EXHIBIT 99.1(b)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
(Pacesetter Transaction)
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
THIS REGISTRATION RIGHTS AND LOCK-UP AGREEMENT (this "Agreement"), is
made and entered into as of November __, 1999, by and among Acadia Realty Trust,
a Maryland business trust (the "REIT"), Acadia Realty Limited Partnership, a
Delaware limited partnership (the "Partnership"), and the undersigned partners
(each, a "Pacesetter Partner") of Pacesetter/Ramapo Associates, a New York
limited partnership ("Associates"), which, at the Closing (the "Closing Date")
of the transactions contemplated by the Purchase and Sale Agreement by and among
Associates, the REIT, the Partnership and Acadia Pacesetter LLC., a Delaware
limited liability company (the "Purchase Agreement"), are receiving preferred
units of limited partnership interests in the Partnership ("Preferred Units")
which are convertible into common units of limited partnership interest in the
Partnership ("OP Units"), which in turn, are exchangeable for Conversion Shares
(as defined below).
NOW, THEREFORE, in consideration of the premises and the mutual
covenants contained herein, and intending to be legally bound hereby, the REIT,
the Partnership and each of the Pacesetter Partners hereby agree as follows:
1. Certain Definitions. As used in this Agreement, the following terms
shall have the following respective meanings:
(a) "Commission" means the Securities and Exchange Commission, or
any other federal agency at the time administering the Securities Act.
(b) "Conversion Shares" means the Shares issuable upon exchange of
the OP Units from time to time.
(c) "Exchange Act" means the Securities Exchange Act of 1934, as
amended, or any successor federal statute, and the rules and regulations of the
Commission issued under such Exchange Act, as they each may, from time to time,
be in effect.
(d) "Holder(s)" means a holder of Registrable Shares entitled to
the rights arising hereunder.
(e) "Participating Holder" means a Holder whose Registrable Shares
are included in a Registration Statement.
(f) "Registration Expenses" means the expenses described in Section
4 hereof.
(g) "Registration Statement" means a registration statement filed
by the REIT with the Commission for a public offering and sale of equity
securities of the REIT (other than a registration statement on Form S-8 or Form
S-4, or their successors, or any registration statement covering only securities
proposed to be issued in exchange for securities or assets of another
corporation).
(h) "Registrable Shares" means (i) the Conversion Shares, (ii) any
other Shares issued in respect of Conversion Shares, and (iii) any other Shares
issued with respect to the Shares issued in clauses (i) and (ii) (because of
share splits, share dividends, reclassifications, recapitalizations, or similar
events); provided, however, that Shares which are Registrable Shares shall cease
to be Registrable Shares
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(x) upon any sale pursuant to a Registration Statement, or any other sale or
transfer of the Registrable Shares in any manner to any person or entity other
than a Permitted Transferee (as defined) or as otherwise expressly provided
herein, or (y) in the event that Registrable Shares may be freely sold and/or
transferred pursuant to Rule 144(k) under the Securities Act.
(i) "Securities Act" means the Securities Act of 1933, as amended,
or any successor federal statute, and the rules and regulations of the
Commission issued under such Securities Act, as they each may, from time to
time, be in effect.
(j) "Shares" means Common Shares of Beneficial Interest of the
REIT, par value $.001 per share.
2. Certain Shelf Registration. Upon the written request of any Holder
given no sooner than 90 days prior to the end of the Lock-Up Period (as defined
herein), the REIT shall, at any time or, from time to time, at its expense,
register the Registrable Shares for resale including for issuance upon
conversion or exchange of OP Units, through a shelf Registration Statement
pursuant to Rule 415 under the Securities Act, which the REIT shall use its best
efforts to file within 90 days after the receipt of the request by such Holder.
The REIT shall, at its expense, use commercially reasonable efforts to maintain
the effectiveness of such shelf Registration Statement until the earlier of (i)
such time as when all of the Registrable Shares have been disposed of or (ii)
three years after the conversion or exchange into Shares of all of the OP Units
issued upon conversion of the Preferred Units issued under the Purchase
Agreement.
3. Registration Procedures. If and whenever the REIT is required by
the provisions of this Agreement to effect the registration of any of the
Registrable Shares under the Securities Act, the REIT shall, at its expense:
(a) prepare and file with the Commission a Registration Statement
with respect to such Registrable Shares and use best efforts to cause that
Registration Statement to become effective;
(b) use commercially reasonable efforts to cause the Registration
Statement to remain effective;
(c) subject to the provision of Section 2, promptly prepare and
file with the Commission any amendments and supplements to the Registration
Statement and the prospectus included in the Registration Statement as may be
necessary to keep the Registration Statement effective for the period of time
required by the Commission;
(d) promptly furnish to each Participating Holder such reasonable
numbers of copies of the prospectus, including a preliminary prospectus, in
conformity with the requirements of the Securities Act, and such other documents
as the Participating Holders may reasonably request in order to facilitate the
public sale or other disposition of the Registrable Shares owned by such
Participating Holders and included in the Registration Statement; and
(e) promptly use best efforts to register or qualify the
Registrable Shares covered by the Registration Statement under the securities or
Blue Sky laws of states within the United States as the Participating Holders
shall reasonably request; provided, however, that the REIT shall not be required
in connection with this subsection 3(d) to: (i) qualify as a foreign corporation
in any jurisdiction where, but for the requirements of this subsection 3(d), it
would not be obligated to be so qualified; (ii)
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execute a general consent to service of process in any jurisdiction; (iii)
subject itself to taxation in any such jurisdiction; or (iv) register in any
state requiring, as a condition to registration, escrow or surrender of any REIT
securities held by any security holder other than the Participating Holders.
If the REIT has delivered a preliminary or final prospectus to a
Participating Holder and, after having done so, the prospectus is amended to
comply with the requirements of the Securities Act, the REIT shall promptly
notify such Participating Holder and, if requested, such Participating Holder
shall immediately cease making offers of Registrable Shares and return all
prospectuses to the REIT. The REIT shall promptly provide Participating Holders
with revised prospectuses and, following receipt of the revised prospectuses,
Participating Holders shall be free to resume making offers of the Registrable
Shares.
Notwithstanding any other provisions of this Agreement to the
contrary, upon receipt by a Participating Holder of a written notice signed by
the Chief Executive Officer, Chief Operating Officer or Chief Financial Officer
of the REIT, to the effect set forth below, the REIT shall not be obligated
during a reasonable period of time thereafter to effect any registrations
pursuant to this Agreement, and each such Participating Holder agrees that it
will immediately suspend sales of Shares under any effective Registration
Statement for a reasonable period of time, in either case not to exceed 90 days,
at any time during which, in the REIT's reasonable judgment, (i) there is a
development involving the REIT or any of its affiliates which is material but
which has not yet been publicly disclosed or (ii) sales pursuant to the
Registration Statement would materially and adversely affect an underwritten
public offering for the account of the REIT or any other material financing
project or where a proposed or pending material merger or other material
acquisition or material business combination or material disposition of the
REIT's assets, to which the REIT or any of its affiliates is, or is expected to
be, a party. In the event a registration is postponed or sales by a
Participating Holder pursuant to an effective Registration Statement are
suspended in accordance with this paragraph, there shall be added to the period
during which the REIT is obligated to keep a Registration Statement effective
the number of days for which the Registration Statement was postponed or sales
were suspended.
4. Expenses of Registration. The REIT will pay all Registration
Expenses of all registrations under this Agreement. For purposes of this
Agreement, the term "Registration Expenses" shall mean all expenses incurred by
the REIT in complying with this Agreement, including without limitation, all
registration and filing fees, exchange listing fees, printing expenses, the fees
and disbursements of counsel for the REIT and the reasonable fees and
disbursements of one counsel selected by the Participating Holders, the fees and
disbursements of the REIT's accountants, state Blue Sky fees and expenses, and
the expense of any special audits incident to or required by any such
registration, but excluding underwriting discounts and selling commissions.
5. Indemnification.
(a) Indemnification of Participating Holders. In the event of any
registration of any of the Registrable Shares under the Securities Act pursuant
to this Agreement, the REIT will indemnify and hold harmless each Participating
Holder, each of its directors and officers and each other person, if any, who
controls such Participating Holder within the meaning of the Securities Act or
the Exchange Act, against any losses, claims, damages or liabilities to which
such Participating Holder or controlling person may become subject under the
Securities Act, the Exchange Act, Blue Sky laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of any
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any
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preliminary prospectus or final prospectus contained in the Registration
Statement, or any amendment or supplement to such Registration Statement, or
arise out of or are based upon the omission or alleged omission to state a
material fact required to be stated therein or necessary to make the statements
therein, in light of the circumstances in which they were made, not misleading;
and the REIT will reimburse such Participating Holder and each such controlling
person for any legal or any other expenses reasonably incurred by such
Participating Holder or controlling person in connection with investigating or
defending any such loss, claim, damage, liability or action; provided, however,
that the REIT will not be liable in any such case to the extent that any such
loss, claim, damage or liability arises out of or is based upon any untrue
statement or omission made in such Registration Statement, preliminary
prospectus or prospectus, or any such amendment or supplement, in reliance upon
and in conformity with information furnished to the REIT, in writing, by or on
behalf of any Participating Holder or controlling person specifically for use in
the preparation thereof; and provided further, however, that any indemnification
contained in this paragraph with respect to any preliminary prospectus shall not
inure to the benefit of any person who otherwise is entitled to indemnification
hereunder on account of any loss, liability, claim, damage or expense if a copy
of an amended or supplemental preliminary prospectus, or the final prospectus,
shall have been delivered or sent to such person within the time required by the
Securities Act, and the untrue statement or omission of a material fact was
corrected in such amended or supplemental preliminary prospectus or final
prospectus and provided that such person did not deliver such amended or
supplemental preliminary prospectus or final prospectus on a timely basis.
(b) Indemnification of the REIT. In the event of any registration
of any of the Registrable Shares under the Securities Act pursuant to this
Agreement, each Participating Holder will indemnify and hold harmless the REIT,
each of its directors and officers and each person, if any, who controls the
REIT within the meaning of the Securities Act or the Exchange Act, against any
losses, claims, damages or liabilities, joint or several, to which the REIT,
such directors and officers or controlling persons may become subject under the
Securities Act, Exchange Act, Blue Sky laws or otherwise, insofar as such
losses, claims, damages or liabilities (or actions in respect thereof) arise out
of or are based upon any untrue statement or alleged untrue statement of a
material fact contained in any Registration Statement under which such
Registrable Shares were registered under the Securities Act, any preliminary
prospectus or final prospectus contained in the Registration Statement, or any
amendment or supplement to the Registration Statement, or arise out of or are
based upon any omission or alleged omission to state a material fact required to
be stated therein or necessary to make the statements therein, in light of the
circumstances in which they were made, not misleading, in each case only if such
statement or omission was made in reliance upon and in conformity with
information furnished in writing to the REIT by or on behalf of such
Participating Holder or controlling person, specifically for use in connection
with the preparation of such Registration Statement, prospectus, amendment or
supplement. No Participating Holder shall be liable pursuant to this Section
5(b) for any amount in excess of the proceeds of the offering received by such
Participating Holder.
(c) Notice of Claim. Each party entitled to indemnification under
this Section 5 (the "Indemnified Party") shall give notice to the party required
to provide indemnification (the "Indemnifying Party") promptly after such
Indemnified Party has actual knowledge of any claim as to which indemnity may be
sought, and shall permit the Indemnifying Party to assume the defense of any
such claim or any litigation resulting therefrom; provided that counsel for the
Indemnifying Party, who shall conduct the defense of such claim or litigation,
shall be approved by the Indemnified Party (whose approval shall not be
unreasonably withheld); and, provided, further, that the failure of any
Indemnified Party to give notice as provided herein shall not relieve the
Indemnifying Party of its obligations under this Section 5 unless the failure to
provide such notice materially prejudices the defense by the Indemnifying Party
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against such claim. The Indemnified Party may participate in such defense at
such party's expense (provided that the counsel of the Indemnifying Party shall
control the defense of such claim or proceeding); provided, however, that the
Indemnifying Party shall pay such expense if representation of such Indemnified
Party by the counsel retained by the Indemnifying Party would, in the opinion of
counsel of the Indemnified Party, be inappropriate due to actual or potential
differing interests between the Indemnified Party and any other party
represented by such counsel in such proceeding, it being understood, however,
that in such event, the Indemnifying Party shall be liable for the reasonable
fees and expenses of only one counsel for the Indemnified Parties. No
Indemnifying Party, in the defense of any such claim or litigation shall as to
an Indemnified Party, except with the consent of such Indemnified Party, consent
to entry of any judgment or enter into any settlement which does not include as
an unconditional term thereof the giving by the claimant or plaintiff to such
Indemnified Party of a release from all liability in respect of such claim or
litigation, and no Indemnified Party shall consent to entry of any judgment or
settle such claim or litigation without the prior written consent of the
Indemnifying Party.
6. Rule 144. The REIT covenants that it will file the reports required
to be filed by it under the Securities Act and the Exchange Act and the rules
and regulations adopted by the Commission thereunder (or, if the REIT is not
required to file such reports, it will, upon the request of the holders of the
Registrable Securities, make publicly available such information as necessary to
permit sales pursuant to Rule 144 under the Securities Act) and it will do all
such other acts and things from time to time as reasonably requested by the
holders of the Registrable Securities to the extent required from time to time
to enable the holders of the Registrable Shares to sell Registrable Shares
without registration under the Securities Act within the limitation of the
exemptions provided by Rule 144 under the Securities Act, as such Rule may be
amended from time to time, or any similar rule or regulation hereunder adopted
by the Commission.
7. Cooperation. The Holders shall furnish to the REIT such information
regarding the Holders and the distribution proposed by Participating Holders as
the REIT may from time to time reasonably request in writing, and shall do such
reasonable acts and things as the REIT may from time to time request, with
respect to any registration, qualification or compliance referred to in this
Agreement and in order to permit the REIT to comply with the requirements of
law. Any failure by a Holder to make available such information or to do such
acts and things shall constitute a waiver by such Holder of its rights to
include such Holder's Registrable Shares in any such registration.
8. Standstill. Each Holder, if requested by the REIT and an
underwriter of Shares or other securities of the REIT, shall agree not to sell
or otherwise transfer or dispose of any Registrable Shares or other securities
of the REIT held by such Holder for a specified period of time (not to exceed 90
days) following the effective date of a Registration Statement. Such agreement
shall be in writing in a form satisfactory to the REIT and such underwriter. The
REIT may impose stop transfer instructions with respect to the Registrable
Shares or other securities subject to the foregoing restriction until the end of
the standstill period.
9. Restriction on Resale. Unless otherwise agreed by the REIT, until
the date on which there are no Registrable Shares, each Holder agrees that it
will not resell such Registrable Shares without registration under the
Securities Act, compliance with Rule 144 under the Securities Act or an opinion
of counsel for such Holder reasonably acceptable to the REIT, addressed to the
REIT, to the effect that no such registration is required. All reasonable costs,
fees and expenses of counsel in connection with such opinion shall be borne by
the REIT.
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10. Lock-Up Agreement. In consideration of the REIT's agreement to
provide the Holders with the registration rights as set forth in this Agreement,
each of the Pacesetter Partners agrees with the REIT and the Partnership that it
will not sell, assign, or otherwise transfer the OP Units to be issued at the
Closing (or Conversion Shares) for a period of one year commencing on the
Closing Date (the "Lock-Up Period"). Notwithstanding the foregoing, the
aforementioned prohibition shall not apply to (x) conversion to OP Units; (y) a
transfer of OP Units (which shall nonetheless comply with any requirements or
conditions to transfer in the Partnership Agreement of the Partnership) or
Conversion Shares to a Permitted Transferee; or (z) bona fide pledge of OP Units
or Conversion Shares (provided that the pledgee agrees to be bound by the terms
of this Agreement as if an original signatory thereto). For purposes of this
Section 10, the term "Permitted Transferees" means (i) any partner or other
equity owner of the Partnership or Associates; (ii) any equity owner of any
partner or other equity owner of the Partnership or Associates; (iii) members of
the Immediate Family (as defined below) of any person described in (i) or (ii);
and (iv) trusts for the benefit of, or entities controlled by, one or more of
the persons described in (i), (ii) or (iii); and/or (v) any public charity,
public foundation or charitable institution as defined in Section 501(c)(3) of
the Internal Revenue Code of 1986, as amended. For purposes of this Section 10,
the term "Immediate Family" means, with respect to any natural person, such
natural person's spouse, parents, parents-in-law, descendants, nephews, nieces,
brothers, sisters, brothers-in-law, sisters-in-law and children- in-law
(including adopted persons). A transfer to any Permitted Transferee shall not be
deemed effective, and the REIT may issue stop transfer instructions to its
transfer agent of the Shares in connection with a purported transfer, unless and
until the transferor shall give the REIT written notice stating the name and
address of the Permitted Transferee and identifying the securities which are
being transferred and the REIT shall have received the written agreement of the
Permitted Transferee to be bound by the terms of this Agreement as if an
original signatory hereto.
11. Miscellaneous.
(a) Controlling Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of New York.
(b) Notices. All notices and other communications hereunder shall
be in writing and shall be sent by certified mail, postage prepaid, return
receipt requested; by an overnight express courier service that provides written
confirmation of delivery; or by facsimile with written confirmation by the
sending machine or with telephone confirmation of receipt, addressed as follows:
(i) If to REIT:
Acadia Realty Trust
▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: Secretary
(ii) If to a Pacesetter Partner:
c/o AmCap Incorporated
▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇ ▇▇▇▇▇▇
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with a copy to:
▇▇▇▇▇▇▇ Breed ▇▇▇▇▇▇ & ▇▇▇▇▇▇ LLP
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attention: Richard Crystal, Esq.
Any party may alter the address to which communications or copies are
to be sent by giving notice of such change of address in conformity with the
provisions of this paragraph for the giving of notice. Notices given hereunder
shall be deemed received upon actual receipt thereof or, in the case of notice
by mail, upon two days from the date notice is first deposited in the mail in
the manner provided above
(a) Binding Nature of Agreement. This Agreement shall be binding
upon and inure to the benefit of (i) the REIT and its successors and assigns and
(ii) each Holder and its heirs, successors and assigns.
(b) Transfer or Assignment of Registration Rights. Subject to
Section 10 hereof, the rights with respect to any Registrable Shares to cause
the REIT to register such securities granted to a Holder by the REIT under this
Agreement may be transferred or assigned by a Holder, in whole or in part, to a
transferee or assignee of any Registrable Shares (or any OP Units which are
convertible, exercisable or redeemable, directly or indirectly, for Registrable
Shares); provided that, in such case, the REIT shall be given written notice
stating the name and address of said transferee or assignee and identifying the
securities with respect to which such registration rights are being transferred
or assigned and the REIT shall have received the written agreement of such
transferee or assignee to be bound by the terms of this Agreement.
(c) Execution in Counterparts. This Agreement may be executed in
any number of counterparts, each of which shall be deemed to be an original as
against any party whose signature appears thereon, and all of which shall
together constitute one and the same instrument. This Agreement shall become
binding when one or more counterparts hereof, individually taken together, shall
bear the signatures of all of the parties reflected hereon as the signatories.
(d) Provisions Separable. The provisions of this Agreement are
independent of and separable from each other, and no provision shall be affected
or rendered invalid or unenforceable by virtue of the fact that for any reason
any other or others of them may be invalid or unenforceable in whole or in part.
(e) Entire Agreement. This Agreement contains the entire
understanding among the parties hereto with respect to the subject matter
hereof, and supersedes all prior and contemporaneous agreements and
understandings, inducements or conditions, express or implied, oral or written,
except as herein contained. This Agreement may not be modified or amended other
than by an agreement in writing.
(f) Paragraph Headings. The paragraph headings in this Agreement
are for convenience only; they form no part of this Agreement and shall not
affect its interpretation.
[SIGNATURE PAGE FOLLOWS]
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IN WITNESS WHEREOF, the parties executed and delivered this Agreement
on the date first above written.
ACADIA REALTY TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
___________________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
ACADIA REALTY LIMITED
PARTNERSHIP
By: Acadia Realty Trust, its General Partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
_______________________________________
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Title: President
PACESETTER PARTNERS:
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇
_______________________________________________
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
_______________________________________________
AMCAP, INCORPORATED
By:____________________________________________
Name:
Title:
LENNOX SECURITIES
By:____________________________________________
Name:
Title:
BERLIND GROUP, INC.
By:___________________________________________
Name:
Title:
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