INDEX TO EXHIBITS
EXHIBIT
NO. DESCRIPTION
4.1 Acadia Realty Trust 2003 Share Incentive Plan (included as an
appendix to Registrant's definitive proxy statement on Schedule 14-A,
filed in connection with the annual meeting held on June 25, 2003
(SEC File No. 001-2002), which is incorporated herein by reference)
4.2 Acadia Realty Trust 2003 Employee Share Purchase Plan (included as an
appendix to Registrant's definitive proxy statement on Schedule 14-A,
filed in connection with the annual meeting held on June 25, 2003
(SEC File No. 001-2002), which is incorporated herein by reference)
5.1 Opinion of Berliner, Corcoran & Rowe, L.L.P.
23.1 Consent of Ernst & Young LLP, Independent Auditors
23.2 Consent of Berliner, Corcoran & Rowe, L.L.P. (included in Exhibit
5.1)
24.1 Powers of Attorney (included as a part of the signature page of this
Registration Statement)
99.1 Form of Share Award Agreement under 2003 Share Incentive Plan
EXHIBIT 5.1
OPINION REGARDING LEGALITY
BERLINER, CORCORAN & ROWE, L.L.P.
ATTORNEYS-AT-LAW
1101 SEVENTEENTH STREET, N.W.
SUITE 1100
WASHINGTON, D.C. 20036-4798
TELEPHONE (202) 293-5555 FAX (202) 293-9035
E-mail BCR@BCR-DC.COM
July 2, 2003
Acadia Realty Trust
1311 Mamaroneck Avenue, Suite 260
White Plains, NY 10605
Re: Acadia Realty Trust Registration of 2003 Share Incentive Plan and 2003
Employee Purchase Plan on Form S-8
Ladies and Gentlemen:
We have acted as special counsel for Acadia Realty Trust, a Maryland real
estate investment trust (the "Trust"), in connection with the preparation and
filing of a registration statement on Form S-8 (the "Registration Statement")
relating to Common Shares of Beneficial Interest, par value $.001 per share
("Common Shares") which may be issued under the Trust's 2003 Share Incentive
Plan ("Plan"), Common Shares which may be issued under the Trust's 2003 Employee
Share Purchase Plan ("Employee Plan"), and Common Shares which may be issued as
may be necessary to satisfy the anti-dilution provisions of the Plan and the
Employee Plan (collectively, the "Plans"). Pursuant to the Registration
Statement, the Trust may initially issue up to an aggregate of 1,263,008 shares
(the "Shares") of its Common Shares. This opinion is being furnished to you as a
supporting document for such Registration Statement.
In this connection we have examined and considered the original or copies,
certified or otherwise identified to our satisfaction, of the following:
(i) The Declaration of Trust, including all amendments thereto, of the
Trust, as in effect on the date hereof;
(ii) The By-Laws of the Trust, including all amendments thereto, as in
effect on the date hereof;
(iii) The Notice of the 2003 Annual Meeting ("Notice") and Proxy Statement
mailed to holders of Common Shares of the Trust noticing an annual meeting of
holders of shares of the Trust ("Annual Meeting") and describing the actions to
be voted on at such meeting, including approval of the Plans;
(iv) Resolutions of the Trustees of the Trust, adopted pursuant to
Unanimous Written Consent of the Trustees on April 22, 2003 and on April 24,
2003, approving the Plans and authorizing the registration of the Shares under
the Securities Act of 1933, as amended;
(v) The Registration Statement filed with the Securities and Exchange
Commission with respect to the Shares issuable upon exercise of options granted
under the Plans; and
(vi) Certificate of the Secretary of the Trust dated July 1, 2003.
In addition, we have obtained from public officials, officers and other
representatives of the Trust, and others such certificates, documents and
assurances as we considered necessary or appropriate for purposes of rendering
this opinion. In our examination of the documents listed in (i)-(vi) above and
the other certificates and documents referred to herein, we have assumed the
legal capacity of all natural persons, the genuineness of all signatures on
documents not executed in our presence and facsimile or photostatic copies of
which we reviewed, the authenticity of all documents submitted to us as
originals, the conformity to the original documents of all documents submitted
to us as certified or photostatic copies and the authenticity of the originals
of such documents. Without limiting the generality of the foregoing we have
relied upon the representations of the Trust as to the accuracy and completeness
of (i) the Declaration of Trust and the By-laws of the Trust; (ii) the Plans;
(iii) the Registration Statement; and (iv) the representations of the Trust that
(a) the resolutions of the Trustees, dated April 22, 2003 and April 24, 2003,
approving, among other things, the Plans, filing the Registration Statement, and
reserving the Shares, and (b) the Declaration of Trust and By-laws of the Trust
have not been rescinded, modified or revoked.
Based upon the assumptions, qualifications and limitations set forth
herein, and relying upon the statements of fact contained in the documents that
we have examined, we are of the opinion, as of the date hereof, that when
options have been exercised as contemplated by the Plan, and when Shares have
been purchased as permitted by the Employee Plan, consideration has been paid
for the Shares underlying the options as contemplated by the Plan and for the
Shares which have been purchased as contemplated by the Employee Plan, the
Shares will constitute legally issued, fully paid and nonassessable, and valid
and binding obligations of the Trust.
In addition to the assumptions set forth above, the opinions set forth
herein are also subject to the following qualifications and limitations:
(a) The opinions expressed in this letter are based upon the assumption
that the Trust will cause the Registration Statement to become effective and the
Trust will keep the Registration Statement effective and that any Shares issued
upon the exercise of options or purchased pursuant to the Employee Plan will be
issued only at a time when the Registration Statement is effective.
(b) The opinions expressed in this letter are specifically limited to the
matters set forth in this letter and no other opinions should be inferred beyond
the matters expressly stated herein.
(c) The opinions expressed in this letter are based on the laws of the
jurisdictions referred to in the next paragraph as they may be in effect on the
date hereof and we assume no obligation to supplement this opinion if any
applicable laws change after the date hereof.
The opinions herein expressed are limited in all respects solely to matters
governed by the internal laws of the State of Maryland, and the federal laws of
the United States of America, insofar as each may be applicable. We express no
opinion herein with respect to matters of local, county or municipal law, or
with
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respect to the laws, regulations, or ordinances of local agencies within any
state. Subject to the foregoing, any reference herein to "law" means applicable
constitutions, statutes, regulations and judicial decisions. To the extent that
this opinion relates to the laws of the State of Maryland, it is based upon the
opinion of members of this firm who are members of the bar of that State.
This opinion letter is rendered solely to you in connection with the above
referenced matter and may not be relied upon by you for any other purpose or
delivered to, or quoted or relied upon by, any other person without our prior
written consent. This opinion letter is rendered as of the date hereof, and we
assume no obligation to advise you of any facts, circumstances, events or
developments that may be brought to our attention in the future, which facts,
circumstances, events or developments may alter, affect or modify the opinions
or beliefs expressed herein.
We hereby consent to the filing of this opinion as an exhibit to the
Registration Statement.
Very truly yours,
/s/ Berliner, Corcoran & Rowe, L.L.P.
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EXHIBIT 23.1
Consent of Independent Auditors
We consent to the incorporation by reference in the Registration Statement (Form
S-8) of Acadia Realty Trust for the registration of 1,163,008 common shares
pursuant to the 2003 Share Incentive Plan and 100,000 common shares pursuant to
the 2003 Employee Share Purchase Plan of our report dated February 25, 2003 with
respect to the consolidated financial statements and schedule of Acadia Realty
Trust included in its Annual Report on Form 10-K for the year ended December 31,
2002 filed with the Securities and Exchange Commission.
/s/ ERNST & YOUNG LLP
New York, New York
July 1, 2003
EXHIBIT 99.1
ACADIA REALTY TRUST
SHARE AWARD AGREEMENT
(Vesting based on future employment and Company performance)
THIS AGREEMENT, made as of the ____ day of ___________, 2003 (the "Grant
Date"), between Acadia Realty Trust (the "Company") and ________________________
(the "Owner").
1. Share Award Grant.
(a) Grant of Shares. The Company hereby grants to Owner,
subject to the terms and conditions set forth in this Agreement -
i. in lieu of the $________ cash bonus payable by the Company
to the Owner under the Company's bonus program for the
fiscal year ended December 31, 2002, ________ shares of
beneficial ownership, par value of $.001 per share
("Shares"), for no cash consideration; and
ii. ________ Shares, for no cash consideration, as a long-term
incentive award.
(b) Delivery of Certificates. The certificates representing the
Shares hereunder shall be held in escrow by the Company as provided in Section 5
hereof. Upon lapse of the restrictions of Section 2 hereof, the Company shall
cause a share certificate to be delivered to the Owner with respect to such
Shares, free from all restrictions hereunder. All Shares delivered hereunder
shall be treasury shares held by the Company.
(c) Shareholder Rights. The Owner shall have all the rights of
a shareholder (including voting and dividend rights) with respect to the Shares,
including the Shares held in escrow under Section 5 hereof, but shall be subject
to the restrictions of Section 2 hereof.
2. Transfer Restrictions.
(a) Vesting of Shares. Subject to Section 2(c) hereof, the
Owner shall earn a vested and nonforfeitable right to the Shares as follows,
subject to the Owner's continued employment with the Company through the
applicable vesting dates:
i. with respect to the Shares awarded pursuant to Section
1(a)(i), vesting shall occur as to twenty percent (20%) of
such Shares on January 2, 2003 and on each of the first,
second, third, and fourth anniversaries of January 2, 2003;
ii. with respect to fifty percent (50%) of the Shares awarded
pursuant to Section 1(a)(ii), vesting shall occur at the
rate of twenty percent (20%) of such Shares on each of the
first, second, third, fourth, and fifth anniversaries of
January 2, 2003; and
iii. with respect to the other fifty percent (50%) of the Shares
awarded pursuant to Section 1(a)(ii) hereof, twenty percent
(20%) of the Shares shall vest on each of the first,
second, third, fourth, and fifth fiscal years of the
Company that end after January 2, 2003 provided that, in
addition to continued employment through the vesting date,
the Company's total shareholder return, as determined by
the Committee in its discretion, is 12% or more either -
1) for such fiscal year or,
2) on average, for such fiscal year and each prior
fiscal year ending after January 2, 2003 - in which
case vesting shall occur for any Shares that did not
vest in a prior fiscal year based on this 12%
condition.
Upon the earlier of January 2, 2008 or the Owner's (i) voluntary termination of
employment with the Company or (ii) termination of employment with Company for
Cause (as defined below), all Shares which have not vested shall be forfeited as
of the date of such termination. Upon the Owner's termination of employment with
the Company for any reason other than (i) or (ii) above, all Shares which have
not vested shall vest in full as of the date of such termination. For purposes
of this Agreement, "Cause" shall mean the Owner's (i) intentional failure to
perform reasonably assigned duties, (ii) dishonesty or willful misconduct in the
performance of duties, (iii) involvement in a transaction in connection with the
performance of duties to the Company or any of its subsidiaries thereof which
transaction is adverse to the interests of the Company or any of its
subsidiaries and which is engaged in for personal profit, (iv) willful violation
of any law, rule or regulation in connection with the performance of duties
(other than traffic violations or similar offenses), or (v) the commission of an
act of fraud or intentional misappropriation or conversion of assets or
opportunities of the Company or any subsidiary.
(b) Non-transferability of Shares. The Shares may not be
transferred, assigned, pledged or hypothecated, and shall be subject to
execution, attachment or similar process only to the extent the Owner shall
have, pursuant to Section 2(a) hereof, a vested nonforfeitable right to such
Shares.
(c) Effect of Change in Control. In the event of a Change in
Control, as defined on Schedule A attached hereto, all restrictions upon any
Shares shall lapse immediately and all such Shares shall become fully vested in
the Owner.
3. Special Tax Provisions.
(a) Section 83(b) Election. The Owner understands that under
Section 83 of the Internal Revenue Code of 1986 as amended (the "Code"), the
fair market value of the Shares on the date any forfeiture restrictions
applicable to such shares lapse will be reportable as ordinary income on such
lapse date. The Owner understands that he or she may irrevocably elect under
Section 83(b) of the Code to be taxed at the time the Shares are acquired
hereunder, rather than when and as such Shares cease to be subject to such
forfeiture restrictions. Such election must be filed with the Internal Revenue
Service and the Company within thirty (30) days after the date of this
Agreement, and a copy of the election must be attached to the Owner's income tax
return for the tax year in which the election was made. The form for making this
election is attached hereto. The Owner understands that failure to make this
filing within the thirty (30) day period will result in the recognition of
ordinary income by the Owner as the forfeiture restrictions lapse.
(b) Responsibility for Tax Consequences. THE OWNER ACKNOWLEDGES
THAT IT IS THE OWNER'S SOLE RESPONSIBILITY, AND NOT THE COMPANY'S, TO FILE A
TIMELY ELECTION UNDER SECTION 83(b). This filing should be made by registered or
certified mail,
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return receipt requested, and the Owner must retain two (2) copies of the
completed form for filing with his State and Federal tax returns for the current
tax year and an additional copy for his personal records. In addition, the Owner
shall immediately provide the Company with a copy of such filing.
4. Legend on Share Certificate. All share certificates representing
Shares issued to the Owner shall have affixed thereto a legend substantially in
the following form, in addition to any other legends required by applicable
state law:
"The transfer, sale or other disposition of the shares evidenced by this
certificate is subject to the terms of an Agreement, dated ___________
_____, 2003, between the Company and the registered holder hereof, a copy
of which is on file at the offices of the Company."
5. Escrow.
(a) Deposit. Upon issuance, the certificates for any Shares
purchased hereunder shall be deposited in escrow with the Company to be held in
accordance with the provisions of this Section 5. The Owner shall deliver to the
Company a stock power, executed in blank, with respect to such Shares. The
deposited certificates shall be released from escrow when and to the extent the
Owner has a vested nonforfeitable interest in such Shares pursuant to Section
2(a) hereof.
(b) Recapitalization. In the event of any share dividend, share
split, recapitalization or other change affecting the Company's outstanding
Common Shares as a class effected without receipt of consideration or in the
event of any corporate transaction, any new, substituted or additional
securities or other property which is by reason of such transaction distributed
with respect to the Shares which continue to be held in escrow under this
Section 5, shall be immediately delivered to the Company to be held in escrow
under this Section 5.
6. No Special Other Rights. Nothing contained in this Agreement shall be
construed or deemed by any person under any circumstances to bind the Company to
continue the employment or services of the Owner for the period under which
these Shares may be restricted.
7. Recapitalization. In the event that the outstanding Common Shares are
changed into or exchanged for a different number or kind of shares or other
securities of the Company by reason of any recapitalization, reclassification,
share split, share dividend, combination or subdivision, merger, consolidation,
or other similar transaction, appropriate adjustment shall be made in the number
and kind of Shares to which this Agreement pertains. No such adjustment shall be
made which would constitute a grant of additional benefits to the Owner.
8. Miscellaneous.
(a) Except as provided herein, this Agreement shall not be
amended or otherwise modified unless evidenced in writing and signed by the
Company and the Owner.
(b) All notices under this Agreement shall, unless otherwise
provided herein, be mailed or delivered by hand to the parties at their
respective addresses set forth beneath their names below or at such other
address as may be designated in writing by either of the parties to one another.
(c) This Agreement shall be governed by and construed in
accordance with the laws of the State of Maryland without regard to conflicts of
laws.
(d) This Agreement shall be binding upon and inure to the
heirs, successors and assigns of the Owner (subject, however, to the limitations
set forth herein) and the Company.
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COMPANY:
ACADIA REALTY TRUST
By:
--------------------------
Name:
Title:
Address: 1311 Mamaroneck Avenue
Suite 260
White Plains, NY 10605
OWNER:
-------------------------------
Name:
Address:
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