EXHIBIT 10.1


 





 


AMENDED AND RESTATED


 


EMPLOYMENT AGREEMENT



FOR



KENNETH BERNSTEIN


 




    	 



    	 



    

 


TABLE OF CONTENTS


 


 


 


	 	 	Page
	 	 	 
	1.	Employment	1
	 	 	 
	2.	Employment Period	1
	 	 	 
	3.	Services/Place of Employment	2
	 	 	 
	4.	Compensation and Benefits	2
	 	 	 
	5.	Termination of Employment and Change in Control	4
	 	 	 
	6.	Compensation Upon Termination of Employment By the Company for Cause or By Executive Without Good Reason	5
	 	 	 
	7.	Compensation Upon Termination of Employment Upon Death or Disability	6
	 	 	 
	8.	Compensation Upon Termination of Employment By the Company Without Cause or By Executive for Good Reason	7
	 	 	 
	9.	Change in Control	8
	 	 	 
	10.	Mitigation/Effect on Employee Benefit Plans and Programs	9
	 	 	 
	11.	Confidential Information	10
	 	 	 
	12.	Return of Documents	10
	 	 	 
	13.	Non-compete and Non-solicit	10
	 	 	 
	14.	Remedies	11
	 	 	 
	15.	Indemnification/Legal Fees	12
	 	 	 
	16.	Successors and Assigns	12
	 	 	 
	17.	Timing of and No Duplication of Payments	13
	 	 	 
	18.	Modification or Waiver	13
	 	 	 
	19.	Notices	13
	 	 	 
	20.	Governing Law	14
	 	 	 
	21.	Severability	14
	 	 	 
	22.	Legal Representation	14
	 	 	 
	23.	Counterparts	14
	 	 	 
	24.	Headings	14
	 	 	 
	25.	Entire Agreement	14
	 	 	 
	26.	Survival of Agreements	14
	 	 	 
	27.	Prior Agreements	14
	 	 	 
	28.	Section 409A.	15


 




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AMENDED AND RESTATED EMPLOYMENT AGREEMENT


 


THIS AMENDED AND RESTATED EMPLOYMENT
AGREEMENT (the “Agreement”) is entered into as of March 31, 2014 (the “Effective Date”), by and among
Kenneth Bernstein, an individual residing in the State of New York (“Executive”), and Acadia Realty Trust, a
Maryland real estate investment trust with offices at 1311 Mamaroneck Avenue, Suite 260, White Plains, New York 10605 (the
“Trust”), and Acadia Realty Limited Partnership, a Delaware limited partnership with offices at 1311 Mamaroneck
Avenue, White Plains, New York 10605 (the “Partnership” and together with the Trust, the
“Company”).


 


RECITALS


 


WHEREAS, the Trust and Executive are currently
parties to an Employment Agreement dated as of October 3, 1998, which was amended by a First Amendment dated as of January 1,
2001, a Second Amendment dated as of January 1, 2004, a Third Amendment dated as of January 1, 2006, a Fourth Amendment
dated January 19, 2007, a Fifth Amendment dated August 5, 2008, a Sixth Amendment dated March 7, 2011 and a Seventh
Amendment dated as of April 19, 2011 (the “Prior Agreement”).


 


WHEREAS, the Trust and Executive desire
to amend and restate the Prior Agreement in its entirety as set forth in this Agreement and to add the Partnership as a party to
the Agreement.


 


NOW, THEREFORE, in consideration of the
premises and the mutual covenants and agreements set forth herein, the parties hereby agree as follows:


 


1.            Employment.
The Company hereby agrees to continue to employ Executive, and Executive hereby agrees to accept such continued employment upon
the terms and conditions set forth in this Agreement.


 


2.            Employment
Period. 


 


(a)          Except
as otherwise provided in this Agreement to the contrary, the terms and conditions of this Agreement shall be and remain in effect
during the period of employment (the “Employment Period”) established under this Paragraph 2. The Employment Period
shall be for a minimum term of three (3) years commencing on the Effective Date and ending on the third anniversary thereof. Upon
the third anniversary of the Effective Date and each anniversary thereafter, the Employment Period shall automatically be renewed
and extended for an additional one-year period until either (i) terminated by the Company pursuant to a written notice given
to Executive in accordance with Paragraph 19 at least six (6) months prior to the effective date of such termination (the
“Six Month Notice of Non-Renewal”), or (ii) Executive’s employment otherwise terminates hereunder; it being
understood, however, that in no event shall any Six Month Notice of Non-Renewal be effective prior to the final day of the Employment
Period.


 


(b)          Notwithstanding
anything contained herein to the contrary, Executive’s employment with the Company may be terminated by the Company or Executive
during the Employment Period other than as provided in sub-paragraph 2(a) hereof, subject to the terms and conditions of this
Agreement.


 




    	 



    	 



    

 


3.            Services/Place
of Employment. 


 


(a)          Services.
During the Employment Period, Executive shall hold the positions of President and Chief Executive Officer of the Trust and also
serve as a member of the Board. Executive shall devote his reasonable best efforts and such business time, skill and attention
to the business of the Company (other than absences due to vacation, illness, disability or approved leave of absence) as in the
reasonable business judgment of Executive is necessary to perform such duties as are customarily performed by similar executive
officers and as may be more specifically enumerated from time to time by the Board or Compensation Committee of the Board (the
“Compensation Committee”); provided, however, that the foregoing is not intended to (x) preclude Executive from
(i) owning and managing personal investments, including real estate investments, subject to the restrictions set forth in
Paragraph 13 hereof or (ii) engaging in charitable activities and community affairs or (iii) serving on boards of directors
listed in Schedule A, or (y) restrict or otherwise limit Executive from conducting real estate development, acquisition or
management activities with respect to those properties described in Schedule A, attached hereto (the “Excluded Properties”),
provided that the performance of the activities referred to in the preceding clauses (x) and (y) does not, in the reasonable business
judgment of Executive, prevent Executive from devoting sufficient business time to the Company to carry out Executive’s duties
as President, Chief Executive Officer and member of the Board.


 


(b)          Place
of Employment. The principal place of employment of Executive shall be at the Company’s executive offices in White Plains,
New York.


 


4.            Compensation
and Benefits. 


 


(a)          Salary.
During the Employment Period, the Company shall pay Executive a minimum annual base salary in the amount of $568,500 (the “Annual
Base Salary”) payable in accordance with the Company’s regular payroll practices. Executive’s Annual Base Salary
shall be reviewed annually in accordance with the policy of the Company from time to time and may be subject to upward adjustment
based upon, among other things, Executive’s performance, as determined in the sole discretion of the Compensation Committee.
In no event shall Executive’s Annual Base Salary in effect at a particular time be reduced without his prior written consent.


 


(b)          Incentive
Compensation/Bonuses. Following the end of each calendar year during the Employment Period (each such calendar year being referred
to herein as an “Incentive Bonus Period”), Executive shall be considered for an incentive bonus (the “Incentive
Bonus”) based upon Executive’s performance and the financial and operating results of the Company for such Incentive
Bonus Period, which bonus shall be payable in such amount and at such time as the Compensation Committee shall recommend and the
full Board (excluding Executive) shall determine, it being understood, however, that the Compensation Committee and the Board shall
be guided by some of the following factors: (i) achieving stated goals of the Company; (ii) total return to shareholders; (iii)
achieving FFO goals; and (iv) other similar measures of Executive’s performance. The Incentive Bonus may include both cash,
restricted shares or units of partnership interest (“LTIP Units”) in the Partnership, and options to purchase common
shares of beneficial interest, $0.001 par value of the Trust (“Common Shares”), as the Compensation Committee shall
recommend and the full Board (excluding Executive) shall approve, in their sole discretion. Any such options shall be issued at
the fair market value of the Common Shares and on other such terms as the Compensation Committee shall determine. The Incentive
Bonus shall be paid no later than March 15 of the calendar year following the end of each calendar year during the Employment Period.


 




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(c)          Taxes
and Withholding. The Company shall have the right to deduct and withhold from all compensation all social security and other
federal, state and local taxes and charges which currently are or which hereafter may be required by law to be so deducted and
withheld.


 


(d)          Additional
Benefits. In addition to the compensation specified above and other benefits provided pursuant to this Paragraph 4, Executive
shall be entitled to the following benefits:


 


(i)          participation
in the Trust’s Share Incentive Plans, the 401(k) Savings and Retirement Plan (subject to statutory rules and maximum contributions
and non-discrimination requirements applicable to 401(k) plans) and such other benefit plans and programs, including but not limited
to restricted stock, phantom stock and/or unit awards and any other incentive compensation plans or programs (whether or not employee
benefit plans or programs), as maintained by the Company from time to time and made generally available to executives of the Company
with such participation to be consistent with reasonable Company’s guidelines;


 


(ii)         participation
in any health insurance, disability insurance, paid vacation, group life insurance or other welfare benefit program made generally
available to executives of the Company; and


 


(iii)        reimbursement
for reasonable business expenses incurred by Executive in furtherance of the interests of the Company. In no event shall any required
reimbursement be paid to Executive later than the end of the calendar year following the year in which the expense was incurred.


 


(iv)        As
further consideration for Executive agreeing to continue his employment and entering into this Agreement upon the terms set forth
herein, including, without limitation, the terms relating to non-competition and non-solicitation set forth in Paragraph 13
below, subject to approval of the Compensation Committee, the Company will issue to Executive an award of full value shares (either
restricted stock or LTIP Units) with an aggregate fair value of $3,000,000 at the time of grant (the “Equity Award”)
based on the fair market value of the Common Shares at the time of grant. The Equity Award shall be evidenced by an award agreement
which shall include, without limitation, the following provision: vesting in equal installments over a five (5)-year period on
each of the first, second, third, fourth and fifth anniversaries of the grant date, subject to the continued employment of Executive
with the Company.


 


In no event shall any required reimbursement
be paid to Executive later than the end of the calendar year following the year in which the expense was incurred.


 




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5.            Termination
of Employment and Change in Control. 


 


(a)          Executive’s
employment hereunder may be terminated during the Employment Period under the following circumstances:


 


(i)          Cause.
The Company shall have the right to terminate Executive’s employment for Cause. “Cause” means Executive has:
(A) deliberately made a misrepresentation in connection with, or willfully failed 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 willfully destroyed or failed to preserve documents or other materials known to be relevant to such investigation or the willfully
induced others to fail to cooperate or to produce documents or other materials; (B) failed 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 Company specifically identifying
the manner in which the Company believes Executive has not performed his duties; (C) engaged in conduct 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 property for personal purposes; (D)
materially violated a policy of the Company, including but not limited to a policy set forth in the Company Employee Handbook;
(E) disparaged the Company, its officers, trustees, employees or partners; (F) solicited any existing employee of the Company above
the level of an administrative assistant to work at another company; or (G) committed a felony or misdemeanor involving moral turpitude,
deceit, dishonesty or fraud.


 


(ii)         Death.
Executive’s employment hereunder shall terminate upon his death.


 


(iii)        Disability.
The Company shall have the right to terminate Executive’s employment due to “Disability” in the event that there
is a determination by the Company, upon the advice of an independent qualified physician, reasonably acceptable to Executive, that
Executive has become physically or mentally incapable of performing his duties under this Agreement and such disability has disabled
Executive for a cumulative period of one hundred eighty (180) days within a twelve (12) month period.


 


(iv)        Good
Reason. Executive shall have the right to terminate employment for “Good Reason” upon the satisfaction of the following
requirements: (i) notifying the Company of Good Reason within ninety (90) days of the initial existence of the Good Reason, (ii)
providing the Company with at least thirty (30) days to correct such Good Reason, and (iii) upon the Company’s failure to
take such corrective action within the thirty (30)-day period, giving the Company a Notice of Termination for Good Reason within
sixty (60) days thereafter, with such Good Reason termination to be effective immediately upon delivery of the same to the Company.
For purposes of this Agreement, “Good Reason” means any of the following without Executive’s written consent:
(A) a material, adverse reduction in Executive’s duties, responsibilities or authority; (B) a ten percent or more reduction
in Executive’s total compensation opportunity; (C) a material relocation of Executive’s office requiring Executive
to increase his commuting time by more than one (1) hour; (D) a material breach of this Agreement that results from the Company’s
failure to provide benefits comparable to those provided Executive on the Effective Date, other than any such failure which affects
all comparable situated officers; or (E) any other material breach of this Agreement by the Company.


 




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(v)         Without
Cause. The Company shall have the right to terminate Executive’s employment hereunder without Cause subject to the terms
and conditions of this Agreement.


 


(vi)        Without
Good Reason. Executive shall have the right to terminate his employment hereunder without Good Reason subject to the terms
and conditions of this Agreement.


 


(vii)       Change
in Control. Executive shall have the right to terminate his employment hereunder on or within twelve (12) months following
a Change in Control for Good Reason. For purposes of this Agreement, “Change in Control” shall have the same meaning
as set forth in the Trust’s Amended and Restated 2006 Share Incentive Plan.


 


(b)          Notice
of Termination. Any termination of Executive’s employment by the Company or any such termination by Executive (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 Executive’s employment under the provision so indicated. In the event of the termination of Executive’s
employment on account of death, written Notice of Termination shall be deemed to have been provided on the date of death.


 


6.            Compensation
Upon Termination of Employment By the Company for Cause or By Executive Without Good Reason. In the event the Company terminates
Executive’s employment for Cause or Executive terminates his employment without Good Reason, the Company shall pay Executive
any unpaid Annual Base Salary at the rate then in effect accrued through and including the date of termination and accrued vacation
(“Accrued Benefits”). In addition, in such event, Executive 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.


 


Except for any rights which Executive may
have to Accrued Benefits through and including the date of termination, vested options and vested equity awards, the Company shall
have no further obligations hereunder following such termination. The Accrued Benefits shall be payable in full immediately upon
such termination.


 




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7.            Compensation
Upon Termination of Employment Upon Death or Disability. In the event of termination of Executive’s employment as a
result of either Executive’s death or Disability, the Company shall pay to Executive, his estate or his personal representative
the following:


 


(i)          any
Accrued Benefits through and including the date of termination; plus


 


(ii)         an
amount equal to three (3) times Executive’s Annual Base Salary at the rate then in effect; plus


 


(iii)        an
additional amount computed at an annualized rate equal to the average of the cash Incentive Bonuses awarded to Executive for each
of the last two (2) calendar years immediately preceding the year in which Executive’s employment is terminated, pro-rated
for the period beginning on the first day of the calendar year in which Executive is terminated and ending on the date of termination
(“Unpaid Accrued Bonus”); plus


 


(iv)        a
further amount equal to three (3) times the average of the total cash value of the bonuses (whether awarded as cash Incentive Bonuses
or in restricted stock, the latter to be calculated as of the date of the award) awarded to the Executive for each of the last
two (2) calendar years immediately preceding the year in which the Executive’s employment is terminated; plus


 


(v)         reimbursement
of expenses incurred prior to date of termination (“Expense Reimbursement”). In no event shall any reimbursement be
paid to Executive later than the end of the calendar year following the calendar year in which the expense was incurred.


 


Subject to any delay in payment required by Section 28 of this
Agreement and in the event of termination of employment due to Disability, subject to Executive signing a separation agreement
containing a general release of claims and non-disparagement provisions in favor of the Company and related persons and entities
in a form and manner satisfactory to the Company (the “Release”) and the Release becoming irrevocable, all within thirty
(30) days of the date of termination, the aforesaid amounts shall be payable in cash as a lump-sum payment within thirty (30) days
of termination of Executive’s employment for reasons described in this Section 7, provided that if the thirty (30) day period
begins in one calendar year and ends in a second calendar year, the payment shall be made in the second calendar year, but in no
event later than March 15 of the second calendar year. In the event of termination of employment due to Disability, Executive shall
also receive continuation of health coverage for two (2) years following the date of termination on the same basis as health coverage
is provided by the Company for active employees and as may be amended from time to time (“Medical Continuation”).


 




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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 and LTIP Units granted to Executive (“Incentive Compensation”) shall immediately
vest as of the date of such termination (“Vested Incentive Compensation”) and (B) options granted to Executive
shall immediately vest as of the date of such termination (the “Vested Options”) and Executive shall be entitled at
the option of Executive, his estate or his personal representative, within one (1) year of the date of such termination (but not
later than the date on which each such option term would have expired in the absence of such termination of employment), to exercise
any options which have vested (including, without limitation, by acceleration in accordance with the terms of this Agreement, the
applicable option grant agreement or plan) and are exercisable in accordance with the terms of the applicable option grant agreement
or plan and/or any other methods or procedures for exercise applicable to optionees. In the event of a conflict between any option
grant agreement or plan and this Agreement, the terms of this Agreement shall control.


 


Except for any rights which Executive may
have to all of the above including Accrued Benefits and Unpaid Accrued Bonus, Severance Salary, Vested Incentive Compensation,
Vested Options, Expense Reimbursement, and in the event of a termination of employment due to Disability, Medical Continuation,
the Company shall have no further obligations hereunder following such termination.


 


8.            Compensation
Upon Termination of Employment By the Company Without Cause or By Executive for Good Reason. In the event the Company terminates
Executive’s employment for any reason other than Cause (including termination pursuant to a Six Month Notice of Non-Renewal
given and made effective in accordance with sub-paragraph 2(a) hereof), or Executive terminates his employment for Good Reason,
subject to Executive signing the Release and the Release becoming irrevocable, all within thirty (30) days of the date of termination,
the Company shall pay to Executive and Executive shall be entitled to receive the sum total of (A) Accrued Benefits and Unpaid
Accrued Bonus, (B) an amount equal to three (3) times Executive’s Annual Base Salary at the rate then in effect, and
(C) an amount equal to three (3) times the average of the total cash value of the bonuses (whether awarded as cash Incentive Bonuses
or in restricted stock, the latter to be calculated as of the date of the award) awarded to Executive for each of the last two
(2) calendar years immediately preceding the year in which Executive’s employment is terminated. Subject to any delay in
payment required by Section 28 of this Agreement, the aforesaid amounts shall be payable in cash as a lump-sum payment within
thirty (30) days of termination of Executive’s employment for reasons described in this Section 8, provided that if the
thirty (30) day period begins in one calendar year and ends in a second calendar year, the payment shall be made in the second
calendar year but in no event later than March 15 of the second calendar year.


 


In addition, Executive shall receive Medical
Continuation for two (2) years following the date of termination. Executive shall also be entitled to receive Vested Incentive
Compensation, Vested Options exercisable pursuant to the Vested Option Exercise Election and Expense Reimbursement. Executive understands
that any options exercised more than ninety (90) days following the date of his termination of employment which were granted as
incentive stock options shall automatically be converted into non-qualified options.


 




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Except as provided above, the Company shall
have no further obligations hereunder following such termination. The parties both agree that the agreement to make these payments
was consideration and an inducement to obtain Executive’s consent to enter into this Agreement. The payments are not a penalty
and neither party will claim them to be a penalty. Rather, the payments represent a fair approximation of reasonable amounts due
to Executive for the Employment Period.


 


9.            Change
in Control. 


 


(a)          Options
and Incentive Compensation. Any Incentive Compensation and options granted to Executive that have not vested as of the date
of a Change in Control shall immediately vest upon the date of the Change in Control. Neither the occurrence of a Change in Control,
nor the vesting in any options as a result thereof shall require Executive to exercise any options. In the event of a conflict
between any Incentive Compensation grant agreement or program or any option grant agreement or plan and this Agreement, the terms
of this Agreement shall control.


 


(b)          Upon
Termination. In the event Executive terminates his employment on or within twelve (12) months following a Change in Control
for Good Reason or the Company terminates his employment without Cause, the Company shall pay to Executive, and Executive shall
be entitled to, all the payments and rights Executive would have had if Executive had terminated his employment with Good Reason
as set forth in Paragraph 8, subject to Executive signing the Release and the Release becoming irrevocable, all within thirty
(30) days of the date of termination.


 


(c)          Additional
Limitation.


 


(i)          Anything
in this Agreement to the contrary notwithstanding, in the event that the amount of any compensation, payment or distribution by
the Company to or for the benefit of Executive, whether paid or payable or distributed or distributable pursuant to the terms of
this Agreement or otherwise, calculated in a manner consistent with Section 280G of the Internal Revenue Code of 1986, as amended
(the “Code”) and the applicable regulations thereunder (the “Severance Payments”), would be subject to
the excise tax imposed by Section 4999 of the Code, the following provisions shall apply:


 


(A)         If
the Severance Payments, reduced by the sum of (1) the Excise Tax and (2) the total of the federal, state, and local income and
employment taxes payable by Executive on the amount of the Severance Payments which are in excess of the Threshold Amount, are
greater than or equal to the Threshold Amount, Executive shall be entitled to the full benefits payable under this Agreement.


 


(B)         If
the Threshold Amount is less than (x) the Severance Payments, but greater than (y) the Severance Payments reduced by the sum of
(1) the Excise Tax and (2) the total of the federal, state, and local income and employment taxes on the amount of the Severance
Payments which are in excess of the Threshold Amount, then the Severance Payments shall be reduced (but not below zero) to the
extent necessary so that the sum of all Severance Payments shall not exceed the Threshold Amount. In such event, the Severance
Payments shall be reduced in the following order: (1) cash payments not subject to Section 409A of the Code; (2) cash payments
subject to Section 409A of the Code; (3) equity-based payments and acceleration; and (4) non-cash forms of benefits. To the extent
any payment is to be made over time (e.g., in installments, etc.), then the payments shall be reduced in reverse chronological
order.


 




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(ii)         For
the purposes of this Section 9(c), “Threshold Amount” shall mean three (3) times Executive’s “base amount”
within the meaning of Section 280G(b)(3) of the Code and the regulations promulgated thereunder less one dollar ($1.00); and “Excise
Tax” shall mean the excise tax imposed by Section 4999 of the Code, and any interest or penalties incurred by Executive with
respect to such excise tax.


 


The determination as to which of the alternative provisions
of Section 9(c)(i) shall apply to Executive shall be made by a nationally recognized accounting firm selected by the Company (the
“Accounting Firm”), which shall provide detailed supporting calculations both to the Company and Executive within fifteen
(15) business days of the Date of Termination, if applicable, or at such earlier time as is reasonably requested by the Company
or Executive. For purposes of determining which of the alternative provisions of Section 9(c)(i) shall apply, Executive shall be
deemed to pay federal income taxes at the highest marginal rate of federal income taxation applicable to individuals for the calendar
year in which the determination is to be made, and state and local income taxes at the highest marginal rates of individual taxation
in the state and locality of Executive’s residence on the date of termination, net of the maximum reduction in federal income
taxes which could be obtained from deduction of such state and local taxes. Any determination by the Accounting Firm shall be binding
upon Company and Executive.


 


10.          Mitigation/Effect
on Employee Benefit Plans and Programs. 


 


(a)          Mitigation.
Executive shall not be required to mitigate amounts payable under this Agreement by seeking other employment or otherwise, and
there shall be no offset against amounts due Executive under this Agreement on account of subsequent employment. Amounts owed to
Executive under this Agreement shall not be offset by any claims the Company may have against Executive and such payment shall
not be affected by any other circumstances, including, without limitation, any counterclaim, recoupment, defense, or other right
which the Company may have against Executive or others.


 


(b)          Effect
on Employee Benefit Programs. The termination of Executive’s employment hereunder, whether by the Company or Executive,
shall have no effect on the rights and obligations of the parties hereto under the Company’s (i) welfare benefit plans
including, without limitation, Medical Continuation as provided for herein and health coverage thereafter but only to the extent
required by law, and on the same basis applicable to other employees and (ii) 401(k) Plan but only to the extent required
by law and pursuant to the terms of the 401(k) Plan.


 




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11.          Confidential
Information. 


 


(a)          Executive
understands and acknowledges that during his employment with the Company, he will be exposed to Confidential Information (as defined
below), all of which is proprietary and which will rightfully belong to the Company. Executive shall hold in a fiduciary capacity
for the benefit of the Company such Confidential Information obtained by Executive during his employment with the Company and shall
not, directly or indirectly, at any time, either during or after his employment with the Company, without the Company’s prior
written consent, use any of such Confidential Information or disclose any of such Confidential Information to any individual or
entity other than the Company or its employees, attorneys, accountants, financial advisors, consultants, or investment bankers
except as required in the performance of his duties for the Company or as otherwise required by law. Executive shall take all reasonable
steps to safeguard such Confidential Information and to protect such Confidential Information against disclosure, misuse, loss
or theft.


 


(b)          The
term “Confidential Information” shall mean any information not generally known in the relevant trade or industry or
otherwise not generally available to the public, which was obtained from the Company or its predecessors or which was learned,
discovered, developed, conceived, originated or prepared during or as a result of the performance of any services by Executive
on behalf of the Company or its predecessors. For purposes of this Paragraph 11, the Company shall be deemed to include any
entity which is controlled, directly or indirectly, by either the Trust or the Partnership and any entity of which a majority of
the economic interest is owned, directly or indirectly, by either the Trust or the Partnership.


 


12.          Return
of Documents. Except for such items, which are of a personal nature to Executive (e.g., daily business planner), all writings,
records, and other documents and things containing any Confidential Information shall be the exclusive property of the Company,
shall not be copied, summarized, extracted from, or removed from the premises of the Company, except in pursuit of the business
of the Company and at the direction of the Company, and shall be delivered to the Company, without retaining any copies, upon
the termination of Executive’s employment or at any time as requested by the Company.


 


13.          Non-compete
and Non-solicit. 


 


(a)          Executive
agrees that without the prior written consent of a majority of the disinterested trustees of the Trust, obtained in accordance
with the terms and procedures of the Declaration of Trust and Bylaws of the Trust and the Agreement of Limited Partnership of the
Partnership and in accordance with applicable law, and except as provided in sub-paragraph 13(b), Executive shall not at any
time during the Noncompetition Period (as hereinafter defined) engage in any way, directly or indirectly, in the Competitive Real
Estate Business (as hereinafter defined), except in his capacity as an employee, trustee or director, officer or shareholder of
the Trust or the Partnership. For purposes of this Paragraph 13, the term Competitive Real Estate Business shall mean the
acquisition and ownership of shopping centers located in high barrier to entry, supply constrained markets and urban street retail
investments in the first tier cities in the Eastern United States including Chicago. The “Noncompetition Period” shall
be the period commencing on the Effective Date and ending on the date of Executive’s termination of employment with the Company;
provided, however, in the event Executive terminates his employment without Good Reason prior to a Change of Control, the Noncompetition
Period shall end on the date that is 15 months following the date of Executive’s termination of employment.


 




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(b)          Nothing
contained in this Paragraph 13 shall preclude Executive from:


 


(i)          acquiring,
whether by gift or otherwise, any property in the Competitive Real Estate Business or any interest therein from another member
of Executive’s family or from any entity controlled thereby, provided, that if the acquisition of such property or interest
would violate the foregoing limitations of this Paragraph 13, Executive shall offer to sell such property or interest to the
Company at its fair market value (to be mutually agreed upon by the Company, as approved by the disinterested trustees, and Executive);
or


 


(ii)         engaging
in business activities in the Competitive Real Estate Business, or otherwise, of a passive nature (i.e., with no participation
in a capacity as a general partner, or as a control person of a general partner, or the functional equivalent thereof); or


 


(iii)        continuing
to engage in those activities in which Executive currently is engaged with respect to the assets described in Schedule A attached
hereto.


 


(c)          Executive
agrees that without the prior written consent of a majority of the disinterested trustees of the Trust, obtained in accordance
with the terms and procedures of the Declaration of Trust and Bylaws of the Trust and Agreement of Limited Partnership of the Partnership
and in accordance with applicable law, Executive shall not at any time during the Nonsolicitation Period (as hereinafter defined)
(i) interfere with, disrupt, or attempt to disrupt, the relationship, contractual or otherwise, between the Company and its affiliates
and any tenant, supplier or contractor or (ii) employ, recruit or otherwise solicit, induce or influence any person to leave the
employment of the Company and its affiliates, either for himself, or for any other entity. The “Nonsolicitation Period”
shall be the period commencing on the Effective Date and ending on the date of Executive’s termination of employment with
the Company; provided, however, in the event Executive terminates his employment without Good Reason or is terminated by the Company
with Cause, the Nonsolicitation Period shall end on the date that is 15 months following the date of Executive’s termination
of employment.


 


14.          Remedies. 


 


(a)          The
parties hereto agree that the Company would suffer irreparable harm from a breach by Executive of any of the covenants or agreements
contained in Paragraph 11, 12 or 13 of this Agreement. Therefore, in the event of the actual or threatened breach by Executive
of any of the provisions of Paragraph 11, 12 or 13 of this Agreement, the Company may, in addition and supplementary to other
rights and remedies existing in its favor, apply to any court of law or equity of competent jurisdiction for specific performance
and/or injunctive or other relief in order to enforce or prevent any violation of the provisions thereof.


 


(b)          If
the period of time, the area specified or the scope of activity restricted in Paragraph 13 above should be adjudged unreasonable
in any proceeding, then the period of time shall be reduced by such number of months or the area shall be reduced by the elimination
of such portion thereof or the scope of restricted activity shall be modified, or any or all of the foregoing so that such restrictions
may be enforced in such area and for such time as is adjudged to be reasonable.


 




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15.          Indemnification/Legal
Fees. 


 


(a)          Indemnification.
In the event Executive is made party or threatened to be made a party to any action, suit or proceeding, whether civil, criminal,
administrative or investigative (a “Proceeding”), by reason of Executive’s employment with or serving as an officer
or trustee of the Company, whether or not the basis of such Proceeding is alleged action in an official capacity, the Company shall
indemnify, hold harmless and defend Executive to the fullest extent authorized by Maryland law, as the same exists and may hereafter
be amended, against any and all claims, demands, suits, judgments, assessments and settlements including all expenses incurred
or suffered by Executive in connection therewith (including, without limitation, all legal fees incurred using counsel reasonably
acceptable to Executive) and such indemnification shall continue as to Executive even after Executive is no longer employed by
the Company and shall inure to the benefit of his heirs, executors, and administrators. Expenses incurred by Executive in connection
with any Proceeding shall be paid by the Company in advance upon request of Executive that the Company pay such expenses; but only
in the event that Executive shall have delivered in writing to the Company an undertaking to reimburse the Company for expenses
with respect to which Executive is not entitled to indemnification. The provisions of this Paragraph shall remain in effect after
this Agreement is terminated irrespective of the reasons for termination. The indemnification provisions of this Paragraph shall
not supersede or reduce any indemnification provided to Executive under any separate agreement, or the by-laws of the Trust since
it is intended that this Agreement shall expand and extend Executive’s rights to receive indemnity.


 


(b)          Legal
Fees. If any contest or dispute shall arise between the Company and Executive regarding or as a result of any provision of
this Agreement, the Company shall reimburse Executive for all legal fees and expenses reasonably incurred by Executive in connection
with such contest or dispute, but only if Executive is successful in respect of substantially all of Executive’s claims pursued
or defended in connection with such contest or dispute. Such reimbursement shall be made as soon as practicable following the resolution
of such contest or dispute (whether or not appealed).


 


16.          Successors
and Assigns. 


 


(a)          The
Company shall require any successor (whether direct or indirect, by purchase, merger, consolidation or otherwise) to all or substantially
all of the business and/or assets of the Company, by agreement in form and substance satisfactory to Executive, to expressly assume
and agree to perform this Agreement in the same manner and to the same extent that the Company would be required to perform it
if no such succession had taken place. Failure of the Company to obtain any such agreement prior to the effectiveness of any such
succession shall be a breach of this Agreement and shall entitle Executive to compensation from the Company in the same amount
and on the same terms as he would be entitled to hereunder if Executive terminated his employment hereunder within twelve (12)
months of a Change in Control as set forth in Paragraph 9, except that for purposes of implementing the foregoing, the date
on which any such succession becomes effective shall be deemed the date of termination. In the event of such a breach of this Agreement,
the Notice of Termination shall specify such date as the date of termination. As used in this Agreement, “Company”
shall mean the Trust and the Partnership as hereinbefore defined and any successor to all or substantially all of their business
and/or their assets as aforesaid which executes and delivers the agreement provided for in this Paragraph 16 or which otherwise
becomes bound by all the terms and provisions of this Agreement by operation of law. Any cash payments owed to Executive pursuant
to this Paragraph 16 shall be paid to Executive in a single sum without discount for early payment immediately prior to the
consummation of the transaction with such successor. Nothing in this Paragraph 16(a) shall be construed to interfere with
the Company’s right to implement or pursue such succession.


 




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(b)          This
Agreement and all rights of Executive hereunder may be transferred only by will or the laws of descent and distribution. Upon Executive’s
death, this Agreement and all rights of Executive hereunder shall inure to the benefit of and be enforceable by Executive’s
beneficiary or beneficiaries, personal or legal representatives, or estate, to the extent any such person succeeds to Executive’s
interests under this Agreement. Executive shall be entitled to select and change a beneficiary or beneficiaries to receive any
benefit or compensation payable hereunder following Executive’s death by giving the Company written notice thereof. If Executive
should die following the date of termination while any amounts would still be payable to him hereunder if he had continued to live,
all such amounts, unless otherwise provided herein, shall be paid in accordance with the terms of this Agreement to such person
or persons so appointed in writing by Executive, including, without limitation, under any applicable plan, or otherwise to his
legal representatives or estate.


 


17.          Timing
of and No Duplication of Payments. All payments payable to Executive pursuant to this Agreement shall be paid as soon as practicable
after such amounts have become fully vested and determinable. In addition, Executive shall not be entitled to receive duplicate
payments under any of the provisions of this Agreement.


 


18.          Modification
or Waiver. No amendment, modification, waiver, termination or cancellation of this Agreement shall be binding or effective
for any purpose unless it is made in a writing signed by the party against whom enforcement of such amendment, modification, waiver,
termination or cancellation is sought. No course of dealing between or among the parties to this Agreement shall be deemed to
affect or to modify, amend or discharge any provision or term of this Agreement. No delay on the part of the Company or Executive
in the exercise of any of their respective rights or remedies shall operate as a waiver thereof, and no single or partial exercise
by the Company or Executive of any such right or remedy shall preclude other or further exercise thereof. A waiver of right or
remedy on any one occasion shall not be construed as a bar to or waiver of any such right or remedy on any other occasion.


 


The respective rights and obligations of
the parties hereunder shall survive Executive’s termination of employment and termination of this Agreement to the extent
necessary for the intended preservation of such rights and obligations.


 


19.          Notices.
All notices or other communications required or permitted hereunder shall be made in writing and shall be deemed to have been
duly given if delivered by hand or delivered by a recognized delivery service or mailed, postage prepaid, by express, certified
or registered mail, return receipt requested, and addressed to the Company at the address set forth above or Executive at his
address as set forth in the Company’s records (or to such other address as shall have been previously provided in accordance
with this Paragraph 19).


 




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20.         Governing
Law. This agreement will be governed by and construed in accordance with the laws of the State of New York except as to Paragraph 15(a),
without regard to principles of conflicts of laws thereunder.


 


21.         Severability.
Whenever possible, each provision and term of this Agreement shall be interpreted in such manner as to be effective and valid
under applicable law, but if any provision or term of this Agreement shall be held to be prohibited by or invalid under such applicable
law, then, subject to the provisions of sub-paragraph 13(b) above, such provision or term shall be ineffective only to the
extent of such prohibition or invalidity, without invalidating or affecting in any manner whatsoever the remainder of such provisions
or term or the remaining provisions or terms of this Agreement.


 


22.         Legal
Representation. Each of the Trust, Partnership and Executive have been represented by counsel with respect to this Agreement.


 


23.         Counterparts.
This Agreement may be executed in separate counterparts, each of which is deemed to be an original and both of which taken together
shall constitute one and the same agreement.


 


24.         Headings.
The headings of the Paragraphs of this Agreement are inserted for convenience only and shall not be deemed to constitute a part
hereof and shall not affect the construction or interpretation of this Agreement.


 


25.         Entire
Agreement. This Agreement constitutes the entire agreement of the parties with respect to the subject matter hereof and supersedes
all other prior agreements and undertakings, both written and oral, among the parties with respect to the subject matter hereof.


 


26.         Survival
of Agreements. The covenants made in Paragraphs 5 through 15 and 21 each shall survive the termination of this Agreement.


 


27.         Prior
Agreements. Executive represents to the Company that (a) there are no restrictions, agreements or understandings whatsoever
to which Executive is a party which would prevent or make unlawful his execution of this Agreement, and (b) his execution
of this Agreement shall not constitute a breach of any contract, agreement or understanding, oral or written, to which he is a
party or by which he is bound.


 




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28.          Section
409A.


 


(a)          Anything
in this Agreement to the contrary notwithstanding, if at the time of Executive’s separation from service within the meaning
of Section 409A of the Code, the Company determines that Executive is a “specified employee” within the meaning of
Section 409A(a)(2)(B)(i) of the Code, then to the extent any payment or benefit that Executive becomes entitled to under this Agreement
on account of Executive’s separation from service would be considered deferred compensation otherwise subject to the twenty
percent (20%) additional tax imposed pursuant to Section 409A(a) of the Code as a result of the application of Section 409A(a)(2)(B)(i)
of the Code, such payment shall not be payable and such benefit shall not be provided until the date that is the earlier of (A)
six (6) months and one day after Executive’s separation from service, or (B) Executive’s death. If any such delayed
cash payment is otherwise payable on an installment basis, the first payment shall include a catch-up payment covering amounts
that would otherwise have been paid during the six (6)-month period but for the application of this provision, and the balance
of the installments shall be payable in accordance with their original schedule.


 


(b)          All
in-kind benefits provided and expenses eligible for reimbursement under this Agreement shall be provided by the Company or incurred
by Executive during the time periods set forth in this Agreement. All reimbursements shall be paid as soon as administratively
practicable, but in no event shall any reimbursement be paid after the last day of the taxable year following the taxable year
in which the expense was incurred. The amount of in-kind benefits provided or reimbursable expenses incurred in one taxable year
shall not affect the in-kind benefits to be provided or the expenses eligible for reimbursement in any other taxable year (except
for any lifetime or other aggregate limitation applicable to medical expenses). Such right to reimbursement or in-kind benefits
is not subject to liquidation or exchange for another benefit.


 


(c)          To
the extent that any payment or benefit described in this Agreement constitutes “non-qualified deferred compensation”
under Section 409A of the Code, and to the extent that such payment or benefit is payable upon Executive’s termination of
employment, then such payments or benefits shall be payable only upon Executive’s “separation from service.”
The determination of whether and when a separation from service has occurred shall be made in accordance with the presumptions
set forth in Treasury Regulation Section 1.409A-1(h).


 


(d)          The
parties intend that this Agreement will be administered in accordance with Section 409A of the Code. To the extent that any provision
of this Agreement is ambiguous as to its compliance with Section 409A of the Code, the provision shall be read in such a manner
so that all payments hereunder comply with Section 409A of the Code. Each payment pursuant to this Agreement is intended to constitute
a separate payment for purposes of Treasury Regulation Section 1.409A-2(b)(2). The parties agree that this Agreement may be amended,
as reasonably requested by either party, and as may be necessary to fully comply with Section 409A of the Code and all related
rules and regulations in order to preserve the payments and benefits provided hereunder without additional cost to either party.


 


(e)          The
Company makes no representation or warranty and shall have no liability to Executive or any other person if any provisions of this
Agreement are determined to constitute deferred compensation subject to Section 409A of the Code but do not satisfy an exemption
from, or the conditions of, such Section.


 




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IN WITNESS WHEREOF, the undersigned have
executed this Agreement as of the date first above written.


 


	 	ACADIA REALTY TRUST
	 	 	 
	 	By:	/s/ Robert Masters
	 	 	Name:  Robert Masters
	 	 	Title:    Senior Vice President
	 	 	 
	 	ACADIA REALTY LIMITED PARTNERSHIP
	 	 	 
	 	By:	ACADIA REALTY TRUST,
	 	 	its General Partner
	 	 	 
	 	By:	/s/ Robert Masters
	 	 	Name:  Robert Masters
	 	 	Title:  Senior Vice President
	 	 	 
	 	 	/s/ Kenneth Bernstein
	 	 	Kenneth Bernstein


 




    	 



    	 



    

 


SCHEDULE A


 


Board Positions:


 


BRT Realty Trust


 


Golub Capital BDC


 


Properties in which Executive has an interest as of the date
of this Agreement:


 


None