Exhibit 10.1
AMENDED AND RESTATED
SEVERANCE AGREEMENT
THIS
AMENDED AND RESTATED SEVERANCE AGREEMENT (the "Agreement") is
entered
into as of June 12, 2008, by and between , an individual residing in the State
of New York ("Senior
Officer") and Acadia Realty Trust, a Maryland real estate
investment trust,
and Acadia Realty
Limited Partnership,
a Delaware
limited
partnership, both with
offices at 1311
Mamaroneck
Avenue, Suite 260, White
Plains, New York 10605 (collectively, the "Company").
RECITALS
WHEREAS, the Company and Senior Officer previously entered into a
Severance
Agreement dated April 6, 2001 (the "Original Severance Agreement"), which was
amended pursuant to a First Amendment to Severance Agreement dated
as of January
19, 2007 (the "Amendment", the Original Severance Agreement and the Amendment
are collectively referred to as the "Severance Agreement"); and
WHEREAS, Section
409A of the Internal Revenue Code requires certain
modifications be made to the Severance Agreement; and
WHEREAS, Senior
Officer and the Company desire to enter into the Agreement
to reflect
those certain required modifications and certain other items
described herein.
NOW,
THEREFORE,
in consideration of
the premises and the mutual covenants
and agreement set forth herein, the parties hereby agree as
follows:
1.
Termination of
Employment and Change in Control.
(a)
Senior Officer's
employment
hereunder may be terminated at any time
under the following circumstances:
(i)
Cause. The Company 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 Company specifically
identifying the
manner in which the Company believes the Senior
<PAGE>
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 Company
other
than the occasional,
customary and de minimis use of Company property
for personal purposes; (D) disparagement of the Company, its
officers,
trustees, employees or
partners; (E) soliciting any existing employee
of the Company 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.
(ii)
Death. Senior Officer's employment hereunder shall
terminate upon his
death.
(iii) Disability. The
Company shall have the right to
terminate Senior
Officer's employment
due to "Disability" in the event that there is a
determination by the
Company that the Senior Officer has become
physically or mentally
incapable of performing his duties under this
Agreement and such
disability has
disabled the Senior
Officer for a
cumulative period of
one hundred
eighty (180) days within a twelve
(12) month period.
(iv)
Good Reason. The
Senior Officer shall have the right to terminate his
employment within the 90 day period following the Company's failure
to
cure any of the following events that will constitute "Good Reason"
if
not cured within the 30-day period following written notice of such
default to the Company by the Senior Officer: (A) upon the occurrence
of any material breach
of this Agreement by
the Company 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 material reduction in Senior Officer's Annual Base Salary as
in
effect at the time in question, or a failure to pay such amounts
when
due, or (C) if the Company relocates Senior Officer's office
requiring
the Senior Officer to increase his commuting time by more than one
(1)
hour. Any notice
hereunder by the
Senior Officer must be made within
90 days after the
Senior Officer
first knows or has reason to know
about the occurrence of the event alleged to be Good Reason.
(v)
Without Cause. The Company shall have the right to
terminate the
Senior Officer's
employment
hereunder Without Cause subject to the
terms and conditions of this Agreement.
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<PAGE>
(vi)
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
Company, 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 Company or
any of its
subsidiaries or (ii) an employee benefit plan (or a trust
forming a part thereof) maintained by the Company 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
Company; 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.
(b)
Notice of Termination Any termination of Senior Officer's
employment by
the Company or any such termination by the Senior Officer (other
than on account
of death) shall be
communicated by
written Notice of
Termination to the other
party hereto. For
purposes of this Agreement, a "Notice of Termination"
shall
mean a notice which shall indicate the specific termination provision in this
Agreement relied
upon and shall set
forth in reasonable
detail the facts
and
circumstances claimed
to provide a basis for
termination of Senior
Officer's
employment under the provision so indicated. In the event of the termination
of
Senior Officer's
employment on account of death, written Notice of Termination
shall be deemed to have been provided on the date of death.
2.
Compensation
Upon Termination of Employment By the
Company for Cause
or Voluntarily By The Senior Officer.
In
the event the Company terminates Senior Officer's employment for Cause,
or the Senior Officer voluntarily terminates his employment,
the Company shall
pay the Senior Officer
any unpaid Annual Base Salary at the rate then in effect
accrued through and including the date of termination and any accrued vacation
pay ("Unpaid Accrued
Salary"). In addition,
in such event, the
Senior Officer
shall be entitled to exercise any options which, as of the date of termination,
have vested and are
exercisable in accordance with the terms of the
applicable
option grant agreement
or plan. All options,
restricted
stock and long-term
incentive partnership
interests ("LTIP" Units") granted to the
Senior Officer
which have not vested on the date of termination shall
automatically terminate.
-3-
<PAGE>
Except for any rights which the Senior Officer may have to Unpaid
Accrued
Salary through and
including the date of
termination, and
vested options and
stock, the Company shall have no further obligations hereunder following such
termination. The
aforesaid amounts
shall be payable in full immediately upon
such termination.
3.
Compensation
Upon Termination of
Employment Upon
Disability, Death,
Without Cause or By Senior Officer for Good Reason.
In
the event of termination of Senior Officer's employment as a result of
Senior Officer's Disability, Death, Without Cause or by Senior
Officer for Good
Reason, the Company
shall pay to the Senior Officer, the following in a single
cash payment made within thirty days following the Senior
Officer's employment
termination date (or
such later
date as determined pursuant to Section 21
below):
(i) any Unpaid
Accrued Salary through and including the date of
termination; plus
(ii) an amount equal to one year's salary at the then current
annual
base salary (before any reductions) (the "Severance Salary");
plus
(iii) reimbursement of expenses incurred prior to date of
termination
("Expense Reimbursement"); plus
(iv) the Senior
Officer's car
allowance,
if any, for one year
(the
"Car Allowance"); plus
(v) a pro rata portion
of Senior Officer's bonus (based upon the last
two/three year's bonus); plus
In
the event of termination of or resignation by Senior Officer
because of
a Change in Control, in addition to the above amounts,
(vi) the Company shall
pay to the Senior
Officer an amount
equal to
six month's
base salary (the "Change of Control Retention
Payment"); and
(vii) the Company
shall continue
Senior Officer's base salary and
medical benefits
for a period not to
exceed the earlier of
(a)
six months from the date of such termination or (b) the date
when
Senior Officer
becomes reemployed; provided that the Senior
Officer shall
collect all such
salary and benefits on or before
March 15th of the
calendar year
after the date of
termination
(with the Company
paying the Senior Officer a lump sum as needed
on or before such
March 15th in order to provide the full value
of any salary and benefits otherwise payable thereafter).
-4-
<PAGE>
Notwithstanding
anything to the contrary contained herein, if the Senior
Officer's employment
is terminated Without Cause, or the Senior Officer
terminates his
employment
for Good Reason prior to a Change of Control
and
subsequently an event is announced within six months of his
termination which,
when consummated,
would constitute a Change of Control, then the Senior Officer
shall be entitled to the payment described in Section 3(vi) upon
consummation.
In
addition, all (A)
incentive compensation payments or programs of any
nature whether stock based or otherwise that are subject to a
vesting schedule,
including without limitation restricted stock, phantom stock, units
and any loan
forgiveness
arrangements
granted to
the Senior Officer ("Incentive
Compensation") shall
immediately
vest as of the date of such termination
("Vested Incentive
Compensation") and (B) options granted to the Senior Officer
shall immediately vest as of the date of such termination (the
"Vested Options")
and the Senior Officer
shall be entitled at
the option of the Senior Officer,
his estate or his personal representative, within 18 months of the date of
such
termination (or
expiration of their initial term, if earlier), to exercise any
options which have vested (including, without limitation, by acceleration in
accordance with
the terms of the Agreement, the applic
