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
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Robert Masters, Senior Vice President
By: /S/ KENNETH F. BERNSTEIN
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Kenneth F. Bernstein, Executive