REPORT OF THE AUDIT COMMITTEE (1)
(1)
Notwithstanding anything to the contrary set forth in
any of the Companys previous or future filings under the Securities Act of
1933, as amended, or the Exchange Act, as amended, that might incorporate by
reference this Proxy Statement or future filings made by the Company under
those statutes, the Audit Committee Report is not deemed filed with the
Securities and Exchange Commission and shall not be deemed incorporated by
reference into any of those prior filings or into any future filings made by
the Company under those statutes. The Board of Trustees has previously adopted
an Audit Committee Charter that may be found on the Companys website at
www.acadiarealty.com
The Audit
Committee presently consists of the following members of the Companys Board of
Trustees: Mr. Kellar, Mr. Spitz, Ms. Hopgood and Ms. Luscombe, all of whom meet
the independence requirements for audit committee members under the listing
standards of the New York Stock Exchange.
The Audit Committee
has reviewed and discussed the audited financial statements of the Company for
the year ended December 31, 2009 with the Companys management. The Audit
Committee has discussed with BDO Seidman, LLP, the Companys independent
auditors, the matters required to be discussed by Statement on Auditing
Standards No. 61, as amended (Communication with Audit Committees), (AICPA,
Professional Standards, Vol. 1, AU section 380), as adopted by the Public
Company Accounting Oversight Board in Rule 3200T.
The Audit
Committee has received the written disclosures and the letter from BDO Seidman,
LLP required by applicable requirements of the Public Company Accounting
Oversight Board regarding the independent accountants communications with the
Audit Committee concerning independence and has discussed with BDO Seidman,
LLP, BDO Seidman, LLPs independence.
Based on the
Audit Committees review and discussions noted above, the Audit Committee
recommended to the Board of Trustees that the Companys audited financial
statements be included in the Companys Annual Report on Form 10-K for the
fiscal year ended December 31, 2009 for filing with the SEC.
Audit Committee
Lorrence T. Kellar, Chairman
Suzanne M. Hopgood
Wendy Luscombe
William T. Spitz
CERTAIN RELATIONSHIPS AND RELATED
TRANSACTIONS
The Company
earns fees in connection with its rights to provide asset management, leasing,
disposition, development and construction services for an existing portfolio of
retail properties and/or leasehold interests in which Klaff Realty L.P.
(Klaff), a restricted Common OP Unit holder, has an interest. Net fees earned
by the Company in connection with this portfolio were $0.4 million, $0.8
million and $2.1 million for the years ended December 31, 2009, 2008 and 2007,
respectively.
On March 22,
2005, the Company completed a transaction with Klaff pursuant to which the
Company acquired the balance of Klaffs retail management business which it had
not previously purchased on January 27, 2004. The consideration for the
acquisition was $4.0 million in the form of 250,000 restricted common OP Units
($16 per unit). Under the terms of the transaction, these OP Units could not be
sold for five years, subject to a carve-out for a change of control, including
a change in the chief executive officer. The effective date of the purchase and
issuance of the OP Units was February 15, 2005. On February 16, 2010, Klaff
converted all 250,000 restricted common OP Units into 250,000 Common Shares.
During March
of 2005 the Company invested $20.0 million in a preferred equity position
(Preferred Equity Investment) in Levitz SL, L.L.C. (Levitz SL), the owner
of fee and leasehold interests in 30 current or former Levitz Furniture Store
locations (the Levitz Properties), totaling 2.5 million square feet. Klaff is
the managing member of Levitz SL.
During June
2006, the Company converted the Preferred Equity Investment in Levitz SL to a
first mortgage loan and advanced additional proceeds bringing the total
outstanding amount to $31.3 million. Following the sale of three locations by
Levitz SL during 2006, 2007 and 2009, $29.0 million of proceeds were used to
repay the Companys first mortgage loan, and the remaining balance of $2.3
million remained outstanding at December 31, 2009. The first mortgage loan
matures in December 2011 and bears interest at a rate of 12.3%. Although the
loan is collateralized by two former Levitz locations, totaling 243,287 square
feet, which are currently vacant, the Company believes the underlying value of
the real estate is sufficient to recover the principal and interest due under
its mortgage loan.
The Company
earns fees from two of its investments in unconsolidated partnerships. The
Company earned property management, construction, legal and leasing fees from
the Brandywine Portfolio totaling $0.7 million, $1.1 million and $1.7 million
for the years ended December 31, 2009, 2008 and 2007, respectively. In
addition, the Company earned property management and development fees from
CityPoint totaling $1.0 million and $0.2 million for the years ended December
31, 2008 and 2007, respectively.
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Review and Approval of Related Person Transactions.
We review all
relationships and transactions in which the Company and the Companys Trustees
and Named Executive Officers or their immediate family members are participants
to determine whether such persons have a direct or indirect material interest.
The Companys legal staff is primarily responsible for the development and
implementation of processes and controls to obtain information from the
Trustees and Named Executive Officers with respect to related person
transactions and for then determining, based on the facts and circumstances,
whether the Company or a related person has a direct or indirect material
interest in the transaction. In addition, pursuant to its charter, the Audit
Committee reviews and approves all related party transactions, which we
interpret to include any transaction that is required to be disclosed under SEC
rules. The Company does not have any written standards for approving related
party transactions. However, the Audit Committee only approves a related party
transaction if it believes the transaction is in the best interest of the
Company and its shareholders. While the Company has disclosed the transactions
with Klaff in this section for the sake of full disclosure, since Klaff does
not own more than 5% of any class of the Companys voting securities,
disclosure of this related party transaction is not required under SEC rules.
The transactions between the Company and Klaff noted above were approved by the
Companys Board of Trustees, which consists of six Trustees who are considered
independent under the rules of the New York Stock Exchange and the Companys
Chief Executive Officer.
ANNUAL REPORT TO SHAREHOLDERS
A copy of the
Companys Annual Report to Shareholders is being provided to each shareholder
of the Company along with this Proxy Statement. Upon written request of any
record or beneficial owner of Common Shares of the Company whose proxy was solicited
in connection with the Annual Meeting, the Company will furnish such owner,
without charge, a copy of its Annual Report on Form 10-K for the year ended
December 31, 2009. A request for a copy of such Annual Report on Form 10-K
should be made in writing, addressed to Acadia Realty Trust, 1311 Mamaroneck
Avenue, Suite 260, White Plains, NY 10605, Attention: Robert Masters.
OTHER MATTERS
As of the date of this Proxy Statement, the
Board of Trustees does not know of any matters to be presented at the Annual
Meeting other than those specifically set forth in the Notice of Annual
Meeting. If other proper matters, however, should come before the Annual
Meeting or any adjournment thereof, the persons named in the enclosed proxy
intend to vote the shares represented by them in accordance with their best
judgment in respect to any such matters.
SECTION 16(a) BENEFICIAL OWNERSHIP REPORTING
COMPLIANCE
Section 16(a)
of the Exchange Act requires the Companys Named Executive Officers, certain
other officers and Trustees and persons who own more than ten percent of the
Common Shares (collectively, the Reporting Persons) to file reports of
ownership and changes in ownership with the Securities and Exchange Commission
and to furnish the Company with copies of these reports. As a practical matter,
the Company assists its officers and Trustees by monitoring transactions and
completing and filing Section 16 reports on their behalf. To the Companys
knowledge, based solely on a review of the copies of such reports furnished to
us or written representations that no other reports were required, during the
fiscal year ended December 31, 2009, all Section 16(a) filing requirements
applicable to the Companys officers, Trustees and greater than ten percent
beneficial owners were complied with.
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SUBMISSION OF SHAREHOLDER PROPOSALS
Pursuant to
Rule 14a-8 under the Exchange Act, some stockholder proposals may be eligible
for inclusion in the Companys 2011 proxy statement and form of proxy. In
accordance with Rule 14a-8, these proposals must be received by the Company no
later than 5:00 PM EST on December 10, 2010. All such proposals must be
submitted in writing to the Corporate Secretary of the Company at the following
address: Acadia Realty Trust, 1311 Mamaroneck Avenue, Suite 260, White Plains,
New York 10605, Attention: Corporate Secretary.
In addition,
if you desire to bring business (including Trustee nominations) before the
Companys 2011 annual meeting, other than proposals presented under Rule 14a-8,
you must provide written notice to the Corporate Secretary at the address noted
in the preceding paragraph between February 9, 2011 and March 11, 2011;
provided, however,
if the date of the 2011
annual meeting is advanced by more than 30 days or delayed by more than 60 days
from May 10, 2011 (the anniversary of the date of the Annual Meeting), notice
by a shareholder must be delivered not earlier than the 90th day prior to 2011
annual meeting and not later than the close of business on the later of the
60th day prior to the 2011 annual meeting or the tenth day following the day on
which public announcement of the date of 2011 annual meeting is first made. You
are also advised to review the Companys Bylaws, which contain additional
requirements about advance notice of stockholder proposals and Trustee
nominations.
DELIVERY OF DOCUMENTS TO SHAREHOLDERS SHARING
AN ADDRESS
The Company
has adopted a procedure called householding, which has been approved by the
Securities and Exchange Commission. Under this procedure, the Company is
delivering only one copy of its Annual Report and Proxy Statement to multiple
shareholders who share the same mailing address and have the same last name,
unless the Company has received contrary instructions from an affected
shareholder. This procedure reduces the Companys printing costs, mailing costs
and fees. Shareholders who participate in householding will continue to receive
separate proxy cards.
The Company
will deliver promptly, upon written or oral request, a separate copy of the
Annual Report and Proxy Statement to any shareholder at a shared address to
which a single copy of the Annual Report or the Proxy Statement was delivered.
A shareholder who wishes to receive a separate copy of the Proxy Statement and
Annual Report, now or in the future, should submit a request in writing to
Acadia Realty Trust, 1311 Mamaroneck Avenue, Suite 260, White Plains, NY 10605,
Attention: Robert Masters. You may also call (914) 288-8100 to request a copy
of the Proxy Statement and Annual Report. You may also access the Companys
Annual Report and Proxy statement at www.acadiarealty.com/proxy.
If you are a
shareholder of record and would like to revoke your householding consent and
receive multiple copies of the Annual Report or Proxy Statement in the future,
or if you currently receive multiple copies of these documents and would like
only to receive a single copy, please contact the Company at the address listed
in the preceding paragraph.
A number of
brokerage firms have instituted householding. If you hold your shares in
street name, please contact your bank, broker or other holder of record to
request information about householding.
By order of
the Board of Trustees,
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Robert
Masters, Secretary
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ACADIA REALTY TRUST
1311 MAMARONECK AVENUE
SUITE 260
WHITE PLAINS, NY 10605
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VOTE BY MAIL
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Mark, sign,
and date your proxy card and return it in the
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postage-paid
envelope we have provided or return it to Acadia
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Realty
Trust, c/o Broadridge Financial Solutions, Inc., 51
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Mercedes
Way, Edgewood, NY 11717.
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VOTE
BY MAIL
Mark, sign and date your proxy
card and return it in the postage-paid envelope we
have provided or return it to Acadia Realty Trust, c/o
Broadridge Financial Solutions, Inc.,
51 Mercedes Way, Edgewood, NY 11717.
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ACADIA REALTY TRUST 1
311 MAMARONECK AVENUE
SUITE 260
WHITE PLAINS, NY 10605
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TO
VOTE, MARK BLOCKS BELOW IN BLUE OR BLACK INK AS FOLLOWS:
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M23372-P89159
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KEEP
THIS PORTION FOR YOUR RECORDS
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DETACH
AND RETURN THIS PORTION ONLY
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THIS
PROXY CARD IS VALID ONLY WHEN SIGNED AND DATED.
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ACADIA
REALTY TRUST
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For
All
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Withhold
All
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For
All
Except
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To
withhold authority to vote for any individual
nominee(s), mark For All
Except and write the
number(s) of the nominee(s)
on the line below.
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THE
BOARD OF TRUSTEES RECOMMENDS THAT
YOU VOTE "FOR ALL" THE
NOMINEES AND
"FOR" PROPOSAL 2 LISTED
BELOW.
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Vote
On Trustees
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1.
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Election
of Trustees
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Nominees:
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01)
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Kenneth
F. Bernstein
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04)
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Wendy
Luscombe
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02)
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Douglas
Crocker II
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05)
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William
T. Spitz
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03)
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Lorrence
T. Kellar
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06)
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Lee S.
Wielansky
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Vote
On Proposal
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For
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Against
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Abstain
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2.
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THE
RATIFICATION OF THE APPOINTMENT OF BDO SEIDMAN, LLP AS THE INDEPENDENT
REGISTERED PUBLIC ACCOUNTING
FIRM FOR THE COMPANY FOR THE FISCAL
YEAR ENDING DECEMBER 31, 2010.
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3.
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TO TRANSACT
SUCH OTHER BUSINESS AS MAY PROPERLY COME BEFORE THE ANNUAL MEETING.
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For
address changes and/or comments, please check this box and
write them on the back where indicated.
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Please
sign exactly as name appears on the certificate or certificates
representing shares to be voted by
this proxy, as shown on the label above.
When signing as executor, administrator,
attorney, trustee, or guardian,
please give full title as such. If
a corporation, please sign full corporation
name by president or other authorized
officer. If a partnership, please sign
in partnership name by authorized
person(s).
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Signature [PLEASE SIGN
WITHIN BOX]
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Date
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Signature (Joint Owners)
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Date
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39
ACADIA REALTY TRUST
PROXY FOR ANNUAL MEETING OF SHAREHOLDERS
MAY
10, 2010
The
undersigned hereby constitutes and appoints Kenneth F. Bernstein and Robert
Masters, Esq., or either one of them, as proxies, with full power of substitution,
to vote all common shares of beneficial interest of Acadia Realty Trust (the "Company")
which the undersigned would be entitled to vote if personally present at
the Annual Meeting of Shareholders of the Company to be held at the Company's
corporate offices, which are located at 1311 Mamaroneck Avenue, Suite 260,
White Plains, New York 10605 at 10:00 a.m. local time, May 10, 2010 or at
any adjournments or postponements thereof.
This proxy will be voted as
specified by the undersigned. If no choice is specified, the proxy will
be voted according to the Board of Trustees recommendations indicated on
the reverse side, and according to the discretion of the proxy holders
for any other matters that may properly come before the meeting or any
postponement or adjournment thereof.
Important
Notice Regarding the Availability of Proxy Materials for the Annual Meeting
of
Shareholders to be held on May 10, 2010: This Proxy Statement and the Company's
2009 Annual
Report to shareholders are available at www.acadiarealty.com/proxy.
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Address Changes/Comments:
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(If you noted any Address Changes/Comments
above, please mark corresponding box on the reverse side.)
(Continued
and to be signed on reverse side.)
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