day of March, 2008 (this “Agreement”), between Lexington Realty Trust, its subsidiaries and affiliates located at One Penn Plaza, Suite 4015, New York, New York 10119-4015 (collectively, the “Company”), and Michael L. Ashner, having an address of c/o Winthrop Realty Partners, L.P., Two Jericho Plaza, Wing A, Suite 111, Jericho, New York 11753 (“Executive”).
 
In consideration of the mutual promises and releases contained in this Agreement, the parties to this Agreement hereby agree as follows:
 
1.      Last Day of Employment.  As of March 20, 2008 (the “Effective Date”), Executive hereby resigns his employment with the Company, from all offices and administrative positions he holds with the Company, and from the Board of Trustees of the Company.  Executive acknowledges and agrees that as of the Effective Date, he will no longer have any authority to make or enter into any agreements, commitments, or representations on behalf of the Company, and he will no longer have any signing or other authority on the Company’s accounts, trusts, books, or records. Executive will receive his base salary through the Effective Date.
 
2.      ADEA Separation Benefits and Non-Vested Shares.  In exchange for his release of claims under the Age Discrimination in Employment Act (“ADEA”), the Company agrees that 8,434 non-vested common shares of the Company (the “ADEA Shares”) held by the Executive, which, together with the Other Shares (defined below), are all of the non-vested common shares of the Company held by Executive, shall be fully vested on the Effective Date (the “ADEA Separation Benefit”).
 
3.      Other Separation Benefits.  The Company agrees that 8,433 non-vested common shares of the Company (the “Other Shares”) held by the Executive, which, together with the ADEA Shares, are all of the non-vested common shares of the Company held by Executive, shall be fully vested on the Effective Date (the “Other Separation Benefit”).
 
4.      Termination and Forfeiture of All Future Benefits and Compensation.  Executive specifically waives and foregoes all rights to any compensation or benefits of any kind that are not expressly provided to him in this Agreement, including, without limitation, any rights under the Employment Agreement (defined below), any right to any base salary, bonus, incentive or long-term award (including, without limitation, any annual cash incentive opportunity or annual long-term incentive opportunity under the 2008 Executive Compensation Program or any participation in or payment under the Lexington Realty Trust 2007 Outperformance Plan), severance, life insurance, or other employee benefits.  Executive further acknowledges and agrees that after the Effective Date he will not be able to participate in any Company-sponsored employee benefits plan or program except as expressly provided for in this Agreement.  After the Effective Date, to the extent permitted under and in accordance with Consolidated Omnibus Budget Reconciliation Act, Executive will have the right to continue his health benefit coverage as to any Company-provided health plan in which he participates at his own cost.
 
5.      Release of Claims.
 

 
 

 

 
(a)           By Executive. In exchange for the benefits provided to him under this Agreement, Executive irrevocably and unconditionally forever releases and discharges the Company, its subsidiaries, and their affiliates, related companies, successors and assigns, and each of their current and former employees, officers, trustees, directors, owners, shareholders, representatives, administrators, fiduciaries, agents, insurers, and employee benefit programs (excepted vested benefits, if any, in the Company’s 401(k) Plan) (and the trustees, administrators, fiduciaries and insurers of any such programs) (collectively, the “Released Parties”) from all actual or potential, known or unknown claims that Executive presently has or may have arising out of or relating to Executive’s employment by the Company or from his position as an officer, trustee or director of the Company or any other entity in which he served in such positions at the request of the Company or as a trustee, administrator or fiduciary of an employee benefit plan at the request of the Company.  The claims that Executive is releasing include, for example and without limitation, claims under any federal, state or local common law, statute, regulation or law of any type, including but not limited to Title VII of the Civil Rights Act of 1964, the Americans With Disabilities Act, the Employee Retirement Income Security Act, the New York State Human Rights Law, the New York City Human Rights Law; any other claims of employment discrimination or for breach of contract; any claims arising under or otherwise related to any other or oral agreement with the Company; and claims for any other or further compensation, payments or benefits of any kind from any Released Party.  Executive agrees that he has not filed or caused to be filed any lawsuit, complaint, charge, grievance or any other proceeding against the Company with any court, agency or other tribunal.  Nothing in this Section 5 shall (i) preclude Executive from filing a charge of age discrimination with any state, local, or federal administrative agency; however, in the event he files such a charge, or such a charge is filed on his behalf, Executive agrees that he shall not be entitled to any damages, remedies, or other relief for himself personally as a result of any such charge or proceeding commenced in relation thereto, and that the benefits received in this Agreement are and shall be his sole and exclusive remedy against Released Parties for any claims he has as of the date this Agreement is signed or (ii) be deemed to be a release or discharge of any rights Executive may have to seek indemnification in accordance with the terms of the Company’s Declaration of Trust, By-laws, insurance policies maintained for such purposes or any other applicable document or law with respect to any claims or actions brought against Executive relating to his employment with the Company or his serving as an officer, trustee and director the Company.
 
It is expressly understood and agreed between the parties that the release of claims detailed in this Section 5 shall in no way apply to any claims Executive may have under the ADEA.
 
(b)           By the Company.  The Company irrevocably and unconditionally forever releases and discharges Executive and his heirs, executors, administrators, legal representatives and assigns, from all actual or potential, known or unknown claims that the Company presently may have, arising out of or relating to Executive’s employment by the Company or from his position as an officer, trustee or director of the Company or any other entity in which he served in such positions at the request of the Company or as a trustee, administrator or fiduciary of an employee benefit plan at the request of the Company; provided, however, that the Company is not releasing any claims arising out of (i) intentionally improper acts by Executive or any fraudulent or illegal acts by Executive, with the understanding that the Company is not currently
 

 
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aware of any such acts, or (ii) Executives obligation under the Services and Non-Compete Agreement, dated as of the date hereof (the “Services Agreement”).
 
6.      Release of ADEA Claims. In exchange for the ADEA Separation Benefit provided to him under Section 2 hereof, Executive hereby waives, releases and forever discharges, the Released Parties from any and all actual or potential, known or unknown claims he may have under ADEA.  Executive acknowledges that the benefits provided to him under Section 2 hereof are being given in exchange for Executive’s release of ADEA claims. Nothing in this Section 6 shall preclude Executive from filing a charge of age discrimination with any state, local, or federal administrative agency; however, in the event he files such a charge, or such a charge is filed on his behalf, Executive agrees that he shall not be entitled to any damages, remedies, or other relief for himself personally as a result of any such charge or proceeding commenced in relation thereto, and that the sums received in this Agreement are and shall be his sole and exclusive remedy against the Released Parties for any claims he has as of the date this Agreement is signed.
 
7.      Cooperation.  Executive agrees to cooperate with and assist the Company, at its request, in connection with any claim or litigation arising out of events occurring or agreements made during the course of his employment with the Company, provided, that Executive shall be entitled to reimbursement of his reasonable and documented expenses in connection with such cooperation and assistance.  If the Company requests Executive’s cooperation pursuant to this Section 7 for a period of greater than 8 hours per month, the Company agrees to reimburse Executive at a rate of $250.00 per hour.
 
8.      Confidentiality and Trade Secrets.  (i) The Executive will not divulge, transmit or otherwise disclose (except as legally compelled by court order, and then only to the extent required, after prompt notice to the Company of any such order), directly or indirectly, other than in the regular and proper course of providing services under the Services Agreement, any confidential knowledge or information with respect to the operations, finances, organization or employees of the Company or with respect to confidential or secret processes, services, techniques, customers or plans with respect to the Company; and (ii) the Executive will not use (except as legally compelled by court order, and then only to the extent required, after prompt notice to the Company of any such order), directly or indirectly, any confidential information for the benefit of anyone other than the Company; provided, however, that the Executive has no obligation, express or implied, to refrain from using or disclosing to others any such knowledge or information which is or hereafter shall become available to the public other than through disclosure by the Executive. All new processes, techniques, know-how, inventions, plans, products, patents and devices developed, made or invented by the Executive, alone or with others, while an employee of the Company which are related to the business of the Company shall be and become the sole property of the Company, unless released in writing by the Company, and the Executive hereby assigns any and all rights therein or thereto to the Company.
 
9.      Return of Company Property.  All files, records, correspondence, memoranda, notes or other documents (including, without limitation, those in computer-readable form) or property relating or belonging to the Company or its affiliates, whether prepared by the Executive or otherwise coming into his possession in the course of his employment with the Company, shall be the exclusive property of Company and shall be delivered to Company and not retained by the
 

 
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Executive (including, without limitations, any copies thereof) upon termination of this Agreement for any reason whatsoever.
 
10.           No Disparagement or Harm.  Prior to the Termination Date (as defined in the Services Agreement), the Executive agrees not to make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the Company or any of its affiliates or their respective officers, directors, employees, advisors, businesses or reputations.  Prior to the Termination Date, the Company agrees not to make statements or representations, or otherwise communicate, directly or indirectly, in writing, orally, or otherwise, or take any action which may, directly or indirectly, disparage the Executive’s reputation. Notwithstanding the foregoing, nothing in this Agreement shall preclude the Executive or a representative of the Company from making truthful statements or disclosures that are required by applicable law, regulation or legal process.
 
11.           Entire Agreement.  This Agreement constitutes the entire agreement between Executive and the Company with respect to the subject matter hereof, and supersedes all agreements between the Executive and the Company, including, without limitation, the (i) Employment Agreement, dated December 31, 2006, between the Company and Executive (the “Employment Agreement), including the survivability provision set forth in Section 11(i) thereof, (ii) Non-Vested Share Agreement, effective January 8, 2008, between the Company and Executive, and (iii) Letter Agreement Regarding Your Participation Interest for the 2007 to 2009 Performance Period, dated April 1, 2007, between the Company and Executive, each of which shall terminate and be of no further force and effect as of the Effective Date; provided, that this Agreement shall be subject to the terms and conditions of the Services Agreement.
 
12.           Remedies.  Executive acknowledges that a material breach of Executive’s covenants and releases contained in this Agreement after material compliance by the Company with its obligations under this Agreement may cause irreparable damage to the Company, the exact amount of which will be difficult to ascertain, and that the remedies at law for any such material breach will be inadequate. Accordingly, Executive agrees that if he breaches any of the covenants contained in this Agreement in any material respect, and provided the Company has not materially breached its obligations under this Agreement, in addition to any other remedy which may be available at law or in equity, the Company shall be entitled to specific performance and injunctive relief.
 
13.           Review Period.  The Company advised Executive to take this Agreement home, read it, and carefully consider all of its terms before signing it.  The Company gave Executive at least 21 days in which to consider this Agreement, and Executive waives any right he might have to additional time beyond this consideration period within which to consider this Agreement.  The Company advised Executive to discuss this Agreement with his own attorney (at his own expense) during this period if he wished to do so.  Executive understands that he may revoke his release of ADEA claims under Section 6 of this Agreement within seven (7) days after he signs this Agreement, in which case he will not receive the ADEA Separation Benefit referred to in Section 2 of this Agreement and, instead, it will be forfeited and will terminate and be of no further force and effect, and all other provisions of this Agreement, including Executive’s release
 

 
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of non-ADEA claims, shall remain in full force and effect.  Executive has carefully read this Agreement, fully understands what it means, and is entering into it voluntarily.
 
14.           Withholdings and Deductions.  The vesting of the ADEA Shares and the Other Shares pursuant to this Agreement shall be net of applicable withholdings and deductions and of any debts owed by Executive to the Company, which shall be fully satisfied by withholding 9,296 common shares of the Company.
 
15.           Miscellaneous.
 
(a)           This Agreement is not an admission of guilt or wrongdoing by either Executive or the Company.  Executive represents that he is not signing this Agreement in reliance on any representation not expressly set forth herein.
 
(b)           No provisions of this Agreement may be modified, waived, amended or discharged except by a written document signed by Executive and a duly authorized Company officer.  A waiver of any conditions or provisions of this Agreement in a given instance shall not be deemed a waiver of such conditions or provisions at any other time.
 
(c)           This Agreement binds Executive’s heirs, administrators, representatives, executors, successors, and assigns, and will inure to the benefit of all Released Parties and their respective heirs, administrators, representatives, executors, successors, and assigns.
 
(d)           The invalidity or unenforceability of any provision of this Agreement shall not affect the validity or enforceability of any other provision of this Agreement, which shall remain in full force and effect.
 
(e)           If any of the provisions, terms or clauses of this Agreement are declared illegal, unenforceable or ineffective in a legal forum, those provisions, terms and clauses shall be deemed severable, such that all other provisions, terms and clauses of this Agreement shall remain valid and binding upon both parties.  If any of the provisions, terms or clauses of this Agreement are found by a court to be overly broad, those provisions, terms and clauses shall be enforceable (and modified and enforced) to the broadest extent permissible under the law.
 
(f)           The validity, interpretation, construction, and performance of this Agreement shall be governed by the internal laws of the State of New York (excluding any that mandate the use of another jurisdiction’s laws).
 
(g)           The Company shall indemnify the Executive, to the maximum extent permitted by applicable law, and in the same or better manner and to the same or better extent with respect to each aspect of the indemnification as provided to any other executive of the Company, against all costs, charges and expenses incurred or sustained by the Executive in connection with any action, suit or proceeding to which the Executive may be made a party, brought by any shareholder of the Company directly or derivatively or by any third party by reason of any act or omission of the Executive as an officer, director or employee of the Company or of any subsidiary or affiliate of the Company.
 

 
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(h)           Section headings are intended solely for convenience of reference only and shall not be a part of this Agreement for any other purpose.
 
(i)           The Company acknowledges that the Executive is the Chairman and Chief Executive Officer of Winthrop Realty Trust and that nothing in this Agreement shall in any way be deemed to limit the rights of the Executive to serve in such capacity and for Winthrop Realty Trust and its subsidiaries to conduct its business in any manner in which it deems advisable except to the extent limited by the Services Agreement during the term of the Services Agreement.
 
(j)           This Agreement may be executed in two or more counterparts, all of which shall be considered one and the same instrument and shall become effective when one or more counterparts have been signed by each of the parties and delivered to the other party..
 

 
[Signature page follows]
 

 
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SIGNATURE PAGE TO SEPARATION AGREEMENT AND GENERAL RELEASE
 

 
 
     
     
     
Dated: 3/20/08  /s/ Michael Ashner   
      MICHAEL L. ASHNER   
     

 
 
  LEXINGTON REALTY TRUST   
     
     
Dated: 3/20/08  
By:
/s/ T. Wilson Eglin   
 
Name:   
T. Wilson Eglin   
 
Title:
Chief Executive Officer   

 
 
 
 
 
 
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EX-99.2 5 ex99-2.htm PRESS RELEASE ex99-2.htm
Exhibit 99.2
 
 
Lexington Realty Trust
TRADED: NYSE: LXP
One Penn Plaza, Suite 4015
New York NY 10119-4015
 
Contact at Lexington Realty Trust
T. Wilson Eglin, Chief Executive Officer
Investor or Media Inquiries
Phone: (212) 692-7200 E-mail: tweglin@lxp.com

FOR IMMEDIATE RELEASE
March 20, 2008

LEXINGTON REALTY TRUST ELECTS NEW CHAIRMAN

New York, NY – March 20, 2008 – Lexington Realty Trust (“Lexington”) (NYSE:LXP), a real estate investment trust (REIT), today announced that it has elected E. Robert Roskind, who previously served as Chairman from 1993 to 2006, as Chairman of its Board of Trustees, to replace Michael L. Ashner who has resigned as Executive Chairman and Director of Strategic Acquisitions.

Mr. Ashner commented, “I have enjoyed working with Lexington’s senior management throughout the implementation of its Strategic Restructuring Plan. Working together during a period of exceptional volatility in the real estate capital markets, I believe the Company successfully executed key elements of Lexington’s Strategic Restructuring Plan. In view of the complexity of the on-going joint ventures between Lexington Realty Trust and Winthrop Realty Trust, where I serve as Chairman and Chief Executive Officer and our collective desire to pursue future joint venture investment opportunities between the companies, I believe it best that I focus my efforts from the perspective of Winthrop Realty Trust. I believe that by leaving Lexington at this time, both companies will be able to build from their existing relationship and flourish together.”

T. Wilson Eglin, Lexington’s Chief Executive Officer, said, “All of us at Lexington would like to thank Michael for his tremendous contributions to our shared success. We will miss his leadership and look forward to working with him on future projects.”

About Lexington Realty Trust

Lexington Realty Trust is a real estate investment trust that owns, invests in, and manages office, industrial and retail properties net-leased to major corporations throughout the United States and provides investment advisory and asset management services to investors in the net lease area.   Lexington shares are traded on the New York Stock Exchange under the symbol “LXP”.  Additional information about Lexington is available on-line at www.lxp.com or by contacting Lexington Realty Trust, Investor Relations, One Penn Plaza, Suite 4015, New York, New York 10119-4015.

Forward-Looking Statements

This release contains certain forward-looking statements which involve known and unknown risks, uncertainties or other factors not under Lexington's control which may cause actual results, performance or achievements of Lexington to be materially different from the results, performance, or other expectations implied by these forward-looking statements. Factors that

 
 

 
 
 
 
Lexington Realty Trust  Page 2 of 2 
 
 
could cause or contribute to such differences include, but are not limited to, those discussed under the headings "Management's Discussion and Analysis of Financial Condition and Results of Operations" and "Risk Factors" in Lexington's periodic reports filed with the SEC.  Copies of the periodic reports Lexington files with the SEC are available on Lexington's website at www.lxp.com and may be obtained free of charge by contacting Lexington on 212-692-7200. Forward-looking statements, which are based on certain assumptions and describe Lexington's future plans, strategies and expectations, are generally identifiable by use of the words "believes," "expects," "intends," "anticipates," "estimates," "projects" or similar expressions. Lexington undertakes no obligation to publicly release the results of any revisions to those forward-looking statements which may be made to reflect events or circumstances after the occurrence of unanticipated events. Accordingly, there is no assurance that Lexington's expectations will be realized.



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