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Share Name | Share Symbol | Market | Type |
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UDR Inc | NYSE:UDR | NYSE | Common Stock |
Price Change | % Change | Share Price | High Price | Low Price | Open Price | Shares Traded | Last Trade | |
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0.00 | 0.00% | 40.46 | 0 | 09:00:00 |
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, D.C. 20549
FORM
CURRENT REPORT
Pursuant to Section 13 or 15(d)
of the Securities Exchange Act of 1934
Date of Report (Date of Earliest Event Reported):
(Exact name of registrant as specified in its charter)
(State or other jurisdiction | (Commission | (I.R.S. Employer | ||
of incorporation) | File Number) | Identification No.) | ||
(Address of principal executive offices) | (Zip Code) |
Registrant’s telephone number, including area code: (
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:
Securities registered pursuant to Section 12(b) of the Act:
Title of each class | Trading Symbol(s) | Name of each exchange on which registered |
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).
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. ☐
Item 5.02 Departure of Directors or Certain Officers; Election of Directors; Appointment of Certain Officers; Compensatory Arrangements of Certain Officers.
On February 15, 2024, UDR, Inc. (the “Company”) entered into an Executive Agreement with Thomas W. Toomey, the Company’s Chairman and Chief Executive Officer (the “Executive Agreement”). The Executive Agreement was prepared after consulting with the Company’s third-party compensation advisors in order to retain the services of Mr. Toomey, especially in recognition of his previously announced voluntary forfeiture of a supplemental equity award granted in December 2021. The Executive Agreement provides certain compensation and employment protections to Mr. Toomey to which he was not previously entitled in recognition of Mr. Toomey’s significant continuing contributions to the Company and to contribute to retaining his services. The Executive Agreement shall, unless terminated earlier in accordance with its terms, continue in effect until the fifth anniversary of the date on which Mr. Toomey entered into the Executive Agreement.
The Executive Agreement specifies that Mr. Toomey will be paid an annual base salary of $900,000, which shall be reviewed annually by the Compensation and Management Development Committee of the Company’s Board of Directors (the “Compensation Committee”) and may be increased at any time for any reason. Mr. Toomey is also eligible to earn an annual bonus with a target opportunity of $2,100,000, with the amount to be earned determined based on the achievement of personal and Company performance goals established by the Compensation Committee. The target annual bonus opportunity shall be reviewed by the Compensation Committee annually and may be increased at any time for any reason. The Executive Agreement specifies that Mr. Toomey will be eligible to receive future long-term incentive awards as part of the Company’s annual grant process, subject to Compensation Committee and/or Board approval. The target opportunity for Mr. Toomey’s long-term incentive award is $7,000,000, with the amount to be earned based on achievement of personal or Company performance goals established by the Compensation Committee. The Compensation Committee may increase the target opportunity for Mr. Toomey’s long-term incentive award target opportunity at any time for any reason. Mr. Toomey is also eligible to participate in employee benefit plans and programs in which similarly situated Company employees are eligible to participate. The target opportunities included in the Executive Agreement are the targets for the grants previously made to Mr. Toomey in January 2024, and are subject to the terms of the Company’s long-term and short-term compensation programs and the terms of the Company’s 1999 Long-Term Incentive Plan, as amended.
Under the Executive Agreement, either the Company or Mr. Toomey may terminate his employment with the Company at any time, with or without “Cause,” as such term is defined in the Executive Agreement. If Mr. Toomey’s employment with the Company is terminated by the Company for Cause, Mr. Toomey shall be: (i) paid any previously earned but unpaid base salary through the date of termination; (ii) reimbursed for any business expenses incurred by, but not yet paid to, Mr. Toomey; (iii) entitled to any vested benefits under certain benefit plans and programs (except for equity); and (iv) paid or provided with any other amounts or benefits that are required to be paid or provided by applicable law, with all of these payments and benefits collectively referred to in the Executive Agreement as the “Accrued Obligations.” If Mr. Toomey’s employment with the Company is terminated by the Company for Cause, all of his unvested equity awards shall be immediately forfeited and canceled and Mr. Toomey shall not receive any of the severance benefits contemplated by the Executive Agreement or any other severance compensation or benefit.
The Executive Agreement provides that if Mr. Toomey’s employment with the Company is terminated by the Company without Cause or by Mr. Toomey for Good Reason (as such term is defined in the Executive Agreement), Mr. Toomey shall be paid the Accrued Obligations, and, subject to execution of a release of claims in favor of the Company, resignation of any other position with the Company (including as a member of the Company’s Board of Directors), the return of Company property and compliance with the Executive Agreement and the release agreement, Mr. Toomey shall receive certain severance benefits that include: (i) an amount equal to three times the sum of Mr. Toomey’s then-current base salary and target annual bonus; (ii) the amount of Mr. Toomey’s prior calendar year’s annual bonus if his termination occurs after such calendar year but prior to payment of the annual bonus for that calendar year; (iii) the pro-rata amount of Mr. Toomey’s annual bonus relating the year of termination that Mr. Toomey would have received if he had remained employed by the Company through the date the annual bonus is paid; (iv) continued participation by Mr. Toomey and his eligible dependents in health, dental and vision benefit plans until Mr. Toomey reaches the age of 75, subject to certain limitations; and (v) the vesting of Mr. Toomey’s unvested time-based LTIP and other equity-based awards, as well as the vesting of all unvested performance-based LTIP and other equity-based awards at the greater of the target award or actual performance, if measurable, through the date of termination.
The Executive Agreement provides that, in the event of Mr. Toomey’s death during the term of the Executive Agreement, Mr. Toomey or his legal representatives are entitled to a pro rata bonus for the year of termination based on his then-current target annual bonus, and his unvested performance-based LTIP and other equity-based awards will vest at the greater of the target award or actual performance, if measurable, through the date of termination. Mr. Toomey’s legal representatives shall also receive any Accrued Obligations. If Mr. Toomey’s employment is terminated due to his Disability (as such term is defined in the Executive Agreement), Mr. Toomey shall receive a pro rata bonus for the year of termination based on his then-current target annual bonus, and his unvested performance-based LTIP and other equity-based awards will vest at the greater of the target award or actual performance, if measurable, through the date of termination. In addition, Mr. Toomey shall receive any Accrued Obligations if his employment is terminated due to his Disability.
Under the Executive Agreement, Mr. Toomey is subject to customary non-solicitation and non-competition covenants and is also bound by customary non-disparagement and confidentiality restrictions. The Executive Agreement provides that any amounts paid or payable pursuant to the Executive Agreement shall be subject to any applicable clawback policies or procedures adopted by the Company.
The foregoing description of the Executive Agreement is qualified in its entirety by reference to the copy of the Executive Agreement filed as Exhibit 10.1 to this Current Report on Form 8-K, which is incorporated by reference herein.
Item 9.01 Financial Statements and Exhibits.
(d) Exhibits.
Ex. No. |
| Description |
10.1 | Executive Agreement dated February 15, 2024, by and between UDR, Inc. and Thomas W. Toomey. | |
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. | ||||
February 20, 2024 | By: | /s/ Joseph D. Fisher | ||
Joseph D. Fisher | ||||
President and Chief Financial Officer | ||||
(Principal Financial Officer) |
Exhibit 10.1
This Executive Agreement (“Agreement”) is entered into February 15, 2024 (the “Effective Date”) by and between UDR, Inc., a Maryland corporation (the “Company”) and Thomas W. Toomey (“Executive”).
WHEREAS, the Company desires to continue to employ the Executive as its Chief Executive Officer, and for Executive to continue providing services to the Company and its direct and indirect subsidiaries (collectively, the Company and its direct and indirect subsidiaries, the “Company Group”), on the terms and conditions, and for the consideration, hereinafter set forth, and the Executive is desirous of being so employed and providing such services to the Company Group, on such terms and conditions and for such consideration.
NOW THEREFORE, in consideration of the mutual promises and covenants contained herein, the parties agree to the following:
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(b)For purposes of this Agreement, “Cause” means the occurrence of one of the following on the part of Executive:
In each case of Sections 5.1(b)(iii) or (iv), to the extent such event is capable of cure, Executive shall have ten (10) days from the delivery of written notice by the Board within which to cure any acts constituting Cause under Sections 5.1(b)(iii) or (iv); provided however, that, if the Board reasonably expects irreparable injury from a delay of ten (10) days, the Board may in its sole discretion give Executive notice of such shorter period within which to cure as is reasonable under the circumstances. The Board may also place Executive on paid leave for up to thirty (30) days while it is determining whether there is a basis to terminate Executive’s employment for Cause. Any such action by the Board will not constitute Good Reason (as defined in Section 5.4(c)).
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In addition, the Executive’s conscious awareness of any Confidential Information (as opposed to the physical possession of documentary Confidential Information) or the use of such information in connection with the Executive’s involvement with any project or activity that is not prohibited by this Agreement shall not constitute a breach of Section 7.1 in any manner whatsoever, unless Executive’s use of such Confidential Information has an objective detrimental impact on the business of either the Company or any member of the Company Group.
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Notwithstanding the foregoing, nothing in this Section 8 shall restrict Executive from engaging or participating in any activity permitted pursuant to Section 1.2. Further, nothing in this Section 8 shall restrict Executive from investing in real estate or from serving on the board of directors, or similar body, of any entity other than any entity that is included in the Company’s multifamily peer group for compensation purposes on the date of termination of the Executive’s employment with the Company.
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If to the Company, addressed to:
1745 Shea Center Drive Suite 200
Highlands Ranch, CO 80129
Attn: Corporate Secretary
UDR, Inc.
1745 Shea Center Drive, Suite 200
Highlands Ranch, CO 80129
Attn: General Counsel
If to Executive, at Executive’s last known address on file with the Company.
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[Remainder of Page Intentionally Blank;
Signature Page Follows]
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IN WITNESS WHEREOF, Executive and the Company have executed this Agreement effective of the date first above written.
EXECUTIVE
/s/ Thomas W. Toomey
Thomas W. Toomey
Date: | February 15, 2024 |
COMPANY
UDR, Inc., a Maryland corporation
By: | /s/ Robert A. McNamara |
Name: Robert A. McNamara
Title:Chairman, Compensation and Management Development Committee
Date: February 15, 2024
EXHIBIT A
Form of Release Agreement
RELEASE AGREEMENT
This Release Agreement ("Agreement") is made as of ___________, 20__, 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 Thomas W. Toomey, with an address of ________________________ ("Executive").
In consideration of the Company’s agreement to pay Executive severance pay as referenced in that certain Executive Agreement dated as of ________, 2024 the Company and Executive agree as follows:
1.General Release of Claim and Covenant Not to Sue.
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;
A-1
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.
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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 Corporate Secretary and c/o Legal Department, 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
A-3
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.
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IN WITNESS WHEREOF, each of the parties has signed or caused this Agreement to be signed by its duly authorized officer, as applicable, as of the date set forth in the introductory paragraph hereof.
UDR, INC.
By:
Name: ______________________________
Title: ______________________________
EXECUTIVE
Thomas W. Toomey
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Document and Entity Information |
Feb. 15, 2024 |
---|---|
Document and Entity Information [Abstract] | |
Document Type | 8-K |
Document Period End Date | Feb. 15, 2024 |
Entity Registrant Name | UDR, Inc. |
Entity Incorporation, State or Country Code | MD |
Entity File Number | 1-10524 |
Entity Tax Identification Number | 54-0857512 |
Entity Address, Address Line One | 1745 Shea Center Drive, Suite 200 |
Entity Address, City or Town | Highlands Ranch |
Entity Address, State or Province | CO |
Entity Address, Postal Zip Code | 80129 |
City Area Code | 720 |
Local Phone Number | 283-6120 |
Written Communications | false |
Soliciting Material | false |
Pre-commencement Tender Offer | false |
Pre-commencement Issuer Tender Offer | false |
Title of 12(b) Security | Common Stock |
Trading Symbol | UDR |
Security Exchange Name | NYSE |
Entity Emerging Growth Company | false |
Entity Central Index Key | 0000074208 |
Amendment Flag | false |
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