UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported): January 19, 2007
ACADIA REALTY TRUST
(Exact name of registrant as specified in its charter)
Maryland 1-12002 23-2715194
(State or other (Commission (I.R.S. Employer
jurisdiction of incorporation) File Number) Identification No.)
1311 Mamaroneck Avenue
Suite 260
White Plains, New York 10605
(Address of principal executive offices) (Zip Code)
(914) 288-8100
(Registrant's telephone number, including area code)
(Former name or former address, if changed since last report)
Check the appropriate box below if the Form 8-K filing is intended to
simultaneously satisfy the filing obligation of the registrant under any of the
following provisions:
[_] Written communications pursuant to Rule 425 under the Securities Act (17
CFR 230.425 )
[_] Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR
240.14a-12)
[_] Pre-commencement communications pursuant to Rule 14d-2(b) under the
Exchange Act (17 CFR 240.14d-2(b))
[_] Pre-commencement communications pursuant to Rule 13e-4(c) under the
Exchange Act (17 CFR 240.13e-4(c))
Item 5.02 Departure of Directors or Certain Officers; Election of Directors;
Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On January 19, 2007, Acadia Realty Trust (the "Company") entered into a Fourth
Amendment to Employment Agreement (the "Employment Agreement Amendment") with
Kenneth F. Bernstein, Chief Executive Officer, President and Trustee. The
Employment Agreement Amendment amends Mr. Bernstein's existing employment
agreement dated October 1998 which was amended by a first Amendment dated
January 1, 2001, a second amendment dated January 1, 2004 and a third amendment
dated January 1, 2006. The Employment Agreement Amendment is effective as of
December 31, 2006.
On January 19, 2007, the Company entered into First Amendment to Severance
Agreements (the "Severance Agreement Amendments") with Joel Braun, Executive
Vice President and Chief Investment Officer, Michael Nelsen, Senior Vice
President and Chief Financial Officer, Robert Masters, Senior Vice President,
General Counsel, Chief Compliance Officer and Secretary and Joseph Hogan, Senior
Vice President and Director of Construction (collectively, the "Executives").
The Severance Agreement Amendments amend the existing severance agreements
between the Company and each of the Executives. The Severance Agreement
Amendments are effective as of December 31, 2006.
The following is a brief description of the Employment Agreement Amendment and
the Severance Agreement Amendments (collectively, the "Agreements"). The
Agreements remove the "single trigger" Change of Control provision that would
have required the Company to incur certain obligations, and make certain
payments to Mr. Bernstein and the Executives (collectively, the "Officers"),
upon a Change of Control without any termination of their employment with the
Company. The Agreements add a provision that the Officers shall have no right to
receive compensation following a Change in Control unless the Company terminates
the Officers without Cause or they terminate their employment for Good Reason in
which event Mr. Bernstein shall be entitled to all the benefits described in his
employment agreement and the Executives shall be entitled to all the benefits
described in their severance agreements. The Agreements also redefine Cause,
Change in Control and Good Reason.
The foregoing description is qualified in its entirety by reference to the
Employment Agreement Amendment and Severance Agreement Amendments, copies of
which are filed herewith as Exhibits 10.1, 10.2, 10.3, 10.4, and 10.5 of this
form 8-K and are incorporated into this Item 5.02 by reference.
Item 9.01. Financial Statements, Pro Forma Financial Information and Exhibits
(a) Financial Statements
Not Applicable
(b) Pro Forma Financial Information
Not Applicable
(c) Shell Company Transactions
Not Applicable
(d) Exhibits
Exhibit Number Description
-------------- --------------------------------
10.1 Fourth Amendment to Employment Agreement dated January 19, 2007 between
the Company and Kenneth F. Bernstein.
10.2 First Amendment to Severance Agreement dated January 19, 2007 between
the Company and Joel Braun.
10.3 First Amendment to Severance Agreement dated January 19, 2007 between
the Company and Michael Nelsen.
10.4 First Amendment to Severance Agreement dated January 19, 2007 between
the Company and Robert Masters.
10.5 First Amendment to Severance Agreement dated January 19, 2007 between
the Company and Joseph Hogan.
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act of 1934, the
registrant has duly caused this report to be signed on its behalf by the
undersigned hereunto duly authorized.
ACADIA REALTY TRUST
(Registrant)
Date: January 24, 2007 By: /s/ Michael Nelsen
----------------------
Name: Michael Nelsen
Title: Chief Financial Officer and
Senior Vice President
EXHIBIT 10.1
FOURTH AMENDMENT TO EMPLOYMENT AGREEMENT
This Fourth Amendment (the "Fourth Amendment") executed January 19,
2007 to the Employment Agreement (the "Agreement") between Acadia Realty Trust
(the "Trust") and Kenneth F. Bernstein ("Executive").
WHEREAS, the Trust and Executive entered into an Employment Agreement
dated as of October , 1998 (the "Employment Agreement"); and
WHEREAS, the Employment Agreement was amended by a First Amendment
dated as of January 1, 2001, a Second Amendment dated as of January 1, 2004 and
a Third Amendment dated as of January 1, 2006; and
WHEREAS, the Trust and Executive desire to further amend the Employment
Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration including the continuation
of employment by the Trust, the receipt and sufficiency of which is hereby
acknowledged, the Trust and Executive hereby agree as follows:
1. DEFINITIONS. Terms not defined herein have the meanings set forth in
the Agreement.
a) The definition of "Cause" is hereby deleted and the following is
hereby substituted therefor:
CAUSE. The Trust shall have the right to terminate Executive's
employment for Cause upon Executive's: (A) deliberate
misrepresentation in connection with, or willful failure to
cooperate with a bona fide internal investigation or an
investigation by regulatory or law enforcement authorities,
after being instructed by the Company to cooperate, or the
willful destruction or failure to preserve documents or other
materials known to be relevant to such investigation or the
willful inducement of others to fail to cooperate or to
produce documents or other materials; (B) failure to perform
his duties hereunder (other than any such failure resulting
from Executive's incapacity due to physical or mental illness)
which failure continues for a period of three (3) business
days after written demand for corrective action is delivered
by the Trust specifically identifying the manner in which the
Trust believes the Executive has not performed his duties; (C)
conduct by the Executive constituting a material act of
willful misconduct in connection with the performance of his
duties, including, without limitation, misappropriation of
funds or property of the Trust other than the occasional,
customary and de minimis use of Trust property for personal
purposes; (D) disparagement of the Trust, its officers,
trustees, employees or partners; (E) soliciting any existing
employee of the Trust above the level of an administrative
assistant to work at another company; or (F) the commission by
the Executive of a felony or misdemeanor involving moral
turpitude, deceit, dishonesty or fraud,
b) The definition of "Change of Control" is hereby deleted, thereby
specifically deleting the two sentences set forth in said definition wherein
Executive has the right voluntarily to terminate employment on or within three
(3) months following a Change in Control and to have said termination be deemed
a termination for Good Reason, and the following is hereby substituted therefor:
CHANGE IN CONTROL. For purposes of this Agreement "Change in
Control" shall mean that any of the following events has
occurred: (A) any "person" or "group" of persons, as such
terms are used in Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), other
than any employee benefit plan sponsored by the Trust, becomes
the "beneficial owner", as such term is used in Section 13 of
the Exchange Act (irrespective of any vesting or waiting
periods) of (i) Common Shares in an amount equal to thirty
percent (30 %) or more of the sum total of the Common Shares
issued and outstanding immediately prior to such acquisition
as if they were a single class and disregarding any equity
raise in connection with the financing of such transaction;
provided, however, that in determining whether a Change of
Control has occurred, Outstanding Shares or Voting Securities
which are acquired in an acquisition by (i) the Trust or any
of its subsidiaries or (ii) an employee benefit plan (or a
trust forming a part thereof) maintained by the Trust or any
of its subsidiaries shall not constitute an acquisition which
can cause a Change of Control; or (B) the approval of the
dissolution or liquidation of the Trust; or (C) the approval
of the sale or other disposition of all or substantially all
of its assets in one (1) or more transactions; or (D) a
turnover, during any two (2) year period, of the majority of
the members of the Board, without the consent of the majority
of the members of the Board as to the appointment of the new
Board members.
c) The definition of "Good Reason" is hereby deleted and the following
is substituted therefor:
GOOD REASON. The Executive shall have the right to terminate
his employment for "Good Reason": (A) upon the occurrence of
any material breach of this Agreement by the Trust which shall
include but not be limited to: a material, adverse alteration
in the nature of Executive's duties, responsibilities or
authority; (B) upon a reduction in Executive's Annual Base
Salary or a material reduction in other benefits (except for
bonuses or similar discretionary payments) as in effect at the
time in question, or a failure to pay such amounts when due
which is not cured by the Trust within ten (10) days after
written notice of such default by the Executive, (C) if the
Trust relocates Executive's office requiring the Executive to
increase his commuting time by more than one (1) hour, or (D)
the Trust's failure to provide benefits comparable to those
provided the Executive as of the Effective Date, other than
any such failure which affects all comparably situated
officers, then the Executive shall have the right to terminate
his employment, which termination shall be deemed for Good
Reason.
2. CHANGE OF CONTROL. Notwithstanding anything to the contrary
contained in the Employment Agreement, Executive shall have no right to receive
the compensation described in Section 3 following a Change of Control unless the
Trust terminates Executive's employment without Cause or Executive terminates
his employment for Good Reason, in which event the Executive shall be entitled
to all the benefits described in the Employment Agreement as if this Fourth
Amendment were not executed.
3. EFFECTIVE DATE. This Fourth Amendment shall be effective as of
December 31, 2006.
4. SUCCESSORS; COUNTERPARTS. This Fourth Amendment (i) shall be binding
on the executors, administrators, estates, heirs and legal successors of the
parties and (ii) may be executed in several counterparts with the same effect as
if the parties executing the several counterparts had all executed one
counterpart.
5. GOVERNING LAW. This Fourth Amendment shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the undersigned have hereto set their hands as of
the day and year first above written.
ACADIA REALTY TRUST
By: /S/ ROBERT MASTERS
--------------------------------------
Robert Masters, Senior Vice President
By: /S/ KENNETH F. BERNSTEIN
--------------------------------------
Kenneth F. Bernstein, Executive
EXHIBIT 10.2
FIRST AMENDMENT TO SEVERANCE AGREEMENT
This First Amendment (the "First Amendment") executed January 19, 2007
to the Severance Agreement (the "Agreement") between Acadia Realty Trust (the
"Trust") and Joel Braun ("Senior Officer").
WHEREAS, the Trust and Senior Officer desire to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration including the continuation
of employment by the Trust, the receipt and sufficiency of which is hereby
acknowledged, the Trust and Senior Officer hereby agree as follows:
1. DEFINITIONS. Terms not defined herein have the meanings set forth in
the Agreement.
a) The definition of "Cause" is hereby deleted and the following is
hereby substituted therefor:
CAUSE. The Trust shall have the right to terminate Senior
Officer's employment for Cause upon Senior Officer's: (A)
deliberate misrepresentation in connection with, or willful
failure to cooperate with a bona fide internal investigation
or an investigation by regulatory or law enforcement
authorities, after being instructed by the Company to
cooperate, or the willful destruction or failure to preserve
documents or other materials known to be relevant to such
investigation or the willful inducement of others to fail to
cooperate or to produce documents or other materials; (B)
failure to perform his duties hereunder (other than any such
failure resulting from Senior Officer's incapacity due to
physical or mental illness) which failure continues for a
period of three (3) business days after written demand for
corrective action is delivered by the Trust specifically
identifying the manner in which the Trust believes the Senior
Officer has not performed his duties; (C) conduct by the
Senior Officer constituting a material act of willful
misconduct in connection with the performance of his duties,
including, without limitation, misappropriation of funds or
property of the Trust other than the occasional, customary and
de minimis use of Trust property for personal purposes; (D)
disparagement of the Trust, its officers, trustees, employees
or partners; (E) soliciting any existing employee of the Trust
above the level of an administrative assistant to work at
another company; or (F) the commission by the Senior Officer
of a felony or misdemeanor involving moral turpitude, deceit,
dishonesty or fraud,
b) The definition of "Change of Control" is hereby deleted, thereby
specifically deleting the two sentences set forth in said definition wherein
Senior Officer has the right voluntarily to terminate employment on or within
three (3) months following a Change in Control and to have said termination be
deemed a termination for Good Reason, and the following is hereby substituted
therefor:
CHANGE IN CONTROL. For purposes of this Agreement "Change in
Control" shall mean that any of the following events has
occurred: (A) any "person" or "group" of persons, as such
terms are used in Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), other
than any employee benefit plan sponsored by the Trust, becomes
the "beneficial owner", as such term is used in Section 13 of
the Exchange Act (irrespective of any vesting or waiting
periods) of (i) Common Shares in an amount equal to thirty
percent (30 %) or more of the sum total of the Common Shares
issued and outstanding immediately prior to such acquisition
as if they were a single class and disregarding any equity
raise in connection with the financing of such transaction;
provided, however, that in determining whether a Change of
Control has occurred, Outstanding Shares or Voting Securities
which are acquired in an acquisition by (i) the Trust or any
of its subsidiaries or (ii) an employee benefit plan (or a
trust forming a part thereof) maintained by the Trust or any
of its subsidiaries shall not constitute an acquisition which
can cause a Change of Control; or (B) the approval of the
dissolution or liquidation of the Trust; or (C) the approval
of the sale or other disposition of all or substantially all
of its assets in one (1) or more transactions; or (D) a
turnover, during any two (2) year period, of the majority of
the members of the Board, without the consent of the majority
of the members of the Board as to the appointment of the new
Board members.
c) The definition of "Good Reason" is hereby deleted and the following
is substituted therefor:
GOOD REASON. The Senior Officer shall have the right to
terminate his employment for "Good Reason": (A) upon the
occurrence of any material breach of this Agreement by the
Trust which shall include but not be limited to: a material,
adverse alteration in the nature of Senior Officer's duties,
responsibilities or authority; (B) upon a reduction in Senior
Officer's Annual Base Salary or a material reduction in other
benefits (except for bonuses or similar discretionary
payments) as in effect at the time in question, or a failure
to pay such amounts when due which is not cured by the Trust
within ten (10) days after written notice of such default by
the Senior Officer, (C) if the Trust relocates Senior
Officer's office requiring the Senior Officer to increase his
commuting time by more than one (1) hour, or (D) the Trust's
failure to provide benefits comparable to those provided the
Senior Officer as of the Effective Date, other than any such
failure which affects all comparably situated officers, then
the Senior Officer shall have the right to terminate his
employment, which termination shall be deemed for Good Reason.
2. CHANGE OF CONTROL. Notwithstanding anything to the contrary
contained in the Agreement, Senior Officer shall have no right to receive the
compensation described in Section 3 following a Change of Control unless the
Trust terminates Senior Officer's employment without Cause or Senior Officer
terminates his employment for Good Reason, in which event the Senior Officer
shall be entitled to all the benefits described in the Agreement as if this
First Amendment were not executed.
3. EFFECTIVE DATE. This First Amendment shall be effective as of
December 31, 2006.
4. SUCCESSORS; COUNTERPARTS. This First Amendment (i) shall be binding
on the executors, administrators, estates, heirs and legal successors of the
parties and (ii) may be executed in several counterparts with the same effect as
if the parties executing the several counterparts had all executed one
counterpart.
5. GOVERNING LAW. This First Amendment shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the undersigned have hereto set their hands as of
the day and year first above written.
ACADIA REALTY TRUST
By: /S/ ROBERT MASTERS
-------------------------------------
Robert Masters, Senior Vice President
By: /S/ JOEL BRAUN
-------------------------------------
Joel Braun, Senior Officer
EXHIBIT 10.3
FIRST AMENDMENT TO SEVERANCE AGREEMENT
This First Amendment (the "First Amendment") executed January 19, 2007
to the Severance Agreement (the "Agreement") between Acadia Realty Trust (the
"Trust") and Michael Nelsen ("Senior Officer").
WHEREAS, the Trust and Senior Officer desire to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration including the continuation
of employment by the Trust, the receipt and sufficiency of which is hereby
acknowledged, the Trust and Senior Officer hereby agree as follows:
1. DEFINITIONS. Terms not defined herein have the meanings set forth in
the Agreement.
a) The definition of "Cause" is hereby deleted and the following is
hereby substituted therefor:
CAUSE. The Trust shall have the right to terminate Senior
Officer's employment for Cause upon Senior Officer's: (A)
deliberate misrepresentation in connection with, or willful
failure to cooperate with a bona fide internal investigation
or an investigation by regulatory or law enforcement
authorities, after being instructed by the Company to
cooperate, or the willful destruction or failure to preserve
documents or other materials known to be relevant to such
investigation or the willful inducement of others to fail to
cooperate or to produce documents or other materials; (B)
failure to perform his duties hereunder (other than any such
failure resulting from Senior Officer's incapacity due to
physical or mental illness) which failure continues for a
period of three (3) business days after written demand for
corrective action is delivered by the Trust specifically
identifying the manner in which the Trust believes the Senior
Officer has not performed his duties; (C) conduct by the
Senior Officer constituting a material act of willful
misconduct in connection with the performance of his duties,
including, without limitation, misappropriation of funds or
property of the Trust other than the occasional, customary and
de minimis use of Trust property for personal purposes; (D)
disparagement of the Trust, its officers, trustees, employees
or partners; (E) soliciting any existing employee of the Trust
above the level of an administrative assistant to work at
another company; or (F) the commission by the Senior Officer
of a felony or misdemeanor involving moral turpitude, deceit,
dishonesty or fraud,
b) The definition of "Change of Control" is hereby deleted, thereby
specifically deleting the two sentences set forth in said definition wherein
Senior Officer has the right voluntarily to terminate employment on or within
three (3) months following a Change in Control and to have said termination be
deemed a termination for Good Reason, and the following is hereby substituted
therefor:
CHANGE IN CONTROL. For purposes of this Agreement "Change in
Control" shall mean that any of the following events has
occurred: (A) any "person" or "group" of persons, as such
terms are used in Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), other
than any employee benefit plan sponsored by the Trust, becomes
the "beneficial owner", as such term is used in Section 13 of
the Exchange Act (irrespective of any vesting or waiting
periods) of (i) Common Shares in an amount equal to thirty
percent (30 %) or more of the sum total of the Common Shares
issued and outstanding immediately prior to such acquisition
as if they were a single class and disregarding any equity
raise in connection with the financing of such transaction;
provided, however, that in determining whether a Change of
Control has occurred, Outstanding Shares or Voting Securities
which are acquired in an acquisition by (i) the Trust or any
of its subsidiaries or (ii) an employee benefit plan (or a
trust forming a part thereof) maintained by the Trust or any
of its subsidiaries shall not constitute an acquisition which
can cause a Change of Control; or (B) the approval of the
dissolution or liquidation of the Trust; or (C) the approval
of the sale or other disposition of all or substantially all
of its assets in one (1) or more transactions; or (D) a
turnover, during any two (2) year period, of the majority of
the members of the Board, without the consent of the majority
of the members of the Board as to the appointment of the new
Board members.
c) The definition of "Good Reason" is hereby deleted and the following
is substituted therefor:
GOOD REASON. The Senior Officer shall have the right to
terminate his employment for "Good Reason": (A) upon the
occurrence of any material breach of this Agreement by the
Trust which shall include but not be limited to: a material,
adverse alteration in the nature of Senior Officer's duties,
responsibilities or authority; (B) upon a reduction in Senior
Officer's Annual Base Salary or a material reduction in other
benefits (except for bonuses or similar discretionary
payments) as in effect at the time in question, or a failure
to pay such amounts when due which is not cured by the Trust
within ten (10) days after written notice of such default by
the Senior Officer, (C) if the Trust relocates Senior
Officer's office requiring the Senior Officer to increase his
commuting time by more than one (1) hour, or (D) the Trust's
failure to provide benefits comparable to those provided the
Senior Officer as of the Effective Date, other than any such
failure which affects all comparably situated officers, then
the Senior Officer shall have the right to terminate his
employment, which termination shall be deemed for Good Reason.
2. CHANGE OF CONTROL. Notwithstanding anything to the contrary
contained in the Agreement, Senior Officer shall have no right to receive the
compensation described in Section 3 following a Change of Control unless the
Trust terminates Senior Officer's employment without Cause or Senior Officer
terminates his employment for Good Reason, in which event the Senior Officer
shall be entitled to all the benefits described in the Agreement as if this
First Amendment were not executed.
3. EFFECTIVE DATE. This First Amendment shall be effective as of
December 31, 2006.
4. SUCCESSORS; COUNTERPARTS. This First Amendment (i) shall be binding
on the executors, administrators, estates, heirs and legal successors of the
parties and (ii) may be executed in several counterparts with the same effect as
if the parties executing the several counterparts had all executed one
counterpart.
5. GOVERNING LAW. This First Amendment shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the undersigned have hereto set their hands as of
the day and year first above written.
ACADIA REALTY TRUST
By: /S/ ROBERT MASTERS
-------------------------------------
Robert Masters, Senior Vice President
By: /S/ MICHAEL NELSEN
-------------------------------------
Michael Nelsen, Senior Officer
EXHIBIT 10.4
FIRST AMENDMENT TO SEVERANCE AGREEMENT
This First Amendment (the "First Amendment") executed January 19, 2007
to the Severance Agreement (the "Agreement") between Acadia Realty Trust (the
"Trust") and Robert Masters ("Senior Officer").
WHEREAS, the Trust and Senior Officer entered into a Severance
Agreement dated as of April 6, 2001; and
WHEREAS, the Trust and Senior Officer desire to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration including the continuation
of employment by the Trust, the receipt and sufficiency of which is hereby
acknowledged, the Trust and Senior Officer hereby agree as follows:
1. DEFINITIONS. Terms not defined herein have the meanings set forth in
the Agreement.
a) The definition of "Cause" is hereby deleted and the following is
hereby substituted therefor:
CAUSE. The Trust shall have the right to terminate Senior
Officer's employment for Cause upon Senior Officer's: (A)
deliberate misrepresentation in connection with, or willful
failure to cooperate with a bona fide internal investigation
or an investigation by regulatory or law enforcement
authorities, after being instructed by the Company to
cooperate, or the willful destruction or failure to preserve
documents or other materials known to be relevant to such
investigation or the willful inducement of others to fail to
cooperate or to produce documents or other materials; (B)
failure to perform his duties hereunder (other than any such
failure resulting from Senior Officer's incapacity due to
physical or mental illness) which failure continues for a
period of three (3) business days after written demand for
corrective action is delivered by the Trust specifically
identifying the manner in which the Trust believes the Senior
Officer has not performed his duties; (C) conduct by the
Senior Officer constituting a material act of willful
misconduct in connection with the performance of his duties,
including, without limitation, misappropriation of funds or
property of the Trust other than the occasional, customary and
de minimis use of Trust property for personal purposes; (D)
disparagement of the Trust, its officers, trustees, employees
or partners; (E) soliciting any existing employee of the Trust
above the level of an administrative assistant to work at
another company; or (F) the commission by the Senior Officer
of a felony or misdemeanor involving moral turpitude, deceit,
dishonesty or fraud,
b) The definition of "Change of Control" is hereby deleted, thereby
specifically deleting the two sentences set forth in said definition wherein
Senior Officer has the right voluntarily to terminate employment on or within
three (3) months following a Change in Control and to have said termination be
deemed a termination for Good Reason, and the following is hereby substituted
therefor:
CHANGE IN CONTROL. For purposes of this Agreement "Change in
Control" shall mean that any of the following events has
occurred: (A) any "person" or "group" of persons, as such
terms are used in Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), other
than any employee benefit plan sponsored by the Trust, becomes
the "beneficial owner", as such term is used in Section 13 of
the Exchange Act (irrespective of any vesting or waiting
periods) of (i) Common Shares in an amount equal to thirty
percent (30 %) or more of the sum total of the Common Shares
issued and outstanding immediately prior to such acquisition
as if they were a single class and disregarding any equity
raise in connection with the financing of such transaction;
provided, however, that in determining whether a Change of
Control has occurred, Outstanding Shares or Voting Securities
which are acquired in an acquisition by (i) the Trust or any
of its subsidiaries or (ii) an employee benefit plan (or a
trust forming a part thereof) maintained by the Trust or any
of its subsidiaries shall not constitute an acquisition which
can cause a Change of Control; or (B) the approval of the
dissolution or liquidation of the Trust; or (C) the approval
of the sale or other disposition of all or substantially all
of its assets in one (1) or more transactions; or (D) a
turnover, during any two (2) year period, of the majority of
the members of the Board, without the consent of the majority
of the members of the Board as to the appointment of the new
Board members.
c) The definition of "Good Reason" is hereby deleted and the following
is substituted therefor:
GOOD REASON. The Senior Officer shall have the right to
terminate his employment for "Good Reason": (A) upon the
occurrence of any material breach of this Agreement by the
Trust which shall include but not be limited to: a material,
adverse alteration in the nature of Senior Officer's duties,
responsibilities or authority; (B) upon a reduction in Senior
Officer's Annual Base Salary or a material reduction in other
benefits (except for bonuses or similar discretionary
payments) as in effect at the time in question, or a failure
to pay such amounts when due which is not cured by the Trust
within ten (10) days after written notice of such default by
the Senior Officer, (C) if the Trust relocates Senior
Officer's office requiring the Senior Officer to increase his
commuting time by more than one (1) hour, or (D) the Trust's
failure to provide benefits comparable to those provided the
Senior Officer as of the Effective Date, other than any such
failure which affects all comparably situated officers, then
the Senior Officer shall have the right to terminate his
employment, which termination shall be deemed for Good Reason.
2. CHANGE OF CONTROL. Notwithstanding anything to the contrary
contained in the Agreement, Senior Officer shall have no right to receive the
compensation described in Section 3 following a Change of Control unless the
Trust terminates Senior Officer's employment without Cause or Senior Officer
terminates his employment for Good Reason, in which event the Senior Officer
shall be entitled to all the benefits described in the Agreement as if this
First Amendment were not executed.
3. EFFECTIVE DATE. This First Amendment shall be effective as of
December 31, 2006.
4. SUCCESSORS; COUNTERPARTS. This First Amendment (i) shall be binding
on the executors, administrators, estates, heirs and legal successors of the
parties and (ii) may be executed in several counterparts with the same effect as
if the parties executing the several counterparts had all executed one
counterpart.
5. GOVERNING LAW. This First Amendment shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the undersigned have hereto set their hands as of
the day and year first above written.
ACADIA REALTY TRUST
By:/S/ KENNETH F. BERNSTEIN
-------------------------------
Kenneth F. Bernstein, President
By: /S/ ROBERT MASTERS
-------------------------------
Robert Masters, Senior Officer
EXHIBIT 10.5
FIRST AMENDMENT TO SEVERANCE AGREEMENT
This First Amendment (the "First Amendment") executed January 19, 2007
to the Severance Agreement (the "Agreement") between Acadia Realty Trust (the
"Trust") and Joseph Hogan ("Senior Officer").
WHEREAS, the Trust and Senior Officer desire to amend the Agreement.
NOW, THEREFORE, in consideration of the mutual covenants contained
herein and for other good and valuable consideration including the continuation
of employment by the Trust, the receipt and sufficiency of which is hereby
acknowledged, the Trust and Senior Officer hereby agree as follows:
1. DEFINITIONS. Terms not defined herein have the meanings set forth in
the Agreement.
a) The definition of "Cause" is hereby deleted and the following is
hereby substituted therefor:
CAUSE. The Trust shall have the right to terminate Senior
Officer's employment for Cause upon Senior Officer's: (A)
deliberate misrepresentation in connection with, or willful
failure to cooperate with a bona fide internal investigation
or an investigation by regulatory or law enforcement
authorities, after being instructed by the Company to
cooperate, or the willful destruction or failure to preserve
documents or other materials known to be relevant to such
investigation or the willful inducement of others to fail to
cooperate or to produce documents or other materials; (B)
failure to perform his duties hereunder (other than any such
failure resulting from Senior Officer's incapacity due to
physical or mental illness) which failure continues for a
period of three (3) business days after written demand for
corrective action is delivered by the Trust specifically
identifying the manner in which the Trust believes the Senior
Officer has not performed his duties; (C) conduct by the
Senior Officer constituting a material act of willful
misconduct in connection with the performance of his duties,
including, without limitation, misappropriation of funds or
property of the Trust other than the occasional, customary and
de minimis use of Trust property for personal purposes; (D)
disparagement of the Trust, its officers, trustees, employees
or partners; (E) soliciting any existing employee of the Trust
above the level of an administrative assistant to work at
another company; or (F) the commission by the Senior Officer
of a felony or misdemeanor involving moral turpitude, deceit,
dishonesty or fraud,
b) The definition of "Change of Control" is hereby deleted, thereby
specifically deleting the two sentences set forth in said definition wherein
Senior Officer has the right voluntarily to terminate employment on or within
three (3) months following a Change in Control and to have said termination be
deemed a termination for Good Reason, and the following is hereby substituted
therefor:
CHANGE IN CONTROL. For purposes of this Agreement "Change in
Control" shall mean that any of the following events has
occurred: (A) any "person" or "group" of persons, as such
terms are used in Sections 13 and 14 of the Securities
Exchange Act of 1934, as amended (the "Exchange Act"), other
than any employee benefit plan sponsored by the Trust, becomes
the "beneficial owner", as such term is used in Section 13 of
the Exchange Act (irrespective of any vesting or waiting
periods) of (i) Common Shares in an amount equal to thirty
percent (30 %) or more of the sum total of the Common Shares
issued and outstanding immediately prior to such acquisition
as if they were a single class and disregarding any equity
raise in connection with the financing of such transaction;
provided, however, that in determining whether a Change of
Control has occurred, Outstanding Shares or Voting Securities
which are acquired in an acquisition by (i) the Trust or any
of its subsidiaries or (ii) an employee benefit plan (or a
trust forming a part thereof) maintained by the Trust or any
of its subsidiaries shall not constitute an acquisition which
can cause a Change of Control; or (B) the approval of the
dissolution or liquidation of the Trust; or (C) the approval
of the sale or other disposition of all or substantially all
of its assets in one (1) or more transactions; or (D) a
turnover, during any two (2) year period, of the majority of
the members of the Board, without the consent of the majority
of the members of the Board as to the appointment of the new
Board members.
c) The definition of "Good Reason" is hereby deleted and the following
is substituted therefor:
GOOD REASON. The Senior Officer shall have the right to
terminate his employment for "Good Reason": (A) upon the
occurrence of any material breach of this Agreement by the
Trust which shall include but not be limited to: a material,
adverse alteration in the nature of Senior Officer's duties,
responsibilities or authority; (B) upon a reduction in Senior
Officer's Annual Base Salary or a material reduction in other
benefits (except for bonuses or similar discretionary
payments) as in effect at the time in question, or a failure
to pay such amounts when due which is not cured by the Trust
within ten (10) days after written notice of such default by
the Senior Officer, (C) if the Trust relocates Senior
Officer's office requiring the Senior Officer to increase his
commuting time by more than one (1) hour, or (D) the Trust's
failure to provide benefits comparable to those provided the
Senior Officer as of the Effective Date, other than any such
failure which affects all comparably situated officers, then
the Senior Officer shall have the right to terminate his
employment, which termination shall be deemed for Good Reason.
2. CHANGE OF CONTROL. Notwithstanding anything to the contrary
contained in the Agreement, Senior Officer shall have no right to receive the
compensation described in Section 3 following a Change of Control unless the
Trust terminates Senior Officer's employment without Cause or Senior Officer
terminates his employment for Good Reason, in which event the Senior Officer
shall be entitled to all the benefits described in the Agreement as if this
First Amendment were not executed.
3. EFFECTIVE DATE. This First Amendment shall be effective as of
December 31, 2006.
4. SUCCESSORS; COUNTERPARTS. This First Amendment (i) shall be binding
on the executors, administrators, estates, heirs and legal successors of the
parties and (ii) may be executed in several counterparts with the same effect as
if the parties executing the several counterparts had all executed one
counterpart.
5. GOVERNING LAW. This First Amendment shall be governed by and
construed in accordance with the laws of the State of New York without giving
effect to the principles of conflict of laws thereof.
IN WITNESS WHEREOF, the undersigned have hereto set their hands as of
the day and year first above written.
ACADIA REALTY TRUST
By: /S/ ROBERT MASTERS
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Robert Masters, Senior Vice President
By: /S/ JOSEPH HOGAN
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Joseph Hogan, Senior Officer