EXHIBIT 99.2
LOCK-UP AGREEMENT
THIS LOCK-UP AGREEMENT (this "Agreement"), is made as of March 22,
2000 by and among Acadia Realty Trust (the "Company") and Carnegie Corporation
of New York, Five Arrows Realty Securities LLC, Harvard Private Capital
Realty, Inc., Xxxxxx Xxxxxx Medical Institute, The Board of Trustees of the
Xxxxxx Xxxxxxxx Junior University, The Vanderbilt University, TRW Master
Trust, Yale University, Yale University Retirement Plan for Staff Employees
and RD New York VI, LLC ("RDNY") (collectively, the "Shareholders").
BACKGROUND
The Shareholders hold the respective common shares of beneficial
interest of the Company (the "Shares") set forth opposite their name on
Schedule A (the "Lock-Up Shares").
The Shareholders have been partners in the following partnerships:
RD Properties, L.P. VI ("RDVI"), RD Properties, L.P. VIA ("RDVIA"), and RD
Properties, L.P. VIB ("RDVIB") (collectively, the "Partnerships").
The Partnerships and RDNY, together with other signatories, are
parties to a Registration and Lock-up Agreement dated August 12, 1998 which
contains provisions, among others, restricting the sale of the Lock-Up Shares
(other than those Shares acquired subsequent to August 12, 1998 (the "Post-
Closing Shares")) and providing for the registration of the Lock-Up Shares
(other than the Post-Closing Shares) (as such registration provisions are
amended on or before the date of this Agreement to extend the Company's
registration obligations to December 28, 2003 (i.e. the date which is 36
months after the outside expiration date of the Lock-Up (defined below))) (the
"Registration Rights Agreement").
The Partnerships are governed by the following agreements
(collectively, the "Partnership Agreement(s)"): (1) RDVI: Second Amended and
Restated Agreement of Limited Partnership dated January 1, 1998; (2) RDVIA:
Agreement of Limited Partnership dated May 6, 1998 and (3) RDVIB: Agreement
of Limited Partnership dated May 6, 1998. Each of the Partnership Agreements
contains provisions restricting the sale of the Lock-Up Shares (other than the
Post-Closing Shares) which were in addition to the restrictions set forth in
the Registration Rights Agreement (such provisions, together with those
contained in the Registration Rights Agreement, are collectively referred to
as the "Original Lock-Up Provisions").
The Original Lock-Up Provisions have expired or will shortly expire
in accordance with their terms.
On or prior to the date of this Agreement, the Partnerships have
distributed all Lock-Up Shares (other than the Post-Closing Shares which were
previously held by the applicable Shareholder) to the Shareholders in
accordance with the respective Partnership Agreements.
On or prior to the date of this Agreement, the Company has filed a
shelf registration statement in accordance with the Registration Rights
Agreements to permit the resale of the Lock-Up Shares (other than the Post-
Closing Shares) (the "Shelf Registration"). If the Shelf Registration has not
been declared effective by the Securities and Exchange Commission ("SEC")
within the time period set forth in this Agreement, the Lock-Up shall expire.
The Shareholders and the Company agree that it is in their mutual
best interests to be bound by a new lock-up on the terms set forth in this
Agreement.
NOW THEREFORE, in consideration of the mutual agreements herein
contained and intending to be legally bound hereby, the parties hereto hereby
agree as follows:
1. Lock-Up Agreement. Subject to the terms of this Agreement,
each Shareholder agrees that it will not sell, assign, pledge or otherwise
transfer ("Transfer") its Lock-Up Shares until December 28, 2000 (the "Lock-
Up").
2. Permitted Transfers. The Lock-Up shall not apply to (i) a
Transfer of the Lock-Up Shares to a Permitted Transferee or (ii) a bona fide
pledge of the Lock-Up Shares (each a "Permitted Transfer"). For purposes of
this Agreement, the term "Permitted Transferee" means (i) any partner or other
equity owner of a Shareholder; (ii) any equity owner of any partner or other
equity owner of a Shareholder; (iii) members of the Immediate Family (as
defined below) of any equity owner of a Shareholder (or any equity thereof)
and trusts for the benefit of one or more members of the Immediate Family of a
Shareholder (or any equity owner thereof) created for estate and/or gift tax
purposes and/or (iv) 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 Agreement, 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. A Permitted Transfer
shall not be deemed effective, and the Company may issue stop transfer
instructions to its transfer agent in connection with a purported Transfer of
the Lock-Up Shares, unless and until the transferor shall give the Company
written notice stating the name and address of the transferee and identifying
the securities which are being Transferred and the Company shall have received
the written agreement of the transferee to be bound by the terms of this
Agreement as if an original signatory hereto.
3. Release Events. Without the need for further documentation,
if any of the following events shall occur (x) the Lock-Up shall expire and
(y) in the case of clause (viii) only, this Agreement shall automatically
terminate:
(i) both Xxxx Xxxxxxx and Xxxxxxx X. Xxxxxxxxx are not
executive officers of the Company and spending a substantial
portion of their time on the management of the Company;
(ii) a tender offer (other than a Company Tender Offer
(defined below)) is initiated for the Shares;
(iii) the Shares have been suspended from trading or have
been delisted;
(iv) either Xxxx Xxxxxxx or Xxxxxxx X. Xxxxxxxxx are the
subject of a governmental investigation required to be
disclosed pursuant to Item 401(f)(2) through (6) of Regulation
S-K promulgated under the Securities Act of 1933, as amended,
or the occurrence of a bankruptcy with respect to the Company;
(v) either Xxxx Xxxxxxx or Xxxxxxx X. Xxxxxxxxx is not a
member of the board of trustees of the Company;
(vi) either Xxxx Xxxxxxx or Xxxxxxx X. Xxxxxxxxx has, as a
result of a voluntary decision, ceased to be an executive
officer of the Company who spends a substantial portion of his
time on the management of the Company;
(vii) the Shelf Registration has not been declared effective
by the SEC on or before May 1, 2000; or
(viii) Shareholders holding a majority of the Lock-Up Shares
(excluding any Lock-Up Shares held by RDNY or any of its
Permitted Transferees) vote to terminate this Agreement;
provided, however, that neither RDNY nor any of its Permitted
Transferees shall be entitled to vote its Lock-Up Shares in
connection with such vote.
4. Company Tender Offer. The Shareholders agree not to tender
their Lock-Up Shares (or any other Shares they hold) to the Company (or its
affiliates) in connection with any tender offer by the Company (or its
affiliates) for the Company's Shares which commences at any time prior to
December 28, 2000 (a "Company Tender Offer").
5. 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 Company:
Acadia Realty Trust
000 Xxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attention: President
With copy to:
Acadia Realty Trust
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000-0000
Attention: General Counsel
(ii) If to a Shareholder, to the address of such
Shareholder appearing below the Shareholder's
signature on the signature page hereof:
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
(c) Binding Nature of Agreement. This Agreement shall be
binding upon and inure to the benefit of the Company and its successors and
assigns and shall be binding upon each Shareholder and his/its heirs,
administrators, successors and assigns.
(d) 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.
(e) 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.
(f) Entire Agreement; Amendments. 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 amended or
terminated other than with the consent of Shareholders holding a majority of
the Lock-Up Shares (excluding any Lock-Up Shares held by RDNY or any of its
Permitted Transferees); provided, however, that neither RDNY nor any of its
Permitted Transferees shall be entitled to vote its Lock-Up Shares in
connection with such vote.
(g) Section Headings. The section headings in this
Agreement are for convenience only; they form no part of this Agreement and
shall not affect its interpretation.
[Signature page follows]
IN WITNESS WHEREOF, the parties executed and delivered this
Agreement on the date first above written.
ACADIA REALTY TRUST
By: /s/ Xxxxxxx X. Xxxxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxxxx
Title: President
CARNEGIE CORPORATION OF NEW YORK
By: /s/ D. Xxxxx Xxxxxx
------------------------------------
Name: D. Xxxxx Xxxxxx
Title: Vice President and Chief
Investment Officer
000 Xxxxxxx Xxxxxx
Xxx Xxxx, XX 00000
Attn: D. Xxxxx Xxxxxx, Vice President and
Chief Investment Officer
FIVE ARROWS REALTY SECURITIES LLC
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxx
Title: Managing Director
c/o Rothschild Realty Inc.
0000 Xxxxxx xx xxx Xxxxxxxx
Xxx Xxxx, XX 00000
Attn: Xxxxxxx X. Xxxxxx, Xx. Vice
President
HARVARD PRIVATE CAPITAL REALTY, INC.
By: /s/ Xxxxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxxxx
Title: Managing Director
000 Xxxxxxxx Xxxxxx
Xxxxxx, Xxxxxxxxxxxxx 00000-0000
Attn: Xxxxxx XxXxxxxx, Vice President
XXXXXX XXXXXX MEDICAL INSTITUTE
By: /s/ Xxxx X. Xxxxxxx
------------------------------------
Name: Xxxx X. Xxxxxxx
Title: Director - Private
Investments
0000 Xxxxx Xxxxxx Xxxx
Xxxxx Xxxxx, Xxxxxxxx 00000-0000
Attn: Xxxx Xxxxxxx, Director of Private
Investments
THE BOARD OF TRUSTEES OF THE XXXXXX
XXXXXXXX JUNIOR UNIVERSITY
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Director of Real Estate
Investments
Stanford Management Company
0000 Xxxx Xxxx Xxxx
Xxxxx Xxxx, Xxxxxxxxxx 00000
Attn: Xxxxx X. Xxxx, Director of Real
Estate Investments
THE VANDERBILT UNIVERSITY
By: /s/ Xxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Treasurer
Office of the Treasurer
0000 Xxxx Xxx Xxxxxx, Xxxxx 000
Xxxxxxxxx, Xxxxxxxxx 00000
Attn: Xxxxxxx X. Xxxxx, Treasurer
TRW INVESTMENT MANAGEMENT COMPANY
By: Boston Safe Deposit and Trust
Company, solely in its capacity as
Trustee for the TRW Master Trust (as
directed by TRW Investment
Management Co.), and not in its
individual capacity
By: /s/ Xxxxxx Xxxxx
-----------------------------
Name: Xxxxxx Xxxxx
Title: Authorized Signatory
TRW Investment Management Company
0000 Xxxxxxxx Xxxx
Xxxxxxxxx, Xxxx 00000
Attn: Xxxxx X. Xxxxxxxxx, Senior
Portfolio Manager
The decision to participate in the
investment, any representations made herein
by the participant, and any actions taken
hereunder by the participant has/have been
made solely at the direction of the
investment fiduciary who has sole
investment discretion with respect to this
investment.
YALE UNIVERSITY
By: /s/ Xxxxx X. Xxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxx
Title: Chief Investment Officer
Yale Investments Xxxxxx
000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxxx Xxxxxxx, Chief Investment
Officer
YALE UNIVERSITY RETIREMENT PLAN FOR
STAFF EMPLOYEES
By: /s/ Xxxxx X. Xxxxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxxxx
Title: Senior Vice President
000 Xxxxxxxx Xxxxxx
Xxx Xxxxx, XX 00000
Attn: Xxxx Xxxxxx, Director of Investments
RD NEW YORK VI, LLC
By: /s/ Xxxx Xxxxxxx
------------------------------------
Name: Xxxx Xxxxxxx
Title: Member
00 Xxxxxxxxx Xxxxxxxxxxx
Xxxx Xxxxxxxxxx, XX 00000
SCHEDULE A
----------
Lock-Up Shares
Name Lock-Up Shares Held Percentage Held1
---- ------------------- ---------------
Carnegie Corporation of New York 942,653 5.5691
Five Arrows Realty Securities LLC 3,266,667 19.2991
Harvard Private Capital Realty, Inc. 2,000,000 11.8157
Xxxxxx Xxxxxx Medical Institute 2,266,667 13.3912
The Board of Trustees of the Xxxxxx
Xxxxxxxx Junior University 2,133,333 12.6035
The Vanderbilt University 1,346,647 7.9558
TRW Master Trust 1,200,000 7.0894
Yale University 3,366,616 19.8895
Yale University Retirement Plan
for Staff Employees 403,994 2.3867
RD New York VI, LLC 134,661 --
------- ------
TOTALS 17,061,238 100.0000%
========== ========
___________________
1 Percentages are calculated by excluding any Lock-Up Securities held by
RDNY.
