As filed with the Securities and Exchange Commission on September 28, 1999
Registration No.33-95966
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
---------------
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
ACADIA REALTY TRUST
- ------------------------------------------------------------------------------
(Exact name of registrant as specified in its charter)
Maryland
23-2715194
- -------------------------------------------------------------------------------
(State or other jurisdiction of
incorporation or organization)
(I.R.S. Employer
Identification No.)
20 Soundview Marketplace
Port Washington, New York 11050
- -------------------------------------------------------------------------------
(Address of principal executive offices) (Zip Code)
Acadia Realty Trust 1999 Share Incentive Plan
- -------------------------------------------------------------------------------
(Full title of the plan)
Ross Dworman
Chairman and Chief Executive Officer
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
- -------------------------------------------------------------------------------
(Name and address of agent for service)
(516) 767-8830
- -------------------------------------------------------------------------------
(Telephone number, including area code, of agent for service)
CALCULATION OF REGISTRATION FEE
===================================================================================================================================
Proposed
maximum Proposed maximum
Amount offering price aggregate offering Amount of registration
Title of securities to be registered to be registered(1)(2) per unit(3) price(3) fee(1)(3)
- ------------------------------------------------------------------------------------------------------------------------------------
Common shares of beneficial interest, 2,328,269 $5.1875 $12,077,895 $3,357.65
par value $.001 per share
===================================================================================================================================
(1) This Registration Statement is also deemed, pursuant to Instruction E
to Form S-8, to relate to 600,000 shares previously registered on
Form S-8 (No. 33-95966) in connection with a predecessor plan, with
respect to which a registration fee of $2,690.00 has been paid. Upon
effectiveness of this Registration Statement on Form S-8, Registrant
will have registered an aggregate of 2,928,269 shares under the
Acadia Realty Trust 1999 Plan.
(2) Pursuant to Rule 416 under the Securities Act of 1933, as amended,
this Registration Statement also covers such additional shares as may
hereinafter be offered or issued to prevent dilution resulting from
share split, share dividends, recapitalization or certain other
capital adjustments.
(3) Calculated pursuant to paragraphs (c) and (h) of Rule 457 of the
Securities Act of 1933, as amended, the proposed maximum offering
price per share of the 2,328,269 shares estimated solely for the
purpose of determining the registration fee and are based upon the
average of the high and low prices per share of the Registrant's
common shares reported on the New York Stock Exchange on September
27, 1999, within five business days prior to the date of filing of
this Registration Statement.
850114.2
EXPLANATORY STATEMENT
A total of 600,000 shares of Acadia Realty Trust (the "Registrant"
formerly Mark Centers Trust) were registered by Registration Statement on Form
S-8, File No. 33-95966, for issuance in connection with the Mark Centers Trust
1994 Share Option Plan as Amended Through June 15, 1995 and Mark Centers Trust
1994 Non-Employee Trustees' Share Option Plan (the "1994 Plans"). On February 4,
1999 the Board of Trustees of the Registrant approved the Acadia Realty Trust
1999 Share Incentive Plan (the "1999 Plan"), which replaces the 1994 Plans; the
1999 Plan was approved by the Registrant's shareholders at its annual meeting
held on June 16, 1999. Both the 1999 Plan and the 1994 Plan are intended to
qualify as "employee share purchase plans" under Section 423 of the Internal
Revenue Code of 1986, as amended from time to time. Six hundred thousand
(600,000) shares of the Registrant which were registered in connection with the
1994 Plans, have not been issued under the 1994 Plans and, pursuant to
Instruction E to Form S-8 and the telephonic interpretation of the Securities
and Exchange Commission set forth at pages 137-138 of the Division of
Corporation Finance's Manual of Publicity-Available Telephone Interpretation
(January 1997), are carried forward to, and deemed covered by this Registration
Statement on Form S-8 (the "Registration Statement") in connection with the 1999
Plan.
PART I
INFORMATION REQUIRED IN THE SECTION 10(a) PROSPECTUS
Item 1. Plan Information.
The documents containing the information specified in this Item will
be sent or given to employees who have been awarded options under the 1999 Plan,
and, in accordance with Section 10(a) of the Securities Act of 1933 (the "1933
Act") and Rules 424 and 428 promulgated under the Act by the Securities and
Exchange Commission (the "Commission"), are not being filed with, or included
in, this Registration Statement.
Item 2. Registrant Information and Employee Plan Annual Information.
The documents containing the information specified in this Item will
be sent or given free of charge to employees or directors who have been awarded
options under the Plan and, in accordance with Section 10(a) of the Act and Rule
428 promulgated under the 1933 Act, are not being filed with, or included in,
this Registration Statement. The requests can be sent to: Robert Masters, Esq.,
Acadia Realty Trust, 20 Soundview Marketplace, Port Washington, New York 11050,
(516) 767-8830.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents, which have been filed with the Commission by
the Registrant, are incorporated by reference in this Registration Statement.
The information incorporated by reference is considered to be part of this
Registration Statement, and information that the Registrant files later with the
Commission will automatically update and supersede this information. The
Registrant incorporates by reference the documents listed below and any future
filings the Registrant makes with the Commission under Sections 13(a), 13(c), 14
or 15(d) of the Securities Exchange Act of 1934 (the "1934 Act"):
850114.2
(a) The Registrant's annual report on Form 10-K for the
fiscal year ended December 31, 1998, filed with the Commission on March 31,
1999.
(b)(i) The Registrant's current report on Form 8-K, dated
December 31, 1998, filed with the Commission on January 5, 1999.
(ii) The Registrant's Quarterly Report on Form 10-Q for
the fiscal quarter ended March 31, 1999, filed with the Commission on May 17,
1999.
(iii) The Registrant's Quarterly Report on Form 10-Q
for the fiscal quarter ended June 30, 1999, filed with the Commission on August
13, 1999.
(c) The description of the Registrant's common shares of
beneficial interest contained in the Registrant's Registration Statement on Form
8-A dated May 21, 1993, filed with the Commission on May 26, 1993.
Item 4. Description of Securities.
Not applicable.
Item 5. Interests of Named Experts and Counsel.
Martin L. Edelman, a trustee of the Registrant, is counsel to the law
firm of Battle Fowler LLP, which is rendering the opinion regarding the legality
of the securities being registered in this Registration Statement. Mr.
Edelman is an optionee under the 1999 Plan.
Item 6. Indemnification of Directors and Officers.
Section 2-418(b) of the Maryland General Corporation Law authorizes
the Registrant to indemnify the officers and trustees of the Registrant, under
certain circumstances and subject to certain conditions and limitations as
stated therein, against all expenses and liabilities incurred by or imposed upon
them as a result of actions, suits or proceedings brought against them as such
officers and trustees, unless it is established that the act or omission was
material to the matter giving rise to the proceeding and was committed in bad
faith or was the result of active and deliberate dishonesty, the trustee or
officer actually received an improper personal benefit or with respect to any
criminal action or proceeding, the trustee or officer had reasonable cause to
believe his act or omission was unlawful.
Article XII of the Registrant's Bylaws provides for indemnification
of officers and trustees of the Registrant to the full extent authorized by
Maryland law. Section 3.2(o) of the Registrant's Declaration of Trust, as
amended, authorizes the Trustees to purchase and maintain insurance on behalf of
any officer, director, employee, trustee or agent of the Registrant against any
liability asserted against or incurred by them in such capacity or arising out
of their status as of such whether or not the Registrant would have the power to
indemnify such officer, director, employee, trustee or agent against such
liability under the provisions of such Article or Maryland law. The Registrant
maintains a trustee and officers policy which insures the officers and trustees
of the Registrant from any claim arising out of an alleged wrongful act by such
persons in their respective capacities as officers and trustees of the
Registrant.
Section 2-405.2 of Maryland General Corporation Law permits
corporations to eliminate or limit the personal liability of its directors and
officers or its stockholders for monetary damages to the extent it is proven
that the person actually received an improper benefit and to the extent that the
judgment is based on a finding that the person's act or omission was a result of
active and deliberate dishonesty and was material to the cause of action.
Reference is made to Article VIII of the Registrant's Declaration of Trust, as
amended, which limits a trustee's liability in accordance with such Section.
850114.2
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
4.1 Acadia Realty Trust 1999 Share Incentive Plan.
5 Opinion of Berliner, Corcoran & Rowe L.L.P. regarding the
legality of the securities being registered.
23.1 Consent of Ernst & Young LLP.
23.2 Consent of Berliner, Corcoran & Rowe L.L.P. (contained in
Exhibit 5).
24.1 Power of Attorney (contained in the signature pages
hereto).
Item 9. Undertakings.
(a) The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are
being made, a post-effective amendment to this Registration
Statement:
i) To include any prospectus required by Section
10(a)(3) of the 1933 Act;
ii) To reflect in the prospectus any facts or events
arising after the effective date of the Registration
Statement (or the most recent post-effective amendment
thereof) which, individually or in the aggregate,
represent a fundamental change in the information set
forth in the Registration Statement;
iii) To include any material information with
respect to the plan of distribution not previously
disclosed in the Registration Statement or any material
change to such information in the Registration Statement;
provided, however, that paragraphs (a)(1)(i) and
(a)(1)(ii) do not apply if the information required to be
included in a post-effective amendment by those paragraphs
is contained in periodic reports filed by the Registrant
pursuant to Section 13 or 15(d) of the 1934 Act that are
incorporated by reference in the registration statement.
(2) That, for the purpose of determining any liability
under the 1933 Act, each such post-effective amendment shall be
deemed to be a new registration statement relating to the securities
offered therein, and the offering of such securities at that time
shall be deemed to be the initial bona fide offering thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being registered
which remain unsold at the termination of the offering.
850114.2
(b) The undersigned Registrant hereby undertakes that, for purposes
of determining any liability under the 1933 Act, each filing of the Registrant's
annual report pursuant to Section 13(a) or Section 15(d) of the 1934 Act (and,
where applicable, each filing of an employee benefit plan's annual report
pursuant to Section 15(d) of the 1934 Act) that is incorporated by reference in
the Registration Statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities
at that time shall be deemed to be the initial bona fide offering thereof.
(c) Insofar as indemnification for liabilities arising under the 1933
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the foregoing provisions, or otherwise, the Registrant
has been advised that in the opinion of the Commission such indemnification is
against public policy as expressed in the 1933 Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such
liabilities (other than the payment by the Registrant of expenses incurred or
paid by a director, officer or controlling person of the Registrant in the
successful defense of any action, suit or proceeding) is asserted by such
director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter
has been settled by controlling precedent, submit to a court of appropriate
jurisdiction the question whether such indemnification by it is against public
policy as expressed in the 1933 Act and will be governed by the final
adjudication of such issue.
850114.2
SIGNATURES AND POWER OF ATTORNEY
Pursuant to the requirements of the Securities Act of
1933, the Registrant certifies that it has reasonable grounds to believe that it
meets all of the requirements for filing on Form S-8 and has duly caused this
Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Port Washington, State of New York, on this 28th
day of September, 1999.
ACADIA REALTY TRUST
By: /s/ Ross Dworman
-----------------------------
Ross Dworman
Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose
signature appears below constitutes and appoints Ross Dworman and Kenneth F.
Bernstein, and each of them, his true and lawful attorneys-in-fact and agents,
with full power of substitution and resubstitution, for him and in his name,
place and stead, in any and all capacities, to sign any and all amendments to
this Registration Statement, and to file the same, with all exhibits thereto,
and any other documents in connection therewith, granting unto said
attorneys-in-fact and agents full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents, or their substitutes, may lawfully do or cause to be done by virtue
thereof.
Pursuant to the requirements of the Securities Act of
1933, as amended, this Registration Statement has been signed below by the
following persons in the capacities and on the dates indicated.
Signature Title Date
- --------- ----- ----
/s/ Ross Dworman Chairman of the Board of Trustees September 28, 1999
- ------------------ and Chief Executive Officer
Ross Dworman (Principal Executive Officer)
/s/ Kenneth E. Bernstein
- --------------------- President and Trustee September 28, 1999
Kenneth F. Bernstein
/s/ Perry S. Kamerman
- --------------------- Senior Vice President of September 28, 1999
Perry S. Kamerman Finance (Principal Financial
and Accounting Officer)
/s/ Martin L.Edelman
- -------------------- Trustee September 28, 1999
Martin L. Edelman
850114.2
Signature Title Date
- --------- ----- ----
/s/Marvin L. Levine
- --------------------- Trustee September 28, 1999
Marvin L. Levine
- --------------------- Trustee September __, 1999
Lawrence J. Longua
/s/ Marvin Slomowitz
- --------------------- Trustee September 28, 1999
Marvin Slomowitz
- --------------------- Trustee September _, 1999
Gregory White
850114.2
EXHIBIT INDEX
Exhibits
4.1 Acadia Realty Trust 1999 Share Incentive Plan
5 Opinion of Berliner, Corcoran & Rowe, L.L.P. regarding the legality of
the securities being registered
23.1 Consent of Ernst & Young LLP
23.2 Consent of Berliner, Corcoran & Rowe, L.L.P.(contained in Exhibit 5)
24.1 Power of Attorney (contained in the signature page hereof)
850114.2
EXHIBIT 4
INSTRUMENTS DEFINING THE RIGHTS OF SECURITY HOLDERS, INCLUDING INDENTURES
ACADIA REALTY TRUST
1999 SHARE INCENTIVE PLAN
801488.1
TABLE OF CONTENTS
Page
1. Purpose.................................................................1
2. Definitions.............................................................1
3. Administration..........................................................6
4. Share Subject to the Plan...............................................8
4.1 Aggregate Limit....................................................8
5. Option Grants for Nonemployee Trustees..................................9
5.1 Grant..............................................................9
5.2 Purchase Price.....................................................9
5.3 Vesting............................................................9
5.4 Duration...........................................................9
6. Discretionary Option Grants for Eligible Individuals....................10
6.1 Authority of Committee.............................................10
6.2 Purchase Price.....................................................10
6.3 Maximum Duration...................................................10
6.4 Vesting............................................................10
6.5 Modification or Substitution.......................................11
7. Terms and Conditions Applicable to All Options..........................11
7.1 Non-transferability................................................11
7.2 Vesting; Exercisability............................................11
7.3 Method of Exercise.................................................11
7.4 Rights of Optionees................................................12
7.5 Effect of Change in Control........................................12
7.6 Dividend Equivalent Rights.........................................12
8. Share Appreciation Rights...............................................12
8.1 Time of Grant......................................................12
8.2 Share Appreciation Right Related to an Option......................13
(a) Exercise......................................................13
(b) Amount Payable................................................13
(c) Treatment of Related Options and Share Appreciation
Rights Upon Exercise..........................................13
8.3 Share Appreciation Right Unrelated to an Option....................13
801488.1
Page
8.4 Method of Exercise.................................................14
8.5 Form of Payment....................................................14
8.6 Modification or Substitution.......................................14
8.7 Effect of Change in Control........................................14
9. Restricted Share........................................................14
9.1 Grant..............................................................14
9.2 Rights of Grantee..................................................15
9.3 Non-transferability................................................15
9.4 Lapse of Restrictions..............................................15
(a) Generally.....................................................15
(b) Effect of Change in Control...................................15
9.5 Modification or Substitution.......................................15
9.6 Treatment of Dividends.............................................15
9.7 Delivery of Shares.................................................16
10. Performance Awards......................................................16
10.1 Performance Objectives.............................................16
10.2 Performance Units..................................................16
(a) Vesting and Forfeiture........................................17
(b) Payment of Awards.............................................17
10.3 Performance Shares.................................................17
(a) Rights of Grantee.............................................17
(b) Non-transferability...........................................18
(c) Lapse of Restrictions.........................................18
(d) Treatment of Dividends........................................18
(e) Delivery of Shares............................................18
10.4 Effect of Change in Control........................................18
10.5 Non-transferability................................................19
10.6 Modification or Substitution.......................................19
11. Effect of a Termination of Employment or Service........................19
12. Adjustment Upon Changes in Capitalization...............................20
13. Effect of Certain Transactions..........................................20
14. Interpretation..........................................................20
15. Pooling Transactions....................................................21
801488.1
Page
16. Termination and Amendment of the Plan...................................21
17. Non-Exclusivity of the Plan.............................................22
18. Limitation of Liability.................................................22
19. Regulations and Other Approvals; Governing Law..........................22
20. Miscellaneous...........................................................23
20.1 Multiple Agreements................................................23
20.2 Withholding of Taxes...............................................23
21. Effective Date..........................................................24
801488.1
ACADIA REALTY TRUST
1999 SHARE INCENTIVE PLAN
1. Purpose.
The purpose of this Plan is to strengthen Acadia Realty Trust (the
"Company") by providing an incentive to its officers, employees, consultants and
directors and thereby encouraging them to devote their abilities and industry to
the success of the Company's business enterprise. It is intended that this
purpose be achieved by extending to officers, employees, consultants and
directors of the Company and its subsidiaries an added long-term incentive for
high levels of performance and unusual efforts through the grant of Incentive
Share Options, Nonqualified Share Options, Share Appreciation Rights, Restricted
Shares, Performance Units and Performance Shares (as each term is hereinafter
defined).
2. Definitions.
For purposes of the Plan:
2.1 "Agreement" means the written agreement between the Company
and an Optionee or Grantee evidencing the grant of an Option or Award and
setting forth the terms and conditions thereof.
2.2 "Award" means a grant of Restricted Shares, a Share
Appreciation Rights, a Performance Award or any or all of them.
2.3 "Board" means the Board of Trustees of the Company.
2.4 "Cause" means, unless otherwise defined in the Agreement
evidencing a particular Award or an employment agreement between the Company and
the individual, an individual'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.
2.5 "Change in Capitalization" means any increase or reduction
in the number of Shares, or any change (including, but not limited to, a change
in value) in the Shares or exchange of Shares for a different number or kind of
shares or other securities of the Company, by reason of a reclassification,
recapitalization, merger, consolidation,
801488.1
reorganization, spin-off, split-up, issuance of warrants or rights or
debentures, share dividend, share split or reverse share split, cash dividend,
property dividend, combination or exchange of shares, repurchase of shares,
change in corporate structure or otherwise.
2.6 A "Change in Control" shall mean the occurrence during the
term of the Plan of:
(a) An acquisition (other than directly from the Company)
of any voting securities of the Company (the "Voting Securities") by
any "Person" (as the term person is used for purposes of Section
13(d) or 14(d) of the Exchange Act) immediately after which such
Person has "Beneficial Ownership" (within the meaning of Rule 13d-3
promulgated under the Exchange Act) of fifty percent (50%) or more
of the combined voting power of the Company's then outstanding
Voting Securities; provided, however, in determining whether a
Change in Control has occurred, Voting Securities which are acquired
in a "Non-Control Acquisition" (as hereinafter defined) shall not
constitute an acquisition which would cause a Change in Control. A
"Non-Control Acquisition" shall mean an acquisition by (i) an
employee benefit plan (or a trust forming a part thereof) maintained
by (A) the Company or (B) any corporation or other Person of which a
majority of its voting power or its voting equity securities or
equity interest is owned, directly or indirectly, by the Company
(for purposes of this definition, a "Subsidiary"), (ii) the Company
or its Subsidiaries, or (iii) any Person in connection with a
"Non-Control Transaction" (as hereinafter defined).
(b) The individuals who, as of January 1, 1999, are
members of the Board (the "Incumbent Board"), cease for any reason
to constitute at least two-thirds of the members of the Board;
provided, however, that if the election, or nomination for election
by the Company's common shareholders, of any new director was
approved by a vote of at least two-thirds of the Incumbent Board,
such new director shall, for purposes of this Plan, be considered as
a member of the Incumbent Board; provided further, however, that no
individual shall be considered a member of the Incumbent Board if
such individual initially assumed office as a result of either an
actual or threatened "Election Contest" (as described in Rule 14a-11
promulgated under the Exchange Act) or other actual or threatened
solicitation of proxies or consents by or on behalf of a Person
other than the Board (a "Proxy Contest") including by reason of any
agreement intended to avoid or settle any Election Contest or Proxy
Contest; or
(c) Approval by shareholders of the Company of:
(i) A merger, consolidation or reorganization
involving the Company, unless such merger, consolidation or
reorganization is a "Non-Control Transaction." A "Non-Control
Transaction" shall mean a merger, consolidation or
reorganization of the Company where:
801488.1
(A) the shareholders of the Company, immediately
before such merger, consolidation or reorganization,
own, directly or indirectly immediately following such
merger, consolidation or reorganization, at least fifty
percent (50%) of the combined voting power of the
outstanding voting securities of the corporation
resulting from such merger or consolidation or
reorganization (the "Surviving Corporation") in
substantially the same proportion as their ownership of
the Voting Securities immediately before such merger,
consolidation or reorganization,
(B) the individuals who were members of the
Incumbent Board immediately prior to the execution of
the agreement providing for such merger, consolidation
or reorganization constitute at least two-thirds of the
members of the board of directors of the Surviving
Corporation, or a corporation beneficially directly or
indirectly owning a majority of the Voting Securities of
the Surviving Corporation, and
(C) no Person other than (i) the Company, (ii)
any Subsidiary, (iii) any employee benefit plan (or any
trust forming a part thereof) maintained by the Company,
the Surviving Corporation, or any Subsidiary, or (iv)
any Person who, immediately prior to such merger,
consolidation or reorganization had Beneficial Ownership
of fifty percent (50%) or more of the then outstanding
Voting Securities has Beneficial Ownership of fifty
percent (50%) or more of the combined voting power of
the Surviving Corporation's then outstanding voting
securities.
(ii) A complete liquidation or dissolution of the
Company; or
(iii) A definitive agreement for the sale or other
disposition of all or substantially all of the assets of the
Company to any Person (other than a transfer to a Subsidiary).
Notwithstanding the foregoing, a Change in Control shall not be
deemed to occur solely because any Person (the "Subject Person") acquired
Beneficial Ownership of more than the permitted amount of the then outstanding
Voting Securities as a result of the acquisition of Voting Securities by the
Company which, by reducing the number of Voting Securities outstanding,
increases the proportional number of shares Beneficially Owned by the Subject
Persons. If a Change in Control would occur (but for the operation of this
sentence) as a result of the acquisition of Voting Securities by the Company,
the Board shall take action to either (i) affirm the permitted amount of then
outstanding Voting Securities or (ii) adjust such number, before a Change in
Control shall occur.
801488.1
2.7 "Code" means the Internal Revenue Code of 1986, as
amended.
2.8 "Committee" means a committee as described in Section 3.1
consisting of at least two (2) nonemployee trustees within the meaning of Rule
16b-3 under the Exchange Act appointed by the Board to administer the Plan and
to perform the functions set forth herein.
2.9 "Company" means Acadia Realty Trust.
2.10 "Disability" means a physical or mental infirmity which
impairs the Optionee's ability to perform substantially his or her duties for a
period of one hundred eighty (180) consecutive days.
2.11 "Discretionary Option" means an Option granted pursuant
to Section 6.
2.12 "Dividend Equivalent Right" means a right to receive all
or some portion of the cash dividends that are or would be payable with respect
to Shares.
2.13 "Division" means any of the operating units or divisions
of the Company designated as a Division by the Committee.
2.14 "Eligible Individual" means any officer, employee,
consultant or director of the Company or a Subsidiary designated by the
Committee as eligible to receive Options or Awards subject to the conditions set
forth herein.
2.15 "Exchange Act" means the Securities Exchange Act of 1934,
as amended.
2.16 "Fair Market Value" on any date means the average of the
high and low sales prices of the Shares on such date on the principal national
securities exchange on which such Shares are listed or admitted to trading, or,
if such Shares are not so listed or admitted to trading, the arithmetic mean of
the per Share closing bid price and per Share closing asked price on such date
as quoted on the National Association of Securities Dealers Automated Quotation
System or such other market in which such prices are regularly quoted, or, if
there have been no published bid or asked quotations with respect to Shares on
such date, the Fair Market Value shall be the value established by the Board in
good faith and, in the case of an Incentive Share Option, in accordance with
Section 422 of the Code.
2.17 "Fully Diluted Shares" means all Shares and any operating
partnership units convertible into Shares.
801488.1
2.18 "Grantee" means a person to whom an Award has been
granted under the Plan.
2.19 "Incentive Share Option" means an Option satisfying the
requirements of Section 422 of the Code and designated by the Committee as an
Incentive Share Option.
2.20 "Nonemployee Trustee" means a trustee of the Company who
is not an employee of the Company or any Subsidiary.
2.21 "Nonqualified Share Option" means an Option which is not
an Incentive Share Option.
2.22 "Option" means an Discretionary Option, a Trustee Option,
or either or both of them.
2.23 "Optionee" means a person to whom an Option has been
granted under the Plan.
2.24 "Parent" means any corporation which is a parent
corporation (within the meaning of Section 424(e) of the Code) with respect to
the Company.
2.25 "Performance Awards" means Performance Units, Performance
Shares or either or both of them.
2.26 "Performance Cycle" means the time period specified by
the Committee at the time a Performance Award is granted during which the
performance of the Company, a Subsidiary or a Division will be measured.
2.27 "Performance Shares" means Shares issued or transferred
to an Eligible Individual under Section 10.3.
2.28 "Performance Unit" means Performance Units granted to an
Eligible Individual under Section 10.2.
2.29 "Plan" means the Acadia Realty Trust 1999 Share Incentive
Plan.
2.30 "Pooling Transaction" means an acquisition of the Company
in a transaction which is intended to be treated as a "pooling of interests"
under generally accepted accounting principles.
2.31 "Restricted Shares" means Shares issued or transferred to
an Eligible Individual pursuant to Section 9.
801488.1
2.32 "Shares" means the shares of beneficial interest in the
Company.
2.33 "Share Appreciation Right" (SAR) means a right to receive
all or some portion of the increase in the value of the Shares as provided in
Section 8 hereof.
2.34 "Subsidiary" means any corporation which is a subsidiary
corporation (within the meaning of Section 424(f) of the Code) with respect to
the Company.
2.35 "Successor Corporation" means a corporation, or a parent
or subsidiary thereof within the meaning of Section 424(a) of the Code, which
issues or assumes a share option in a transaction to which Section 424(a) of the
Code applies.
2.36 "Ten-Percent Shareholder" means an Eligible Individual,
who, at the time an Incentive Share Option is to be granted to him or her, owns
(within the meaning of Section 422(b)(6) of the Code) more than ten percent
(10%) of the total combined voting power of all classes of shares of the
Company, or of a Parent or a Subsidiary.
2.37 "Trustee Option" means an Option granted pursuant to
Section 5.
3. Administration.
3.1 The Plan shall be administered by the Committee which
shall hold meetings at such times as may be necessary for the proper
administration of the Plan. The Committee shall keep minutes of its meetings. A
quorum shall consist of not less than two members of the Committee and a
majority of a quorum may authorize any action. Any decision or determination
reduced to writing and signed by a majority of all of the members shall be as
fully effective as if made by a majority vote at a meeting duly called and held.
Following the time that any securities of the Company are required to be
registered under Section 12 of the Exchange Act, each member of the Committee
shall be a nonemployee trustee within the meaning of Rule 16b-3 promulgated
under the Exchange Act. To the extent compliance with Section 162(m) of the Code
is desired, such Committee members shall also qualify as "outside directors"
within the meaning of Section 162(m)(4)(C) and the regulations thereunder. No
member of the Committee shall be liable for any action, failure to act,
determination or interpretation made in good faith with respect to this Plan or
any transaction hereunder, except for liability arising from his or her own
willful misfeasance, gross negligence or reckless disregard of his or her
duties. The Company hereby agrees to indemnify each member of the Committee for
all costs and expenses and, to the extent permitted by applicable law, any
liability incurred in connection with defending against, responding to,
negotiating for the settlement of or otherwise dealing with any claim, cause of
action or dispute of any kind arising in connection with any actions in
administering this Plan or in authorizing or denying authorization to any
transaction hereunder.
801488.1
3.2 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time to:
(a) determine those Eligible Individuals to whom
Discretionary Options shall be granted under the Plan and the number of
Incentive Share Options and/or Nonqualified Share Options to be granted to each
Eligible Individual and to prescribe the terms and conditions (which need not be
identical) of each Discretionary Option, including the purchase price per Share
subject to each Discretionary Option, make any amendment or modification to any
Agreement consistent with the terms of the Plan and accelerate the vesting or
lapse of restrictions with respect to Options and Awards; and
(b) select those Eligible Individuals to whom Awards shall
be granted under the Plan and to determine the number of Share Appreciation
Rights, Performance Units, Performance Shares, and/or Shares of Restricted Share
to be granted pursuant to each Award, the terms and conditions of each Award,
including the restrictions or performance criteria relating to such Units or
Shares, the maximum value of each Performance Unit and Performance Share and
make any amendment or modification to any Agreement consistent with the terms of
the Plan.
3.3 Subject to the express terms and conditions set forth
herein, the Committee shall have the power from time to time:
(a) to construe and interpret the Plan and the Options and
Awards granted hereunder and to establish, amend and revoke rules and
regulations for the administration of the Plan, including, but not limited to,
correcting any defect or supplying any omission, or reconciling any
inconsistency in the Plan or in any Agreement, in the manner and to the extent
it shall deem necessary or advisable to make the Plan fully effective and comply
with applicable law including Rule 16b-3 under the Exchange Act and the Code to
the extent applicable. All decisions and determinations by the Committee in the
exercise of this power shall be final, binding and conclusive upon the Company,
its Subsidiaries, the Optionees and Grantees, and all other persons having any
interest therein;
(b) to determine the duration and purposes for leaves of
absence which may be granted to an Optionee or Grantee on an individual basis
without constituting a termination of employment or service for purposes of the
Plan;
(c) to determine on an individual basis whether a change
in status from or to employee, director or consultant constitutes a termination
of employment or service for purposes of the Plan;
(d) to exercise its discretion with respect to the powers
and rights granted to it as set forth in the Plan;
801488.1
(e) generally, to exercise such powers and to perform such
acts as are deemed necessary or advisable to promote the best interests of the
Company with respect to the Plan; and
(f) to provide for the limited transferability of Options
to certain family members, family trusts or family partnerships of Optionees.
4. Share Subject to the Plan.
4.1 Aggregate Limit. With respect to calendar year 1999, the
maximum number of Shares that may be issued pursuant to Options and Awards
granted under the Plan shall be the total of (i) eight (8%) percent of the
number of Fully Diluted Shares that were outstanding as of December 31, 1998
(rounded downward if necessary to eliminate fractional shares). Thereafter, at
any given time, the maximum number of Shares that may be issued pursuant to
Options and Awards granted under the Plan shall be the total of (i) eight (8%)
percent of the number of Fully Diluted Shares that were outstanding as of the
end of the immediately preceding calendar year (rounded downward if necessary to
eliminate fractional shares), minus (ii) the number of Shares subject to Options
and Awards which were granted under the Plan through the last day of the
immediately preceding calendar year, plus (iii) as of the last day of the
immediately preceding calendar year, the number of shares with respect to which
previously granted Options and Awards have expired. In addition to the
foregoing, in no event may the total number of Shares covered by outstanding
Incentive Share Options granted under the Plan, plus the number of Shares issued
pursuant to the exercise of Incentive Share Options whenever granted under the
Plan, exceed [4,000,000] Shares.
4.2 The maximum number of Shares that may be made the subject
of Options and Awards granted to any Eligible Individual during the term of the
Plan may not exceed [5,000,000] Shares. Upon a Change in Capitalization the
maximum number of Shares which may be made the subject of Options or Awards
granted under the Plan, the number of Shares which may be granted to any
Eligible Individual and the number of Shares which may be issued pursuant to the
exercise of Incentive Share Options shall be adjusted in number and kind
pursuant to Section 12. The Company shall reserve for the purposes of the Plan,
out of its authorized but unissued Shares or out of Shares held in the Company's
treasury, or partly out of each, such number of Shares as shall be determined by
the Board, but no less than the number of Shares subject to outstanding Options
or Awards.
4.3 Whenever any outstanding Option or Award or portion
thereof expires, is canceled or is otherwise terminated for any reason without
having been exercised or payment having been made in respect of the entire
Option or Award, the Shares allocable to the expired, canceled or otherwise
terminated portion of the Option or Award may again be the subject of Options or
Awards granted hereunder.
801488.1
5. Option Grants for Nonemployee Trustees.
5.1 Grant. Trustee Options shall be granted to each
Nonemployee Trustee on the first business day following the Company's Annual
Meeting of Shareholders in each year that the Plan is in effect, beginning with
1999. Each Trustee Option granted shall be in respect of 1,000 Shares. The
purchase price of each Trustee Option shall be as provided in Section 5.2 and
such Options shall be evidenced by an Agreement containing such other terms and
conditions not inconsistent with the provisions of this Plan as determined by
the Board.
5.2 Purchase Price. The purchase price for Shares under each
Trustee Option shall be the amount determined by the Board, but shall not be
less than 100% of the Fair Market Value of such Shares on the date immediately
preceding the date of grant.
5.3 Vesting. Subject to Sections 5.4 and 7.5, each Trustee
Option shall become exercisable with respect to twenty (20%) percent of the
Shares subject thereto effective immediately as of the grant date and shall
become exercisable with respect to an additional twenty (20%) percent of the
Shares subject thereto effective as of each of the first, second, third and
fourth anniversaries of the grant date; provided, however, that the Optionee
continues to serve as a Trustee as of such dates. If an Optionee ceases to serve
as a Trustee for any reason, the Optionee shall have no rights with respect to
that portion of a Trustee Option which has not then vested pursuant to the
preceding sentence and the Optionee shall automatically forfeit that portion of
the Trustee Option which remains unvested.
5.4 Duration. Each Trustee Option shall terminate on the date
which is the tenth anniversary of the grant date, unless terminated earlier as
follows:
(a) If an Optionee's service as a Trustee terminates for
any reason other than Disability, death or Cause, the Optionee may for a period
of three (3) months after such termination exercise his or her Option to the
extent, and only to the extent, that such Option or portion thereof was vested
and exercisable as of the date the Optionee's service as a Trustee terminated,
after which time the Option shall automatically terminate in full.
(b) If an Optionee's service as a Trustee terminates by
reason of the Optionee's resignation or removal from the Board due to
Disability, the Optionee may, for a period of one (1) year after such
termination, exercise his or her Option to the extent, and only to the extent,
that such Option or portion thereof was vested and exercisable, as of the date
the Optionee's service as Trustee terminated, after which time the Option shall
automatically terminate in full.
(c) If an Optionee's service as a Trustee terminates for
Cause, the Option granted to the Optionee hereunder shall immediately terminate
in full and no rights thereunder may be exercised.
801488.1
(d) If an Optionee dies while a Trustee or within three
(3) months after termination of service as a Trustee as described in clause (a)
of this Section 5.4 or within twelve (12) months after termination of service as
a Trustee as described in clause (b) of this Section 5.4, the Option granted to
the Optionee may be exercised at any time within twelve (12) months after the
Optionee's death by the person or persons to whom such rights under the Option
shall pass by will, or by the laws of descent or distribution, after which time
the Option shall terminate in full; provided, however, that an Option may be
exercised to the extent, and only to the extent, that the Option or portion
thereof was exercisable on the date of death or earlier termination of the
Optionee's services as a Trustee.
6. Discretionary Option Grants for Eligible Individuals.
6.1 Authority of Committee. Subject to the provisions of the
Plan and to Sections 4.1 and 4.2 above, the Committee shall have full and final
authority to select those Eligible Individuals who will receive Discretionary
Options, the terms and conditions of which shall be set forth in an Agreement;
provided, however, that no person shall receive any Incentive Share Options
unless he or she is an employee of the Company, a Parent or a Subsidiary at the
time the Incentive Share Option is granted. The aggregate Fair Market Value
(determined as of the date of grant of an Incentive Share Option) of the Shares
with respect to which Incentive Share Options granted under this Plan and all
other option plans of the Company, any Parent and any Subsidiary become
exercisable for the first time by an Optionee during any calendar year shall not
exceed $100,000. Any such Options granted in excess of the $100,000 limitation
shall be deemed to be Nonqualified Share Options.
6.2 Purchase Price. The purchase price or the manner in which
the purchase price is to be determined for Shares under each Discretionary
Option shall be determined by the Committee and set forth in the Agreement;
provided, however, that the purchase price per Share under each Option shall not
be less than 100% of the Fair Market Value of a Share on the date the Option is
granted (110% in the case of an Incentive Share Option granted to a Ten-Percent
Shareholder).
6.3 Maximum Duration. Discretionary Options granted hereunder
shall be for such term as the Committee shall determine, provided that an Option
shall not be exercisable after the expiration of ten (10) years from the date it
is granted (five (5) years in the case of an Incentive Share Option granted to a
Ten-Percent Shareholder). The Committee may, subsequent to the granting of any
Discretionary Option, extend the term thereof but in no event shall the term as
so extended exceed the maximum term provided for in the preceding sentence.
6.4 Vesting. Subject to Section 7.5 hereof, each Discretionary
Option shall vest and become exercisable in such installments (which need not be
equal) and at such times as may be designated by the Committee and set forth in
the Agreement.
801488.1
6.5 Modification or Substitution. The Committee may, in its
discretion, modify outstanding Discretionary Options or accept the surrender of
outstanding Discretionary Options (to the extent not exercised) and grant new
Discretionary Options in substitution for them. Notwithstanding the foregoing,
no modification of a Discretionary Option shall adversely alter or impair any
rights or obligations under the Discretionary Option without the Optionee's
consent.
7. Terms and Conditions Applicable to All Options.
7.1 Non-transferability. No Option granted hereunder shall be
transferable by the Optionee to whom granted otherwise than by will or the laws
of descent and distribution unless specifically authorized by the Committee with
respect to Nonqualified Share Options, and unless transferred in a manner
permitted by the Committee an Option may be exercised during the lifetime of
such Optionee only by the Optionee or his or her guardian or legal
representative. The terms of such Option shall be final, binding and conclusive
upon the beneficiaries, executors, administrators, heirs and successors of the
Optionee.
7.2 Vesting; Exercisability. To the extent not exercised,
vested installments of Options shall accumulate and be exercisable, in whole or
in part, at any time after becoming exercisable, but not later than the date the
Option expires. The Committee may accelerate the vesting and exercisability of
any Option or portion thereof at any time.
7.3 Method of Exercise. The exercise of an Option shall be
made only by a written notice delivered in person or by mail to the Secretary of
the Company at the Company's principal executive office, specifying the number
of Shares to be purchased and accompanied by payment therefor and otherwise in
accordance with the Agreement pursuant to which the Option was granted. The
purchase price for any Shares purchased pursuant to the exercise of an Option
shall be paid in full upon such exercise by any one or a combination of the
following: (i) cash or (ii) transferring Shares to the Company upon such terms
and conditions as determined by the Committee (such as, for example, a
requirement that such Shares have been held for six months if necessary to avoid
adverse accounting consequences). Notwithstanding the foregoing, the Committee
shall have discretion to determine at the time of grant of each Option or at any
later date (up to and including the date of exercise) the form of payment
acceptable in respect of the exercise of such Option. The written notice
pursuant to this Section 7.2 may also provide instructions from the Optionee to
the Company that upon receipt of the purchase price in cash from the Optionee's
broker or dealer, designated as such on the written notice, in payment for any
Shares purchased pursuant to the exercise of an Option, the Company shall issue
such Shares directly to the designated broker or dealer. Any Shares transferred
to the Company as payment of the purchase price under an Option shall be valued
at their Fair Market Value on the day preceding the date of exercise of such
Option. If requested by the Committee, the Optionee shall deliver the Agreement
evidencing the Option to the Secretary of the Company who shall endorse thereon
a notation of such exercise and return such Agreement to the Optionee. No
fractional Shares (or cash in lieu thereof) shall be
801488.1
issued upon exercise of an Option and the number of Shares that may be purchased
upon exercise shall be rounded to the nearest number of whole Shares.
7.4 Rights of Optionees. No Optionee shall be deemed for any
purpose to be the owner of any Shares subject to any Option unless and until (i)
the Option shall have been exercised pursuant to the terms thereof, (ii) the
Company shall have issued and delivered the Shares to the Optionee and (iii) the
Optionee's name shall have been entered as a shareholder of record on the books
of the Company. Thereupon, the Optionee shall have full voting, dividend and
other ownership rights with respect to such Shares, subject to such terms and
conditions as may be set forth in the applicable Agreement.
7.5 Effect of Change in Control. Notwithstanding anything
contained in the Plan or an Agreement to the contrary, in the event of a Change
in Control, all Options outstanding on the date of such Change in Control shall
become immediately and fully exercisable.
7.6 Dividend Equivalent Rights. Dividend Equivalent Rights may
be granted to Eligible Individuals in tandem with an Option. The terms and
conditions applicable to each Dividends Equivalent Right shall be specified in
the Agreement under which the Dividend Equivalent Rights may be payable
currently or deferred until the lapsing of restrictions on such Dividend
Equivalent Rights or until the vesting, exercise, payment, settlement or other
lapse of restrictions on the Option to which the Dividend Equivalent Rights
relate. In the event that the amount payable in respect of Dividend Equivalent
Rights are to be deferred, the Committee shall determine whether such amounts
are to be held in cash or reinvested in Shares or deemed (notionally) to be
reinvested in Shares. If amounts payable in respect to Dividend Equivalent
Rights are to be held in cash, there may be credited at the end of each year (or
portion thereof) interest on the amount of the account at the beginning of the
year at a rate per annum as the Committee, in its discretion, may determine.
Dividend Equivalent Rights may be settled in cash or Shares or a combination
thereof, in a single installment or multiple installments.
8. Share Appreciation Rights. The Committee may, in its
discretion, either alone or in connection with the grant of an Option, grant
Share Appreciation Rights in accordance with the Plan, the terms and conditions
of which shall be set forth in an Agreement. If granted in connection with an
Option, a Share Appreciation Right shall cover the same Shares covered by the
Option (or such lesser number of Shares as the Committee may determine) and
shall, except as provided in this Section 8, be subject to the same terms and
conditions as the related Option.
8.1 Time of Grant. A Share Appreciation Right may be granted
(i) at any time if unrelated to an Option, or (ii) if related to an Option,
either at the time of grant, or at any time thereafter during the term of the
Option.
801488.1
8.2 Share Appreciation Right Related to an Option.
(a) Exercise. Subject to Section 8.7, a Share Appreciation
Right granted in connection with an Option shall be exercisable at such time or
times and only to the extent that the related Option is exercisable, and will
not be transferable even if the Option to which it relates may be transferable.
A Share Appreciation Right granted in connection with an Incentive Share Option
shall be exercisable only if the Fair Market Value of a Share on the date of
exercise exceeds the purchase price specified in the related Incentive Share
Option Agreement.
(b) Amount Payable. Upon the exercise of a Share
Appreciation Right related to an Option, the Grantee shall be entitled to
receive an amount determined by multiplying (A) the excess of the Fair Market
Value of a Share on the date preceding the date of exercise of such Share
Appreciation Right over the per Share purchase price under the related Option,
by (B) the number of Shares as to which such Share Appreciation Right is being
exercised. Notwithstanding the foregoing, the Committee may limit in any manner
the amount payable with respect to any Share Appreciation Right by including
such a limit in the Agreement evidencing the Share Appreciation Right at the
time it is granted.
(c) Treatment of Related Options and Share Appreciation
Rights Upon Exercise. Upon the exercise of a Share Appreciation Right granted in
connection with an Option, the Option shall be canceled to the extent of the
number of Shares as to which the Share Appreciation Right is exercised, and upon
the exercise of an Option granted in connection with a Share Appreciation Right
or the surrender of such Option pursuant to Section 7.5, the Share Appreciation
Right shall be canceled to the extent of the number of Shares as to which the
Option is exercised or surrendered.
8.3 Share Appreciation Right Unrelated to an Option. The
Committee may grant to Eligible Individuals Share Appreciation Rights unrelated
to Options. Share Appreciation Rights unrelated to Options shall contain such
terms and conditions as to exercisability (subject to Section 8.7), vesting and
duration as the Committee shall determine, but in no event shall they have a
term of greater than ten (10) years. Upon exercise of a Share Appreciation Right
unrelated to an Option, the Grantee shall be entitled to receive an amount
determined by multiplying (A) the excess of the Fair Market Value of a Share on
the date preceding the date of exercise of such Share Appreciation Right over
the Fair Market Value of a Share on the date the Share Appreciation Right was
granted, by (B) the number of Shares as to which the Share Appreciation Right is
being exercised. Notwithstanding the foregoing, the Committee may limit in any
manner the amount payable with respect to any Share Appreciation Right by
including such a limit in the Agreement evidencing the Share Appreciation Right
at the time it is granted.
801488.1
8.4 Method of Exercise. Share Appreciation Rights shall be
exercised by a Grantee only by a written notice delivered in person or by mail
to the Secretary of the Company at the Company's principal executive office,
specifying the number of Shares with respect to which the Share Appreciation
Right is being exercised. If requested by the Committee, the Grantee shall
deliver the Agreement evidencing the Share Appreciation Right being exercised
and the Agreement evidencing any related Option to the Secretary of the Company
who shall endorse thereon a notation of such exercise and return such Agreement
to the Grantee.
8.5 Form of Payment. Payment of the amount determined under
Sections 8.2(b) or 8.3 may be made in the discretion of the Committee, solely in
whole Shares in a number determined at their Fair Market Value on the date
preceding the date of exercise of the Share Appreciation Right, or solely in
cash, or in a combination of cash and Shares. If the Committee decides to make
full payment in Shares and the amount payable results in a fractional Share,
payment for the fractional Share will be made in cash.
8.6 Modification or Substitution. Subject to the terms of the
Plan, the Committee may modify outstanding Awards of Share Appreciation Rights
or accept the surrender of outstanding Awards of Share Appreciation Rights (to
the extent not exercised) and grant new Awards in substitution for them.
Notwithstanding the foregoing, no modification of an Award shall adversely alter
or impair any rights or obligations under the Agreement without the Grantee's
consent.
8.7 Effect of Change in Control. Notwithstanding anything
contained in this Plan to the contrary, in the event of a Change in Control, all
Share Appreciation Rights shall become immediately and fully exercisable. In the
event a Grantee's employment or service with the Company is terminated by the
Company following a Change in Control, each Share Appreciation Right held by the
Grantee that was exercisable as of the date of termination of the Grantee's
employment or service shall remain exercisable for a period ending not before
the earlier of the first anniversary of the termination of the Grantee's
employment or service or the expiration of the stated term of the Share
Appreciation Right.
9. Restricted Shares.
9.1 Grant. The Committee may grant to Eligible Individuals
Awards of Restricted Shares, and may issue Restricted Shares in payment in
respect of vested Performance Units (as hereinafter provided in Section 10.2),
which shall be evidenced by an Agreement between the Company and the Grantee.
Each Agreement shall contain such restrictions, terms and conditions as the
Committee may, in its discretion, determine and (without limiting the generality
of the foregoing) such Agreements may require that an appropriate legend be
placed on Share certificates. Awards of Restricted Shares shall be subject to
the terms and provisions set forth below in this Section 9.
801488.1
9.2 Rights of Grantee. Restricted Shares granted pursuant to
an Award hereunder shall be issued in the name of the Grantee as soon as
reasonably practicable after the Award is granted provided that the Grantee has
executed an Agreement evidencing the Award, the appropriate blank share powers
and, in the discretion of the Committee, an escrow agreement and any other
documents which the Committee may require as a condition to the issuance of such
Shares. If a Grantee shall fail to execute the Agreement evidencing a Restricted
Share Award, the appropriate blank share powers and, in the discretion of the
Committee, an escrow agreement and any other documents which the Committee may
require within the time period prescribed by the Committee at the time the Award
is granted, the Award shall be null and void. At the discretion of the
Committee, Shares issued in connection with a Restricted Share Award shall be
deposited together with the share powers with an escrow agent (which may be the
Company) designated by the Committee. Unless the Committee determines otherwise
and as set forth in the Agreement, upon delivery of the Shares to the escrow
agent, the Grantee shall have all of the rights of a shareholder with respect to
such Shares, including the right to vote the Shares and to receive all dividends
or other distributions paid or made with respect to the Shares.
9.3 Non-transferability. Until any restrictions upon the
Restricted Shares awarded to a Grantee shall have lapsed in the manner set forth
in Section 9.4, such Shares shall not be sold, transferred or otherwise disposed
of and shall not be pledged or otherwise hypothecated, nor shall they be
delivered to the Grantee.
9.4 Lapse of Restrictions.
(a) Generally. Restrictions upon Restricted Shares awarded
hereunder shall lapse at such time or times and on such terms and conditions as
the Committee may determine, which restrictions shall be set forth in the
Agreement evidencing the Award.
(b) Effect of Change in Control. Notwithstanding anything
contained in the Plan, unless the Agreement evidencing the Award provides to the
contrary, in the event of a Change in Control, all restrictions upon any
Restricted Shares shall lapse immediately and all such Shares shall become fully
vested in the Grantee.
9.5 Modification or Substitution. Subject to the terms of the
Plan, the Committee may modify outstanding Awards of Restricted Shares or accept
the surrender of outstanding Restricted Shares (to the extent the restrictions
on such Shares have not yet lapsed) and grant new Awards in substitution for
them. Notwithstanding the foregoing, no modification of an Award shall adversely
alter or impair any rights or obligations under the Agreement without the
Grantee's consent.
9.6 Treatment of Dividends. At the time the Award of
Restricted Shares is granted, the Committee may, in its discretion, determine
that the payment to the Grantee of dividends, or a specified portion thereof,
declared or paid on such Shares by the
801488.1
Company shall be (i) deferred until the lapsing of the restrictions imposed upon
such Shares and (ii) held by the Company for the account of the Grantee until
such time. In the event that dividends are to be deferred, the Committee shall
determine whether such dividends are to be reinvested in Shares (which shall be
held as additional Restricted Shares) or held in cash. If deferred dividends are
to be held in cash, there may be credited at the end of each year (or portion
thereof) interest on the amount of the account at the beginning of the year at a
rate per annum as the Committee, in its discretion, may determine. Payment of
deferred dividends in respect of Restricted Shares (whether held in cash or as
additional Restricted Shares), together with interest accrued thereon, if any,
shall be made upon the lapsing of restrictions imposed on the Shares in respect
of which the deferred dividends were paid, and any dividends deferred (together
with any interest accrued thereon) in respect of any Restricted Shares shall be
forfeited upon the forfeiture of such Shares.
9.7 Delivery of Shares. Upon the lapse of the restrictions on
Restricted Shares, the Committee shall cause a share certificate to be delivered
to the Grantee with respect to such Shares, free of all restrictions hereunder.
10. Performance Awards.
10.1 Performance Objectives. Performance objectives for
Performance Awards may be expressed in terms of (i) earnings per Share, (ii)
pre-tax profits, (iii) net earnings or net worth, (iv) return on equity or
assets, (v) any combination of the foregoing, or (vi) any other standard or
standards deemed appropriate by the Committee at the time the Award is granted.
Performance objectives may be in respect of the performance of the Company and
its Subsidiaries (which may be on a consolidated basis), a Subsidiary or a
Division. Performance objectives may be absolute or relative and may be
expressed in terms of a progression within a specified range. Prior to the end
of a Performance Cycle, the Committee, in its discretion, may adjust the
performance objectives to reflect a Change in the Capitalization, a change in
the tax rate or book tax rate of the Company or any Subsidiary, or any other
event which may materially affect the performance of the Company, a Subsidiary
or a Division, including, but not limited to, market conditions or a significant
acquisition or disposition of assets or other property by the Company, a
Subsidiary or a Division.
10.2 Performance Units. The Committee, in its discretion, may
grant Awards of Performance Units to Eligible Individuals, the terms and
conditions of which shall be set forth in an Agreement between the Company and
the Grantee. Performance Units may be denominated in Shares or a specified
dollar amount and, contingent upon the attainment of specified performance
objectives within the Performance Cycle, represent the right to receive payment
as provided in Section 10.2(b) of (i) in the case of Share-denominated
Performance Units, the Fair Market Value of a Share on the date the Performance
Unit was granted, the date the Performance Unit became vested or any other date
specified by the Committee, (ii) in the case of dollar-denominated Performance
Units, the specified dollar amount or (iii) a percentage (which may be more than
100%) of the amount described in clause (i) or (ii)
801488.1
depending on the level of performance objective attainment; provided, however,
that the Committee may at the time a Performance Unit is granted, specify a
maximum amount payable in respect of a vested Performance Unit. Each Agreement
shall specify the number of the Performance Units to which it relates, the
performance objectives which must be satisfied in order for the Performance
Units to vest and the Performance Cycle within which such objectives must be
satisfied.
(a) Vesting and Forfeiture. A Grantee shall become vested
with respect to the Performance Units to the extent that the performance
objectives set forth in the Agreement are satisfied for the Performance Cycle.
(b) Payment of Awards. Payment to Grantees in respect of
vested Performance Units shall be made within sixty (60) days after the last day
of the Performance Cycle to which such Award relates unless the Agreement
evidencing the Award provides for the deferral of payment, in which event the
terms and conditions of the deferral shall be set forth in the Agreement.
Subject to Section 10.4, such payments may be made entirely in Shares valued at
their Fair Market Value as of the last day of the applicable Performance Cycle
or such other date specified by the Committee, entirely in cash, or in such
combination of Shares and cash as the Committee in its discretion, shall
determine at any time prior to such payment; provided, however, that if the
Committee in its discretion determines to make such payment entirely or
partially in Restricted Shares, the Committee must determine the extent to which
such payment will be in Restricted Shares and the terms of such Restricted
Shares at the time the Award is granted.
10.3 Performance Shares. The Committee, in its discretion, may
grant Awards of Performance Shares to Eligible Individuals, the terms and
conditions of which shall be set forth in an Agreement between the Company and
the Grantee. Each Agreement may require that an appropriate legend be placed on
Share certificates. Awards of Performance Shares shall be subject to the
following terms and provisions:
(a) Rights of Grantee. The Committee shall provide at the
time an Award of Performance Shares is made, the time or times at which the
actual Shares represented by such Award shall be issued in the name of the
Grantee; provided, however, that no Performance Shares shall be issued until the
Grantee has executed an Agreement evidencing the Award, the appropriate blank
share powers and, in the discretion of the Committee, an escrow agreement and
any other documents which the Committee may require as a condition to the
issuance of such Performance Shares. If a Grantee shall fail to execute the
Agreement evidencing an Award of Performance Shares, the appropriate blank share
powers and, in the discretion of the Committee, an escrow agreement and any
other documents which the Committee may require within the time period
prescribed by the Committee at the time the Award is granted, the Award shall be
null and void. At the discretion of the Committee, Shares issued in connection
with an Award of Performance Shares shall be deposited together with the share
powers with an escrow agent (which may be the Company) designated by the
801488.1
Committee. Except as restricted by the terms of the Agreement, upon delivery of
the Shares to the escrow agent, the Grantee shall have, in the discretion of the
Committee, all of the rights of a shareholder with respect to such Shares,
including the right to vote the Shares and to receive all dividends or other
distributions paid or made with respect to the Shares.
(b) Non-transferability. Until any restrictions upon the
Performance Shares awarded to a Grantee shall have lapsed in the manner set
forth in Sections 10.3(c) or 10.4, such Performance Shares shall not be sold,
transferred or otherwise disposed of and shall not be pledged or otherwise
hypothecated, nor shall they be delivered to the Grantee. The Committee may also
impose such other restrictions and conditions on the Performance Shares, if any,
as it deems appropriate.
(c) Lapse of Restrictions. Subject to Section 10.4,
restrictions upon Performance Shares awarded hereunder shall lapse and such
Performance Shares shall become vested at such time or times and on such terms,
conditions and satisfaction of performance objectives as the Committee may, in
its discretion, determine at the time an Award is granted.
(d) Treatment of Dividends. At the time the Award of
Performance Shares is granted, the Committee may, in its discretion, determine
that the payment to the Grantee of dividends, or a specified portion thereof,
declared or paid on actual Shares represented by such Award which have been
issued by the Company to the Grantee shall be (i) deferred until the lapsing of
the restrictions imposed upon such Performance Shares and (ii) held by the
Company for the account of the Grantee until such time. In the event that
dividends are to be deferred, the Committee shall determine whether such
dividends are to be reinvested in shares of Share (which shall be held as
additional Performance Shares) or held in cash. If deferred dividends are to be
held in cash, there may be credited at the end of each year (or portion thereof)
interest on the amount of the account at the beginning of the year at a rate per
annum as the Committee, in its discretion, may determine. Payment of deferred
dividends in respect of Performance Shares (whether held in cash or in
additional Performance Shares), together with interest accrued thereon, if any,
shall be made upon the lapsing of restrictions imposed on the Performance Shares
in respect of which the deferred dividends were paid, and any dividends deferred
(together with any interest accrued thereon) in respect of any Performance
Shares shall be forfeited upon the forfeiture of such Performance Shares.
(e) Delivery of Shares. Upon the lapse of the restrictions
on Performance Shares awarded hereunder, the Committee shall cause a share
certificate to be delivered to the Grantee with respect to such Shares, free of
all restrictions hereunder.
10.4 Effect of Change in Control. Notwithstanding anything
contained in the Plan or any Agreement to the contrary, in the event of a Change
in Control:
801488.1
(a) With respect to the Performance Units, the Grantee
shall (i) become vested in a percentage of Performance Units as determined by
the Committee at the time of the Award of such Performance Units and as set
forth in the Agreement and (ii) be entitled to receive in respect of all
Performance Units which become vested as a result of a Change in Control, a cash
payment within ten (10) days after such Change in Control in an amount as
determined by the Committee at the time of the Award of such Performance Units
and as set forth in the Agreement.
(b) With respect to the Performance Shares, restrictions
shall lapse immediately on all or a portion of the Performance Shares as
determined by the Committee at the time of the Award of such Performance Shares
and as set forth in the Agreement.
(c) The Agreements evidencing Performance Shares and
Performance Units shall provide for the treatment of such Awards (or portions
thereof) which do not become vested as the result of a Change in Control,
including, but not limited to, provisions for the adjustment of applicable
performance objectives.
10.5 Non-transferability. No Performance Awards shall be
transferable by the Grantee otherwise than by will or the laws of descent and
distribution.
10.6 Modification or Substitution. Subject to the terms of the
Plan, the Committee may modify outstanding Performance Awards or accept the
surrender of outstanding Performance Awards and grant new Performance Awards in
substitution for them. Notwithstanding the foregoing, no modification of a
Performance Award shall adversely alter or impair any rights or obligations
under the Agreement without the Grantee's consent.
11. Effect of a Termination of Employment or Service.
The Agreement evidencing the grant of each Option and each
Award shall set forth the terms and conditions applicable to such Option or
Award upon a termination or change in the status of the employment or service of
the Optionee or Grantee by the Company, a Subsidiary or a Division (including a
termination or change by reason of the sale of a Subsidiary or a Division or a
change in status from employee or director to consultant), as the Committee may,
in its discretion, determine at the time a Discretionary Option or Award is
granted or thereafter, and with respect to Trustee Options in accordance with
Section 5 of the Plan. Notwithstanding the foregoing and unless specifically set
forth in an Agreement to the contrary, in the event an Optionee's or Grantee's
employment or service with the Company is terminated for Cause, the Option or
Award granted to the Optionee or Grantee hereunder shall immediately terminate
in full and in the case of Options, no rights thereunder may be exercised, and
in all other cases, no payment will be made with respect thereto.
801488.1
12. Adjustment Upon Changes in Capitalization.
(a) In the event of a Change in Capitalization, the Committee
shall conclusively determine the appropriate adjustments, if any, to the (i)
maximum number and class of Shares or other share or securities with respect to
which Options or Awards may be granted under the Plan, (ii) maximum number of
class of Shares or other share or securities with respect to which Options may
be granted to any Eligible Individual during the term of the Plan and (iii) the
number and class of Shares or other share or securities which are subject to
outstanding Options or Awards granted under the Plan, and the purchase price
therefor, if applicable and (iv) the number and class of Shares or other
securities in respect of which Trustee Options are to be granted under Section
5.
(b) Any such adjustment in the Shares or other share or
securities subject to outstanding Incentive Share Options (including any
adjustments in the purchase price) shall be made in such manner as not to
constitute a modification as defined by Section 424(h)(3) of the Code and only
to the extent otherwise permitted by Sections 422 and 424 of the Code.
(c) If, by reason of a Change in Capitalization, a Grantee of
an Award shall be entitled to, or an Optionee shall be entitled to exercise an
Option with respect to, new, additional or different shares of share or
securities, such new, additional or different shares shall thereupon be subject
to all of the conditions, restrictions and performance criteria which were
applicable to the Shares subject to the Award or Option, as the case may be,
prior to such Change in Capitalization.
13. Effect of Certain Transactions. Subject to Sections 7.5, 8.7,
9.4(b) and 10.4, or as otherwise provided in an Agreement, in the event of (i)
the liquidation or dissolution of the Company or (ii) a merger or consolidation
of the Company (a "Transaction"), the Plan and the Options and Awards issued
hereunder shall continue in effect in accordance with their respective terms
except that following a Transaction each Optionee and Grantee shall be entitled
to receive in respect of each Share subject to any outstanding Options or
Awards, as the case may be, upon exercise of any Option or SAR or payment or
transfer in respect of any Award, the same number and kind of share, securities,
cash, property, or other consideration that each holder of a Share was entitled
to receive in the Transaction in respect of a Share; provided, however, that
such share, securities, cash, property, or other consideration shall remain
subject to all of the conditions, restrictions and performance criteria which
were applicable to the Options or Awards prior to such Transaction.
14. Interpretation. Following the required registration of any
equity security of the Company pursuant to Section 12 of the Exchange Act:
801488.1
(a) The Plan is intended to comply with Rule 16b-3 promulgated
under the Exchange Act and the Committee shall interpret and administer the
provisions of the Plan or any Agreement in a manner consistent therewith. Any
provisions inconsistent with such Rule shall be inoperative and shall not affect
the validity of the Plan.
(b) Unless otherwise expressly stated in the relevant
Agreement, each Award (other than Restricted Shares) granted under the Plan is
intended to be performance-based compensation within the meaning of Section
162(m)(4)(C) of the Code. Except in the case of death, disability, retirement or
a Change in Control, the Committee shall not be entitled to exercise any
discretion otherwise authorized hereunder with respect to such Awards if the
ability to exercise such discretion or the exercise of such discretion itself
would cause the compensation attributable to such Awards to fail to qualify as
performance-based compensation.
15. Pooling Transactions. Notwithstanding anything contained in
the Plan or any Agreement to the contrary, in the event of a Change in Control
which is also intended to constitute a Pooling Transaction, the Committee shall
take such actions, if any, which are specifically recommended by an independent
accounting firm retained by the Company to the extent reasonably necessary in
order to assure that the Pooling Transaction will qualify as such, including but
not limited to (i) deferring the vesting, exercise, payment or settlement with
respect to any Option or Award, (ii) providing that the payment or settlement in
respect of any Option or Award be made in the form of cash, Shares or securities
of a successor or acquired of the Company, or a combination of the foregoing and
(iii) providing for the extension of the term of any Option or Award to the
extent necessary to accommodate the foregoing, but not beyond the maximum term
permitted for any Option or Award.
16. Termination and Amendment of the Plan.
The Plan shall terminate on the day preceding the tenth
anniversary of the date of its adoption by the Board and no Option or Award may
be granted thereafter. The Board may sooner terminate the Plan and the Board may
at any time and from time to time amend, modify or suspend the Plan; provided,
however, that:
(a) No such amendment, modification, suspension or termination
shall impair or adversely alter any Options, SARs or Awards theretofore granted
under the Plan, except with the consent of the Optionee or Grantee, nor shall
any amendment, modification, suspension or termination deprive any Optionee or
Grantee of any Shares which he or she may have acquired through or as a result
of the Plan; and
(b) To the extent necessary under Section 422 of the Code,
Section 16(b) of the Exchange Act and the rules and regulations promulgated
thereunder or applicable law or securities exchange rule, no amendment shall be
effective unless approved by the shareholders of the Company in accordance with
applicable law and regulations.
801488.1
17. Non-Exclusivity of the Plan.
The adoption of the Plan by the Board shall not be construed
as amending, modifying or rescinding any previously approved incentive
arrangement or as creating any limitations on the power of the Board to adopt
such other incentive arrangements as it may deem desirable, including, without
limitation, the granting of share options otherwise than under the Plan, and
such arrangements may be either applicable generally or only in specific cases.
18. Limitation of Liability.
As illustrative of the limitations of liability of the
Company, but not intended to be exhaustive thereof, nothing in the Plan shall be
construed to:
(i) give any person any right to be granted an Option or
Award other than at the sole discretion of the Committee;
(ii) give any person any rights whatsoever with respect to
Shares except as specifically provided in the Plan;
(iii) limit in any way the right of the Company to
terminate the employment of any person at any time; or
(iv) be evidence of any agreement or understanding,
expressed or implied, that the Company will employ any person at any
particular rate of compensation or for any particular period of time.
19. Regulations and Other Approvals; Governing Law.
19.1 Except as to matters of federal law, this Plan and the
rights of all persons claiming hereunder shall be construed and determined in
accordance with the laws of the State of Maryland without giving effect to
conflicts of law principles thereof.
19.2 The obligation of the Company to sell or deliver Shares
with respect to Options and Awards granted under the Plan shall be subject to
all applicable laws, rules and regulations, including all applicable federal and
state securities laws, and the obtaining of all such approvals by governmental
agencies as may be deemed necessary or appropriate by the Committee.
19.3 The Board may make such changes as may be necessary or
appropriate to comply with the rules and regulations of any government
authority, or to obtain for Eligible Individuals granted Incentive Share Options
the tax benefits under the applicable provisions of the Code and regulations
promulgated thereunder.
801488.1
19.4 Each Option and Award is subject to the requirement that,
if at any time the Committee determines, in its discretion, that the listing,
registration or qualification of Shares issuable pursuant to the Plan is
required by any securities exchange or under any state or federal law, or the
consent or approval of any governmental regulatory body is necessary or
desirable as a condition of, or in connection with, the grant of an Option or
Award or the issuance of Shares, no Options or Awards shall be granted or
payment made or Shares issued, in whole or in part, unless listing,
registration, qualification, consent or approval has been effected or obtained
free of any conditions as acceptable to the Committee.
19.5 Notwithstanding anything contained in the Plan or any
Agreement to the contrary, in the event that the disposition of Shares acquired
pursuant to the Plan is not covered by a then current registration statement
under the Securities Act of 1933, as amended, (the "Securities Act") and is not
otherwise exempt from such registration, such Shares shall be restricted against
transfer to the extent required by the Securities Act and Rule 144 or other
regulations thereunder. The Committee may require any individual receiving
Shares pursuant to an Option or Award granted under the Plan, as a condition
precedent to receipt of such Shares or Awards, to represent and warrant to the
Company in writing that the Shares acquired by such individual are acquired
without a view to any distribution thereof and will not be sold or transferred
other than pursuant to an effective registration thereof under said Act or
pursuant to an exemption applicable under the Securities Act or the rules and
regulations promulgated thereunder. The certificates evidencing any of such
Shares or Awards shall be appropriately amended to reflect their status as
restricted securities as aforesaid.
20. Miscellaneous.
20.1 Multiple Agreements. The terms of each Option or Award
may differ from other Options or Awards granted under the Plan at the same time,
or at some other time. The Committee may also grant more than one Option or
Award to a given Eligible Individual during the term of the Plan, either in
addition to, or in substitution for, one or more Options or Awards previously
granted to that Eligible Individual.
20.2 Withholding of Taxes. (a) The Company may make such
provisions and take such steps as it may deem necessary or appropriate for the
withholding of any taxes which the Company is required by any law or regulation
of any governmental authority, whether federal, state or local, domestic or
foreign, to withhold in connection with any Option or the exercise thereof, any
Share Appreciation Right or the exercise thereof, or the grant of any other
Award, including, but not limited to, the withholding of cash or Shares which
would be paid or delivered pursuant to such exercise or Award or another
exercise of Award under this Plan until the Grantee reimburses the Company for
the amount the Company is required to withhold with respect to such taxes, or
canceling any portion of such Award or another Award under this Plan in an
amount sufficient to reimburse itself for the amount it is required to so
withhold. The Committee may permit a Grantee (or any beneficiary or other person
authorized to act) to elect to pay a portion or all of any amounts required or
permitted
801488.1
to be withheld to satisfy federal, state, local or foreign tax obligations by
directing the Company to withhold a number of whole Shares which would otherwise
be distributed and which have a Fair Market Value sufficient to cover the amount
of such required or permitted withholding taxes.
(b) If an Optionee makes a disposition, within the meaning
of Section 424(c) of the Code and regulations promulgated thereunder, of any
Share or Shares issued to such Optionee pursuant to the exercise of an Incentive
Share Option within the two-year period commencing on the day after the date of
the grant or within the one-year period commencing on the day after the date of
transfer of such Share or Shares to the Optionee pursuant to such exercise, the
Optionee shall, within ten (10) days of such disposition, notify the Company
thereof, by delivery of written notice to the Company at its principal executive
office.
(c) The Committee shall have the authority, at the time of
grant of an Option or Award under the Plan or at any time thereafter, to award
tax bonuses to designated Optionees or Grantees, to be paid upon their exercise
of Discretionary Options or payment in respect of Awards granted hereunder. The
amount of any such payments shall be determined by the Committee. The Committee
shall have full authority in its absolute discretion to determine the amount of
any such tax bonus and the terms and conditions affecting the vesting and
payment thereof.
21. Effective Date. The effective date of the Plan shall be the
date of its adoption by the Board, subject only to the approval by the
affirmative vote of the holders of a majority of the securities of the Company
present, or represented, and entitled to vote at a meeting of shareholders duly
held in accordance with the applicable laws of the State of Maryland within
twelve (12) months of such adoption.
801488.1
Exhibit 5
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
September 28, 1999
Acadia Realty Trust
20 Soundview Marketplace
Port Washington, New York 11050
Re: Acadia Realty Trust Registration of 1999 Share Incentive 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")
for the Trust's 1999 Share Incentive Plan ("Plan"). Pursuant to the
Registration Statement, the Trust may initially issue up to an aggregate of
2,928,269 shares (the "Shares") of its Common Shares of Beneficial Interest, par
value $.001 per share ("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 Delaration 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 1999 Annual Meeting ("Notice") and Proxy
Statement mailed to holders of 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 Plan;
(iv) Resolutions of the Trustees of the Trust, adopted pursuant to
Unanimous Written Consent of the Trustees on February 4, 1999 and August 23,
1999, approving the Plan;
(v) The Registration Statement filed with the Securities and Exchange
Commission with respect to the Shares issuable upon exercise of options granted
under the Plan; and
(vi) Certificate of the Secretary of the Trust dated September 28, 1999.
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)-(iv) 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 Plan;
(iii) the Registration Statement; and (iv) the representations of the Trust that
(a) the resolutions of the Trustees, dated February 4, 1999 and August 23, 1999,
approving, among other things, the Plan, filing the Registration Statement, and
reserving the Shares, and (b) the 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, consideration has been
paid for the Shares underlying the options as contemplated by the Plan, and the
Registration Statement shall have become effective, 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 keep the Registration Statement effective and that any
Shares issued upon the exercise of options 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 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.
Exhibit 23
CONSENTS OF EXPERTS AND COUNSEL
We consent to the incorporation by reference in the Registration Statement (Form
S-8) pertaining to the 1999 Share Incentive Plan of Acadia Realty Trust of our
report dated March 15, 1999, with respect to the consolidated financial
statements and schedules of Acadia Realty Trust included in its Annual Report on
Form 10-K for the year ended December 31, 1998 filed with the Securities and
Exchange Commission.
/s/ ERNST & YOUNG LLP
New York, New York
September 27, 1999