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Section 1: 8-K (8-K)

8-K2020-12-161745 Shea Center Drive, Suite 200Highlands RanchCO80129720283-6120falsefalsefalsefalse00000742080001018254falsefalse0000074208udr:UnitedDominionRealtyLPMember2020-12-162020-12-1600000742082020-12-162020-12-16

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

FORM 8-K

CURRENT REPORT

Pursuant to Section 13 or 15(d) of the Securities Exchange Act of 1934

Date of Report (Date of Earliest Event Reported): December 16, 2020

UDR, Inc.

United Dominion Realty, L.P.

(Exact name of registrant as specified in its charter)

 

 

 

 

 

Maryland (UDR, Inc.)

Delaware (United Dominion Realty, L.P.)

 

1-10524

333-156002-01

 

54-0857512

54-1776887

 

 

 

 

 

(State or other jurisdiction
of incorporation)

 

(Commission File Number)

 

(I.R.S. Employer Identification No.)

 

 

 

1745 Shea Center Drive, Suite 200,
Highlands Ranch, Colorado

 

 
80129

 

 

 

(Address of principal executive offices)

 

(Zip Code)

Registrant’s telephone number, including area code: (720283-6120

Not Applicable

Former name or former address, if changed since last report

Check the appropriate box below if the Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions:

  Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)

  Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)

  Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))

  Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))

Securities registered pursuant to Section 12(b) of the Act:

Title of each class

Trading Symbol(s)

Name of each exchange on which registered

Common Stock, par value $0.01

UDR

New York Stock Exchange

Indicate by check mark whether the registrant is an emerging growth company as defined in Rule 405 of the Securities Act of 1933 (§230.405 of this chapter) or Rule 12b-2 of the Securities Exchange Act of 1934 (§240.12b-2 of this chapter).

UDR, Inc.: Emerging growth company

United Dominion Realty, L.P.: Emerging growth company

If an emerging growth company, indicate by check mark if the registrant has elected not to use the extended transition period for complying with any new or revised financial accounting standards provided pursuant to Section 13(a) of the Exchange Act.

UDR, Inc.: United Dominion Realty, L.P.:

Item 1.01. Entry into a Material Definitive Agreement.

On December 16, 2020, UDR, Inc. (the “Company”), the general partner of United Dominion Realty, L.P., a Delaware limited partnership (the “Operating Partnership”), entered into the Eleventh Amendment (the “Eleventh Amendment”) to the Amended and Restated Agreement of Limited Partnership of the Operating Partnership (the “Partnership Agreement”).

The Eleventh Amendment amends Exhibit H of the Partnership Agreement to set forth the terms of new classes of LTIP Units designated as Performance Units. Matters addressed in the amendment include, among other things, provisions related to allocations, distributions, transfers, conversion to LTIP Units, voting and certain tax matters with respect to the Performance Units.

The description of the Eleventh Amendment set forth herein is qualified in its entirety by reference to the full text of the Eleventh Amendment, which is filed as Exhibit 10.1 to this report and is incorporated herein by reference.

Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.

Jerry A. Davis. On December 16, 2020, Jerry A. Davis notified the Company of his intention to resign from his position as Chief Operating Officer of the Company, effective on January 1, 2021 (the “Resignation Date”) and of his intention to retire and resign from his position as President of the Company on December 31, 2021 (the “Retirement Date”). Beginning January 1, 2022, Mr. Davis intends to transition to a consulting role with the Company. Mr. Davis has been serving as the Company’s President – Chief Operating Officer since January 2019, and prior to that date he served the Company in a variety of roles beginning in 1989.

In connection with Mr. Davis’ resignation and his retirement and planned transition to a consulting role, the Company and Mr. Davis entered into a letter agreement, dated December 16, 2020, which includes as an exhibit a related release agreement (the “Letter Agreement”), and a consulting agreement (the “Consulting Agreement”).

Under the terms of the Letter Agreement, Mr. Davis will be paid a monthly salary of $32,291.67 in his role as President of the Company and he is entitled to continued group health insurance benefits through December 31, 2027, under certain conditions. Further, under the terms of the Letter Agreement, Mr. Davis will not participate in the Company’s 2021 short-term incentive program or 2021-2023 long-term incentive program. Mr. Davis will be entitled to: (i) the vesting of those equity awards granted to him under the Company’s long-term incentive program that vest for periods prior to January 1, 2022; and (ii) the vesting of his outstanding restricted stock awards on the Retirement Date. Further, if the value of the equity awards described in subsections (i) and (ii) above at the time of vesting is less than $2,000,000, the Company’s Chairman and Chief Executive Officer may, in his sole discretion, award Mr. Davis a cash bonus equal to such difference. The Letter Agreement (including the related release agreement) includes mutual releases and non-disparagement covenants of Mr. Davis and the Company.

The Consulting Agreement will commence on January 1, 2022 and will continue in effect until December 31, 2022, subject to extension by mutual agreement of the Company and Mr. Davis. The Consulting Agreement provides that Mr. Davis will provide consulting services to the Company, and in consideration for such services, Mr. Davis will be paid a monthly fee of $25,000, and will receive reimbursement of expenses incurred in performing the consulting services. The Consulting Agreement includes a non-solicitation covenant of Mr. Davis for a period of 12 months following termination of the Consulting Agreement, a covenant of Mr. Davis to not provide services that conflict with the Company’s business, and a covenant of the Company to indemnify Mr. Davis in connection with his service as a consultant to the Company.

A copy of the Letter Agreement, which includes the related release agreement and the Consulting Agreement as exhibits thereto, is attached hereto as Exhibit 10.2, and is incorporated herein by reference. The foregoing summary of the material terms of the Letter Agreement (including the related release agreement) and the Consulting Agreement does not purport to be complete and is qualified in its entirety by reference to Exhibit 10.2.

LTI Program. In considering the adverse effects of the COVID-19 pandemic on the Company’s performance and our management’s strong leadership in addressing the adverse effects of the pandemic, on December 11, 2020, the Compensation and Management Development Committee of the Board of Directors of the Company (the “Committee”), approved a modification to the Company’s 2020-2022 long-term incentive compensation program (the “LTI Program”).

Our named executive officers, along with other senior officers, are participants in the LTI Program. As discussed in our Proxy Statement for the 2020 Annual Meeting of Shareholders, the LTI Program included four performance metrics (the LTI Program does not include awards based only on continuous service), one of which was based on the Company’s funds from operations as adjusted

(“FFO as Adjusted”) for the period from January 1, 2020 to December 31, 2021 (the “1-Year FFO as Adjusted Metric”). The awards under the 1-Year FFO as Adjusted Metric were to be determined based upon performance targets for FFO as Adjusted that were set by the Committee prior to the beginning of the performance period on January 1, 2020. Based on such targets and due to the adverse effects of the COVID-19 pandemic on the Company’s FFO as Adjusted, it is projected that the threshold for the 1-Year FFO as Adjusted Metric will not be reached, therefore the value of the portion of the awards based on the 1-Year FFO as Adjusted Metric will be zero.

The Committee recognized that the performance targets for the 1-Year FFO as Adjusted Metric were established prior to the beginning of the COVID-19 pandemic and, accordingly, at a time when the adverse impact of the pandemic on the Company’s business, and in particular the adverse impact of the pandemic on the Company’s 2020 FFO as Adjusted, was unforeseeable. The Committee also recognized that the adverse impact of the pandemic was not unique to the Company and that the pandemic adversely impacted the Company’s industry in general. The Committee also considered the strong leadership of the named executive officers and other participants in the LTI Program during the pandemic, as demonstrated by their efforts to institute new procedures and policies to address the economic and regulatory changes arising from the COVID-19 pandemic. The Committee believed that the Company’s 2020 performance relative to 1-Year FFO as Adjusted Metric was not fully reflective of management’s efforts, particularly considering that the Company’s performance during the first quarter of 2020 was on track to meet or exceed the target established for the 1-Year FFO as Adjusted Metric prior to the beginning of the year.

Accordingly, the Committee modified the LTI Program to remove the 1-Year FFO as Adjusted Metric for the 2020 fiscal year, and to replace such metric with a new metric based on the Company’s growth in FFO as Adjusted over a two-year period versus the growth in FFO as Adjusted for our apartment peers, defined as a group consisting of Apartment Investment Management Company, AvalonBay Communities, Inc., Camden Property Trust, Equity Residential, Essex Property Trust, Inc. and Mid-America Apartment Communities (the “2-Year FFO as Adjusted Metric”). The performance period for the 2-Year FFO as Adjusted Metric will be the 2020 and 2021 calendar years. One-half of the portion of the LTI Program awards based on the 2-Year FFO as Adjusted Metric will vest, if at all, when the Committee determines actual performance for the 2-Year FFO as Adjusted Metric in January or February of 2022 and one-half will vest, if at all, one year thereafter. The threshold, target and maximum performance levels for the 2-Year FFO as Adjusted Metric are as follows:

Relative 2-Year FFO as Adjusted Growth Rate

Percentage Earned

Below -600bps to Weighted Average Growth Rate

0%

-600bps to Weighted Average Growth Rate

50%

Weighted Average Growth Rate

100%

+600bps to Weighted Average Growth Rate

200%

The Committee has not previously modified metrics or performance levels for the LTI Program during the applicable performance period, but is doing so in response to the unique environment created by the COVID-19 pandemic.

The Committee believes that this modification to the LTI Program recognizes the hard work, commitment and achievements of the participants in the LTI Program during an extremely challenging time, while simultaneously maintaining the rigor of the LTI Program with respect to providing meaningful incentives to participants, aligning their interests with the interests of our shareholders, and furthering our retention objectives.

Item 7.01 Regulation FD Disclosure.

The press release announcing Mr. Davis’ resignation as Chief Operating Officer is furnished as Exhibit 99.1 to this Report. This information is being furnished pursuant to Item 7.01, and the information contained therein shall not be deemed “filed” for purposes of Section 18 of the Securities Exchange Act of 1934, as amended, or otherwise subject to the liabilities under that Section. Furthermore, the information contained in Exhibit 99.1 shall not be deemed to be incorporated by reference into the filings of the Company under the Securities Act of 1933, as amended.

Item 9.01 Financial Statements and Exhibits.

(d) Exhibits.

Exhibit No.

Description

10.1

Eleventh Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of December 16, 2020.

10.2

Letter Agreement, between the Company and Mr. Davis (including the related release agreement and Consulting Agreement as exhibits thereto), dated December 16, 2020.

99.1

Press Release.

104

Cover Page Interactive Data File – the cover page XBRL tags are embedded within the Inline XBRL document.

SIGNATURES

Pursuant to the requirements of the Securities Exchange Act of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.

 

 

 

 

 

 

 

 

 

 

 

 

UDR, Inc.

  

 

 

 

 

December 16, 2020

 

By:

 

 /s/ Joseph D. Fisher

 

 

 

 

Joseph D. Fisher

 

 

 

 

Senior Vice President and Chief Financial Officer

(Principal Financial Officer)

 

 

 

 

 

 

 

 

 

 

 

 

 

United Dominion Realty, L.P.

 

By:

 

UDR, Inc., its general partner

/s/ Joseph D. Fisher

 

 

 

 

Joseph D. Fisher

 

 

 

 

Senior Vice President and Chief Financial Officer

(Principal Financial Officer)

(Back To Top)

Section 2: EX-10.1 (EX-10.1)

Exhibit 10.1

ELEVENTH AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF UNITED DOMINION REALTY, L.P.

This Eleventh Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of December 16, 2020 (this “Amendment”), is being executed by UDR, Inc., a Maryland corporation (the “General Partner”), as the general partner of United Dominion Realty, L.P., a Delaware limited partnership (the “Partnership”), pursuant to the authority conferred upon the General Partner by Section 11.01 of the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of February 23, 2004, as amended by the First Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of June 24, 2005, the Second Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of February 23, 2006, the Third Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of January 2, 2007, the Fourth Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of December 27, 2007, the Fifth Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of March 7, 2008, the Sixth Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of December 9, 2008, the Seventh Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of March 13, 2009, the Eighth Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of November 17, 2010, the Ninth Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of December 4, 2015 and the Tenth Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated October 29, 2018 (as amended, the “Agreement”). Capitalized terms used, but not otherwise defined herein, shall have the respective meanings ascribed thereto in the Agreement.

WHEREAS, the General Partner desires to amend certain terms of the classes of Partnership Interests designated as LTIP Units, and the General Partner desires to amend the Agreement to accomplish the same.

NOW, THEREFORE, the General Partner hereby amends the Agreement as follows:

1.Amendment. The Agreement is hereby amended by deleting Exhibit H thereto in its entirety and replacing it with Exhibit H in the form attached hereto, which shall be attached to and made a part of the Agreement.
2.Miscellaneous. Except as specifically amended hereby, the terms, covenants, provisions and conditions of the Agreement shall remain unmodified and continue in full force and effect and, except as amended hereby, all of the terms, covenants, provisions and conditions of the Agreement are hereby ratified and confirmed in all respects.

[Signature Page Follows]

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IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.

GENERAL PARTNER

UDR, INC.

By:

/s/ David G. Thatcher

Name:

David G. Thatcher

Title:

Senior Vice President – General Counsel

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EXHIBIT H

PARTNERSHIP UNIT DESIGNATIONS
OF THE
LTIP UNITS
OF

UNITED DOMINION REALTY, L.P.

1.Defined Terms.

The following defined terms used in this Exhibit H shall have the meaning specified below.  Capitalized terms used, but not otherwise defined herein, shall have the respective meanings ascribed thereto in the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., as amended (the “Agreement”).

Adjustment Event” has the meaning set forth in Section 6 hereof.

Auto Conversion” has the meaning set forth in Section 11(d) hereof.

Auto Conversion Notice” has the meaning set forth in Section 11(d) hereof.

Capital Account Limitation” has the meaning set forth in Section 11(b) hereof.

Class 1 LTIP Units” has the meaning set forth in Section 2 hereof.

Class 1 Performance LTIP Units” has the meaning set forth in Section 2 hereof.

Class 2 LTIP Units” has the meaning set forth in Section 2 hereof.

Class 2 Performance LTIP Units” has the meaning set forth in Section 2 hereof.

Constituent Person” has the meaning set forth in Section 11(g) hereof.

Conversion Date” means, as applicable, (i) with respect to Class 1 or Class 2 LTIP Units, the date set forth in a Conversion Notice or a Forced Conversion Notice or the date of an Auto Conversion, and (ii) with respect to Performance LTIP Units, the date set forth in a Performance LTIP Unit Conversion Notice or a Forced Performance LTIP Unit Conversion Notice or the date of an Expiration Conversion.

Conversion Notice” has the meaning set forth in Section 11(b) hereof.

Conversion Right” has the meaning set forth in Section 11(a) hereof.

Economic Capital Account Balance” means, with respect to a holder of LTIP Units, its Capital Account balance, plus the amount of its share of any Partner Nonrecourse Debt Minimum Gain or Partnership Minimum Gain, in either case to the extent attributable to its ownership of LTIP Units.

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Eligible Unit” means, as of the time any Liquidating Gain is available to be allocated to an LTIP Unit, an LTIP Unit to the extent, since the date of issuance of such LTIP Unit, such Liquidating Gain when aggregated with other Liquidating Gains realized since the date of issuance of such LTIP Unit exceeds Liquidating Losses realized since the date of issuance of such LTIP Unit.  

Equity Plan” means any stock or other equity-based compensation plan now or hereafter adopted by the Partnership or the General Partner, including the Plan.

Expiration Conversion” has the meaning set forth in Section 12(f) hereof.

Expiration Conversion Notice” has the meaning set forth in Section 12(f) hereof.

Expiration Date” means, for any Performance LTIP Unit, the date specified in the Vesting Agreement or other documentation pursuant to which such Performance LTIP Unit is granted.

Forced Conversion” has the meaning set forth in Section 11(c) hereof.

Forced Conversion Notice” has the meaning set forth in Section 11(c) hereof.

Forced Performance LTIP Unit Conversion” has the meaning set forth in Section 12(e) hereof.

Forced Performance LTIP Unit Conversion Notice” has the meaning set forth in Section 12(e) hereof.

Full Distribution Participation Date” means, (i) for any Class 2 LTIP Unit, the date specified in the Vesting Agreement or other documentation pursuant to which such Class 2 LTIP Unit is granted, and (ii) for any Performance LTIP Unit (and any LTIP Unit into which a Performance LTIP Unit is converted pursuant to Section 12 hereof), the date upon which such Performance LTIP Unit is converted into Class 1 LTIP Units or Class 2 LTIP Units pursuant to Section 12 hereof or such other date as may be specified in the Vesting Agreement or other documentation pursuant to which such Performance LTIP Unit is granted.  Any reference to a “Class 2 LTIP Unit Distribution Participation Date” in an LTIP Agreement issued before the effectiveness of this Exhibit (as amended) shall be deemed a reference to a Full Distribution Participation Date.

Gross Asset Value” has the meaning set forth in Section 5(b) hereof.

Initial Sharing Percentage” means, (i) for any Class 2 LTIP Unit, ten percent (10%) or such other percentage specified in the Vesting Agreement or other documentation pursuant to which such Class 2 LTIP Unit is granted, and (ii) for any Performance LTIP Unit, two percent (2%) or such other percentage specified in the Vesting Agreement or other documentation pursuant to which such Performance LTIP Unit is granted. Any reference to a “Class 2 LTIP Unit Initial Sharing Percentage” in an LTIP Agreement issued before the effectiveness of this Exhibit (as amended) shall be deemed a reference to an Initial Sharing Percentage.

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Issue Price” means, for any Performance LTIP Unit, the amount specified in the Vesting Agreement or other documentation pursuant to which such Performance LTIP Unit is granted.

Liquidating Gains” means any net gain realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Partnership (including upon liquidation of the Partnership), including but not limited to net gain realized in connection with a revaluation of the Partnership’s property pursuant to Section 4.04 of the Agreement, with such net gain calculated in all cases by excluding adjustments to the basis of the Partnership’s assets for depreciation and amortization (as determined for purposes of book allocations under Section 704(b) of the Code and the Regulations thereunder) unless and to the extent the General Partner determines, in its sole discretion, such exclusions would result in unintended consequences.

Liquidating Losses” means any net loss realized in connection with the actual or hypothetical sale of all or substantially all of the assets of the Partnership (including upon liquidation of the Partnership), including but not limited to net loss realized in connection with a revaluation of the Partnership’s property pursuant to Section 4.04 of the Agreement, with such net loss calculated in all cases by excluding adjustments to the basis of the Partnership’s assets for depreciation and amortization (as determined for purposes of book allocations under Section 704(b) of the Code and the Regulations thereunder) unless and to the extent the General Partner determines, in its sole discretion, such exclusions would result in unintended consequences.

LTIP Agreement” has the meaning set forth in Section 5(b) hereof.

LTIP Unit Distribution Payment Date” has the meaning set forth in Section 7(c) hereof.

LTIP Unit Redemption Threshold” means a threshold that will be met with respect to one or more LTIP Units if, when and to the extent, such LTIP Units have satisfied the Capital Account Limitation.

LTIP Units” means the Partnership Units designated as such having the rights, powers, privileges, restrictions, qualifications and limitations set forth herein, in the Plan and in an applicable Vesting Agreement.  LTIP Units may be issued in one or more classes, or one or more series of any such classes bearing such relationship to one another as to allocations, distributions, and other rights as the General Partner shall determine in its sole and absolute discretion subject to Maryland law and the Agreement.  For the avoidance of doubt, the Performance LTIP Units are LTIP Units.

Partnership Common Unit” means a fractional, undivided share of the Partnership Interests of all Partners issued pursuant to the Agreement, but does not include any Partnership Unit owned by the General Partner, Class A Partnership Unit, Class I Out-Performance Partnership Share, Class II Out-Performance Partnership Share, Class III Out-Performance Partnership Share, Class IV Out-Performance Partnership Share, Class V Out-Performance Partnership Share, LTIP Unit or any other Partnership Unit, the terms of which provide that such other Partnership Unit is not a Partnership Common Unit.

Performance LTIP Unit” has the meaning provided in Section 2.

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Performance LTIP Unit Conversion Notice” has the meaning provided in Section 12(c) hereof.

Performance LTIP Unit Conversion Right” has the meaning provided in Section 12(a) hereof.

Performance LTIP Unit Value” means, for any Performance LTIP Unit as of any date, the product of (i) the excess (if any) of the REIT Share Value on such date over the Issue Price for such Performance LTIP Unit, and (ii) the Conversion Factor.

Plan” means the UDR, Inc.  1999 Long-Term Incentive Plan, as amended from time to time.

Post-Conversion Period Performance LTIP Unit” means a Performance LTIP Unit that was not converted on or prior to its Expiration Date pursuant to Section 12.

Proposed Section 83 Safe Harbor Regulation” has the meaning set forth in Section 14 hereof.

Qualifying Party” means a Limited Partner other than the Original Limited Partner.

REIT Share Economic Target” means, as of any date and with respect to any LTIP Unit, the product of (i) the REIT Share Value on such date, and (ii) the Conversion Factor.

REIT Share Value” means, as of the date of valuation, the fair market value of a REIT Share, determined as follows:  (i) if the REIT Share is listed or admitted to trading on any securities exchange or The Nasdaq National Market, the closing price, regular way, of a REIT Share on such day or, if no sale takes place on such day, the average of the closing bid and asked prices of a REIT Share on such day, (ii) if the REIT Share is not listed or admitted to trading on any securities exchange or The Nasdaq National Market but is regularly quoted by a recognized quotation source, the last reported sale price of a REIT Share on such day or, if no sale takes place on such day, the average of the closing bid and asked prices of a REIT Share on such day, as reported by a recognized quotation source designated by the Company, or (iii) if the REIT Share is not listed or admitted to trading on any securities exchange or The Nasdaq National Market but is regularly quoted by a recognized quotation source and no such last reported sale price or closing bid and asked prices are available, the average of the reported high bid and low asked prices of a REIT Share on such day, as reported by a recognized quotation source designated by the General Partner, or if there shall be no bid and asked prices on such day, the average of the high bid and low asked prices, as so reported, of a REIT Share on the most recent day (not more than twenty (20) days prior to the date in question) for which prices have been so reported; provided, that if there are no bid and asked prices reported during the twenty (20) days prior to the date in question, the value of a REIT Share shall be determined by the General Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate.  In the event that a REIT Share includes any additional rights the value of which is not included within such price, then the value of such rights shall be determined by the General Partner acting in good faith on the basis of such quotations and other information as it considers, in its reasonable judgment, appropriate, and included in determining the “REIT Share Value” of such REIT Share.

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Section 83 Safe Harbor” has the meaning set forth in Section 14 hereof.  

Transaction” has the meaning set forth in Section 11(g) hereof.  

Unvested LTIP Units” has the meaning set forth in Section 5(a) hereof.  

Vested LTIP Units” has the meaning set forth in Section 5(a) hereof.  

Vesting Agreement” has the meaning set forth in Section 5(a) hereof.

2.Designation.  A class of Partnership Units in the Partnership designated as the “LTIP Units” is hereby established.  The number of LTIP Units that may be issued is not limited by the Agreement.  Four classes of LTIP Units in the Partnership are hereby designated as the Class 1 LTIP Units, the Class 1 Performance LTIP Units, the Class 2 LTIP Units, and the Class 2 Performance LTIP Units (each Class 1 Performance LTIP Unit and Class 2 Performance LTIP Unit, a “Performance LTIP Unit”).  The numbers of Class 1 LTIP Units, Class 1 Performance LTIP Units, Class 2 LTIP Units, and Class 2 Performance LTIP Units shall be determined from time to time by the General Partner in accordance with the terms of the Plan.

3.Issuances of LTIP Units.  From time to time, the General Partner is hereby authorized to issue LTIP Units, including Class 1 LTIP Units, Class 1 Performance LTIP Units, Class 2 LTIP Units, and Class 2 Performance LTIP Units, to Persons providing services to or for the benefit of the Partnership for such consideration or for no consideration as the General Partner may determine to be appropriate and on such terms and conditions as shall be established by the General Partner, and admit such Persons as Limited Partners.  Except to the extent that a Capital Contribution is made with respect to an LTIP Unit, each LTIP Unit is intended to qualify as a “profits interest” in the Partnership within the meaning of the Code, the Regulations, and any published guidance by the Internal Revenue Service with respect thereto.  Except as may be provided from time to time by the General Partner with respect to one or more series of LTIP Units, and except as provided in an applicable LTIP Agreement, LTIP Units shall have the terms set forth in this Exhibit H. Pursuant to the terms of the Agreement, this Exhibit H or an applicable LTIP Agreement, an LTIP Unit may be convertible, exchangeable or otherwise transmutable, in substance, into another type of LTIP Unit or other type of Partnership Unit.

4.Admission to Partnership.  A Person (other than an existing Partner) who is issued LTIP Units in accordance with Section 3 hereof shall be admitted to the Partnership as an additional Limited Partner only upon the satisfactory completion of the requirements an assignee is required to complete pursuant to Section 9.03(a)(i) through (v) of the Agreement.

5.Vesting.

(a)Vesting, Generally.  LTIP Units may, in the sole discretion of the General Partner, be issued subject to vesting, forfeiture and additional restrictions on Transfer pursuant to the terms of an award, vesting or other similar agreement (a “Vesting Agreement”).  The terms of any Vesting Agreement may be modified by the General Partner from time to time in its sole discretion, subject to any restrictions on amendment imposed by the relevant Vesting Agreement or by the Plan or any other Equity Plan, if applicable.  LTIP Units that were fully vested when issued or that have

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vested and are no longer subject to forfeiture under the terms of a Vesting Agreement are referred to as “Vested LTIP Units”; all other LTIP Units shall be treated as “Unvested LTIP Units”.  

(b)Forfeiture.  Unless otherwise specified in an applicable Vesting Agreement, the Plan or in any applicable Equity Plan or other compensatory arrangement or incentive program pursuant to which LTIP Units are issued (collectively, the “LTIP Agreement”), upon the occurrence of any event specified in such LTIP Agreement as resulting in either the right of the Partnership or the General Partner to repurchase LTIP Units at a specified purchase price or some other forfeiture of any LTIP Units, if the Partnership or the General Partner exercises such right to repurchase or upon the occurrence of the event causing forfeiture in accordance with the applicable LTIP Agreement, the relevant LTIP Units shall immediately, and without any further action, be treated as cancelled and no longer outstanding for any purpose.  Unless otherwise specified in the applicable LTIP Agreement, no consideration or other payment shall be due with respect to any LTIP Units that have been forfeited, other than any distributions declared with respect to a Partnership Record Date and with respect to such LTIP Units prior to the effective date of the forfeiture.

6.Adjustments.  The Partnership shall maintain at all times a one-to-one correspondence between LTIP Units (excluding Performance LTIP Units before their conversion) and Partnership Common Units for conversion, distributions, allocations and other purposes, including without limitation complying with the following procedures; provided, that the foregoing is not intended to alter the special allocations pursuant to Section 8 hereof, differences between distributions to be made with respect to the Class 2 LTIP Units or Performance LTIP Units and the Partnership Common Units prior to the Full Distribution Participation Date for such Class 2 LTIP Units or Performance LTIP Units, or differences between distributions to be made with respect to LTIP Units and Partnership Common Units pursuant to Section 5.06 and Section 7(b) hereof in the event that the Capital Accounts attributable to the LTIP Units are different than those attributable to Partnership Common Units.  If an Adjustment Event (as defined below) occurs, then the General Partner shall take any action reasonably necessary, including any amendment to the Agreement or update to Exhibit A to the Agreement adjusting the number of outstanding LTIP Units or subdividing or combining outstanding LTIP Units, to maintain a one-for-one conversion and economic equivalence ratio between Partnership Common Units and LTIP Units (excluding Performance LTIP Units before their conversion).  The following shall be “Adjustment Events”: (i) the Partnership makes a distribution on all outstanding Partnership Common Units in Partnership Units, (ii) the Partnership subdivides the outstanding Partnership Common Units into a greater number of units or combines the outstanding Partnership Common Units into a smaller number of units, or (iii) the Partnership issues any Partnership Units in exchange for its outstanding Partnership Common Units by way of a reclassification or recapitalization of its Partnership Common Units.  If more than one Adjustment Event occurs, any adjustment to the LTIP Units need be made only once using a single formula that takes into account each and every Adjustment Event as if all Adjustment Events occurred simultaneously.  For the avoidance of doubt, the following shall not be Adjustment Events:  (x) the issuance of Partnership Units in a financing, reorganization, acquisition or other similar business transaction, (y) the issuance of Partnership Units pursuant to any employee benefit or compensation plan or distribution reinvestment plan, or (z) the issuance of any Partnership Units to the General Partner in respect of a Capital Contribution to the Partnership.  If the Partnership takes an action affecting the Partnership Common Units other than actions specifically described above as “Adjustment

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Events” and in the opinion of the General Partner such action would require an action to maintain the one-to-one correspondence described above, the General Partner shall have the right to take such action, to the extent permitted by law, the Plan and by any applicable Equity Plan or other compensatory arrangement or incentive program pursuant to which LTIP Units are issued, in such manner and at such time as the General Partner, in its sole discretion, may determine to be reasonably appropriate under the circumstances.  Notwithstanding the foregoing, if any Adjustment Event or any other action described in the preceding sentence occurs, the General Partner may independently adjust the number of Performance LTIP Units outstanding or held by a particular holder of Performance LTIP Units, the Issue Price of any Performance LTIP Unit, or the number of Class 1 LTIP Units or Class 2 LTIP Units (as applicable) into which any Performance LTIP Unit may be converted, or may undertake any combination of the foregoing, in such manner as the General Partner determines in good faith to be equitable.  If an amendment is made to the Agreement adjusting the number of outstanding LTIP Units as herein provided, the Partnership shall promptly file in the books and records of the Partnership an officer’s certificate setting forth a brief statement of the facts requiring such adjustment, which certificate shall be conclusive evidence of the correctness of such adjustment absent manifest error.  Promptly after filing of such certificate, the Partnership shall mail a notice to each holder of LTIP Units setting forth the adjustment to his or her LTIP Units and the effective date of such adjustment.  Any adjustment to the number of outstanding LTIP Units pursuant to this Section 6 shall be binding on the Partnership and every Limited Partner.  

7.Distributions.

(a)Operating Distributions.  Except as otherwise provided in the Agreement, the Plan, any other applicable Equity Plan, any applicable LTIP Agreement or by the General Partner with respect to any particular class or series of LTIP Units, holders of LTIP Units shall be entitled to receive, if, when and as authorized by the General Partner out of funds or other property legally available for the payment of distributions, regular, special, extraordinary or other distributions (other than distributions upon or pursuant to the liquidation of the Partnership) which may be made from time to time, in an amount per unit equal to the amount of any such distributions that would have been payable to such holders if the LTIP Units had been Partnership Common Units of the same number (if applicable, assuming such LTIP Units were held for the entire period to which such distributions relate); provided, however, that for each Class 2 LTIP Unit and each Performance LTIP Unit, until any applicable Full Distribution Participation Date occurs, such LTIP Unit will be entitled to receive only such distributions in an amount equal to the product of the Initial Sharing Percentage for such LTIP Unit and the amount otherwise distributable with respect to such LTIP Unit pursuant to this Section 7(a).

(b)Liquidating Distributions.  Holders of LTIP Units shall also be entitled to receive, if, when and as authorized by the General Partner out of funds or other property legally available for the payment of distributions, distributions upon liquidation of the Partnership in an amount equal to the positive balances of the Capital Accounts of the holders of such LTIP Units to the extent attributable to the ownership of such LTIP Units as set forth in Section 5.06(a) of the Agreement.

(c)Distributions Generally.  Distributions on the LTIP Units, if authorized, shall be payable on such dates and in such manner as may be authorized by the General Partner (any such

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date, an “LTIP Unit Distribution Payment Date”).  Absent a contrary determination by the General Partner, the LTIP Unit Distribution Payment Date shall be the same as the corresponding date relating to the corresponding distribution on the Partnership Common Units, and the record date for determining which holders of LTIP Units are entitled to receive distributions shall be the Partnership Record Date.  A holder of LTIP Units will be entitled to distributions with respect to an LTIP Unit only as set forth in this Exhibit H and, in making distributions pursuant to Section 5.02 of the Agreement, the General Partner of the Partnership shall take into account the provisions of this Section 7.

8.Allocations.

(a)General.  Holders of LTIP Units shall be allocated Profit, Loss and depreciation and amortization expenses of the Partnership in amounts per LTIP Unit equal to the amounts allocated per Partnership Common Unit; provided, however, that prior to the Full Distribution Participation Date with respect to a Class 2 LTIP Unit or Performance LTIP Unit, the amounts allocated to such LTIP Unit shall equal only the product of the Initial Sharing Percentage for such LTIP Unit and the amount otherwise allocable with respect to such LTIP Unit pursuant to this Section 8(a).  The allocations provided by the preceding sentence shall be subject to Section 5.01(a) of the Agreement and in addition to any special allocations required by Section 8(b) hereof.  The General Partner is authorized in its discretion to delay or accelerate the participation of the LTIP Units in allocations of Profit, Loss and depreciation and amortization expenses of the Partnership under this Section 8(a), or to adjust the allocations made under this Section 8(a), so that the ratio of (i) the total amount of Profit, Loss and depreciation and amortization expenses of the Partnership allocated with respect to each LTIP Unit in the taxable year in which that LTIP Unit’s Full Distribution Participation Date, if any, falls (excluding special allocations under Section 8(b) hereof), to (ii) the total amount distributed to that LTIP Unit with respect to such period, is more nearly equal to the ratio of (A) the Profit, Loss and depreciation and amortization expenses of the Partnership allocated with respect to the Partnership Common Units in such taxable year to (B) the amounts distributed with respect to such Partnership Common Units in such taxable year.

(b)Special Allocations with Respect to LTIP Units.  In the event that Liquidating Gains are allocated under this Section 8(b), Profit, Loss and depreciation and amortization expenses of the Partnership allocable under Section 5.01(a) of the Agreement to Partners other than Class A Partners shall be recomputed without regard to the Liquidating Gains so allocated.  This Section 8(b) shall not affect any allocations to Class A Partners.  After giving effect to the special allocations set forth in Sections 5.01(b), 5.01(c) and 5.01(d) of the Agreement and Sections 8(c) and 8(d) hereof, and notwithstanding the provisions of Section 5.01(a) of the Agreement (except insofar as they allocate Profit, Loss and depreciation and amortization expenses of the Partnership to Class A Partners), the recalculated Liquidating Gains shall first be allocated to the holders of Eligible Units until the Economic Capital Account Balances of such holders, to the extent attributable to their ownership of Eligible Units, are equal to (i) the REIT Share Economic Target (with respect to LTIP Units other than Performance LTIP Units prior to their conversion) and/or Performance LTIP Unit Value (with respect to Performance LTIP Units prior to their conversion), multiplied by (ii) the number of their Eligible Units.  In addition, if any Capital Account balance attributable to a Performance LTIP Unit exceeds the applicable Performance LTIP Unit Value, and Liquidating Losses are available to be allocated to a holder of LTIP Units, then such

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Liquidating Losses shall be allocated to each holder of such a Performance LTIP Unit until each such holder’s Capital Account, to the extent attributable to such holder’s Performance LTIP Units, is equal (on a per-unit basis) to the applicable Performance LTIP Unit Value.  For purposes of the foregoing allocations, (i) unless and to the extent otherwise determined by the General Partner, calculations shall be made separately with respect to the Eligible Units, including Eligible Units that are Performance LTIP Units with different Performance LTIP Unit Values, and (ii) any such allocations shall be made in proportion to the amounts required to be allocated to each relevant holder under this Section 8(b).  The parties agree that the intent of this Section 8(b) is to make the Capital Account balances of the holders of LTIP Units with respect to their LTIP Units economically equivalent (on a per-unit basis) to the applicable REIT Share Economic Target or Performance LTIP Unit Value (calculated in each case using the REIT Share Value on the date as of which such special allocation under this Section 8(b) is being made), but only to the extent the Partnership has recognized cumulative gains (calculated in the same manner as is applicable to calculating Liquidating Gains) with respect to its assets since the issuance of the relevant LTIP Unit.   Notwithstanding the foregoing, (i) the special allocations of Liquidating Gains and Losses pursuant to the preceding provisions of this Section 8(b) shall cease to apply to any Eligible Unit (other than a Performance LTIP Unit prior to its conversion) once such Eligible Unit has met the LTIP Unit Redemption Threshold and any Post-Conversion Period Performance LTIP Unit once it becomes a Post-Conversion Period Performance LTIP Unit, and (ii) the General Partner may adjust future allocations with respect to any holder of a Post-Conversion Period Performance LTIP Unit in any manner it determines in its sole discretion necessary or convenient to cause the Capital Account balance of such holder to (x) equal the balance that would have obtained had no allocations of Liquidating Gains or Liquidating Losses been made with respect to such Post-Conversion Period Performance LTIP Unit pursuant to the preceding provisions of this Section 8(b), and (y) otherwise equitably reflect the intended economic entitlements of such holder.  The allocations set forth in this Section 8(b) shall be taken into account for determining the Capital Account of each Partner, including for purposes of Section 5.06(a) of the Agreement.

(c)Capital Account Adjustments and Allocations upon Forfeiture.  Except as otherwise provided in the Agreement or any applicable LTIP Agreement, in connection with any repurchase or forfeiture of LTIP Units pursuant to Section 5(b), the balance of the portion of the Capital Account of the holder of such LTIP Units that is attributable to all of his or her LTIP Units shall be reduced, to the greatest extent possible, by the amount, if any, by which it exceeds the target balance contemplated by Section 8(b) hereof, calculated with respect to such holder’s remaining LTIP Units, if any.  Such reduction shall be accomplished in such manner as the General Partner determines, in its sole and absolute discretion, including a reduction with or without a reallocation of such amount among other Partners, special allocations of items of income, gain, loss or deduction (including pursuant to finalized Treasury Regulations), a “book down” in the value of Partnership assets in the amount of such reduction, or a combination of the foregoing.  Notwithstanding the foregoing, in no event shall the foregoing affect the allocations to the Class A Partners.

(d)Regulatory Allocations.  For purposes of the allocations set forth in Sections 5.01(b), prior to the Full Distribution Participation Date for a Class 2 LTIP Unit or Performance LTIP Unit, the Percentage Interest for such LTIP Unit shall be the Percentage Interest of a Partnership Common Unit multiplied by the applicable Initial Sharing Percentage.

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9.Transfers.

(a)Subject to the terms of any Vesting Agreement, a holder of LTIP Units shall be entitled to transfer his or her LTIP Units to the same extent, and subject to the same restrictions as holders of Partnership Common Units are entitled to transfer their Partnership Common Units pursuant to Article 9 of the Agreement.

(b)Neither a conversion of an LTIP Unit into Partnership Common Units, a conversion of a Performance LTIP Unit pursuant to Section 12 hereof, nor a conversion or other transmutation of an LTIP Unit into another type, in substance, of Partnership Unit, pursuant to the terms of this Agreement or an applicable LTIP Agreement, is a “Transfer” for purposes of the Agreement.

10.Legend.  Any certificate evidencing an LTIP Unit shall bear an appropriate legend indicating that additional terms, conditions and restrictions on transfer, including without limitation any Vesting Agreement, apply to the LTIP Unit.

11.Conversion of Class 1 LTIP Units and Class 2 LTIP Units to Partnership Common Units.

(a)A Qualifying Party holding LTIP Units shall have the right (the “Conversion Right”), at his or her option, at any time to convert all or a portion of his or her Vested LTIP Units into Partnership Common Units, taking into account all adjustments (if any) made pursuant to Section 6 hereof; provided, however, that a Qualifying Party may not exercise the Conversion Right for less than one thousand (1,000) Vested LTIP Units or, if such Qualifying Party holds less than one thousand (1,000) Vested LTIP Units, all of the Vested LTIP Units held by such Qualifying Party that are not subject to the limitation on conversion under Section 11(b) hereof.  Qualifying Parties shall not have the right to convert Unvested LTIP Units into Partnership Common Units until they become Vested LTIP Units; provided, however, that when a Qualifying Party is notified of the expected occurrence of an event that will cause his or her Unvested LTIP Units to become Vested LTIP Units, such Qualifying Party may give the Partnership a Conversion Notice conditioned upon and effective as of the time of vesting and such Conversion Notice, unless subsequently revoked by the Qualifying Party, shall be accepted by the Partnership subject to such condition.  In all cases, the conversion of any LTIP Units into Partnership Common Units shall be subject to the conditions and procedures set forth in this Section 11.

(b)A Qualifying Party may convert his or her Vested LTIP Units into an equal number of fully paid and non-assessable Partnership Common Units, giving effect to all adjustments (if any) made pursuant to Section 6 hereof.  Notwithstanding the foregoing, in no event may a Qualifying Party convert a number of Vested LTIP Units that exceeds (i) the Economic Capital Account Balance of such Limited Partner, to the extent attributable to his or her ownership of Vested LTIP Units, divided by (ii) the REIT Share Economic Target applicable to such Vested LTIP Units, in each case as determined as of a date on which satisfaction of the LTIP Unit Redemption Threshold is being determined (in either case, the “Capital Account Limitation”).  After one or more LTIP Units have satisfied the LTIP Unit Redemption Threshold, such units shall forever have satisfied such threshold and the Capital Account Limitation shall thereafter apply only to any LTIP Units which have not previously satisfied such threshold.  In order to exercise his or her Conversion Right, a Qualifying Party shall deliver a notice (a “Conversion Notice”) in

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the form attached hereto as Annex I to the Partnership (with a copy to the General Partner) not less than three (3) nor more than ten (10) days prior to the Conversion Date specified in such Conversion Notice; provided, however, that if the General Partner has not given to the Qualifying Party notice of a proposed or upcoming Transaction (as defined below) at least thirty (30) days prior to the effective date of such Transaction, then the Qualifying Party shall have the right to deliver a Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third Business Day immediately preceding the effective date of such Transaction.  A Conversion Notice shall be provided in the manner provided in Section 12.01 of the Agreement.  Each Qualifying Party seeking to convert Vested LTIP Units covenants and agrees with the Partnership that all Vested LTIP Units to be converted pursuant to this Section 11 shall be free and clear of all liens.  Notwithstanding anything herein to the contrary, if the Vested LTIP Units have been held for at least one year, subject to any restrictions set forth in an applicable LTIP Agreement, a Qualifying Party may deliver a Notice of Redemption pursuant to Section 8.05(a) of the Agreement relating to the Partnership Common Units into which such Vested LTIP Units are being converted in advance of the Conversion Date; provided, however, that the redemption of such Partnership Common Units by the Partnership shall in no event take place until on or after the Conversion Date.  For clarity, it is noted that the objective of this paragraph is to put a Qualifying Party in a position where, if he or she so wishes, the Partnership Common Units into which his or her Vested LTIP Units will be converted can be redeemed by the Partnership pursuant to Section 8.05(a) of the Agreement simultaneously with such conversion, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Partnership Common Units under Section 8.05(b) of the Agreement by delivering to such Qualifying Party REIT Shares rather than cash, then such Qualifying Party can have such REIT Shares issued to him or her simultaneously with the conversion of his or her Vested LTIP Units into Partnership Common Units.  The General Partner shall cooperate with a Qualifying Party to coordinate the timing of the different events described in the foregoing sentence.  For the avoidance of doubt, subject to the limitations of this Section 11, a Qualifying Party may deliver a Conversion Notice with respect to Vested LTIP Units held on the applicable Conversion Date as a result of such Qualifying Party’s exercise of its Performance LTIP Unit Conversion Right (as defined below).

(c)The Partnership, at any time at the election of the General Partner, may cause any number of Vested LTIP Units to be converted (a “Forced Conversion”) into an equal number of Partnership Common Units, giving effect to all adjustments (if any) made pursuant to Section 6 hereof; provided, however, that the Partnership may not cause a Forced Conversion of any LTIP Units that would not at the time be eligible for conversion at the option of such Qualifying Party pursuant to Section 11(b) hereof.  In order to exercise its right of Forced Conversion, the Partnership shall deliver a notice (a “Forced Conversion Notice”) in the form attached hereto as Annex II to the applicable holder of LTIP Units not less than ten (10) nor more than sixty (60) days prior to the Conversion Date specified in such Forced Conversion Notice.  A Forced Conversion Notice shall be provided in the manner provided in Section 12.01 of the Agreement.  

(d)Except as otherwise provided in an applicable Vesting Agreement, immediately after each such time that either (i) LTIP Units become Vested LTIP Units pursuant to Section 5(a) or (ii) the assets of the Partnership are revalued pursuant to Section 4.04 of the Agreement, all Vested LTIP Units not previously converted into Partnership Common Units shall automatically be converted (an “Auto Conversion”) into an equal number of Partnership Common Units, giving

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effect to all adjustments (if any) made pursuant to Section 6 hereof; provided, however, that no Auto Conversion shall occur with respect to any LTIP Units that would not at the time be eligible for conversion at the option of such Qualifying Party pursuant to Section 11(b) hereof.  Following an Auto Conversion, the Partnership shall deliver a notice (an “Auto Conversion Notice”) in the form attached hereto as Annex III to the applicable holder of LTIP Units as soon as reasonably possible following the Conversion Date (provided that the failure to deliver an Auto Conversion Notice will not affect the Auto Conversion or subject the General Partner or the Partnership to any liability).  An Auto Conversion Notice shall be provided in the manner provided in Section 12.01 of the Agreement.

(e)A conversion of Vested LTIP Units for which the holder thereof has given a Conversion Notice or the Partnership has given a Forced Conversion Notice or with respect to which an Auto Conversion has occurred shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such holder of LTIP Units, other than the surrender of any certificate or certificates evidencing such Vested LTIP Units, as of which time such holder of LTIP Units shall be credited on the books and records of the Partnership as of the opening of business on the next day with the number of Partnership Common Units into which such LTIP Units were converted.  After the conversion of LTIP Units as aforesaid, the Partnership shall deliver to such holder of LTIP Units, upon his or her written request, a certificate of the General Partner certifying the number of Partnership Common Units and remaining LTIP Units, if any, held by such person immediately after such conversion.  The assignee of any Limited Partner pursuant to Article 9 of the Agreement may exercise the rights of such Limited Partner pursuant to this Section 11 and such Limited Partner shall be bound by the exercise of such rights by the assignee.

(f)For purposes of making future allocations under Section 8(b) hereof and applying the Capital Account Limitation, the portion of the Economic Capital Account Balance of the applicable holder of LTIP Units that is treated as attributable to his or her LTIP Units shall be reduced, as of the date of conversion, by the product of the number of LTIP Units converted and the REIT Share Economic Target determined for each such LTIP Unit as of the date on which satisfaction of the LTIP Unit Redemption Threshold for such LTIP Unit was determined.

(g)If the Partnership or the General Partner shall be a party to any transaction (including without limitation a merger, consolidation, unit exchange, self-tender offer for all or substantially all Partnership Common Units or other business combination or reorganization, or sale of all or substantially all of the Partnership’s assets, but excluding any transaction which constitutes an Adjustment Event) in each case as a result of which Partnership Common Units shall be exchanged for or converted into the right, or the holders shall otherwise be entitled, to receive cash, securities or other property or any combination thereof (each of the foregoing being referred to herein as a “Transaction”), then the General Partner shall, immediately prior to the Transaction, exercise its right to cause a Forced Conversion with respect to the maximum number of LTIP Units then eligible for conversion (or that will become eligible for conversion as a result of a contemporaneous or prior Forced Performance LTIP Unit Conversion), taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or the portion thereof attributable to the Partnership as determined by the General Partner in good faith, or if applicable, at a value for the Partnership assets determined by the General Partner in good faith

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using the value attributed to the Partnership Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction and the conversion shall occur immediately prior to the effectiveness of the Transaction).  In anticipation of such Forced Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each holder of LTIP Units to be afforded the right to receive in connection with such Transaction in consideration for the Partnership Common Units into which his or her LTIP Units will be converted the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Transaction by a holder of the same number of Partnership Common Units, assuming such holder is not a Person with which the Partnership consolidated or into which the Partnership merged or which merged into the Partnership or to which such sale or transfer was made, as the case may be (a “Constituent Person”), or an affiliate of a Constituent Person.  In the event that holders of Partnership Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each holder of LTIP Units of such opportunity, and shall use commercially reasonable efforts to afford the holder of LTIP Units the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of each LTIP Unit held by such holder into Partnership Common Units in connection with such Transaction.  If a holder of LTIP Units fails to make such an election, such holder (and any of its transferees) shall receive upon conversion of each LTIP Unit held by him or her (or by any of his or her transferees) the same kind and amount of consideration that a holder of Partnership Common Units would receive if such holder of Partnership Common Units failed to make such an election.  Subject to the rights of the Partnership and the General Partner under any Vesting Agreement and the relevant terms of the Plan or any other applicable Equity Plan, the Partnership shall use commercially reasonable effort to cause the terms of any Transaction to be consistent with the provisions of this Section 11(g) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any holder of LTIP Units whose LTIP Units will not be converted into Partnership Common Units in connection with the Transaction that will (i) contain provisions enabling the Qualifying Parties that remain outstanding after such Transaction to convert their LTIP Units into securities as comparable as reasonably possible under the circumstances to the Partnership Common Units and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement, including this Exhibit H, for the benefit of the holder of LTIP Units.

(h)No conversion of LTIP Units into Partnership Common Units, or Partnership Units that are not LTIP Units, may be made by a Person if, based on the advice of the Partnership’s counsel or accounting firm, the Partnership believes there is a material risk that such conversion could (i) result in the Partnership’s being treated as an association taxable as a corporation (other than a qualified REIT subsidiary within the meaning of Section 856(i) of the Code), (ii) adversely affect the ability of the Company to continue to qualify as a REIT or subject the Company to any additional taxes under Section 857 or Section 4981 of the Code, or (iii) be effectuated through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code or cause the Partnership to fail to qualify for a safe harbor from such treatment which the Partnership desires to preserve.

(i)Notwithstanding the foregoing, nothing in this Section 11 shall apply to a Performance LTIP Unit (including, for the avoidance of doubt, the Capital Account balance

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attributable to such Performance LTIP Unit), other than with respect to Vested LTIP Units into which a Performance LTIP Unit has been converted pursuant to Section 12.

12.Conversion of Performance LTIP Units to Class 1 LTIP Units or Class 2 LTIP Units.

(a)The holder of a Class 1 Performance LTIP Unit or a Class 2 Performance LTIP Unit may convert such Unit into a Class 1 LTIP Unit or a Class 2 LTIP Unit (as applicable) at any time (i) on or after such Performance LTIP Unit becomes a Vested LTIP Unit, and (ii) before the Expiration Date of such Performance LTIP Unit (the “Performance LTIP Unit Conversion Right”); provided, however, that a Performance LTIP Unit holder may not exercise a Performance LTIP Unit Conversion Right with respect to the lesser of (i) one thousand (1,000) Performance LTIP Units and (ii) 100% of the Performance LTIP Units held by such person that are Vested LTIP Units.  If a Performance LTIP Unit holder is notified of the expected occurrence of an event that will cause his or her Unvested LTIP Units to become Vested LTIP Units, such holder may give the Partnership a Performance LTIP Unit Conversion Notice conditioned upon and effective as of the time of vesting and such Performance LTIP Unit Conversion Notice, unless subsequently revoked by such person, shall be accepted by the Partnership subject to such condition.  In all cases, the conversion of any Performance LTIP Units into Class 1 LTIP Unit or a Class 2 LTIP Unit (as applicable) shall be subject to the conditions and procedures set forth in this Section 12.

(b)Any Performance LTIP Units being converted pursuant to a Performance LTIP Unit Conversion Notice, a Forced Performance LTIP Unit Conversion, or an Expiration Conversion will convert to a number of Class 1 LTIP Units or Class 2 LTIP Units (as applicable) equal to (i) the applicable Performance LTIP Unit Value, multiplied by (ii) the number of Performance LTIP Units being converted, and divided by (iii) the REIT Share Value on the Conversion Date.  For the avoidance of doubt, the foregoing calculation shall be adjusted as necessary to take into account any differences in the Performance LTIP Unit Values of the Performance LTIP Units being converted.  A conversion of Performance LTIP Units under this Section 12 shall occur automatically after the close of business on the applicable Conversion Date without any action on the part of such holder of Performance LTIP Units, other than the surrender of any certificate or certificates evidencing such Performance LTIP Units, as of which time such holder of Performance LTIP Units shall be credited on the books and records of the Partnership as of the opening of business on the next day with the number of Class 1 LTIP Units or Class 2 LTIP Units into which such LTIP Units were converted.  After the conversion of Performance LTIP Units as aforesaid, the Partnership shall deliver to such holder of LTIP Units, upon his or her written request, a certificate of the General Partner certifying the number of Class 1 LTIP Units or Class 2 LTIP Units, as applicable, and remaining Performance LTIP Units, if any, held by such person immediately after such conversion.  Notwithstanding the preceding two sentences, if (x) a Performance LTIP Unit is converted under this Section 12, (y) the corresponding Class 1 LTIP Units or Class 2 LTIP Units are converted into Partnership Common Units pursuant to Section 11 as of the same conversion date, and (z) such Partnership Common Units are not redeemed as of the same date, the relevant holder shall be reflected as a holder of Partnership Common Units (rather than as a holder of LTIP Units) as of the opening of the business day following such conversions and may be provided a certificate certifying the number of Partnership Common Units (rather than LTIP Units) owned by such holder based on such conversions.  The assignee of any Limited Partner pursuant to Article 9 of the Agreement may exercise the rights of such Limited

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Partner pursuant to this Section 12 and such Limited Partner shall be bound by the exercise of such rights by the assignee.  

(c)To exercise his or her Performance LTIP Unit Conversion Right, a Performance LTIP Unit holder shall deliver a notice (a “Performance LTIP Unit Conversion Notice”) in the form attached hereto as Annex IV to the Partnership (with a copy to the General Partner) not less than three (3) nor more than ten (10) days prior to the Conversion Date specified in such Performance LTIP Unit Conversion Notice; provided, however, that if the General Partner has not given to the holder notice of a proposed or upcoming Transaction (as defined above) at least thirty (30) days prior to the effective date of such Transaction, then the holder shall have the right to deliver a Performance LTIP Unit Conversion Notice until the earlier of (x) the tenth (10th) day after such notice from the General Partner of a Transaction or (y) the third Business Day immediately preceding the effective date of such Transaction.  Any Performance LTIP Unit Conversion Notice shall be provided in the manner provided in Section 12.01 of the Agreement.  Each Qualifying Party seeking to convert Performance LTIP Units covenants and agrees with the Partnership that all Units to be converted pursuant to this Section 12 shall be free and clear of all liens.  Notwithstanding anything herein to the contrary, if the Performance LTIP Units have been held for at least one year, subject to any restrictions set forth herein or in an applicable LTIP Agreement, a Qualifying Party may deliver a Notice of Redemption pursuant to Section 8.05(a) of the Agreement relating to the Partnership Common Units into which the Class 1 LTIP Units or Class 2 LTIP Units receivable on conversion of such Performance LTIP Units ultimately are convertible in advance of the Conversion Date; provided, however, that the redemption of such Partnership Common Units by the Partnership shall in no event take place until on or after the Conversion Date.  For clarity, it is noted that the objective of this paragraph (together with Section 11(b) above) is to put a Performance LTIP Unit holder in a position where, if he or she so wishes, (i) the Class 1 LTIP Units or Class 2 LTIP Units into which his or her Performance LTIP Units convert can be converted into Partnership Common Units simultaneously by the Partnership, and (ii) the Partnership Common Units into which such Class 1 LTIP Units or Class 2 LTIP Units convert can be redeemed by the Partnership pursuant to Section 8.05(a) of the Agreement simultaneously, with the further consequence that, if the General Partner elects to assume the Partnership’s redemption obligation with respect to such Partnership Common Units under Section 8.05(b) of the Agreement by delivering to such Performance LTIP Unit holder REIT Shares rather than cash, then such holder can have such REIT Shares issued to him or her simultaneously with the conversion of his or her Performance LTIP Units into Class 1 or Class 2 LTIP Units and corresponding conversion of such LTIP Units into Partnership Common Units, in all events subject to any restrictions on conversion or redemption set forth herein or in an applicable LTIP Agreement.  The General Partner shall cooperate with a holder of Performance LTIP Units to coordinate the timing of the different events described in the foregoing sentence.

(d)No conversion of Performance LTIP Units may be made by a Person if, based on the advice of the Partnership’s counsel or accounting firm, the Partnership believes there is a material risk that such conversion could (i) result in the Partnership’s being treated as an association taxable as a corporation (other than a qualified REIT subsidiary within the meaning of Section 856(i) of the Code), (ii) adversely affect the ability of the Company to continue to qualify as a REIT or subject the Company to any additional taxes under Section 857 or Section 4981 of the Code, or (iii) be effectuated through an “established securities market” or a “secondary market (or the substantial equivalent thereof)” within the meaning of Section 7704 of the Code or cause

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the Partnership to fail to qualify for a safe harbor from such treatment which the Partnership desires to preserve.

(e)If the Partnership or the General Partner shall be a party to any Transaction, then the General Partner shall, immediately before the Transaction, be entitled to cause a conversion of Performance LTIP Units (a “Forced Performance LTIP Unit Conversion”) with respect to the maximum number of Performance LTIP Units then eligible for conversion under this Section 12, taking into account any allocations that occur in connection with the Transaction or that would occur in connection with the Transaction if the assets of the Partnership were sold at the Transaction price or the portion thereof attributable to the Partnership as determined by the General Partner in good faith, or if applicable, at a value for the Partnership assets determined by the General Partner in good faith using the value attributed to the Partnership Common Units in the context of the Transaction (in which case the Conversion Date shall be the effective date of the Transaction and the conversion shall occur immediately prior to the effectiveness of the Transaction).  In anticipation of such Forced Performance LTIP Unit Conversion and the consummation of the Transaction, the Partnership shall use commercially reasonable efforts to cause each holder of Performance LTIP Units to be afforded the right to receive in connection with such Transaction in consideration for the Partnership Common Units into which his or her Performance LTIP Units ultimately will be converted (based on the conversion ratios set forth herein) the same kind and amount of cash, securities and other property (or any combination thereof) receivable upon the consummation of such Transaction by a holder of the same number of Partnership Common Units, assuming such holder is not a Constituent Person or an affiliate of a Constituent Person.  In the event that holders of Partnership Common Units have the opportunity to elect the form or type of consideration to be received upon consummation of the Transaction, prior to such Transaction the General Partner shall give prompt written notice to each holder of Performance LTIP Units of such opportunity, and shall use commercially reasonable efforts to afford the holder of Performance LTIP Units the right to elect, by written notice to the General Partner, the form or type of consideration to be received upon conversion of each Performance LTIP Unit held by such holder into Class 1 LTIP Units or Class 2 LTIP Units, as applicable, and corresponding conversion of such LTIP Units into Partnership Common Units in connection with such Transaction.  If a holder of LTIP Units fails to make such an election, such holder (and any of its transferees) shall receive the same kind and amount of consideration (determined after taking into account the conversion ratios herein) that a holder of Partnership Common Units would receive if such holder of Partnership Common Units failed to make such an election.  Subject to the rights of the Partnership and the General Partner under any Vesting Agreement and the relevant terms of the Plan or any other applicable Equity Plan, the Partnership shall use commercially reasonable effort to cause the terms of any Transaction to be consistent with the provisions of this Section 12(e) and to enter into an agreement with the successor or purchasing entity, as the case may be, for the benefit of any holder of LTIP Units whose LTIP Units will not be converted into Partnership Common Units in connection with the Transaction that will (i) contain provisions enabling the holders of Performance LTIP Units that remain outstanding after such Transaction to convert their Performance LTIP Units into securities as comparable as reasonably possible under the circumstances to the Partnership Common Units (taking into account the conversion ratio derived from Section 12(b)) and (ii) preserve as far as reasonably possible under the circumstances the distribution, special allocation, conversion, and other rights set forth in the Agreement, including this Exhibit H, for the benefit of the holders of Performance LTIP Units with respect to the Performance LTIP Units under this Section 12(e). To exercise its right of Forced Performance

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LTIP Unit Conversion, the Partnership shall deliver a notice (a “Forced Performance LTIP Unit Conversion Notice”) in the form attached hereto as Annex V to the applicable holder of Performance LTIP Units not less than ten (10) nor more than sixty (60) days prior to the Conversion Date specified in such Forced Performance LTIP Unit Conversion Notice.  A Forced Performance LTIP Unit Conversion Notice shall be provided in the manner provided in Section 12.01 of the Agreement.

(f)Except as otherwise provided in an applicable Vesting Agreement, and subject to the express limitations and restrictions of this Section 12, any Performance LTIP Unit that would have a Performance LTIP Unit Value greater than zero upon becoming a Post-Conversion Period Performance LTIP Unit, instead of becoming a Post-Conversion Period Performance LTIP Unit, automatically and without any action of any party shall be converted into a number of Class 1 LTIP Units or Class 2 LTIP Units, as applicable, calculated in accordance with Section 12(b).  Each such conversion (each, an “Expiration Conversion”) shall be effective immediately upon the close of business on the applicable Expiration Date and all calculations under Section 12(b) shall be made based on the relevant Performance LTIP Unit Value as of such time.  Following an Expiration Conversion, the Partnership shall deliver a notice (an “Expiration Conversion Notice”) in the form attached hereto as Annex VI to the applicable holder of LTIP Units as soon as reasonably practical (provided that the failure to deliver an Expiration Conversion Notice will not affect the Expiration Conversion or subject the General Partner or the Partnership to any liability).  Each Expiration Conversion Notice shall be provided in the manner provided in Section 12.01 of the Agreement.  

(h)For the avoidance of doubt, any Class 1 LTIP Unit and Class 2 LTIP Unit resulting from a conversion under this Section 12, (i) is not a Performance LTIP Unit and (ii) is a Vested LTIP Unit that may be converted (including, if applicable, simultaneously with the conversion of the applicable Performance LTIP Unit) into a Partnership Common Unit under (and subject to the limitations of) Section 11 hereof.  Upon conversion into Class 1 LTIP Units or Class 2 LTIP Units under this Section 12, a Performance LTIP Unit shall cease to be treated as outstanding.

13.Redemption of LTIP Units.  Holders of LTIP Units shall not be entitled to the Redemption Right provided for in Section 8.05 of the Agreement unless, until and to the extent such LTIP Units have been converted into Partnership Common Units in accordance with their terms.  

14.Voting.  Limited Partners shall have the same voting rights in respect of their LTIP Units as Limited Partners holding Partnership Common Units, with the LTIP Units voting together as a single class with the Partnership Common Units and having one vote per LTIP Unit and holders of LTIP Units shall not be entitled to approve, vote on or consent to any other matter.

15.Section 83 Safe Harbor.  Each Partner authorizes the General Partner to elect to apply the safe harbor (the “Section 83 Safe Harbor”) set forth in proposed Regulations Section 1.83-3(l) and proposed Internal Revenue Service Revenue Procedure published in Notice 2005- 43 (together, the “Proposed Section 83 Safe Harbor Regulation”) (under which the fair market value of a Partnership Interest that is Transferred in connection with the performance of services is treated as being equal to the liquidation value of the interest), or in similar Regulations or guidance, if such Proposed Section 83 Safe Harbor Regulation or similar Regulations are

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promulgated as final or temporary Regulations.  If the General Partner determines that the Partnership should make such election, the General Partner is hereby authorized to amend the Agreement without the consent of any other Partner to provide that (i) the Partnership is authorized and directed to elect the Section 83 Safe Harbor, (ii) the Partnership and each of its Partners (including any Person to whom a Partnership Interest, including an LTIP Unit, is Transferred in connection with the performance of services) will comply with all requirements of the Section 83 Safe Harbor with respect to all Partnership Interests Transferred in connection with the performance of services while such election remains in effect and (iii) the Partnership and each of its Partners will take all actions necessary, including providing the Partnership with any required information, to permit the Partnership to comply with the requirements set forth or referred to in the applicable Regulations for such election to be effective until such time (if any) as the General Partner determines, in its sole discretion, that the Partnership should terminate such election.  The General Partner is further authorized to amend the Agreement to modify Section 5.01(a) of the Agreement to the extent the General Partner determines in its discretion that such modification is necessary or desirable as a result of the issuance of any applicable law, Regulations, notice or ruling relating to the tax treatment of the transfer of a Partnership Interests in connection with the performance of services.  Notwithstanding anything to the contrary in the Agreement, each Partner expressly confirms that it will be legally bound by any such amendment.

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ANNEX I

NOTICE OF ELECTION BY PARTNER TO CONVERT
LTIP UNITS INTO PARTNERSHIP COMMON UNITS

The undersigned holder of LTIP Units hereby irrevocably (i) elects to convert as of the Conversion Date set forth below the number of LTIP Units in United Dominion Realty, L.P. (the “Partnership”) set forth below into Partnership Common Units in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of the Partnership, as amended; and (ii) directs that any cash in lieu of Partnership Common Units that may be deliverable upon such conversion be delivered to the address specified below.  The undersigned hereby represents, warrants, and certifies that the undersigned (a) has title to such LTIP Units, free and clear of the rights or interests of any other person or entity other than the Partnership; (b) has the full right, power, and authority to cause the conversion of such LTIP Units as provided herein; and (c) has obtained the consent or approval of all persons or entities, if any, having the right to consent or approve such conversion.

Name of LTIP Unit Holder:​ ​

Please Print Name as Registered with Partnership

Number of LTIP Units to be Converted:​ ​

Conversion Date:​ ​

​ ​

(Signature of LTIP Unit Holder)

​ ​

(Street Address)

​ ​

(City)(State)(Zip Code)

Issue Check Payable to:​ ​

​ ​

Please insert social security

or identifying number:

​ ​

Annex I


ANNEX II

NOTICE OF ELECTION BY PARTNERSHIP TO FORCE CONVERSION
OF LTIP UNITS INTO PARTNERSHIP COMMON UNITS

United Dominion Realty, L.P. (the “Partnership”) hereby irrevocably elects to cause as of the Conversion Date set forth below the number of LTIP Units held by the LTIP Unit holder set forth below to be converted into Partnership Common Units in accordance with the terms of Amended and Restated Agreement of Limited Partnership of the Partnership, as amended.

Name of LTIP Unit Holder:​ ​

Name as Registered with Partnership

Number of LTIP Units to be Converted:​ ​

Conversion Date:​ ​

Annex II


ANNEX III

NOTICE OF AUTOMATIC CONVERSION
OF LTIP UNITS INTO PARTNERSHIP COMMON UNITS

United Dominion Realty, L.P. (the “Partnership”) hereby gives you notice that the number of LTIP Units held by the LTIP Unit holder set forth below have been converted into Partnership Common Units in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of the Partnership, as amended, effective as of the Conversion Date set forth below.

Name of LTIP Unit Holder:​ ​

Name as Registered with Partnership

Number of LTIP Units to be Converted:​ ​

Conversion Date:​ ​

Annex III


ANNEX IV

PERFORMANCE LTIP UNIT CONVERSION NOTICE

The undersigned holder of Performance LTIP Units hereby irrevocably elects to convert as of the Conversion Date set forth below the number of Performance LTIP Units in United Dominion Realty, L.P. (the “Partnership”) set forth below into Class 1 LTIP Units or Class 2 LTIP Units (as applicable) in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of the Partnership, as amended.  The undersigned hereby represents, warrants, and certifies that the undersigned (a) has title to such Performance LTIP Units, free and clear of the rights or interests of any other person or entity other than the Partnership; (b) has the full right, power, and authority to cause the conversion of such Performance LTIP Units as provided herein; and (c) has obtained the consent or approval of all persons or entities, if any, having the right to consent or approve such conversion.

Name of Performance LTIP Unit Holder:​ ​

Please Print Name as Registered with Partnership

Number of Class 1 Performance LTIP Units to be Converted:​ ​

Number of Class 2 Performance LTIP Units to be Converted:​ ​

Date of Award of Class 1 Performance LTIP Units to be Converted:​ ​

Date of Award of Class 2 Performance LTIP Units to be Converted:​ ​

Conversion Date:​ ​

​ ​

(Signature of LTIP Unit Holder)

​ ​

(Street Address)

​ ​

(City)(State)(Zip Code)

Please insert social security

or identifying number:

​ ​

Annex IV


ANNEX V

NOTICE OF ELECTION BY PARTNERSHIP TO FORCE CONVERSION
OF PERFORMANCE LTIP UNITS

United Dominion Realty, L.P. (the “Partnership”) hereby irrevocably elects to cause as of the Conversion Date set forth below the number of Performance LTIP Units held by the LTIP Unit holder set forth below to be converted into Class 1 LTIP Units or Class 2 LTIP Units (as specified below) in accordance with the terms of Amended and Restated Agreement of Limited Partnership of the Partnership, as amended.

Name of LTIP Unit Holder:​ ​

Name as Registered with Partnership

Number of Class 1 Performance LTIP Units to be Converted:​ ​

Number of Class 2 Performance LTIP Units to be Converted:​ ​

Date of Award of Class 1 Performance LTIP Units to be Converted:​ ​

Date of Award of Class 2 Performance LTIP Units to be Converted:​ ​

Class 1 LTIP Units Resulting From Conversion:​ ​

Class 2 LTIP Units Resulting From Conversion:​ ​

Conversion Date:​ ​

Annex V


ANNEX VI

EXPIRATION CONVERSION NOTICE

United Dominion Realty, L.P. (the “Partnership”) hereby gives you notice that the number of Performance LTIP Units held by the LTIP Unit holder set forth below have been converted into Partnership Class 1 LTIP Units or Class 2 LTIP Units, as applicable, in accordance with the terms of the Amended and Restated Agreement of Limited Partnership of the Partnership, as amended, effective as of the Conversion Date set forth below.

Name of Performance LTIP Unit Holder:​ ​

Name as Registered with Partnership

Number of Class 1 Performance LTIP Units Converted:​ ​

Number of Class 2 Performance LTIP Units Converted:​ ​

Date of Award of Class 1 Performance LTIP Units Converted:​ ​

Date of Award of Class 2 Performance LTIP Units Converted:​ ​

Class 1 LTIP Units Resulting From Conversion:​ ​

Class 2 LTIP Units Resulting From Conversion:​ ​

Conversion Date:​ ​

Annex VI


(Back To Top)

Section 3: EX-10.2 (EX-10.2)

Exhibit 10.2

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December 16, 2020

Jerry A. Davis

10355 East Tillman Avenue

Mesa, Arizona 85212

Re:  Resignation as President – Chief Operating Officer from UDR, Inc.

Dear Jerry:

This letter (this "Letter Agreement") reflects our agreement with respect to your resignation as Chief Operating Officer (retaining your position as President) of UDR, Inc. (the "Company") at the close of business on December 31, 2020 (the "Resignation Date") and your retirement and resignation as President of the Company on December 31, 2021 (the “Retirement Date”).  

1.Role.  As President of the Company from January 1, 2021 through the Retirement Date you will focus on completing the implementation of Phase 1 of the Company’s Next Generation Platform (the “Platform”) and continuing to work on Phase 2 of the Platform.  In addition, you will assist with the Company’s redevelopment efforts and with evaluating technologies and technology companies in which the Company may be interested.  You agree to serve as President of the Company until the Retirement Date, at which time you will become a consultant to the Company pursuant to a consulting agreement in the form attached hereto as Exhibit A.
2.Salary and Benefits.  
(a)Effective as of January 1, 2021, your compensation will be changed to reflect your new role as President and your resignation as Chief Operating Officer. In your new role, you will be paid a monthly salary of $32,291.67 payable in accordance with the Company’s normal payroll practices. You will also remain eligible, subject to the provisions of Section 2(c) below, to participate in the benefit programs offered to Company associates generally.
(b)During 2021 you agree that you will not be eligible to participate in the 2021-2023 long-term incentive compensation program or the 2021 short term incentive compensation program offered by the Company. Notwithstanding the forgoing, the Class 2 LTIP Units awarded to you under the Class 2 LTIP Unit Award Agreements dated January 2, 2019 and January 2, 2020 will be measured as of December 31, 2021 and will vest when performance is

1745 Shea Center Dr., Suite 200
Highlands Ranch, CO 80129

Tel: 720.283.6120
Fax: 720.283.2453

www.udr.com


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Jerry A. Davis

December 16, 2020

Page 2

determined by the Compensation Committee of the Board of Directors of the Company. In addition, the remaining unvested shares under the Restricted Stock Award Agreement dated February 6, 2020 will be fully vested on the Retirement Date. Further, contingent on satisfactory completion on or before the Retirement Date of Phase 1 of the Platform and your performance in assisting with redevelopments and the evaluation of technologies and/or technology companies that may be of use to the Company, each as determined by the Chairman and Chief Executive Officer, to the extent the aggregate value of such vested Class 2 LTIP Units and Restricted Stock (determined with reference to the closing market price of the Company’s common stock on the day such Class 2 LTIP Units or Restricted Stock vest) is less than $2,000,000 you will be awarded a cash bonus equal to the difference between $2,000,000 and the value of the vested Class 2 LTIP Units and Restricted Stock.
(c)In consideration of your remaining an employee of the Company through the Retirement Date, the Company agrees that following the Retirement Date you may continue to participate in the Company’s group health insurance plans at the same dependent coverage level as immediately prior to the Retirement Date. Coverage will continue until the first to occur of (i) December 31, 2027; (ii) your employment by a third party (a third party shall not be deemed to include an entity of which all of the outstanding capital stock or ownership interests are owned by you or your immediate family), or (iii) your default in the payment of or no longer continue to pay your portion of the premium (individually and collectively, the “Transition Period”). During the Transition Period, the Company shall continue to pay its portion of the premiums and you will pay your portion of the premiums. At the end of the Transition Period, if you do not have health insurance from another employer, you may continue coverage through the Consolidated Omnibus Budget Reconciliation Act of 1985 (“COBRA”) at your own expense; and
3.Compliance Warranty.  Your acceptance of the payments set forth in Section 2 above shall be deemed to be a representation and warranty by you that you are not aware of any compliance issues, concerns, or any violations or suspected violations of laws, policies or regulations other than those, if any, that you have brought to the attention of Thomas W. Toomey before the Resignation Date.
4.General Release of Claims and Covenant Not to Sue.
(a)In consideration of the benefits provided to you under this Letter Agreement, and except for the obligations created by this Letter Agreement, you knowingly and voluntarily release and forever discharge the Company, its parents, divisions and its affiliates, as well as their respective officers, directors, employees, stockholders, agents, attorneys, insurers, representatives, assigns and successors, past and present, and each of them (hereinafter together and collectively referred to as the "Released Parties") of, with respect to and from any and all demands, actions, causes of action, suits, damages, losses, expenses and claims of any kind, known and unknown, suspected or unsuspected, against the Released Parties, which you, your heirs, executors, administrators, successors, and assigns (together and collectively "Executive") have or may have through the Effective Date, including, but not limited to, any alleged violation of:

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Jerry A. Davis

December 16, 2020

Page 3

The National Labor Relations Act, as amended;

Title VII of the Civil Rights Act of 1964, as amended;

Sections 1981 through 1988 of Title 42 of the United States Code, as amended;

The Employee Retirement Income Security Act of 1974, as amended;

The Immigration Reform Control Act, as amended;

The Americans with Disability Act of 1990, as amended;

The Age Discrimination in Employment Act of 1967, as amended, except for claims that cannot be released as a matter of law;

The Fair Labor Standards Act, as amended;

The Occupational Safety and Health Act, as amended;

The Equal Pay Act;

The Family and Medical Leave Act of 1993;

all Colorado laws concerning the workplace; and/or

any other federal, state or local civil or human rights law or any other local, state or federal law, regulation or ordinance; based upon any covenant of good faith and fair dealing, implied or express contract, wrongful discharge, promissory estoppel, equitable estoppel, employee benefit, violation of public policy, negligent or intentional infliction of emotional distress, defamation, false light, compelled self-publication, fraud, misrepresentation, invasion of privacy, assault, battery, tortious interference with a contract, tortious interference with a business relationship or economic interest, negligent retention, negligent hiring, negligent supervision, negligence, negligent misrepresentation, gross negligence, loss of consortium, equity or any intentional or other tort; and/or

(i)Arising out of or related to the Released Parties' personnel practices, policies, or procedures; and

(ii)Arising out of or related to Executive’s employment or the initiation, existence or cessation of Executive’s employment with the Released Parties, including any claims for salary, wages, severance pay, vacation pay, sick pay, bonuses, and any other compensation or benefit of any nature; and

(iii)Arising out of or related to any statements or representations to or about Executive; and


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Jerry A. Davis

December 16, 2020

Page 4

(iv)Arising out of or related to any other wrong, injury or loss allegedly suffered by Executive; and

(v)any allegation for costs, fees, or other expenses including attorneys' fees incurred in these matters (collectively the "Released Claims").

To the maximum extent allowed by law, you waive the right to sue or initiate against the Released Parties any action or proceeding, or participate in the same, individually or as a member of a class, under any contract (express or implied), or any federal, state or local law, statute or regulation pertaining in any manner to the Released Claims.

This is intended to be a general release of all claims, so, to the extent you still possess any viable claims or causes of action against the Released Parties, to the maximum extent allowed by law, you hereby assign to the Company all such claims.

(b)The release set forth in Section 4(a) above does not waive claims (i) for unemployment or workers’ compensation, (ii) for vested rights under ERISA-covered employee benefit plans as applicable on the date you sign this Letter Agreement, (iii) that may arise after the Effective Date or (iv) which cannot be released by private agreement.  The release set forth in Section 4(a) does not bar you from (i) filing suit to challenge a release of age discrimination claims pursuant to the Older Workers Benefit Protection Act, or (ii) filing a charge with an administrative agency provided that you cannot recover any economic or injunctive relief for yourself as a result of such charge.  You understand that if this Letter Agreement had not been signed, you would have the right to voluntarily assist other individuals or entities in bringing claims against the Company.  To the maximum extent allowed by applicable law, you waive the right to voluntarily assist other individuals or entities in bringing claims against the Company and, unless your assistance is specifically sought by a governmental entity or compelled by applicable law or valid court order, you agree not to aid or assist others in their pursuit of claims against the Company.
(c)Except for the obligations created by this Letter Agreement, the Company hereby covenants not to sue and releases and forever discharges you from any and all claims, known and unknown, which the Company has or may have against you, including all claims arising from your position as President – Chief Operating Officer or as an employee of the Company or its subsidiaries or affiliates and the termination of that relationship (and specifically including any and all claims related to prior promises or contracts of employment), has or may have through the Effective Date; provided, however, the Company does not release you with respect to claims arising out of or relating to fraud, gross negligence, or willful misconduct.  Further you agree to execute and deliver to the Company a Release Agreement in the form attached hereto as Exhibit B (the “Release Agreement”) upon the Retirement Date.
5.ADEA RELEASE.  The Company advises Executive to consult with an attorney prior to signing this Agreement.  Executive understands that he has twenty-one (21) days to consider whether to sign this Agreement (the “Consideration Period”).  Executive must return this signed Agreement to the Company within the Consideration Period.  If Executive signs and returns this Agreement before the end of the Consideration Period, it is because he has freely chosen to do so

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Jerry A. Davis

December 16, 2020

Page 5

after carefully considering its terms. As discussed above, you are releasing the Company from, among other things, any claim you might currently have against the Company and related parties that may have arisen under the Age Discrimination in Employment Act (“ADEA”) as amended by the Older Worker’s Benefit Protection Act of 1990 (“OWBPA”), but this Agreement does not cover any rights or claims that may arise under the ADEA as amended by the OWBPA after the date of execution of this Agreement Executive further understands that he has seven (7) days following execution of this Agreement to validly revoke this Agreement.  Such right of revocation constitutes a unilateral right afforded to Executive and the Company shall have no such right of revocation.  Any revocation within this period must be submitted, in writing, to UDR, Inc., c/o Thomas W. Toomey, Chairman and Chief Executive Officer, 1745 Shea Center Drive, Suite 200, Highlands Ranch, CO 80129, by certified mail, return receipt requested, post-marked within seven (7) days of execution of this Agreement and state, "I hereby revoke my acceptance of the Agreement."  This Agreement shall not become effective or enforceable until the revocation period has expired without revocation (the “Release Effective Date”).  If the last day of the revocation period is a Saturday, Sunday, or legal holiday in Colorado, then the revocation period shall not expire until the next following day which is not a Saturday, Sunday, or legal holiday in Colorado.  If it is not validly revoked, this Agreement will become irrevocable and enforceable on the eighth day after Executive signs this Agreement.  Executive agrees with the Company that changes to this Letter Agreement, whether material or immaterial, do not restart the running of the Consideration Period.
6.No Claims Exist.  You confirm that no claim, charge, complaint, or action exists pertaining in any manner to the Released Claims in any forum or form.  You further confirm that you have not assigned or transferred to any third party any of the Released Claims.  In the event that any such claim, charge, complaint or action is filed, you shall not be entitled to recover any relief or recovery therefrom, including costs and attorney's fees.  Similarly, the Company confirms to you that no claim, charge, complaint, or action exists pertaining in any manner to the claims being released against you in any forum or form.  The Company further confirms that it has not assigned or transferred to any third party any of the claims being released against you.  In the event that any such claim, charge, complaint or action is filed, the Company shall not be entitled to recover any relief or recovery therefrom, including costs and attorney's fees.
7.Cooperation.  You agree to cooperate with the Released Parties regarding any pending or subsequently filed litigation, claims or other disputes involving the Released Parties that relate to matters within your knowledge or responsibility, including, without limitation, any potential claim or action by the Company against a third party.  Without limiting the foregoing, you agree (i) to meet with Released Party’s representatives, its counsel or other designees at mutually convenient times and places with respect to any items within the scope of this provision; (ii)  to appear, at the request of Company, at any deposition, administrative proceeding or trial in any pending or future litigation; (iii) to provide truthful testimony regarding same to any court, agency, or other adjudicatory body; and (iv) to provide the Company with notice of contact by any adverse party or such adverse party’s representative, except as may be required by law.  Except as prohibited by law, the Company will reimburse you for reasonable documented expenses including legal fees for any counsel approved by the Company to represent you in connection with the cooperation

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Jerry A. Davis

December 16, 2020

Page 6

described in this paragraph except that it will not compensate you for any time testifying at any proceeding.
8.Non-Disparagement.  You agree not to make statements to members of the public that are in any way disparaging or negative towards the Company, any of its affiliates, or the products, services, representatives or employees of any of the foregoing except as required by subpoena or government agency having jurisdiction over the matter at issue.  Similarly, the Company agrees that none of its executive officers or directors shall make statements to third parties that are in any way disparaging or negative towards you except as required by subpoena or government agency having jurisdiction over the matter at issue.
9.Performance of Duties.  In partial consideration of the benefits provided to you by the Company under this Letter Agreement and as a condition precedent to your receipt thereof, to which you are not otherwise entitled, until the Resignation Date you agree to continue to perform your duties and responsibilities as President – Chief Operating Officer.  During the period between the date of this Letter Agreement and the Retirement Date you are subject to termination in the same manner as other employees of the Company which, if it occurred, would render you ineligible to receive the benefits set forth in Section 2 above.
10.Protected Rights.
(a)You understand that nothing in this Letter Agreement is intended to or does limit your ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safe and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”).  You further understand that this Letter Agreement does not limit your ability to communicate with Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information.  This Letter Agreement does not limit your right to receive an award from any Government Agency for information provided to a Government Agency.
(b)Notwithstanding anything in this Letter Agreement to the contrary, you shall not be held criminally or civilly liable under any federal or state trade secret law for the disclosure of a trade secret that is made: (i) in confidence to a federal, state or local government official, either directly or indirectly, or to an attorney; and (ii) solely for the purpose of reporting or investigating a suspected violation of law or is made in a complaint or other document filed in a lawsuit or other proceeding, if such filing is made under seal.  Accordingly, you have the right to disclose in confidence trade secrets to a federal, state or local government official, or to an attorney, for the sole purpose of reporting or investigating a suspected violation and the right to disclose trade secrets in a document filed in a lawsuit or other proceeding but only if the filing is made under seal.  Nothing in this Letter Agreement is intended to conflict with 18 U.S.C. §1833(b) or create liability for disclosures of trade secrets that are expressly allowed by 18 U.S.C. §1833(b).

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Jerry A. Davis

December 16, 2020

Page 7

11.Joint Preparation of Agreement.  This Letter Agreement is deemed to have been drafted jointly by the parties.  In any interpretation of this Letter Agreement, the provisions of this Letter Agreement shall not be interpreted or construed against any party on the basis that the party was the drafter.
12.Severability.  If any provision of this Letter Agreement is determined to be invalid or unenforceable, in whole or in part, such determination will not affect any other provision of this Letter Agreement.  For example, if the release of a particular claim is held by a court to be invalid or unenforceable, such ruling will not affect the releases of any other claims.
13.Entire Agreement.  This Letter Agreement contains the entire agreement between you and the Company and is the complete, final and exclusive embodiment of our agreement with regard to your resignation.  It is entered into without reliance on any promise or representation other than those expressly contained herein, and it may not be modified except in writing signed by you and an officer of the Company.
14.Notices.  Except as set forth in Section 5, any notice or communication required or permitted under this Letter Agreement shall be in writing and shall be deemed received (a) on the date personally delivered, (b) the same day of sending by email, (c) the next day after sending via Federal Express or any other next-day carrier service, or (d) the third day after mailing via first-class mail, return receipt requested, to a party at the address specified below or such other address as designated from time to time:

To you at:

Jerry A. Davis

10355 East Tillman Avenue

Mesa, Arizona 85212

Email: jadavis@udr.com

To UDR, Inc. at:

UDR, Inc.

1745 Shea Center Drive, Suite 200

Highlands Ranch, Colorado 80129

Attn: Thomas W. Toomey

Email: ttoomey@udr.com

15.Governing Law.  This Letter Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Colorado, as applied to contracts made and performed entirely within the State of Colorado.



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Jerry A. Davis

December 16, 2020

Page 8

Please sign and return this Letter Agreement to me, keeping a copy for yourself.

Sincerely,

UDR, Inc.

/s/ Thomas W. Toomey

Thomas W. Toomey

Chairman and Chief Executive Officer

Accepted and Agreed:

Date:

December 16, 2020

By:

/s/ Jerry A. Davis

Jerry A. Davis


EXHIBIT A

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January 1, 2022

Jerry A. Davis

______________

______________

Re: Consulting Agreement

Dear Jerry:

As we have discussed, we are interested in retaining your services to assist UDR, Inc. (the “Company”) as set forth herein.

This Consulting Agreement (“Agreement”) sets forth the terms of our agreement concerning your engagement with the Company.

1.Services.  You agree that you will act as a consultant to the Company reporting to Thomas W. Toomey, Chairman and Chief Executive Officer.  You will consult with the Company with respect to the Company’s Next Generation Operating platform, redevelopment issues, evaluating technologies and/or technology companies that may be of use to the Company and other issues, all as may be reasonably agreed to by Mr. Toomey and you (collectively the “Services”).

2.Term and Termination.  The term of this Agreement shall commence on January 1, 2022 (the “Effective Date”) and continue until December 31, 2022 subject to extension by mutual agreement of the parties (the “Term”).  This Agreement may be terminated with or without cause by you or the Company at any time upon 90 days’ prior written notice and without liability or continuing obligation to you or the Company (except for any compensation earned and expenses incurred by you to the date of termination.)

3.Fees and Expenses.  In connection with the Services and during the Term, the Company will pay the following compensation:

(a)The Company will pay you a monthly fee of $25,000, payable in advance on the first business day of each month.
(b)In addition, you may be awarded bonuses from time to time at the discretion of the Chairman and Chief Executive Officer.


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(c)Expenses.  In addition to any fees payable to you, the Company will promptly reimburse you, from time to time upon request, for all reasonably documented travel and other expenses incurred in performing the Services.

4.Schedule.  You will perform the Services under this Agreement from either a location selected by you or an office to be provided to you by the Company at the Company’s office at Shea Center Drive.  You shall be available to perform the Services at such times as mutually agreed between Mr. Toomey and you.

5.Consultation.  In performing services under this Agreement, you will consult and coordinate with Thomas W. Toomey, and/or such other person(s) as may be designated from time to time by Thomas W. Toomey.  

6.Independent Contractor Status.  

(a)Your status shall at all times be that of an independent contractor.  Under no circumstances shall you be considered an employee of the Company.

(b)You shall be solely responsible for determining the means, manner and methods by which you will perform your obligations under this Agreement.

(c)The Company will provide no training to you.

(d)The Company shall have no control or supervision over your working hours or work schedule.

(e)The Company will not provide unemployment insurance or workers’ compensation insurance for you.  You are not entitled to unemployment insurance benefits or workers’ compensation benefits under this Agreement and/or any other benefits customarily provided to employees.

(f)You are obligated to pay federal and state income taxes on any monies paid pursuant to this Agreement.  The Company will not withhold from your compensation any amounts for taxes of any kind.  You agree to indemnify the Company for any claims, costs, losses, fees, penalties, interest or damages suffered or incurred by the Company due to your failure to pay taxes as required by this Section.  The  Company agrees to indemnify you for any claims, costs, losses, fees, penalties, interest or damages suffered or incurred by you other than those which would have been incurred by you if you were classified as an employee.

7.Confidentiality.  You acknowledge that you have been exposed to and will be exposed to and have learned, and will continue to learn, a substantial amount of information, which is proprietary and confidential to the Company, whether or not you developed or created such information.  You acknowledge that such proprietary and confidential information may include, but is not limited to, trade secrets; acquisition or merger information; advertising and promotional programs; resource or developmental projects; plans or strategies for future business development; financial or statistical data; customer information, including, but not limited to, customer lists, sales records, account records, sales


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and marketing programs, pricing matters, and strategies and reports; and any Company manuals, forms, techniques, and other business procedures or methods, devices, computer software or matters of any kind relating to or with respect to any confidential program or projects of the Company, or any other information of a similar nature made available to you and not known in the trade in which the Company is engaged, which, if misused or disclosed, could adversely affect the business or standing of the Company (collectively, the "Confidential Information").  Confidential Information shall not include information that is generally known or generally available to the public through no fault of your own.  You agree that except as required (i) in the performance of the Services; or (ii) by court order, you will not at any time divulge to any person, agency, institution, company, or other entity any information which you know or have reason to believe is proprietary or confidential to the Company, including but not limited to the types of information described above, or use such information to the competitive disadvantage of the Company.  You agree that your duties and obligations under this Section 7 will continue until the later of twelve (12) months from the end of the Term of this Agreement or as long as the Confidential Information remains proprietary or confidential to the Company.  

8.Conflicts.  You are not currently aware of any relationship that would create a conflict of interest with the Company in providing the Services.  During the Term, you will not provide services to any company whose business, directly or indirectly, deals with or concerns the real estate industry, provided that you, individually or with members of your family, may invest in real estate.

9.Indemnification.  The Company shall indemnify you and hold you harmless from and against all damages, liabilities, costs, expenses, claims and/or judgments, including, without limitation, reasonable attorneys' fees and disbursements (collectively the “Claims”) arising out of or resulting from the consulting services you provide under this Agreement; provided, however, the Company’s indemnification obligation under this Section 9, shall not apply to any Claims that result from or arise out of your gross negligence or willful misconduct.  In addition, the Company will cause you to be an insured party under its directors and officers insurance policy in place from time to time.

10.General.  Subject to Section 8, your services are not exclusive to the Company.  This Agreement sets forth the entire agreement between the parties and no promise, representation or inducement, except as herein set forth, has been made by either party to this Agreement.  No provision or term of this Agreement may be amended, modified, changed, altered, or waived except by written document executed by the parties hereto.  In the event that any provision of this Agreement is held by a court of competent jurisdiction to be unenforceable because it is invalid or in conflict with any law of any relevant jurisdiction, the validity of the remaining provisions shall not be affected, and the rights and obligations of the parties shall be construed and enforced as if the Agreement did not contain the particular provision(s) held to be unenforceable and the unenforceable provision(s) shall be replaced by mutually acceptable provision(s) which, being valid, legal and enforceable, come closest to the intention of the parties underlying the invalid or unenforceable provision.  This Agreement, and the obligations set forth herein, shall be binding on any and all successors and permitted assigns of the parties, including, without limitation, any corporation or other entity with or into which you or the Company is merged or consolidated, provided that neither party shall be permitted to assign this Agreement, in whole or in part, to any third party without the prior written consent of the other party.  This Agreement shall be interpreted and enforced in accordance with the laws of the State of Colorado applicable to contracts made and to be performed entirely therein, without regard


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to the conflict of laws provisions thereof.  This clause shall survive any termination of this Agreement.  Any notice or communication required or permitted under this Agreement shall be in writing and shall be deemed received (a) on the date personally delivered, (b) the next day after sending if sent by facsimile (with electronic confirmation of submission), email, Federal Express or any other next-day carrier service, or (c) the third day after mailing via first-class mail, return receipt requested, to a party at the address specified in this Agreement or such other address as designated from time to time.

11.Counterparts; Facsimile.  This Agreement may be executed in two or more counterparts, each of which will be deemed an original, but all of which together will constitute one and the same Agreement.  The parties agree that signatures to this Agreement may be transmitted by facsimile and such signatures shall be deemed to be originals for all purposes.

12.Ownership of Work Product. The parties agree that all work product, information or other materials created and developed by you in connection with the performance of the Services under this Agreement and any resulting intellectual property rights (collectively, the “Work Product”) are the sole and exclusive property of the Company. The parties acknowledge that the Work Product shall, to the extent permitted by law, be considered a “work made for hire” within the definition of Section 101 of the Copyright Act of 1976, as amended, (the “Copyright Act”) or similar statute and that the Company is deemed to be the author and is the owner of all copyright and all other intellectual property rights therein. If the Work Product is not deemed to be a “work made for hire” under the Copyright Act or another similar statute (e.g., patent), then you hereby assign to the Company all of your rights, title and interest in and to the Work Product, including but not limited to all copyrights, patents, trademarks, trade secrets, publishing rights and rights to use, reproduce and otherwise exploit the Work Product in any and all formats, media, or all channels, whether now known or hereafter created.

13.Non-Solicit. You agree and covenant that for a period of 12 months following the termination of this Agreement, you will not, directly or indirectly, solicit any officer, director or employee, or any customer, client, supplier or vendor of the Company for the purpose of inducing such party to terminate its relationship with the Company in favor of you or another business or enterprise directly or indirectly in competition with the Company.

Sincerely,

UDR, Inc.

Thomas W. Toomey

Chairman and Chief Executive Officer

Accepted and agreed to as of the

Effective Date:

Jerry A. Davis


EXHIBIT B

RELEASE AGREEMENT

This Release Agreement ("Agreement") is made as of December 31, 2021 between UDR, Inc., a Maryland corporation, having a principal place of business at 1745 Shea Center Drive, Suite 200, Highlands Ranch, CO 80129 (the "Company"), and Jerry A. Davis, with an address of __________, __________, _____ ("Executive").

In consideration of the Company’s agreement to pay Executive certain amounts as referenced in Section 2 of the Letter Agreement between the Company and Executive dated December 31, 2020 (the “Letter Agreement”), the Company and Executive agree as follows:

1.General Release of Claim and Covenant Not to Sue.  

(a)In consideration of the benefits provided to Executive under this Agreement, Executive knowingly and voluntarily releases and forever discharges the Company, its parents, subsidiaries, divisions and its affiliates, as well as their respective officers, directors, employees, stockholders, agents, attorneys, insurers, representatives, assigns and successors, past and present, and each of them (hereinafter together and collectively referred to as the "Released Parties") of, with respect to and from any and all demands, actions, causes of action, suits, damages, losses, expenses and claims of any kind, known and unknown, suspected or unsuspected, against the Released Parties, which Executive, Executive’s heirs, executors, administrators, successors, and assigns (together and collectively with Executive "Executive") have or may have through the Release Effective Date (defined in Section 2 below), including, but not limited to, any alleged violation of:

The National Labor Relations Act, as amended;

Title VII of the Civil Rights Act of 1964, as amended;

Sections 1981 through 1988 of Title 42 of the United States Code, as amended;

The Employee Retirement Income Security Act of 1974, as amended;

The Immigration Reform Control Act, as amended;

The Americans with Disability Act of 1990, as amended;

The Age Discrimination in Employment Act of 1967, as amended, except for those claims that cannot be released as a matter of law;

The Fair Labor Standards Act, as amended;

The Occupational Safety and Health Act, as amended;

The Equal Pay Act;


The Family and Medical Leave Act of 1993;

all Colorado laws concerning the workplace; and/or

any other federal, state or local civil or human rights law or any other local, state or federal law, regulation or ordinance; based upon any covenant of good faith and fair dealing, implied or express contract, wrongful discharge, promissory estoppel, equitable estoppel, employee benefit, violation of public policy, negligent or intentional infliction of emotional distress, defamation, false light, compelled self-publication, fraud, misrepresentation, invasion of privacy, assault, battery, tortious interference with a contract, tortious interference with a business relationship or economic interest, negligent retention, negligent hiring, negligent supervision, negligence, negligent misrepresentation, gross negligence, loss of consortium, equity or any intentional or other tort; and/or

(i)Arising out of or related to the Released Parties' personnel practices, policies, or procedures; and

(ii)Arising out of or related to Executive’s employment or the initiation, existence or cessation of Executive’s employment with the Released Parties, including any claims for salary, wages, severance pay, vacation pay, sick pay, bonuses, and any other compensation or benefit of any nature; and

(iii)Arising out of or related to any statements or representations to or about Executive; and

(iv)Arising out of or related to any other wrong, injury or loss allegedly suffered by Executive; and

(v)Any allegation for costs, fees, or other expenses including attorneys' fees incurred in these matters (collectively the "Released Claims").

To the maximum extent allowed by law, Executive waives the right to sue or initiate against the Released Parties any action or proceeding, or participate in the same, individually or as a member of a class, under any contract (express or implied), or any federal, state or local law, statute or regulation pertaining in any manner to the Released Claims.

This is intended to be a general release of all claims, so, to the extent Executive still possesses any viable claims or causes of action against the Released Parties, to the maximum extent allowed by law, Executive hereby assigns to the Company all such claims.

(b)The release set forth in Section 1(a) above does not waive claims (i) for unemployment or workers’ compensation, (ii) for vested rights under ERISA-covered employee benefit plans as applicable on the date Executive signs this Agreement, (iii) that may arise after the Release Effective Date or (iv) that cannot be released by private agreement.  The release set forth in Section 1(a) does not bar Executive from (i) filing suit to challenge a release of age discrimination claims pursuant to the Older Workers Benefit Protection Act, or (ii) filing a charge with an administrative agency provided that Executive cannot recover any economic or injunctive relief from the Company for himself as a result of such charge.  Executive understands that if this

Agreement had not been signed, Executive would have the right to voluntarily assist other individuals or entities in bringing claims against the Company.  To the maximum extent allowed by applicable law, Executive waives the right to voluntarily assist other individuals or entities in bringing claims against the Company and, unless Executive’s assistance is specifically sought by a governmental entity or compelled by applicable law or valid court order in which case Executive shall notify the Company, Executive agrees not to aid or assist others in their pursuit of claims against the Company.
(c)Except for the obligations created by this Agreement, the Company hereby covenants not to sue and releases and forever discharges Executive from any and all claims, known and unknown, which the Company has or may have against Executive, including all claims arising from Executive’s position as ______________ or as an employee of the Company or its subsidiaries or affiliates and the termination of that relationship (and specifically including any and all claims related to prior promises or contracts of employment), as of the date of this Agreement; provided, however, the Company does not release Executive with respect to claims arising out of or relating to fraud, gross negligence or willful misconduct.

2.ADEA RELEASE.  The Company advises Executive to consult with an attorney prior to signing this Agreement.  Executive understands that he has twenty-one (21) days to consider whether to sign this Agreement (the “Consideration Period”).  Executive must return this signed Agreement to the Company within the Consideration Period.  If Executive signs and returns this Agreement before the end of the Consideration Period, it is because he has freely chosen to do so after carefully considering its terms. As discussed above, you are releasing the Company from, among other things, any claim you might currently have against the Company and related parties that may have arisen under the Age Discrimination in Employment Act (“ADEA”) as amended by the Older Worker’s Benefit Protection Act of 1990 (“OWBPA”), but this Agreement does not cover any rights or claims that may arise under the ADEA as amended by the OWBPA after the date of execution of this Agreement Executive further understands that he has seven (7) days following execution of this Agreement to validly revoke this Agreement.  Such right of revocation constitutes a unilateral right afforded to Executive and the Company shall have no such right of revocation.  Any revocation within this period must be submitted, in writing, to UDR, Inc., c/o Thomas W. Toomey, Chairman and Chief Executive Officer, 1745 Shea Center Drive, Suite 200, Highlands Ranch, CO 80129, by certified mail, return receipt requested, post-marked within seven (7) days of execution of this Agreement and state, "I hereby revoke my acceptance of the Agreement."  This Agreement shall not become effective or enforceable until the revocation period has expired without revocation (the “Release Effective Date”).  If the last day of the revocation period is a Saturday, Sunday, or legal holiday in Colorado, then the revocation period shall not expire until the next following day which is not a Saturday, Sunday, or legal holiday in Colorado.  If it is not validly revoked, this Agreement will become irrevocable and enforceable on the eighth day after Executive signs this Agreement.   Executive agrees with the Company that changes to this Agreement, whether material or immaterial, do not restart the running of the Consideration Period.

3.No Claims Exist.  You confirm that no claim, charge, complaint, or action exists pertaining in any manner to the Released Claims in any forum or form.  You further represent that you have not assigned or transferred to any third party any of the Released Claims.  In the event that any such claim, charge, complaint or action is filed, you shall not be entitled to recover any


relief or recovery therefrom, including costs and attorney's fees and you will indemnify the Released Parties for all costs, including attorneys’ fees, incurred in connection with the defense of any such claims.  The Company further confirms that it has not assigned or transferred to any third party any of the claims being released against you.  In the event that any such claim, charge, complaint or action is filed, the Company shall not be entitled to recover any relief or recovery therefrom, including costs and attorney's fees.

4.Non-Admission.  This Agreement shall not be construed as an admission by the Company of any liability or acts of wrongdoing or unlawful discrimination, nor shall it be considered to be evidence of such liability, wrongdoing or unlawful discrimination.

5.Protected Rights.  Executive understands that nothing in this Agreement is intended to or does limit Executive’s ability to file a charge or complaint with the Equal Employment Opportunity Commission, the National Labor Relations Board, the Occupational Safe and Health Administration, the Securities and Exchange Commission or any other federal, state or local governmental agency or commission (“Government Agencies”).  Executive further understand that this Agreement does not limit Executive’s ability to communicate with Government Agencies or otherwise participate in any investigation or proceeding that may be conducted by any Government Agency, including providing documents or other information.  This Agreement does not limit Executive’s right to receive an award from any Government Agency for information provided to a Government Agency.

6.Entire Agreement.  This Agreement contains the entire agreement between Executive and the Company and is the complete, final and exclusive embodiment of the agreement with regard to the subject matter.  It is entered into without reliance on any promise or representation other than those expressly contained herein, and it may not be modified except in writing signed by Executive and an officer of the Company.

7.Governing Law.  This Agreement shall be governed by, and construed and enforced in accordance with, the laws of the State of Colorado, as applied to contracts made and performed entirely within the State of Colorado.

8.Counterparts.  This Agreement may be executed by the parties in separate counterparts.  All such counterparts shall together constitute one and the same instrument.


IN WITNESS WHEREOF, each of the parties has caused this Agreement to be signed by its duly authorized officers as of the date set forth in the introductory paragraph hereof.

UDR, INC.

By:

Name:

Thomas W. Toomey

Title:

Chairman and Chief Executive Officer

EXECUTIVE

Jerry A. Davis


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Section 4: EX-99.1 (EX-99.1)

UDR_cmyk_Grad_1-75_1_hTag

Exhibit 99.1

UDR Announces Transition in Responsibilities of Jerry A. Davis, President and Chief Operating Officer, and Executive Management Promotions

Denver, CO., December 16, 2020 UDR, Inc. (the "Company") (NYSE: UDR), a leading multifamily real estate investment trust, today announced that Jerry A. Davis, President and Chief Operating Officer (“COO”), will transition from the role of COO effective January 1, 2021, but continue as President of the Company. During 2021, Mr. Davis, 58, will focus on the continued implementation and evolution of the Company’s Next Generation Operating Platform, the evaluation of new technologies/technology investments useful to the Company’s business areas, and redevelopment opportunities. Effective December 31, 2021, Mr. Davis will retire, at which time he will transition to a consulting role with similar areas of focus. Michael D. Lacy, 39, UDR’s Senior Vice President – Property Operations, will continue to oversee the Company’s day-to-day operations, as he has for the last three years of his 14-year tenure with UDR.

“Jerry has been with UDR for 30 years and I have had the pleasure of working closely with him for nearly 20 of those years,” said Tom Toomey, UDR’s Chairman and Chief Executive Officer. Mr. Toomey continued, “Jerry’s contributions to the organization have been immeasurable given his impact on UDR’s culture, vision, and financial results. I am thankful that UDR and its investors will continue to reap the benefits of his extensive operating expertise as we continue to enhance our sector-leading operating platform and legacy of talent he has helped build.”

Mr. Davis stated, “UDR has been my professional home for much of my working life, and I am thankful to be part of such a great company. I look forward to continuing to drive our technology initiatives in 2021 and beyond, while also providing advancement opportunities for numerous individuals I have worked closely with over the years.”

In addition, the Company announced that effective January 1, 2021:

R. Scott Wesson, 57, will become UDR’s Senior Vice President – Chief Digital Officer after having served as Senior Vice President – Chief Information Officer since 2011. Mr. Wesson’s change in title and role better reflect his continued leadership of the digitization of UDR’s business through initiatives like the Company’s Next Generation Operating Platform.
Joshua A. Gampp, 44, will be promoted to Senior Vice President – Chief Technology Officer after having served as Vice President – Information Technology since 2018. Mr. Gampp has served in a variety of technology roles since joining the Company in 2013 and


has been instrumental in running the Company’s day-to-day technology platform and implementing the technology components of the Next Generation Operating Platform.
Tracy L. Hofmeister, 49, will be promoted to Senior Vice President – Chief Accounting Officer after having served as Vice President – Chief Accounting Officer since 2018. Mr. Hofmeister has served in a variety of accounting roles since joining the Company in 2013, including Vice President – Technical Accounting and SEC Reporting, Vice President – Controller, Vice President – Accounting and Vice President – Chief Accounting Officer. Mr. Hofmeister is a Certified Public Accountant.

About UDR, Inc.

UDR, Inc. (NYSE: UDR), an S&P 500 company, is a leading multifamily real estate investment trust with a demonstrated performance history of delivering superior and dependable returns by successfully managing, buying, selling, developing and redeveloping attractive real estate properties in targeted U.S. markets. As of September 30, 2020, UDR owned or had an ownership position in 51,649 apartment homes including 1,031 homes under development. For over 48 years, UDR has delivered long-term value to shareholders, the best standard of service to Residents and the highest quality experience for Associates.

Contact: UDR, Inc.

Trent Trujillo

ttrujillo@udr.com

720-283-6135


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