Exhibit 4.1
REGISTRATION RIGHTS AND LOCK-UP AGREEMENT
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THIS
REGISTRATION
RIGHTS AND
LOCK-UP AGREEMENT (this
"Agreement"), is made
and entered
into as of January 27,
2004, by and among
Acadia Realty
Trust, a Maryland real estate investment trust (the "REIT"),
Acadia Realty
Limited Partnership, a Delaware limited partnership (the
"Partnership"), and
the undersigned
Klaff Realty, LP, a Delaware limited
Partnership ("Klaff"),
which, at the Closing (the "Closing Date") of the
transactions
contemplated by the
Agreement of
Contribution by and among Klaff
and Klaff Realty,
Limited, the REIT, and
the Partnership
(the "Contribution
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 Klaff 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.
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(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 (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.
Within ninety (90)
days from
the date of this
Agreement,
the REIT shall, at its expense, file a shelf
Registration Statement pursuant to Rule 415 under the Securities
Act to register
the Registrable
Shares for resale,
including for issuance
upon conversion or
exchange of OP
Units. 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 Contribution Agreement.
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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 commercially reasonable 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(e) to:
(i) qualify as
a foreign corporation
in any jurisdiction
where, but for the requirements of
this subsection 3(e), it would not be obligated to be so qualified;
(ii) 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,
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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, General
Counsel 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
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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 Registrat
