Exhibit 10.45
ACADIA REALTY TRUST
1999 SHARE INCENTIVE PLAN
2003 SHARE INCENTIVE PLAN
EXHIBIT
DEFERRAL AND DISTRIBUTION ELECTION FORM
Attached is an election form that you may use if you wish to defer
receipt of the Shares that would otherwise be issued to you upon the exercise of
Options awarded to you under the Plan, subject to the terms and conditions
described on the form. You must execute and deliver a completed Deferral and
Distribution Election Form as provided for in the form.
An election to defer receipt of your Options may not be revoked, but
will become null and void under certain circumstances listed in Section 1 of the
Deferral and Distribution Election Form.
You are advised to consult with your individual tax advisor with respect
to the tax consequences related to your Options and any elections you may make
to defer the receipt associated with exercise of your Options.
ACADIA REALTY TRUST
[1999] SHARE INCENTIVE PLAN
[2003] SHARE INCENTIVE PLAN
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DEFERRAL AND DISTRIBUTION ELECTION FORM
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AGREEMENT ("Agreement"), made this day of , , by and between me, as a
participant in the Acadia Realty Trust 1999 Share Incentive Plan and/or 2003
Share Incentive Plan (collectively, the "Plan"), and Acadia Realty Trust (the
"Company"). We agree that any term that begins herein with initial capital
letters shall have the special meaning defined in the Plan or the Award
Agreement, unless the context clearly requires otherwise.
This Agreement and the elections that I make herein shall control the
treatment of the Shares I would otherwise have received upon the exercise of any
Share options that I exercise during the time frame identified in Section 2
below.
1. EFFECTIVENESS OF ELECTION. I recognize and agree that
every election that I make in this Deferral and Distribution Election Form will
become effective -- AND IRREVOCABLE -- on the date on which I deliver this
Agreement to an executive officer of the Company, other than myself.
Nevertheless, this Agreement will automatically become null, void, and of no
effect in the event that either -
(i) my delivery of this election occurs after of (or June 30th of
any subsequent year), or
(ii) the Committee determines that either of the following events has
occurred on or before December 31st of the current year:
[ ] the trailing 20-day average price of the Company's
outstanding Shares is below $13.50 on the Exercise Date that
I select in Section 2 below.
[ ] A change in federal tax laws either prohibits this election
or would require that I recognize income before the
distribution dates selected below.
2. DEFERRAL ELECTION. Subject to Section 1 above, I hereby
elect to defer receipt of any Shares that would otherwise be issued to me upon
my exercise of any Options during the last 15 days of the current year pursuant
to my payment of the exercise price through the surrender of Shares that I have
beneficially owned for at least six months prior to the Exercise Date.
3. NATURE OF DEFERRAL. I recognize and agree that,
following the exercise of any stock options covered by my election in Section 2
above, the Company will establish an escrow account ("Account") for me under the
Plan, and will credit the Account with share units ("Units")
on a one-to-one basis with the Shares that I would otherwise receive as taxable
income upon the exercise of the Options.
I further recognize and agree that any Units that are credited
to my Account will be non-transferable, non-assignable, and may not otherwise be
disposed, pledged, or alienated in any way, will be subject to the claims of the
Company's general creditors, and will represent merely an unsecured, unfunded
promise of the Company to deliver Shares to me or my beneficiaries in accordance
with Sections 5, 6, and 7 below.
4. DIVIDEND EQUIVALENT RIGHTS. For as long as I have an
Account pursuant to this election, I understand that the Company will pay me an
amount equal to any cash dividends that I would have received if I owned Shares
instead of an unsecured promise in the nature of Units.
5. DISTRIBUTIONS OF MY ACCOUNT. I recognize and agree that
distributions in respect of my Account will be made in the form of one
unrestricted Share for each Unit credited to my Account, subject to adjustment
of my Units for Changes in Capitalization, using the method set forth in the
Plan for Award adjustments. I hereby elect to receive distributions from my
Account in accordance with the following choices:
[ ] in a single lump sum distribution as soon as
practicable following the date on which my
employment or service with the Company terminates,
including a termination due to my retirement from
the Company (such date being the cessation of my
"Continuous Service");
SELECT ONE
[ ] in five (5) substantially equal annual installments
on each January 1st following the cessation of my
Continuous Service; or
[ ] in ten (10) substantially equal annual installments
on each January 1st following the cessation of my
Continuous Service.
[ ] Notwithstanding the foregoing choices, in the event of a
Change in Control, I elect to receive the full amount of my
Account (or, if applicable, the remaining portion of my
Account) in a lump sum, as soon as practicable following the
Change in Control.
6. FORM OF DISTRIBUTION TO BENEFICIARY. In the event of my
death before collecting all of my Account, any remaining portion of my Account
shall be distributed to my beneficiary or beneficiaries named below in the
following manner:
[ ] in a single lump sum to be distributed as soon as
administratively practicable following my death; or
[ ] in accordance with the distribution schedule selected in
Section 5 hereof (with distributions made as though I
survived to collect all benefits, and as though I terminated
service on the date of my death if distributions had not
already begun).
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7. DESIGNATION OF BENEFICIARY. In the event of my death
before I have collected all of my Account, I hereby direct that my beneficiaries
shall be as follows:
(a) Primary Beneficiary. I hereby designate the person(s)
named below to be my primary beneficiary and to receive any
undistributed portion of my Account:
Name of Social Security Percentage of
Primary Beneficiary Number Mailing Address Death Benefit
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(b) Contingent Beneficiary. In the event that a primary
beneficiary or beneficiaries named above are not living at the time of
my death, I hereby designate the following person(s) to be my contingent
beneficiary for purposes of the Plan with respect to any portion of my
Account not previously distributed to a primary beneficiary pursuant to
subsection (a) above:
Name of Social Security Percentage of
Contingent Beneficiary Number Mailing Address Death Benefit
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8. CHANGING OF DISTRIBUTION ELECTIONS. With respect to the
choices made in Section 5 above, I recognize that I may, by submitting an
effective superseding election, at any time either more than 90 days prior to a
Change in Control or more than one year before my Continuous Service terminates
for any reason, file a new election (subject to the provisions of Sections 1 and
9 hereof). In addition, I recognize that I may at any time and from time to time
change the elections made in Sections 6 and 7 above, prior to my death.
9. CHANGE IN U.S. TAX LAWS. I recognize and agree that the
Company may in its discretion take any actions that it considers reasonably
necessary or proper to assure that any changes in the U.S. federal tax laws will
not accelerate the date of my income taxation to a date before I receive Shares
pursuant to my elections in this Agreement. If such taxation will occur on an
accelerated basis and I have not executed such documents, if any, that the
Company considers reasonably necessary or proper to avoid immediate taxation,
then the Company shall distribute my Account to me.
10. SATISFACTION OF AWARD COMMITMENTS. I recognize and agree
that the Committee is offering me the choices set forth above as a condition for
my transfer of previously-owned Shares to the Company to pay the exercise price
for Share options that I desire to exercise pursuant to the terms of this
Agreement.
11. HOLD HARMLESS. I recognize that (a) the tax deferral
election being offered hereunder is solely an accommodation of the Company to
me, (b) the Company has urged me to seek independent tax advice about the risks
and benefits associated with the choices presented above, and (c) I am solely
responsible and accountable for any election made above, as
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well as any risk associated with the tax consequences of this election.
Accordingly, I agree to hold the Company, its directors, officers, employees,
agents harmless against any and all loss that they may incur if I bring any
action, claim, or proceeding of any kind whatsoever in order to seek recovery in
law or equity for any loss or other damage that I incur if this election does
not have the tax consequences that I anticipate.
Accordingly, I recognize and agree that the Company shall have
honored and discharged its obligations under this Agreement, the Share options
being exercised, and the Plan if the Company distributes my Account in
accordance with the provisions hereof.
WITNESSED THIS DAY OF , BY: PARTICIPANT
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RECEIVED AND ACCEPTED THIS ___
DAY OF _____, 200_ BY:
ACADIA REALTY TRUST
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Name:
Title:
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