Exhibit 99.d
STOCK PURCHASE AGREEMENT
STOCK PURCHASE AGREEMENT (this "AGREEMENT"), dated as of
December 14, 2001, by and between Acadia Realty Trust, a Maryland real estate
investment trust (the "COMPANY"), and Xxxx Xxxxxxx ("Xx. Xxxxxxx").
WHEREAS, as of the date of this Agreement, the total number of
Common Shares of Beneficial Interest, par value $0.001, of the Company (the
"SHARES") outstanding is 28,448,699;
WHEREAS, Xx. Xxxxxxx beneficially owns 2,145,403 Shares
(including 1,000,000 vested options to purchase Shares issued pursuant to the
Company's 1999 Share Incentive Plan);
WHEREAS, the Company intends to commence a "modified Dutch
Auction" tender offer to shareholders offering to purchase up to 4,784,615
Shares and inviting shareholders to tender Shares to the Company at a price not
greater than $6.50 nor less than $6.05 per Share in cash, as specified by
tendering shareholders, in all material respects on the terms of the draft Offer
to Purchase (the "OFFER TO PURCHASE") on Schedule TO delivered to Xx. Xxxxxxx on
the date hereof (the "OFFER");
WHEREAS, the Company desires to purchase from Xx. Xxxxxxx and
Xx. Xxxxxxx desires to sell to the Company up to 600,000 Shares, constituting up
to 2.1% of the outstanding Shares, at a purchase price equal to the purchase
price paid to shareholders tendering into the Offer in cash, pursuant to this
Agreement (the "XXXXXXX PURCHASE" and, together with the Offer, collectively the
"SHARE PURCHASE");
NOW, THEREFORE, in consideration of the foregoing and
intending to be legally bound hereby, the parties hereto hereby agree as
follows:
ARTICLE 1
PURCHASE AND SALE OF THE SHARES
Section 1.1 THE PURCHASE. On the terms and subject to the
conditions of this Agreement, at the Closing referred to in Section 1.2, Xx.
Xxxxxxx hereby agrees to sell, transfer, convey and assign to the Company, and
the Company hereby agrees to purchase from Xx. Xxxxxxx, at a cash purchase price
equal to that paid to shareholders pursuant to the Offer a number of shares (the
"PURCHASED XXXXXXX SHARES") equal to either,
(a) if the Offer is undersubscribed or fully subscribed,
600,000 Shares; or
(b) if the Offer is oversubscribed, a number of Shares equal
to the lesser of (i) 600,000 and (ii) the product of (x)
1,135,403 multiplied by (y) the number of Shares purchased
in the Offer divided by the number of Shares (including
units of limited partnership interest convertible into
Shares) tendered in the Offer.
Section 1.2 CLOSING. The closing of the transactions
contemplated by this Agreement (the "CLOSING") shall take place at the offices
of the Company on the eleventh business day after the termination of the Offer
or, if later, on the day following full satisfaction or due waiver of all of the
closing conditions set forth in ARTICLE 4 hereof (other than those to be
satisfied by deliveries at the Closing). At the Closing, Xx. Xxxxxxx shall
deliver to the Company stock certificates representing the Purchased Xxxxxxx
Shares to be purchased hereunder duly endorsed for transfer or accompanied by
duly executed stock powers or forms of assignment; and the Company shall deliver
to Xx. Xxxxxxx the amount to be paid for the Purchased Xxxxxxx Shares by wire
transfer of immediately available funds to one or more accounts designated by
Xx. Xxxxxxx in writing to the Company prior to the Closing.
ARTICLE 2
REPRESENTATIONS
Section 2.1 REPRESENTATIONS OF THE COMPANY. The Company hereby
represents and warrants to Xx. Xxxxxxx that:
(a) The Company is validly existing and in good standing under
the laws of Maryland and has all requisite corporate power and authority to
enter into this Agreement and to consummate the transactions contemplated
hereby.
(b) The execution and delivery by the Company of this
Agreement, and the consummation by the Company of the transactions contemplated
hereby, have been duly authorized on the part of the Company.
(c) This Agreement has been duly executed and delivered by the
Company and subject to the effect of any applicable bankruptcy, reorganization,
insolvency, moratorium or similar law affecting creditors' rights generally and
general principles of equity, constitutes a valid and binding obligation of the
Company enforceable against the Company in accordance with its terms.
Section 2.2 REPRESENTATIONS OF XX. XXXXXXX. Xx. Xxxxxxx hereby
represents and warrants to the Company that:
(a) Xx. Xxxxxxx has full power and authority to execute and
deliver this Agreement and to carry out the provisions hereof.
(b) This Agreement has been duly and validly executed and
delivered by Xx. Xxxxxxx and constitutes a valid and binding agreement of Xx.
Xxxxxxx, enforceable against Xx. Xxxxxxx in accordance with its terms.
(c) Xx. Xxxxxxx has good and valid title to his Shares, free
and clear of any lien, pledge, security interest or other encumbrance whatsoever
("LIENS") and upon payment for the Purchased Xxxxxxx Shares in accordance with
this Agreement, the Company will acquire good and valid title to the Purchased
Xxxxxxx Shares, free and clear of all Liens, restrictions, charges or adverse
claims. Xx. Xxxxxxx will, upon request, execute and deliver any additional
documents reasonably deemed by the Company to be necessary or desirable to
complete the sale, transfer, conveyance and assignment of the Purchased Xxxxxxx
Shares. Xx. Xxxxxxx does not currently intend to sell, transfer, assign, pledge,
distribute or otherwise dispose of any of the Shares beneficially owned by him
on the date hereof, other than pursuant to this Agreement.
(d) No authorization, consent or approval of, or filing with,
any court or any public body or authority is necessary for the consummation by
Xx. Xxxxxxx of the transactions contemplated by this Agreement. The execution,
delivery and performance of this Agreement by Xx. Xxxxxxx will not constitute a
breach, violation or default (or any event which, with notice or lapse of time
or both, would constitute a default) under, or result in the termination of, or
accelerate the performance required by, or result in a right of termination or
acceleration under, or result in the creation of any lien or encumbrance upon
any of the properties or assets of Xx. Xxxxxxx under, any note, bond, mortgage,
indenture, deed of trust, license, lease, agreement or other instrument to which
Xx. Xxxxxxx is a party or by which Xx. Xxxxxxx'x properties or assets are bound.
(e) As of the date of this Agreement, Xx. Xxxxxxx is in
compliance with all federal and state securities laws (including, without
limitation, Sections 13 and 16 of the Securities Exchange Act of 1934, as
amended) with respect to his ownership of the Purchased Xxxxxxx Shares.
(f) Xx. Xxxxxxx is not in possession of any material nonpublic
information concerning the business, operations or prospects of the Company and,
in the event that, prior to the Closing, Xx. Xxxxxxx becomes aware of any
material nonpublic information regarding the Company, Xx. Xxxxxxx shall notify
the Company immediately and the Company may, at its option, terminate this
Agreement. "Material" information for these purposes is any information to which
an investor would reasonably attach importance in reaching a decision to buy,
sell, or hold securities of the Issuer.
ARTICLE 3
COVENANTS
Section 3.1 OFFER; AGREEMENT NOT TO TENDER. (a) The Offer
shall be for not more than 4,784,615 Shares at a purchase price of not greater
than $6.50 nor less than $6.05 per Share and shall be in all material respects
on the terms of the draft Tender Offer Statement on Schedule TO delivered to Xx.
Xxxxxxx on the date hereof, subject to amendments made to the Offer in
accordance with applicable tender offer rules.
(b) Xx. Xxxxxxx shall not tender any Shares in the Offer.
Section 3.2 RESTRICTIONS ON TRANSFER, PROXIES AND
NON-INTERFERENCE. Until the completion of the Xxxxxxx Purchase or the
termination of this Agreement, Xx. Xxxxxxx shall not (i) sell, transfer, pledge,
encumber, assign or otherwise dispose of, or enter into any contract, option or
other arrangement or understanding with respect to the sale, transfer, pledge,
encumbrance, assignment or other disposition of, any of his Shares, (ii) grant
any proxies, powers of attorney or other authorization or consent, deposit any
Shares into an agreement with respect to any such Shares or (iii) take any
action that would make any representation or warranty of Xx. Xxxxxxx contained
herein untrue or incorrect or have the effect of preventing or disabling Xx.
Xxxxxxx from performing his obligations under this Agreement.
ARTICLE 4
CONDITIONS OF THE AGREEMENT
Section 4.1 CONDITIONS TO OBLIGATION OF XX. XXXXXXX. The
obligations of Xx. Xxxxxxx to consummate the transactions to be performed by him
in connection with the Closing is subject to satisfaction of the following
conditions:
(a) The representations and warranties of the Company set
forth in Section 2.1 shall be true and correct in all material respects at and
as of the date of Closing;
(b) There shall not have been instituted or pending before any
court, agency, authority or other tribunal any action, suit or proceeding by any
government or governmental, regulatory or administrative agency or authority or
by any other person, domestic or foreign, or any judgment, order or injunction
entered, enforced or deemed applicable by any such court, authority, agency or
tribunal, which challenges or seeks to make illegal, or to delay or otherwise
directly or indirectly to restrain, prohibit or otherwise affect the Share
Purchase; and
(c) There shall not have been any action threatened or taken,
or any approval withheld, or any statute, rule or regulation invoked, proposed,
sought, promulgated, enacted, entered, amended, enforced or deemed to be
applicable to the Share Repurchase, Xx. Xxxxxxx or the Company or any of its
subsidiaries, by any government or governmental, regulatory or administrative
authority or agency or tribunal, domestic or foreign, which would is likely to
directly or indirectly result in any of the consequences referred to in
paragraph (b) above.
Section 4.2 CONDITIONS TO OBLIGATION OF THE COMPANY. The
obligation of the Company to consummate the transactions to be performed by them
in connection with the Closing is subject to satisfaction of the following
conditions:
(a) The representations and warranties of Xx. Xxxxxxx set
forth in Section 2.2 shall be true and correct in all material respects at and
as of the date of the Closing;
(b) Ten business days shall have elapsed since the termination
of the Offer and the Company shall have paid for the Shares purchased
thereunder;
(c) There shall not have been instituted or pending before any
court, agency, authority or other tribunal any action, suit or proceeding by any
government or governmental, regulatory or administrative agency or authority or
by any other person, domestic or foreign, or any judgment, order or injunction
entered, enforced or deemed applicable by any such court, authority, agency or
tribunal, which challenges or seeks to make illegal, or to delay or otherwise
directly or indirectly to restrain, prohibit or otherwise affect the Share
Purchase; and
(d) There shall not have been any action threatened or taken,
or any approval withheld, or any statute, rule or regulation invoked, proposed,
sought, promulgated, enacted, entered, amended, enforced or deemed to be
applicable to the Share Repurchase, Xx. Xxxxxxx or the Company or any of its
subsidiaries, by any government or governmental, regulatory or administrative
authority or agency or tribunal, domestic or foreign, which would or is likely
to directly or indirectly result in any of the consequences referred to in
paragraph (c) above.
ARTICLE 5
MISCELLANEOUS
Section 5.1 TERMINATION. This Agreement will terminate if the
Company does not commence the Offer within five business days of the date of
this Agreement or the Offer expires or terminates without the Company accepting
and purchasing any Shares thereunder. In addition, if the Closing has not
occurred on or before the expiration of sixty days after the Company's
acceptance of and payment for Shares pursuant to the Offer by reason of the
failure of any condition under ARTICLE 4 to be satisfied, which failure has
occurred and is continuing, this Agreement may be terminated by written notice
of either party. In the event of any termination pursuant to this Section 5.1,
all obligations of the parties hereunder shall terminate without any liability
of any party to the other (except for any liability of any party then in
breach).
Section 5.2 GOVERNING LAW. This Agreement shall be construed
in accordance with and governed by the laws of the State of New York applicable
to agreements made and to be performed wholly within such jurisdiction.
Section 5.3 ASSIGNMENT. No party may assign either this
Agreement or any of such party's rights, interests or obligations hereunder
without the prior written approval of the other party.
Section 5.4 SEVERABILITY. If any provision of this Agreement
is invalid, illegal or incapable of being enforced by any rule of law or public
policy, all other 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 adverse manner to any party. Upon
such determination that any 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 an acceptable manner so that the transactions contemplated hereby
are fulfilled to the greatest extent possible.
Section 5.5 FACSIMILE SIGNATURES. Delivery of a photocopy or
transmission by telecopy of a signed signature page of this Agreement shall
constitute delivery of such signed signature page.
Section 5.6 EXCLUSIVE AGREEMENT. This Agreement constitutes
the sole understanding of the parties with respect to the subject matter hereof
and any verbal or written communication between the parties prior to the
adoption of this Agreement shall be deemed merged herein and of no further force
or effect.
IN WITNESS WHEREOF, the parties have executed this Agreement
and caused the same to be duly delivered on their behalf as of the day and year
first written above.
Acadia Realty Trust
By: /s/ Xxxxxxx X. Xxxxxxxxx
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Name: Xxxxxxx X. Xxxxxxxxx
Title: President and Chief Executive Officer
/s/ Xxxx Xxxxxxx
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Xxxx Xxxxxxx
[signature page to Stock Purchase Agreement]
