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 Xxxxxx Xxxxxxx ("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/ XXXXXXX X. XXXXXXXXX
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Xxxxxxx X. Xxxxxxxxx, President
By: /S/ XXXXXX XXXXXXX
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Xxxxxx Xxxxxxx, Senior Officer
