exv10w11



 





EXHIBIT 10.11




VOTING AGREEMENT




     VOTING AGREEMENT, dated as of February 13, 2008 (this “Agreement”), among Cedar Shopping
Centers, Inc., a Maryland corporation (“Cedar”), Inland American Real Estate Trust, Inc., a
Maryland corporation (“Inland”) and Inland Investment Advisors, Inc., Inland Real Estate Investment
Corporation and The Inland Group, Inc. (collectively with Inland, the “Group”).



     WHEREAS, as of the date hereof each entity in the Group beneficially owns (as that term is
used in Section 13(d) of the Securities Exchange Act of 1934 and defined by the SEC in Rule 13d-3,
“Beneficially Owns”) 4,334,638 shares of common stock, par value $.06 per share, of Cedar (the
“Common Stock”), representing approximately 9.8% of Cedar’s issued and outstanding Common Stock;



     WHEREAS, each of the entities in the Group filed a Statement on Schedule 13D with the
Securities and Exchange Commission on January 22, 2008;



     WHEREAS, Inland has requested the Board of Directors of Cedar to waive the 9.9% ownership
limit set forth in Cedar’s Articles of Incorporation, as amended (the “Articles of Incorporation”),
and allow the Group to increase its ownership position to an amount not to exceed 14% of Cedar’s
issued and outstanding Common Stock (the “Waiver”);



     WHEREAS, as a condition to the willingness of Cedar’s Board of Directors to grant the Waiver,
Cedar has required that the Group agree, and in order to induce the Board of Directors to allow the
increase, the Group has agreed, to enter into this Agreement.



     NOW, THEREFORE, in consideration of the representations, warranties, covenants and agreements
contained in this Agreement, and other good and valuable consideration, the receipt and adequacy of
which are hereby acknowledged, and intending to be legally bound hereby, the parties hereto agree
as follows:



Article I.

VOTING OF COMMON STOCK




     Section 1.1 Increase in Ownership. Pursuant to subparagraph (k) of Article IV of the Articles
of Incorporation and subject to the representations, undertakings and provisions contained herein,
the Board of Directors of Cedar has authorized the Waiver and approved the right of the Group, and
pursuant to this authorization and approval Cedar hereby grants to each of the entities in the
Group the right, to acquire up to an additional 1,881,111 shares of Common Stock of Cedar (the
“Additional Common Stock”); provided that after acquisition of the Additional Common Stock the
Group will own not more than 14% of Cedar’s issued and outstanding Common Stock. If at any time
and from time to time after the date hereof, the Group sells, transfers or otherwise disposes of
any shares of Common Stock previously acquired



 









 







by it, then the Group may not reacquire any Common Stock above the greater of (i) its then
existing ownership percentage of Cedar or (ii) the existing 9.9% ownership limit.



     Section 1.2 Voting Agreement. Until the Expiration Date (as hereinafter defined) and to the
extent the Additional Common Stock is not otherwise voted by proxy granted pursuant to Section 1.3
of this Agreement, at every meeting of the holders of Common Stock called, and at every adjournment
thereof, or in any other circumstances upon which the vote, consent or other approval of the
holders of Common Stock is sought, each entity in the Group shall, and shall cause each of its
respective Affiliates (as such term is defined in Rule 12b-2 of Regulation 12B under the Securities
Exchange Act of 1934, as amended (the “Act”)) to, vote or cause the Additional Common Stock to be
(a) voted in favor of any matters proposed by the Board of Directors and presented to Cedar’s
stockholders; (b) voted for all nominees for directors that have been nominated by the Board of
Directors of Cedar; (c) voted against any matters or nominees for directors not proposed by the
Board of Directors and presented to Cedar’s stockholders; and (d) duly represented, in person or by
proxy, at each meeting of stockholders of Cedar duly called by the Board of Directors of Cedar.



     Section 1.3 Grant of Proxy with Respect to Additional Common Stock. (a) The Group hereby (to
the fullest extent permitted by law) appoints Leo S. Ullman, Brenda Walker and Stuart Widowski, and
each of them, as the Group’s sole and exclusive attorneys-in-fact and proxies, with full power of
substitution and re-substitution, to vote the Additional Common Stock and to exercise all voting,
consent and similar rights of the Group with respect to the Additional Common Stock (including,
without limitation, the power to execute and deliver written consents) at every annual, special or
adjourned meeting of the holders of Common Stock and in every written consent in lieu of such
meeting as provided herein. This proxy shall be valid until the Expiration Date.



     (b) Upon the Group’s execution of this Agreement, any and all prior proxies given by the Group
with respect to the Additional Common Stock are hereby revoked.



     (c) The Group hereby affirms that the proxy set forth in this Section 1.3 is irrevocable (to
the fullest extent permitted by law) until the Expiration Date (in which event the proxy set forth
herein shall terminate and be of no further force or effect), is coupled with an interest and is
granted for the consideration provided herein. The Group hereby ratifies and confirms all that
such irrevocable proxy may lawfully do or cause to be done by virtue hereof. Such irrevocable proxy
is executed and intended to be irrevocable by person’s to the fullest extent permitted by the
Maryland General Corporation Law.



     Section 1.4 Restrictions on Certain Actions. If, and only if, the Cedar Board of Directors
has granted or grants the Waiver, then from the effective date of the Waiver until the Expiration
Date, the Group, without the prior consent of Cedar’s Board of Directors (specifically expressed in
a resolution adopted by a majority of the directors of Cedar), will not, nor will it permit any
Affiliate to:



     (a) Acquire (other than through stock splits or stock dividends), directly or indirectly or in
conjunction with or through any other person or entity, by purchase or otherwise, Beneficial



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Ownership of any additional shares of Common Stock or any other securities of Cedar entitled
to vote generally for the election of directors (“Voting Securities”), if such acquisition would
cause the Group and its Affiliates, directly or indirectly, to Beneficially Own more than 14% of
all Voting Securities outstanding. Notwithstanding the provisions of the preceding sentence, if
the number of outstanding Voting Securities is reduced for any reason, whether by repurchases by
Cedar or otherwise, the Group will not be required to dispose of any of its holdings of Voting
Securities even if such reduction in outstanding shares would result in the Group’s Beneficial
Ownership exceeding 14% of the outstanding Voting Securities;



     (b) Directly or indirectly or through any other person or entity, solicit proxies with respect
to Voting Securities under any circumstance; or become a “participant” in any “election contest”
relating to the election of directors of Cedar (as such terms are used in Rule 14a-11 of Regulation
14A under the Act);



     (c) Deposit any Voting Securities in a voting trust, or subject any Voting Securities to a
voting or similar agreement;



     (d) Directly or indirectly or through or in conjunction with any other person or entity,
engage in a tender or exchange offer for Cedar’s Voting Securities made by any other person or
entity without the prior approval of Cedar, or engage in any proxy solicitation or any other
activity with any other person or entity relating to Cedar without the prior approval of Cedar; or



     (e) Become a member of a Section 13(d) group that is seeking to obtain or take control of the
Company.



Article II.

REPRESENTATIONS AND WARRANTIES




     Section 2.1 Representations and Warranties of the Group. The Group hereby represents and
warrants to Cedar as follows:



     (a) Due Organization, Authorization, etc. The Group has all requisite legal capacity,
power and authority to execute and deliver this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary action on the part of
the Group. This Agreement has been duly executed and delivered by or on behalf of the Group and
constitutes a legal, valid and binding obligation of the Group, enforceable against the Group in
accordance with its terms.



     (b) No Conflicts, Required Filings and Consents.



     (i) The execution and delivery of this Agreement by the Group does not, and the performance of
this Agreement by the Group will not, (i) conflict with or violate any judgment, order, decree,
statute or law applicable to the Group or by which the Group or any of the Group’s assets or
properties is bound or affected or (ii) violate or conflict with any agreement or other instrument
to which the Group is a party or by which any of its assets or properties is bound.



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     (ii) The execution and delivery of this Agreement by the Group does not, and the performance
of this Agreement by the Group will not, require any consent, approval, order or authorization of,
or registration, declaration or filing with, or permit from, any governmental authority, except for
the filing of an amendment to its Schedule 13D.



     (iii) Except for this Agreement and any agreements that have been filed with the U.S.
Securities and Exchange Commission, there are no voting trusts or other agreements or
understandings, including, without limitation, any proxies, in effect governing the voting of the
Common Stock owned by the Group.



     (c) Title to Common Stock. Each of the entities in the Group is the Beneficial Owner
of the Common Stock of Cedar as set forth herein and holds the voting rights disclosed on its
Schedule 13D with respect thereto. Other than as set forth in Article 1 hereof, the Group does not
Beneficially Own any other Common Stock. To the best of the knowledge of the Group, no other
person has any voting rights with respect to the Common Stock owned by the Group. In addition, to
the best of the knowledge of the Group the Common Stock held by the Group is free and clear of any
liens and encumbrances.



     (d) Tax Representations. (Capitalized terms used in this subsection (d) but not
otherwise defined in this Agreement shall have the meanings assigned to such terms in the Articles
of Incorporation.)



     (i) No “individual” who Beneficially Owns for Tax Purposes any of the outstanding Common Stock
of Cedar held by the Group does or will Beneficially Own for Tax Purposes in the aggregate,
including by reason of a direct or indirect ownership interest in the Group (or any member
thereof), a direct or indirect ownership interest in any entity to which the Group provides
investment advice, or otherwise, more than 9.9% of the value of the outstanding Common Stock of
Cedar.



     (ii) Neither the Group nor any person on behalf of whom the Group owns Common Stock will
actually own or Constructively Own an interest in a tenant of Cedar (or a tenant of an entity owned
or controlled by Cedar) that would cause Cedar to Constructively Own in the aggregate more than a
9.9% interest (as set forth in Section 856(d)(2)(B) of the Internal Revenue Code of 1986, as
amended (the “Code”)) in such tenant.



     (iii) The Group will perform a periodic review to ascertain that the representations contained
in this Agreement remain accurate.



     (iv) For purposes of these tax representations, “individual” has the same meaning provided in
Section 542(a)(2) of the Code, “Beneficially Owns for Tax Purposes” means direct, indirect, or
constructive ownership through the application of Section 544 of the Code, as modified by Section
856(h)(1) of the Code, and “Constructively Own” means direct, indirect, or constructive ownership
through the application of Section 318 of the Code, as modified by Section 856(d)(5) of the Code.



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     (v) Each member of the Group agrees that any violation or attempted violation of the
representations set forth in this subsection (d) will result in all or a portion of the shares of
Common Stock of Cedar owned by the Group, on its own behalf, on behalf of the entities to which it
provides investment advice, and on behalf of its clients and customers, being automatically
transferred to a Charitable Trust in accordance with Section B (4)(c)(i) of Article IV of the
Articles of Incorporation.



     (vi) The Group expressly permits Cedar and Stroock & Stroock & Lavan LLP, as counsel to Cedar,
to rely on the representations set forth in this subsection (d) as if the Group made such
representations directly to both Cedar and Stroock & Stroock & Lavan LLP.



     (vii) The Group agrees and acknowledges that the continued truth and accuracy of the
representations set forth in this subsection (d) is a condition precedent to the validity and
effectiveness of the waiver granted herein and that the Group will, upon request by Cedar, promptly
deliver written confirmation of such representations.



     Section 2.2 Representations and Warranties of Cedar. Cedar hereby represents and warrants to
each entity in the Group as follows:



     (a) Due Organization, Authorization, etc. Cedar has all requisite legal capacity,
power and authority to execute and delivery this Agreement and to consummate the transactions
contemplated hereby. The execution and delivery of this Agreement and the consummation of the
transactions contemplated hereby have been duly authorized by all necessary action on the part of
Cedar, including without limitation the due authorization and granting by the Cedar Board of
Directors of the Waiver and the right of the Group to acquire the Additional Common Stock, subject
to the proviso that after acquisition of the Additional Common Stock the Group will own not more
than 14% of Cedar’s issued and outstanding Common Stock. This Agreement has been duly executed and
delivered by or on behalf of Cedar and constitutes a legal, valid and binding obligation of Cedar,
enforceable against Cedar in accordance with its terms.



     (b) No Conflicts, Required Filings and Consents.



     (i) The execution and delivery of this Agreement by Cedar does not, and the performance of
this Agreement by Cedar will not, (i) conflict with or violate any judgment, order, decree, statute
or law applicable to Cedar or by which Cedar or any of Cedar’s assets or properties is bound or
affected or (ii) violate or conflict with any agreement or other instrument to which Cedar is a
party or by which any of its assets or properties is bound.



     (ii) The execution and delivery of this Agreement by Cedar does not, and the performance of
this Agreement by Cedar will not, require any consent, approval, order or authorization of, or
registration, declaration or filing with, or permit from, any governmental authority.



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Article III.

MISCELLANEOUS




     Section 3.1 Expenses. All costs and expenses incurred in connection with the transactions
contemplated by this Agreement shall be paid by the party incurring such costs and expenses.



     Section 3.2 Notices. Any notice or other communication required or permitted hereunder shall
be in writing (including facsimile transmission) and shall be given,




	 	(i)	 	if to Cedar to:
	 
	 	 	 	Cedar Shopping Centers, Inc.

44 South Bayles Avenue

Port Washington, NY 11050

Attention: Leo S. Ullman

Fax: (516) 767-6497
	 
	 	 	 	with a copy to:
	 
	 	 	 	Stroock & Stroock & Lavan LLP

180 Maiden Lane

New York, NY 10038

Attention: Martin H. Neidell

Fax: (212) 806-7836
	 
	 	(ii)	 	if to the Group or Inland to:
	 
	 	 	 	Inland Investment Advisors, Inc.

2901 Butterfield Road

Oak Brook, IL 60523

Attention: Roberta Matlin

Fax: (630)-218-4955
	 
	 	 	 	with a copy to:
	 
	 	 	 	Shefsky and Froelich Ltd.

111 East Wacker Drive, Suite 2800

Chicago, IL 60601

Attention: Michael Choate

Fax: (312) 275-7554




or such other address or facsimile number as such party may hereafter specify for the purpose by
notice to the other parties hereto. All notices and other communications hereunder shall be in
writing and shall be deemed duly given upon due receipt if delivered personally, by facsimile, by a
recognized next-day courier service or by registered or certified mail, return receipt requested,
postage prepaid.




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     Section 3.3 Termination. Unless terminated earlier upon the written agreement of Cedar and
the Group, this Agreement and the proxies provided herein shall terminate (the “Expiration Date”)
and be of no further force and effect, automatically and without any required action of the parties
hereto, upon the earlier to occur of (i) the sale or other disposition by the Group of all the
Additional Common Stock, (ii) ten years after the date hereof or (iii) any action by the Cedar
Board of Directors to revoke the Waiver; provided that no such termination shall relieve any party
of liability for a breach hereof prior to termination, including without limitation an action that
constitutes a breach of this Agreement by Cedar under Section 3.4 below and thereby causes a
termination under clause (iii) of this Section 3.3. Notwithstanding the foregoing, Section 3.1 and
Section 2.1(d) hereof shall survive the Expiration Date in accordance with their terms.



     Section 3.4 No Inconsistent Actions by the Group or Cedar. Prior to the Expiration Date, (a)
the Group shall not revoke or rescind, or purport to revoke or rescind, the proxies granted hereby
and (b) Cedar shall not revoke or rescind, or purport to revoke or rescind, the Waiver. Any such
revocation or rescission, or purported revocation or rescission, by the Group or Cedar,
respectively, will be considered a breach of this Agreement (provided, however, that nothing in
this Section 3.4 is intended to impact the effect of Section 1.1 on the Group’s ability to
reacquire Common Stock).



     Section 3.5 Amendment. This Agreement may not be amended, modified or rescinded except by an
instrument in writing signed by each of the parties hereto.



     Section 3.6 Governing Law. This Agreement shall be governed by, and construed in accordance
with, the General Corporation Law of the State of Maryland, regardless of the laws that might
otherwise govern under applicable principles of conflicts of laws thereof.



     Section 3.7 Severability. If any term or other provision of this Agreement is invalid,
illegal or incapable of being enforced by any rule of law, or public policy, all other conditions
and provisions of this Agreement shall nevertheless remain in full force and effect so long as the
economic or legal substance of the transactions contemplated hereby is not affected in any manner
materially adverse to any party. Upon such determination that any term or other provision is
invalid, illegal or incapable of being enforced, the parties hereto shall negotiate in good faith
to modify this Agreement so as to effect the original intent of the parties as closely as possible
in a mutually acceptable manner in order that the transactions contemplated hereby be consummated
as originally contemplated to the fullest extent possible.



     Section 3.8 Entire Agreement; Assignment. This Agreement constitutes the entire agreement
among the parties with respect to the subject matter hereof and supersedes all prior agreements and
undertakings, both written and oral, among the parties, or any of them, with respect to the subject
matter hereof and thereof. This Agreement shall not be assigned by the Group by operation of law
or otherwise.



     Section 3.9 Parties in Interest. This Agreement shall be binding upon and inure solely to the
benefit of each party hereto, and nothing in this Agreement, express or implied, is



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intended to or shall confer upon any other person or entity any right, benefit or remedy of
any nature whatsoever under or by reason of this Agreement.



     Section 3.10 Specific Performance. Without limiting or waiving any rights or remedies of any
of the parties hereto, the parties hereto agree that irreparable damage would occur in the event
any provisions of this Agreement were not performed by the parties in accordance with the terms
hereof and that each of the parties hereto shall be entitled to an injunction or injunctions to
prevent breaches of this Agreement by any party and to seek specific performance of the obligations
of the parties under this Agreement in any court of the United States or any state having
jurisdiction, this being in addition to any other remedy to which they are entitled at law or in
equity.



     Section 3.11 Waiver of Jury Trial. Each of the parties hereto hereby waives to the fullest
extent permitted by applicable law any right it may have to a trial by jury with respect to any
litigation directly or indirectly arising out of, under or in connection with this Agreement or the
transactions contemplated hereby. Each of the parties hereto (a) certifies that no representative,
agent or attorney of any other party has represented, expressly or otherwise, that such other party
would not, in the event of litigation, seek to enforce that foregoing waiver and (b) acknowledges
that it and the other parties hereto have been induced to enter into this Agreement and the
transactions contemplated hereby, as applicable, by, among other things, the mutual waivers and
certifications in this Section 3.11.



     Section 3.12 Headings. The descriptive headings contained in this Agreement are included for
convenience of reference only and shall not affect in any way the meaning or interpretation of this
Agreement.



     Section 3.13 Mutual Drafting. Each party hereto has participated in the drafting of this
Agreement, which each party acknowledges is the result of negotiations among the parties.



     Section 3.14 Counterparts. For the convenience of the parties, this Agreement may be executed
in counterparts, each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument.



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     IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be executed by their
respective officers thereunto duly authorized, all as of the date first written above.



	 	 	 	 	 
	 	Cedar Shopping Centers, Inc.

 	 
	 	By:  	/s/ LEO S. ULLMAN
 	 
	 	 	Name:  	Leo S. Ullman 	 
	 	 	Title:  	President 	 
	 
	 	Inland American Real Estate Trust, Inc.

 	 
	 	By:  	/s/ BRENDA GAY GUJRAL
 	 
	 	 	Name:  	Brenda Gay Gujral 	 
	 	 	Title:  	President 	 
	 
	 	Inland Investment Advisors, Inc.

 	 
	 	By:  	/s/ ROBERTA S. MATLIN
 	 
	 	 	Name:  	Roberta S. Matlin 	 
	 	 	Title:  	President 	 
	 
	 	Inland Real Estate Investment Corporation

 	 
	 	By:  	/s/ ROBERT D. PARKS
 	 
	 	 	Name:  	Robert D. Parks 	 
	 	 	Title:  	Chairman 	 
	 
	 	The Inland Group, Inc.

 	 
	 	By:  	/s/ DAN GOODWIN
 	 
	 	 	Name:  	 	 
	 	 	Title:  	 	 
	 




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