acpt10kamend_123107.htm
UNITED
STATES
SECURITIES
AND EXCHANGE COMMISSION
Washington,
D.C. 20549
FORM
10-K/A
(Amendment
No. 1)
(Mark
One)
|
/X/
|
ANNUAL
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
FOR
THE FISCAL YEAR ENDED DECEMBER 31, 2007
OR
|
|
/ /
|
TRANSITION
REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF
1934
FOR
THE TRANSITION PERIOD FROM _______________ TO
_________________
|
Commission
file number 1-14369
AMERICAN
COMMUNITY PROPERTIES TRUST
(Exact
name of registrant as specified in its charter)
|
MARYLAND
(State
or other jurisdiction of incorporation or organization)
|
52-2058165
(I.R.S.
Employer Identification No.)
|
222
Smallwood Village Center
St.
Charles, Maryland 20602
(Address
of principal executive offices)(Zip Code)
(301)
843-8600
(Registrant's
telephone number, including area code)
Securities
registered pursuant to Section 12(b) of the Act:
|
TITLE
OF EACH CLASS
Common
Shares, $.01 par value
|
NAME
OF EACH EXCHANGE ON WHICH REGISTERED
American
Stock Exchange
|
Securities
registered pursuant to Section 12(g) of the Act: None
Indicate
by check mark if the Registrant is a well-known seasoned issuer, as defined in
Rule 405 of the Securities Exchange Act.Yes / /No /x/
Indicate
by check mark if the Registrant is not required to file reports pursuant to
Section 13 or Section 15(d) of the Securities Exchange Act.Yes / /No
/x/
Indicate
by check mark whether the registrant (1) has filed all reports required to be
filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the
preceding 12 months (or for such shorter period that the registrant was required
to file such report(s)), and (2) has been subject to such filing requirements
for the past 90 days.Yes /x/No / /
Indicate
by check mark if disclosure of delinquent filers pursuant to Item 405 of
Regulation S-K is not contained herein, and will not be contained, to the best
of registrants' knowledge, in definitive proxy or information statements
incorporated by reference in Part III of this Form 10-K or any amendment to this
Form 10-K. /
/
Indicate
by check mark whether the registrant is a large accelerated filer, an
accelerated filer, a non-accelerated filer or a smaller reporting company. See
the definitions of “large accelerated filer,” “accelerated filer” and “smaller
reporting company” in Rule 12b-2 of the Exchange Act.
Large
accelerated filer /
/ Accelerated
filer / / Non-accelerated
filer / / Smaller
Reporting Company /x/
Indicate
by check mark whether the Registrant is a shell company (as defined in Rule
12b-2 of the Securities Exchange Act). Yes /
/ No /x/
As of
June 30, 2007 the aggregate market value of the common shares held by
non-affiliates of the registrant, based on the closing price reported on the
American Stock Exchange on that day of $20.41, was $50,432,130. As of
April 25, 2008, there were 5,229,954 common shares outstanding.
EXPLANATORY
NOTE
This
Amendment No. 1 (“Amendment No. 1”) to the Annual Report on Form 10-K of
American Community Properties Trust (“ACPT” or the “Company”) for the fiscal
year ended December 31, 2007 (“2007 Annual Report”), is being filed to include
the information required in Part III (Items 10, 11, 12, 13 and 14) of the 2007
Annual Report.
This
Amendment No. 1 does not affect any other portion of the 2007 Annual Report,
other than the filing of new Exhibits 31.1 and 31.2, which are being filed
herewith. Additionally, except as specifically referenced herein, this Amendment
No. 1 does not reflect any event occurring after March 20, 2008, the original
filing date of the 2007 Annual Report.
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Item
10.
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4
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Item
11.
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6
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Item
12.
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10
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Item
13.
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12
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Item
14.
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12
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Item
15.
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13
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14
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TRUSTEES
The six members of the Board of
Trustees of the Company, as of the date of this Form 10-K/A, are as
follows:
Trustees-Term
Expiring 2008
T. Michael Scott, 49. Mr.
Scott has been a trustee of the Company since December 1999. Mr.
Scott has served as President of Cambridge Holdings, a real estate company in
Fairfax County, Virginia, since 1992. He has been a principal of the
Cambridge companies since 1986. He is also a member of the National
Association of Industrial and Office Properties and serves as Chairman of the
Washington/Baltimore Chapter of the Young President's
Organization. He received a B.S. in Engineering from Cornell
University and an MBA from Harvard University.
Thomas S. Condit, 66. Mr.
Condit has been a trustee of the Company since January 2003. Prior to
his retirement, he served as President and Chief Executive Officer of Craver,
Mathews, Smith & Co., Inc., a fundraising and membership development firm,
from 1993 to 1995. Prior to that, he served as President and Chief
Executive Officer of the National Cooperative Bank in Washington,
D.C. He has extensive experience in mortgage banking, investment
banking, consumer financial services, federally insured depository services, and
community economic development. He earned his juris doctorate from
the National Law Center at George Washington University, and a Bachelor of Arts
degree from Stanford University.
Trustees-Term
Expiring 2009
Antonio Ginorio, 65. Mr.
Ginorio has been a trustee of the Company since January 2001. Prior
to his retirement in 2000, he was a Senior Audit Partner in the San Juan Office
of PricewaterhouseCoopers, a globally-recognized public accounting firm, for 36
years. He has extensive audit experience in banking, manufacturing,
retail and real estate.
Edwin L. Kelly, 66. Mr.
Kelly has been a trustee of the Company since March 1997 and currently serves as
Vice Chairman, President and Chief Operating Officer of the
Company. Mr. Kelly has served as President and Chief Operating
Officer since July 1998. Mr. Kelly was President and Chief Operating
Officer of IGC and IGMC from 1997 to 1998. Prior to that, he served
as Senior Vice President and Treasurer of IGC and Senior Vice President of IGMC
since their formation in 1986. He has served in various executive
positions with IGC and its predecessor companies since 1974, including as a
Director of IGMC from 1986 to 1998.
Trustees-Term
Expiring 2010
J. Michael Wilson, 42. Mr.
Wilson has been a trustee of the Company since March 1997 and has served as
Chairman and Chief Executive Officer of the Company since July
1998. Mr. Wilson was a Director of Interstate General Management
Corporation (“IGMC”), the managing general partner of Interstate General Company
L.P. (“IGC”), the predecessor to the Company, from 1996 to 1998 and from January
1997 to November 1998 was Vice Chairman, Secretary, and Chief Financial Officer
of IGC. He has been President and Chief Operating Officer of
Interstate Business Corporation ("IBC"), a general partner of IGC, since 1994
and a Director of IBC since 1991. He served as Vice President of IBC
from 1991 to 1994. He has been a director of Wilson Securities
Corporation since 1991, and President since March 1996. He was Vice
President of Wilson Securities Corporation from 1991 to 1996. He has
been Vice President of Interstate Waste Technologies, a subsidiary of IGC, since
1994 and in July 2006 was appointed to their Board of Directors.
Thomas J. Shafer, 78. Mr.
Shafer has been a trustee of the Company since August 1998. He is a
registered professional engineer specializing in real estate evaluation and land
development. Prior to his retirement in 1997, he was a partner in
Whitman, Requardt and Associates, LLP ("Whitman Requardt"), an engineering and
architectural firm from 1976 through 1997 and its managing partner from 1989
through 1997. He was a director of IGMC from January 1998 to June
2000. He is a member of the Urban Land Institute, the American
Society of Professional Engineers and numerous other technical organizations.
Whitman Requardt has provided engineering services to the Company for over
thirty years.
EXECUTIVE
OFFICERS
Please
refer to the 2007 Annual Report set forth under the heading "Executive Officers
of the Registrant" in Part I, Item 4a.
SECTION
16(a) BENEFICIAL OWNERSHIP REPORTING COMPLIANCE
Section 16(a) of the Securities
Exchange Act of 1934 requires the Company's trustees, officers, and persons who
beneficially own more than ten percent of ACPT's Common Shares to file with the
SEC initial reports of ownership and reports of changes in ownership of Common
Stock and other equity securities of ACPT. Trustees, officers and greater than
ten percent shareholders are required by SEC regulation to furnish ACPT with
copies of all Section 16(a) forms they file.
Based solely on review of the copies of
these reports furnished to the Company during and with respect to the fiscal
year ended December 31, 2007 and written representations that no other reports
were required, the Company believes that all Section 16(a) filing requirements
were complied with during the fiscal year ended December 31, 2007.
BOARD
AND COMMITTEE MATTERS
Requirements
of Board Members
Pursuant to the Company's Declaration
of Trust not fewer than two of the members of the Board of Trustees must be
persons who are not employed by (i) the Company, (ii) any Affiliate of the
Company, or (iii) a member of the family of James J. Wilson, the President and
Chief Executive Officer of IGC and the father of J. Michael Wilson.
During the fiscal year 2007, the Board
of Trustees held six regular meetings and two special meetings. All trustees
attended at least 75% of the total meetings of the Board of Trustees and
committees of the Board on which they served. In accordance with
Company policy, all members of our Board attended last year's annual
meeting.
Committees
of the Board
The Board of Trustees has established
three committees: the Audit Committee, the Compensation Committee and
the Nominating and Corporate Governance Committee. The charters for
the Audit Committee and the Nominating and Corporate Governance Committee may be
found on our website at www.acptrust.com. You
may also obtain a copy of the Audit Committee and the Nominating and Corporate
Governance Committee charters without charge by writing to the Secretary of the
Company at the principal executive offices of the Company.
Audit Committee. The
responsibilities of the Audit Committee include the appointment and termination
of the independent auditors, reviewing the plans for and results of the annual
audit engagement with the independent auditors, approval of any other
professional services provided by the independent auditors, approval of the fees
paid to the independent auditors for audit and non-audit services, and
periodically reviewing, with the assistance of the independent auditors, the
adequacy of ACPT's internal accounting controls. The Audit Committee held four
meetings during the year ended December 31, 2007.
The Board of Trustees has determined
that each current member of the Audit Committee is, as required by AMEX rules,
able to read and understand fundamental financial statements and that at least
one member of the committee, Mr. Ginorio, is "financially sophisticated" under
the AMEX rules and is an "audit committee financial expert" as defined in Item
407(d)(5) of Regulation S-K.
Compensation
Committee. The Compensation Committee consists of four
members, each of whom is an independent trustee under the AMEX listing
requirements. The Compensation Committee is responsible for approving
the compensation of the executive officers of ACPT, including the CEO and for
the administration of the Share Incentive Plan. The members of the
Compensation Committee for 2007 were Messrs. Shafer (Chairman), Condit, Ginorio
and Scott. The Compensation Committee met three times during 2007.
Nominating and Corporate Governance
Committee. The Nominating and Corporate Governance Committee
consists of four members, each of whom is an independent trustee under the AMEX
listing requirements. The Committee assists our Board with:
identifying qualified individuals to become members of our Board in the event of
any vacancy on the Board, recommending to the Board from time to time the member
who should serve as Chairman of the Board, determining the composition of the
committees of the Board, recommending to the Board, on an annual basis, trustee
nominees for the Board to be presented at the annual shareholders meeting,
monitoring a process to assess Board effectiveness and developing and
implementing our corporate governance guidelines. The members of the
Nominating and Corporate Governance Committee for 2007 were Messrs. Scott
(Chairman), Condit, Ginorio, and Shafer. The Nominating and Corporate
Governance Committee met once during 2007.
There are no differences in the way the
Nominating and Corporate Governance Committee evaluates nominees suggested by
shareholders from those suggested by Board members or management.
Code
of Ethics
We
established a Code of Ethics for Principal Executive Officers and Senior
Financial Officers, and a Code of Business Ethics for all Officers and Employees
of the Company. Copies of the codes, and any waivers or amendments to such codes
which are applicable to our executive officers or senior financial officers, can
be requested at no cost by writing to the following address or telephoning us at
the following telephone number:
American
Community Properties Trust
222
Smallwood Village Center
St.
Charles, MD 20602
Attention: Director
of Investor Relations
(301)
843-8600
The following table sets forth certain
information concerning the compensation of the Chief Executive Officer and the
two other most highly compensated executive officers of the Company (the "Named
Executive Officers") during the Company's last fiscal year.
Summary
Compensation Table
|
Name
& Principal Position
|
|
Year
|
|
Salary
($)
|
|
|
Annual
Bonus
($)
|
|
|
Stock
Awards
($)(1)
|
|
|
Other
($)(2)
|
|
|
Total
Compensation
($)
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
J.
Michael Wilson (3)
|
|
2007
|
|
|
390,000 |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
390,000 |
|
|
Chairman
& Chief Executive Officer
|
|
2006
|
|
|
375,000 |
|
|
|
95,000 |
|
|
|
-- |
|
|
|
-- |
|
|
|
470,000 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edwin
L. Kelly
|
|
2007
|
|
|
457,800 |
|
|
|
-- |
|
|
|
-- |
|
|
|
36,408 |
|
|
|
494,208 |
|
|
Vice
Chairman, President & Chief Operating Officer
|
|
2006
|
|
|
400,300 |
|
|
|
105,000 |
|
|
|
-- |
|
|
|
24,224 |
|
|
|
529,524 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carlos
R. Rodriguez
|
|
2007
|
|
|
300,300 |
|
|
|
-- |
|
|
|
(20,000 |
) |
|
|
27,419 |
|
|
|
307,719 |
|
|
Executive
Vice President
|
|
2006
|
|
|
300,300 |
|
|
|
50,000 |
|
|
|
(1,287 |
) |
|
|
25,569 |
|
|
|
374,582 |
|
|
|
|
|
|
|
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|
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(1)
|
No stock awards were
granted in 2007 or 2006. However, the outstanding SARs were
re-measured for financial reporting purposes and the amount included above
reflects the change in fair value recorded during the period as required
by SFAS 123(R). The Company used the Black-Scholes model to
value its SARs assuming a volatility of 45.34% and 44.72% and a risk free
interest rate equally to the US Treasury Daily Yield Curve Rates as of
December 31, 2007 and 2006,
respectively.
|
|
Name
|
|
Contribution
to Qualified Defined Contribution Plan
($)
|
|
|
Country
Club and Other Dues
($)
|
|
|
Car
and Other Allowances
($)
|
|
|
Cell
Phone
($)
|
|
|
Total
Other
($)
|
|
|
J.
Michael Wilson
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
2006
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
-- |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Edwin
L. Kelly
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
20,564 |
|
|
|
5,990 |
|
|
|
9,002 |
|
|
|
852 |
|
|
|
36,408 |
|
|
2006
|
|
|
19,711 |
|
|
|
2,700 |
|
|
|
1,813 |
|
|
|
-- |
|
|
|
24,224 |
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Carlos
R. Rodriguez
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
2007
|
|
|
20,093 |
|
|
|
5,113 |
|
|
|
-- |
|
|
|
2,213 |
|
|
|
27,419 |
|
|
2006
|
|
|
19,711 |
|
|
|
5,858 |
|
|
|
-- |
|
|
|
-- |
|
|
|
25,569 |
|
|
(3)
|
J.
Michael Wilson, the CEO of ACPT and President of IBC, is on the payroll of
IBC. ACPT reimburses IBC for his services provided to
ACPT.
|
Narrative
Disclosure to Summary Compensation Table
Employment
Agreements
Edwin
L. Kelly
On August
6, 2007, the Company entered into an executive retention agreement with Edwin L.
Kelly. This executive retention agreement superseded Mr. Kelly’s
prior employment contract with the Company and was retroactively effective as of
July 1, 2007. The agreement provided for Mr. Kelly to serve as Vice
Chairman, President and Chief Operating Officer of the Company, reporting to the
Chairman of the Board of Trustees of the Company, for a term expiring December
31, 2010 unless earlier terminated pursuant the terms of the
agreement. The agreement renews automatically for successive one-year
periods following December 31, 2010 unless either the Company or Mr. Kelly
notifies the other of non-renewal.
During
the term of the agreement, Mr. Kelly will receive an annual base salary of
$500,000, subject to annual inflationary adjustments and discretionary increases
determined by the Company’s Board of Trustees. In addition, under his
agreement, Mr. Kelly will be entitled to participate in the Company’s standard
benefits, five weeks of paid vacation annually, the use of a company-owned car
and membership fees and dues at his country club, among other
perquisites.
The
employment agreement includes customary restrictive covenants relating to
protection of confidential information, non-solicitation and a non-compete
clause that will prevent Mr. Kelly from seeking or obtaining employment by any
competitor during the term of his employment with the Company and for one year
thereafter.
The Company has executed an employment
agreement dated as of April 20, 2006 with Mr. Rodriguez, who serves as president
of the Company’s subsidiary, IGP Group, Corp. The agreement provides
for an initial term expiring June 30, 2007, subject to extension at the
Company’s option. The Company opted to extend Mr. Rodriguez’s
employment term for one additional year to June 30, 2008. Unless the
agreement is earlier terminated, upon expiration of the term of the agreement,
as extended, Mr. Rodriguez has agreed to serve as a consultant, performing not
more than 250 hours of services in any 12 month period, until June 30,
2011.
Mr. Rodriguez’s initial base salary is
$300,000, and is subject to review and increase, but not decrease, in the
discretion of the Board of Trustees. The agreement provides for Mr.
Rodriguez to be eligible for such bonus and other benefits as may be established
and conferred upon comparable senior executives of the Company. Under
the terms of the agreement, Mr. Rodriguez will be paid an annual fee of $100,000
for the period he serves as a consultant following expiration of the term of his
employment. Total consulting fees for the three-year period are
estimated to be $300,000.
The employment agreement contains a
non-competition and non-solicitation provision pursuant to which Mr. Rodriguez
has agreed that he will not, until June 30, 2011, provide services to, or become
engaged in any capacity, including as a principal, agent, shareholder (other
than as a passive investor of less than 5% of the outstanding stock of any
public company), consultant, employee, lender or surety, in, any entity that
competes with the Company or its subsidiaries in Puerto Rico. Mr.
Rodriguez has also agreed that, during this period, he will not hire or attempt
to hire any person who, during the year prior to the termination of Mr.
Rodriguez’s employment with the Company, was serving as an employee, director or
trustee of the Company or any subsidiary, or otherwise solicit or induce any
such person to terminate his or her service with the Company. The
non-competition and non-solicitation provisions will terminate should Mr.
Rodriguez terminate his employment agreement due to a breach by the Company of
its obligations thereunder.
Annual Incentive
Compensation
Performance
based incentives reflect both business and individual
accomplishment. Incentives are tied to not only the Company’s
operating results, but also to senior management’s ability to manage the Company
effectively and create long term value for the shareholders. In this regard,
assessment of performance should take into account factors, such as the impact
of economic and industry trends in the Company’s business.
Management
proposes annual performance goals which are reviewed by the Compensation
Committee and either modified or approved by the Committee. These goals are
divided into five major areas as follows:
The goals
in this area include the development of long range strategic plans, monitoring
or modifying the company structure to maximize the benefit to shareholders,
minimizing tax impact to shareholders, and promoting public relations and the
company image.
The goals
in this area include the development and sale of residential land and buildings,
leasing of commercial and residential units, and maximizing net operating income
from rental properties.
The goals
in this area include obtaining the best available bank loans where necessary for
construction or working capital, refinancing of investment properties to obtain
the best available long term rates and to provide cash for capital funding,
managing cash flow to provide for acquisitions and return to
shareholders.
The goals
in this area include establishing a succession plan for key executives,
evaluating employee benefits, hiring new staff where a need has been identified,
training and expanding the responsibilities of employees.
The goals
in this area include the development of new commercial and residential product,
acquisition of investment properties and land available for future development,
analyzing new opportunities and markets for the company.
While the Compensation Committee
considered these performance factors in making individual compensation
decisions, the Committee applied its own business judgment in making final
determinations. The maximum bonus amount awarded to each executive will not
exceed fifty percent of his or her base salary for the calendar
year. For the year 2007, the Compensation Committee did not award any
Annual Incentive Compensation to the CEO and two other named executive
officers.
Other Compensation
ACPT has established a qualified
defined contribution retirement plan (the "Retirement Plan") for eligible
employees of the Company. Employees are generally eligible to
participate when they complete one year of service. Contributions
from the Company to the plan are 5.7% of base salaries and wages not in excess
of the U.S. Social Security taxable wage base, and 11.4% of salaries (limited to
$225,000) that exceed that wage base. In addition, the Retirement
Plan contains a profit sharing provision allowing ACPT to award annual cash
bonuses to the officers and employees in reasonable amounts reflecting their
contributions to the Company. The awards are determined by the
Compensation Committee. A portion of each bonus is contributed on
behalf of the employee to the Retirement Plan. No annual cash bonuses
were made under the Retirement Plan in 2007. All of the named
executive officers participate in the Retirement Plan except for the Chief
Executive Officer.
Other perquisites are provided to
certain named executive officers, primarily the payment of country club and
other dues on behalf of the officers, use of Company automobiles or car
allowance and cellular phones. The Committee believes that the
perquisites offered represent market practice and serve to minimize distractions
and enable the named executive officers to efficiently and effectively conduct
business. The Committee also notes that these perquisites do not
represent a significant portion of the named executive officers’ total
compensation.
Share
Incentive Plan
Under the Share Incentive Plan, the
Compensation Committee of the Board of Trustees may grant to key employees the
following types of Share-based incentive compensation awards ("Awards"): (i)
options to purchase a specified number of Common Shares ("Options"), (ii) Common
Shares that vest upon the occurrence of certain vesting criteria ("Restricted
Shares"), or (iii) Stock Appreciation Rights (“SARs”) that entitle the holder to
receive upon exercise an amount payable in cash, Common Shares or other property
(or any combination of the foregoing) equal to the difference between the market
value of Common Shares and a base price fixed on the date of grant. A
total of 208,000 Common Shares have been reserved for issuance under the Share
Incentive Plan. However, the Share Incentive Plan will expire on July
7, 2008, at which point these shares will no longer be available for
issuance.
No equity awards were issued in 2007 to
the Named Executive Officers. The following table summarizes the
amount of unexercised SARs held by the Named Executive Officers at December 31,
2007.
Outstanding
Equity Awards at Fiscal Year End
|
Name
|
|
Securities
Underlying Unexercised SARs
(#)
Exercisable
|
|
Securities
Underlying Unexercised SARs
(#)
Unexercisable
|
|
SARs
Exercise Price
($)
|
|
SARs
Expiration
Date
|
|
|
|
|
|
|
|
|
|
|
|
J.
Michael Wilson
|
|
--
|
|
--
|
|
--
|
|
--
|
|
Edwin
L. Kelly
|
|
--
|
|
--
|
|
--
|
|
--
|
|
Carlos
R. Rodriguez
|
|
10,000
|
|
--
|
|
40,000
|
|
4/30/2011
|
Potential
Payments Upon Termination or Change-in-Control
Mr.
Kelly’s executive retention agreement includes, among other provisions, a
change-in-control provision. No other Named Executive Officers have
change of control agreements with the Company. However, Mr.
Rodriguez’s employment agreement includes certain other termination
provisions. Further details of these provisions are set forth
below.
Edwin
L. Kelly
Mr.
Kelly’s executive retention agreement will terminate prior to the stated term
upon Mr. Kelly’s death or disability. In addition, the Company may
terminate Mr. Kelly’s employment for “cause” or for any other
reason. Mr. Kelly may terminate his employment for “good reason” or
for any other reason, as well as upon a change of control of the Company or the
first anniversary thereafter. If Mr. Kelly’s employment is terminated
by the Company other than for “cause” or by him for “good reason,” Mr. Kelly
will be entitled to receive the following amounts, subject to customary
withholding and deductions, without regard to whether Mr. Kelly obtains a
position with another employer:
|
·
|
Termination
prior to the 1st anniversary of the Agreement: 48 months of his
then-current base salary;
|
|
·
|
Termination
prior to the 2nd anniversary of the Agreement: 36 months of his
then-current base salary;
|
|
·
|
Termination
prior to the 3rd anniversary of the Agreement: 30 months of his
then-current base salary; or
|
|
·
|
Termination
at any time thereafter: 24 months of his then-current base
salary.
|
In
addition, upon delivery by a party of a notice of non-renewal, Mr. Kelly shall
be entitled to receive severance in the amount of 24 months of his then-current
base salary.
If Mr.
Kelly terminates his employment at any time effective upon the first anniversary
of a change of control of the Company, Mr. Kelly will be entitled to receive
severance in the amount of 48 months of his then-current base
salary. Under certain circumstances related to a change of control,
Mr. Kelly will be entitled to receive a gross-up of such severance amount in an
amount necessary to make him whole for any excise taxes payable by him in
connection with such severance. Should a change in control have
occurred, the Company estimates approximately $2.0 million would be due to Mr.
Kelly under the change in control provision as of December 31,
2007.
“Cause” is defined to mean (1) the
executive’s conviction of, or plea of nolo contendere to, a felony involving
dishonesty, disloyalty, fraud, or moral turpitude; (2) the executive’s material
breach of any material obligation in the Kelly Agreement; or (3) the executive’s
engaging in conduct constituting a material breach of any fiduciary duty to the
Company. In the event of termination for cause, all salary and benefit
payments cease immediately.
“Good
reason” is defined to mean (1) a material diminution in any of the executive’s
base compensation, authority (which includes but is not limited to a change in
the identity of the person to whom the executive reports), duties or
responsibilities without his agreement; (2) the executive being required to
relocate his office to executive offices outside of an area within a fifty (50)
mile radius of the Company’s existing executive offices; (3) there being a
material reduction in the overall value of the employee benefits being provided
to the executive, unless the reduction is effective for all senior executive
employees; or (4) a material breach by the Company of any of its obligations to
the executive under the executive retention agreement, and in each case, so long
as the executive gives such notice within sixty (60) days of the circumstances
believed by the executive to constitute Good Reason and the Company fails to
remedy those circumstances within thirty (30) days of its receipt of such
notice. Should Mr. Kelly have terminated his employment for good
reason, the Company estimates approximately $2.0 million would be due to Mr.
Kelly under this provision as of December 31, 2007.
All
payments and benefits to which Mr. Kelly may become entitled under his executive
retention agreement are subject to delay or modification if necessary to comply
with Section 409A of the Internal Revenue Code.
If the Company terminates the
employment agreement other than for cause, or if Mr. Kelly terminates the
agreement upon any breach by the Company of its obligations thereunder, the
Company would be required to pay the executive’s base salary and benefits for a
period of 48 months following such termination, estimated to be approximately
$2.0 million as of December 31, 2007.
Carlos
R. Rodriguez
Upon expiration of the term of the
agreement, as extended, Mr. Rodriguez has agreed to serve as a consultant,
performing not more than 250 hours of services in any 12-month period, until
June 30, 2011. Following expiration of the term of his employment,
Mr. Rodriguez will be paid an annual fee of $100,000 for the period he serves as
a consultant. Total consulting fees for the three-year period are
estimated to be $300,000.
Mr. Rodriguez’s employment agreement
may be terminated by either party upon 90 days prior written notice and
terminates automatically upon the death or disability of Mr.
Rodriguez. If the agreement terminates due to death or disability,
the Company will pay Mr. Rodriguez or his estate the base salary or consulting
fees otherwise scheduled to be paid for the six months following such
termination, estimated to be approximately $150,000 as of December 31,
2007.
In addition, the Company may terminate
the employment agreement prior to its expiration on June 30, 2008 for
“cause.” As defined in the employment agreement, “cause” means the
executive’s (i) willful, reckless or grossly negligent inattention to his duties
or responsibilities to the Company and its subsidiaries, (ii) unethical conduct
relating to the performance of his duties and responsibilities, (iii) repeated
disregard for the written rules, policies and regulations of the Company, (iv)
conviction of a felony or other criminal offense relating to fraud or theft, (v)
repeated failure or refusal to perform employment obligations under the
agreement or (vi) breach of his obligations, including without limitation the
non-compete provision described below, under the employment agreement. In
the event of termination for cause, all salary and benefit payments cease
immediately.
If the Company terminates the
employment agreement prior to its expiration on June 30, 2008 other than for
cause, or if Mr. Rodriguez terminates the agreement upon any breach by the
Company of its obligations thereunder, the Company will pay the executive’s base
salary for the remainder of the year of termination plus one additional year;
provided that if Mr. Rodriguez terminates the agreement during the consultancy
period, the Company will pay all consultant fees for the remainder of the
consultancy period. Depending on which provision of the agreement
applies, we estimate that the range of potential payment would be between
$300,000 and $600,000 as of December 31, 2007.
COMPENSATION
OF TRUSTEES
The
Company pays its Trustees who are not employees of the Company or any of its
affiliates fees for services as trustees. Trustees receive fees of $6,500 per
quarter plus $1,400 per Board meeting and an additional $500 fee for each
telephonic meeting. The Chairman of the Audit Committee receives an
additional $1,400 per meeting. The Trustees are also reimbursed for
all reasonable expenses incurred by them in attending Board and committee
meetings.
The
following table summarizes Trustee compensation:
|
Name
|
|
Fees
Earned or Paid in Cash
($)(A)
|
|
Stock
Awards
($)(B)
|
|
All
Other Compensation
($)(C)
|
|
Total
($)
|
|
Thomas
J. Shafer
|
|
58,400
|
|
32,160
|
|
61,440
|
|
152,000
|
|
T.
Michael Scott
|
|
57,000
|
|
13,920
|
|
1,440
|
|
72,360
|
|
Antonio
Ginorio
|
|
63,000
|
|
9,360
|
|
1,440
|
|
73,800
|
|
Thomas
S. Condit
|
|
57,000
|
|
32,160
|
|
1,440
|
|
90,600
|
|
|
|
|
|
|
|
|
|
|
|
(A)
|
During 2007,
the Board of Trustees established a Special Committee made up of each of
the outside trustees. These Special Committee members were
eligible to receive a fee of $70,000 each for their participation on the
Special Committee, payable in installments, based on certain
conditions. Each member received $20,000 for service on the
Special Committee during 2007, which payments are included in the amounts
above. An additional $50,000 was paid to each member
during the first quarter of 2008, and accordingly, is not included in the
amounts above.
|
|
(B)
|
Included
for each trustee listed above is $32,160 related to the FAS 123(R) expense
recorded for the restricted shares issued in August 2006 (see discussion
below). The SFAS 123(R) expense recognized for financial
reporting purposes for the year ended December 31, 2007 represents the
amortization of the grant date fair value. In addition, Mssrs.
Scott and Ginorio had 8,000 and 10,000, respectively, vested SARs
outstanding, which were re-measured for financial reporting purposes and
the amount included above reflects the change in fair value recorded
during the year ended December 31, 2007 required by SFAS
123(R). To estimate fair value, the Company used the
Black-Scholes model to assuming a volatility of 45.34% and a risk free
interest rate equally to the US Treasury Daily Yield Curve Rates as of
December 31, 2007.
|
|
(C)
|
Each
of the four trustees received $1,440 related to dividends paid on
restricted shares granted as described in note (B) above. In
addition, Mr. Shafer received $60,000 related to a consulting agreement
with the Company which is discussed further below under the heading
“Certain Relationships and Related
Transactions.”
|
Trustee Share Incentive
Plan. The Trustee Share Incentive Plan authorizes the Board of
Trustees, in its discretion, to grant to eligible trustees, awards of the same
type and terms as the awards available under the Employee Share Incentive Plan
discussed in this Proxy Statement under "Executive
Compensation". Only trustees who are not employees of ACPT or any
affiliated company are eligible to receive awards under the Trustee Share
Incentive Plan. An aggregate of 52,000 Common Shares was reserved for
issuance under the Trustee Share Incentive Plan. Under this plan, the
Company awarded 8,000 shares to each of the four non-employee Trustees on August
28, 2006. These shares vest annually at a rate of 1,600 per year, per
trustee, with the initial tranche of shares vesting immediately at the grant
date. In addition, 1,600 unregistered shares were awarded to each
non-employee Trustee in June 2005. Finally, during 2001, Thomas J.
Shafer, T. Michael Scott and Antonio Ginorio were each awarded 10,000 SARs that
entitle the holder to receive upon exercise an amount payable in cash, common
shares or other property equal to the difference between the market value of
common shares and a $4.00 base price which was fixed on the date of
grant. As of December 31, 2007, Mssrs. Scott and Ginorio had 8,000
and 10,000, respectively, vested SARs outstanding. The Trustee
Share Incentive Plan will expire on July 7, 2008.
Equity
Compensation Plan Information
As described previously, certain shares
are available for issuance under the Share Incentive Plan and the Trustee Share
Incentive Plan. As of December 31, 2007, there were 208,000 shares
available for issuance under the Share Incentive Plan, of which 7,275 share
equivalents would be necessary to satisfy outstanding SARS at December 31, 2007
should the SARS be settled for stock as opposed to cash. For the
Trustee Share Incentive Plan, 13,600 shares were available for issuance, of
which 12,591 share equivalents would be necessary to satisfy outstanding SARS at
December 31, 2007. However, both of these plans will expire on July
7, 2008, at which point these shares will no longer be available for
issuance.
The following table sets forth certain
information with respect to beneficial ownership of the Company's Common Shares
by each of the Company's trustees, the Named Executive Officers, all trustees
and current executive officers as a group and each person who is known by the
Company to beneficially own more than five percent of any class of the Company's
voting securities as of April 4, 2008. The Company has relied upon
information supplied by its officers, trustees and certain shareholders and upon
information contained in filings with the SEC. Except as otherwise
noted below, the address of each person listed in the following table is: c/o
American Community Properties Trust, 222 Smallwood Village Center, St. Charles,
MD 20602.
|
Name
|
|
Number
of Shares
of
Common Stock
Beneficially
Owned
|
|
Percent
of
All
Shares of
Common
Stock
|
|
|
|
|
|
|
|
J.
Michael Wilson, (1)(2)(4)
|
|
107,747
|
|
2.06
|
|
Edwin
L. Kelly
|
|
54,607
|
|
1.04
|
|
Carlos
R. Rodriguez
|
|
--
|
|
--
|
|
Thomas
J. Shafer
|
|
14,600
|
|
*
|
|
T.
Michael Scott
|
|
11,600
|
|
*
|
|
Antonio
Ginorio
|
|
10,600
|
|
*
|
|
Thomas
S. Condit
|
|
9,600
|
|
*
|
|
All
trustees and executive officers of
ACPT
as a group (15 persons)(2)
|
|
214,854
|
|
4.11
|
|
The
Wilson Group (1)
222
Smallwood Village Center
St.
Charles, MD 20602
|
|
2,650,720
|
|
50.68
|
|
Interstate
Business Corporation (1)(3)(4)
222
Smallwood Village Center
St.
Charles, MD 20602
|
|
1,549,976
|
|
29.64
|
|
Wilson
Securities Corporation (1)(3)(4)
222
Smallwood Village Center
St.
Charles, MD 20602
|
|
545,673
|
|
10.43
|
|
Paul
J. Isaac (5)
75
Prospect Avenue
Larchmont,
New York 10538
|
|
572,383
|
|
10.94
|
|
Robert
L. Chapman, Jr. (6)
Pacific
Corporate Towers, 13th
Floor
222
N. Sepulveda Blvd.
El
Segundo, CA 90245
|
|
389,271
|
|
7.44
|
|
Eric
P. Von der Porten (7)
1395
San Carlos Avenue, Suite B
San
Carlos, CA 94070
|
|
283,100
|
|
5.41
|
* Less
than 1%.
|
(1)
|
As
reported in a Schedule 13D/A filed April 15, 2008, the Wilson Group is
comprised of James J. Wilson and his wife, Barbara A. Wilson; their six
children, J. Michael Wilson (CEO and Chairman of ACPT), Thomas B. Wilson,
Kevin J. Wilson, Elizabeth W. Weber, Mary P. Wilson and Brian J. Wilson;
Interstate Business Corporation; Wilson Securities Corporation; and Wilson
Family Limited Partnership. The Wilson Group, collectively, has
voting and dispositive control through direct and indirect ownership of
51% of ACPT's outstanding shares as reflected in the Wilson Group's
Schedule 13D. The members of the group periodically meet to
discuss matters relating to their ownership of ACPT and may from time to
time act together with respect to the voting or disposition of common
shares. However, there is no formal arrangement among the
members of the group in regard to their voting and dispositive voting
rights and, accordingly, the group members may not always act together
with respect to the common shares.
|
|
(2)
|
Includes
21,350 shares attributable to ACPT shares held by the Wilson Family
Limited Partnership. J. Michael Wilson is a General Partner of
the Wilson Family Limited Partnership. The management and
control of the business and affairs of the partnership are vested jointly
in the General Partners, thus J. Michael Wilson shares voting and
dispositive power over Common Shares owned by the Wilson Family Limited
Partnership.
|
|
(3)
|
Interstate
Business Corporation and Wilson Securities Corporation are owned by
certain members of the Wilson Family, including J. Michael
Wilson.
|
|
(4)
|
These
persons are members of the Wilson Group and their shares are also included
with the Wilson Group.
|
|
(5)
|
Based
on a Schedule 13D/A filed April 21, 2008, Paul J. Isaac directly owns
73,450 shares and has beneficial ownership of 446,048 shares that are
directly owned by: (i) Isaac Brothers L.L.C. (220,200 shares); (ii)
Arbiter Partners L.P. (177,083 shares); (iii) Karen Isaac (wife) and 4
grandchildren (84,400); (iv) Isaac Grandchildren’s Trust (12,250 shares);
(v) Marjorie S. Isaac u/w/o Irving H. Isaac Marital Trust (5,000
shares).
|
|
(6)
|
Based
on a Schedule K-1 information as of December 31, 2007, Robert
L. Chapman, Jr., through Chapman Capital L.L.C., has beneficial ownership
of 389,271 shares that are directly owned by: (i) Westlake Real Estate
L.L.C. (71,585 shares), (ii) Smallwood Real Estate L.L.C. (85,144 shares),
(iii) Fairway Real Estate L.L.C. (56,814 shares), (iv) Piney Reach Real
Estate L.L.C. (79,757 shares) and (v) Wooded Glen Real Estate L.L.C.
(96,002 shares).
|
|
(7)
|
Based
on a Schedule 13D filed December 14, 2007, Eric P. Von der Porten, through
Leeward Capital, L.P. and Leeward Investments, LLC, has beneficial
ownership of 283,100 shares.
|
Trustee
Independence
The
Company has established independence standards to assist the Board in
determining Trustee independence in accordance with the requirements of the
American Stock Exchange’s (“AMEX”) corporate governance listing
standards. The Company considers all relevant facts and circumstances
in making an independence determination. To be considered “independent” under
our independence standards, our Board of Trustees must determine that the
trustee has no material relationship with us (other than as a trustee) directly
or indirectly, that would interfere with the exercise of independent
judgment.
Our Board has affirmatively determined
that all four non-employee trustees meet our independence standards, as none of
such trustees has a material relationship with us, directly or indirectly, that
would interfere with the exercise of independent judgment. Mr. Shafer
has a consulting agreement with the Company, described below under the heading
“Consulting and Engineering Services” which does not interfere with his
independence as a Trustee, but does preclude him from being able to serve as a
member of the Audit Committee.
Payments
to IBC for Services Provided by J. Michael Wilson
J. Michael Wilson, the Chief Executive
Officer of ACPT and President of IBC, is on the payroll of
IBC. During 2007, ACPT reimbursed IBC $390,000 for his services
provided to ACPT. IBC is owned by the Wilson Group, beneficial owners of 51% of
ACPT’s outstanding shares.
Property
Management Services
During 2007, ACPT provided management
services to one multifamily apartment project in which ACPT is not the general
partner and IBC or an IBC related entity holds an ownership interest. The
management contract provided for fees of 4.5% of collected rents. Total fees
earned from this property in 2007 were $41,815. Effective February
28, 2007, the Company’s management agreement with this project was terminated
upon the sale of the project to a third party.
Consulting
Agreement
American Rental Management Company
("American Management"), a wholly owned subsidiary of ACPT, entered into a
consulting and retirement compensation agreement with IGC's founder and Chief
Executive Officer, James J. Wilson, effective October 5, 1998 (the “Consulting
Agreement). The Consulting Agreement provides for annual cash
payments during the first two years of $500,000 and annual cash payments for
eight years thereafter of $200,000. However, if Mr. Wilson dies or ACPT is sold
during the term of the Consulting Agreement, the agreement provides for a lump
sum payment equal to the lesser of $400,000 or the aggregate of annual payments
then payable under the agreement. During the Consulting Agreement term, Mr.
Wilson will remain available to provide consulting services requested from time
to time by the Board of Trustees, including strategic planning and transaction
advisory services. Pursuant to the Consulting Agreement, American Rental
Management Company will reimburse the reasonable costs and expenses incurred by
Mr. Wilson in providing requested consulting services. At the request of Mr.
Wilson, ACPT has been making monthly payments under this Consulting Agreement to
Interstate Waste Technologies, Inc.(“IWT”). Mr. Wilson is the father of J.
Michael Wilson, Chairman and Chief Executive Officer of the
Company. The final monthly payment under this agreement will be made
in September 2008.
Payment
of Legal Fees
During 2007, the Company’s non-employee
trustees concluded that certain legal fees and expenses incurred by J. Michael
Wilson in connection with the preliminary work done related to recapitalizing
the Company were in the best interest of the Company and the minority
shareholders. Accordingly, these trustees authorized the Company to
fund up to $225,000 of such costs, all of which were incurred as of December 31,
2007.
Consulting
and Engineering Services
Thomas J. Shafer, Trustee, provides
engineering and consulting services to the Company pursuant to a consulting
agreement between the Company and Mr. Shafer. During 2007, Mr. Shafer was paid
$5,000 per month for these services. The agreement may be terminated
by either party upon thirty days' notice. The Board has determined
that Mr. Shafer's provision of services pursuant to his consulting agreement is
not a "material" relationship within the meaning of the AMEX corporate
governance listing standards.
The following table sets forth the
aggregate fees for professional services rendered by Ernst & Young LLP, the
Company's independent registered public accounting firm, for the audit of the
Company's annual financial statements for the years ended December 31, 2007 and
December 31, 2006 and fees billed for other services rendered by Ernst &
Young LLP during those periods.
|
|
|
2007
|
|
|
2006
|
|
|
|
|
|
|
|
|
|
|
Audit
Fees
|
|
$ |
790,700 |
|
|
$ |
802,400 |
|
|
Audit-Related
Fees
|
|
|
36,500 |
|
|
|
28,200 |
|
|
Tax
Fees
|
|
|
177,110 |
|
|
|
186,326 |
|
|
All
Other Fees
|
|
|
- |
|
|
|
- |
|
Audit
Fees
Audit fees in 2007 and 2006 represented
fees for professional services provided in connection with the annual audit of
our financial statements reported on Form 10-K and review of our quarterly
financial statements reported on Form 10-Q.
Audit
fees in 2007 also included fees for professional services rendered in connection
with the audit of the Company’s adoption of Financial Accounting Standards Board
Interpretation No. 48 “Accounting for Uncertainty in Income Taxes,” on January
1, 2007. Audit fees in 2006 also included fees for professional
services rendered in connection with the audit of the Company’s adoption of
Emerging Issues Task Force (EITF) 04-05 “Determining Whether a General Partner
as a Group Controls a Limited Partnership or Similar Entity When the Limited
Partners Have Certain Rights,” on January 1, 2006.
Audit-Related
Fees
Audit-related
services in 2007 and 2006 included the audit of the Retirement Benefit Plan, the
Company’s subscription to Ernst & Young's on-line accounting and auditing
research tool and technical accounting assistance.
Tax
Fees
We use
Ernst & Young for tax services, including tax compliance, tax advice and tax
planning. Included in the tax fees for 2007 are tax consulting
fees related to certain strategic planning activities undertaken during
2007. Included in the tax fees for 2006 are amounts related to
assisting the Company in reaching a Closing Agreement with the IRS.
Other
Fees
We did
not engage the independent auditor to provide services other than those
identified in the above categories for us in 2007 or 2006.
Pre-Approval
Policies and Procedures
The Audit
Committee adopted a policy that requires approval in advance of all audit,
audit-related, tax services, and other services performed by the independent
auditor outside of the audit engagement letter. The policy provides for
pre-approval by the Audit Committee of specifically defined audit and
non-audit services. The policy states that the Audit Committee must pre-approve
the permitted service before the independent auditor is engaged to perform
it. The Audit Committee reports that all services rendered in fiscal
year 2007 were pre-approved.
(a) 3. Exhibits
|
Exhibits
required by Securities and Exchange Commission Section 601 of Regulation
S-K. Except for the new Exhibits 31 filed with this Form
10-K/A, there are no changes to the Exhibits listed in the 2007 Form 10-K
as originally filed in March 2008.
|
|
Exhibit
No.
|
Description
of Exhibit
|
|
|
|
|
|
Rule
13a-14(a)/15d-14(a) Certification of Chairman and Chief Executive
Officer.
|
|
|
Rule
13a-14(a)/15d-14(a) Certification of Chief Financial
Officer.
|
Pursuant
to the requirements of Section 13 or 15(d) of the Securities and Exchange Act of
1934, the Registrant has duly caused this report to be signed on its behalf by
the undersigned thereunto duly authorized.
|
|
AMERICAN COMMUNITY PROPERTIES
TRUST
|
|
|
(Registrant)
|
|
|
|
|
Dated: April
29, 2008
|
By:
/s/ J. Michael
Wilson
|
|
|
J.
Michael Wilson
Chairman
and Chief Executive Officer
(Principal
Executive Officer)
|
|
|
|
|
|
|
|
Dated: April
29, 2008
|
By: /s/ Cynthia L.
Hedrick
|
|
|
Cynthia
L. Hedrick
Executive
Vice President and Chief Financial Officer
(Principal
Financial Officer)
|
|
|
|
|
|
|
|
Dated: April
29, 2008
|
By: /s/ Matthew M.
Martin
|
|
|
Martin
M. Martin
Vice
President and Chief Accounting Officer
(Principal
Accounting Officer)
|
|
|
|
|
|
|