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 9, 2008
UDR, INC.
(Exact Name of Registrant as Specified in Its Charter)
         
Maryland   1-10524   54-0857512
         
(State or Other Jurisdiction
of Incorporation) 		  (Commission File Number)   (IRS Employer
Identification No.)
         
1745 Shea Center Drive, Suite        
200, Highlands Ranch,        
Colorado       80129
         
(Address of Principal Executive Offices)       (ZIP Code)
(720) 283-6120
(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:
o   Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425)
 
o   Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12)
 
o   Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b))
 
o   Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c))
 
 

 

 

Item 8.01 Other Events.
Special Dividend
As previously announced, UDR, Inc. (the “Company”) has declared a special dividend on its common stock, payable to stockholders of record at the close of business on December 9, 2008. The special dividend is payable in cash or shares of common stock, at the election of each holder, subject to certain limitations. The Company has filed with the SEC a prospectus supplement relating to shares of common stock that may be issued in payment of the special dividend. In connection therewith, the Company has filed, as Exhibit 5.1 to this report, the opinion of DLA Piper LLP (US) as to the legality of the securities.
United Dominion Realty, L.P.
On December 9, 2008, UDR, Inc. (the “Company”), the general partner of United Dominion Realty, L.P., a Delaware limited partnership (the “UDR Partnership”), entered into the Sixth Amendment (the “Sixth Amendment”) to the Amended and Restated Agreement of Limited Partnership of the UDR Partnership (the “UDR Partnership Agreement”). The description of the Sixth Amendment set forth herein is qualified in its entirety by reference to the full text of the Sixth Amendment, filed as Exhibit 10.1 to this report.
Under the UDR Partnership Agreement, limited partners have the right to redeem their partnership units in exchange for a number of shares of the Company’s common stock, or cash in an amount equal to the value of such shares, as determined by the general partner in its sole and absolute discretion. Antidilution provisions in the UDR Partnership Agreement provide for an adjustment of the exchange ratio if the Company declares or pays a dividend on its outstanding shares of common stock payable in shares of common stock. The Sixth Amendment provides that no adjustment will be made in this circumstance if the UDR Partnership pays a proportional distribution to limited partners in partnership units.
The UDR Partnership Agreement provides for distributions to each limited partner based on the amount of dividends that the limited partner would receive if the limited partner exchanged his or her partnership units for shares of common stock of the Company, a concept which is defined in the UDR Partnership Agreement as a limited partner’s “Dividend Equivalent.” The Sixth Amendment amends the definition of “Dividend Equivalent” to provide that, for purposes of determining any limited partner’s Dividend Equivalent for any period in which the Company pays a stock dividend with a cash election, the Dividend Equivalent will be calculated based on the quotient obtained by dividing (a) the aggregate amount of cash paid by the Company in such dividend to all holders of the Company’s common stock, by (b) the aggregate number of shares of the Company’s common stock outstanding at the close of business on the record date for such dividend.
Heritage Communities L.P.
On December 9, 2008, ASR Investments Corporation, the sole member of ASR of Delaware LLC, the general partner of Heritage Communities L.P., a Delaware limited partnership (the “Heritage Partnership”), entered into the Third Amendment (the “Third Amendment”) to the Second Amended and Restated Agreement of Limited Partnership of the Heritage Partnership (the “Heritage Partnership Agreement”). The description of the Third Amendment set forth herein is qualified in its entirety by reference to the full text of the Third Amendment, filed as Exhibit 10.2 to this report.
Under the Heritage Partnership Agreement, limited partners may exchange their partnership units for a number of shares of the Company’s common stock. Antidilution provisions in the Heritage Partnership Agreement provide for an adjustment of the exchange ratio if the Company declares or pays a dividend on its outstanding shares of common stock payable in shares of common stock. The Third Amendment provides that no adjustment will be made in this circumstance if the Heritage Partnership pays a proportional distribution to limited partners in partnership units.
The Heritage Partnership Agreement provides for a quarterly distribution to each limited partner in an amount based on the dividend per share paid by the Company for such quarter. The Third Amendment provides that, if the Company pays a stock dividend with a cash election, the dividend per share paid by the Company will be calculated by dividing (i) the aggregate amount of cash paid by the Company in the dividend, by (ii) the aggregate number of

 

 

shares of the Company’s common stock outstanding at the close of business on the record date for such dividend.
Item 9.01 Financial Statements and Exhibits.
(d) The following exhibits are filed with this report:
     
Exhibit No.   Description
 
   
5.1
  Opinion of DLA Piper LLP (US), as to legality of securities
 
   
10.1
  Sixth Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of December 9, 2008
 
   
10.2
  Third Amendment to the Second Amended and Restated Agreement of Limited Partnership of Heritage Communities L.P., dated as of December 9, 2008
 
   
23.1
  Consent of DLA Piper LLP (US) (included in Exhibit 5.1)

 

 

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.
  		 
Date: December 9, 2008   By:   /s/ David L. Messenger    
    Name:   David L. Messenger   
    Title:   Senior Vice President and Chief Financial Officer   
 

 

 

Exhibit Index
     
Exhibit No.   Description
 
   
5.1
  Opinion of DLA Piper LLP (US), as to legality of securities
 
   
10.1
  Sixth Amendment to the Amended and Restated Agreement of Limited Partnership of United Dominion Realty, L.P., dated as of December 9, 2008
 
   
10.2
  Third Amendment to the Second Amended and Restated Agreement of Limited Partnership of Heritage Communities L.P., dated as of December 9, 2008
 
   
23.1
  Consent of DLA Piper LLP (US) (included in Exhibit 5.1)

 

Exhibit 5.1
DLA Piper LLP (US)
The Marbury Building
6225 Smith Avenue
Baltimore, Maryland 21209-3600
T 410.580.3000
F 410.580.3001
W www.dlapiper.com
December 9, 2008
UDR, Inc.
1745 Shea Center Drive
Highlands Ranch, Colorado 80129
Ladies and Gentlemen:
     We serve as special Maryland counsel to UDR, Inc., a Maryland corporation (the “Company”), in connection with the issuance by the Company of up to 15,000,000 shares (the “Shares”) of the Company’s common stock, par value $.01 per share (the “Common Stock”), to be issued in connection with a special dividend (the “Special Dividend”) declared by the Board of Directors of the Company to holders of record of the Company’s Common Stock as of the close of business on December 9, 2008 and expected to be paid on January 29, 2009 substantially on the terms and in the manner described in the Prospectus Supplement dated as of December 9, 2008 (the “Prospectus Supplement”). The issuance of the Shares is being registered under the Securities Act of 1933, as amended (the “Act”), on a Registration Statement of the Company on Form S-3 (No. 333-156002) (the “Registration Statement”) filed with the Securities and Exchange Commission (the “Commission”) on December 8, 2008 which provides for the offering by the Company from time to time of certain securities described in the Registration Statement, including the Shares. This opinion is being provided at your request in connection with the filing of the Prospectus Supplement.
     In rendering the opinion expressed herein, we have reviewed originals or copies, certified or otherwise identified to our satisfaction, of the following documents (the “Documents”):
     (a) The Registration Statement.
     (b) The Prospectus Supplement.
     (c) The corporate charter of the Company (the “Charter”), as in effect on the date hereof, represented by the Articles of Restatement filed with the State Department of Assessments and Taxation of the State of Maryland (the “SDAT”) on July 29, 2005, Articles of Amendment filed with the SDAT on March 14, 2007 and Articles Supplementary filed with the SDAT on May 30, 2007.
     (d) The Amended and Restated Bylaws of the Company, as in effect on the date hereof (in the form attached to the Officer’s Certificate (as defined below)) (the “Bylaws”).
     (e) Resolutions adopted by the Company’s Board of Directors relating to the authorization and issuance of the Shares, certified by an officer of the Company.
     (f) A short-form Good Standing Certificate for the Company, dated a recent date, issued by the SDAT.

 

 

UDR, Inc.
December 9, 2008
Page 2
     (g) A certificate executed by an officer of the Company, dated as of the date hereof (the “Officer’s Certificate”).
     In examining the Documents, and in rendering the opinion set forth below, we have assumed the following: (a) each of the parties to the Documents (other than the Company) has duly and validly executed and delivered each of the Documents and each instrument, agreement, and other document executed in connection with the Documents to which such party is a signatory and each such party’s (other than the Company’s) obligations set forth in the Documents, are its legal, valid and binding obligations, enforceable in accordance with their respective terms; (b) each person executing any such instrument, agreement or other document on behalf of any such party (other than the Company) is duly authorized to do so; (c) each natural person executing any such instrument, agreement or other document is legally competent to do so; (d) the Documents accurately describe and contain the mutual understandings of the parties, there are no oral or written modifications of or amendments or supplements to the Documents and there has been no waiver of any of the provisions of the Documents by actions or conduct of the parties or otherwise; and (e) all documents submitted to us as originals are authentic, all documents submitted to us as certified or photostatic copies or telecopies or portable document file (“.PDF”) copies conform to the original documents (and the authenticity of the originals of such copies), all signatures on all documents submitted to us for examination (and including signatures on photocopies, telecopies and .PDF copies) are genuine, and all public records reviewed are accurate and complete. As to certain factual matters we have relied on the Officer’s Certificate as to the factual matters set forth therein, which we assume to be accurate and complete.
     Based upon the foregoing, subject to the additional assumptions, qualifications, and limitations below, having regard for such legal considerations as we deem relevant, and limited in all respects to applicable Maryland law, we are of the opinion and advise you that the Shares have been duly authorized and, upon issuance of the Shares pursuant to the Special Dividend, will be validly issued, fully paid and non-assessable.
     In addition to the qualifications set forth above, the opinion set forth herein is subject to additional assumptions, qualifications, and limitations as follows:
     (a) This opinion concerns only the effect of the laws (exclusive of the principles of conflict of laws) of the State of Maryland as currently in effect. We assume no obligation to supplement this opinion if any applicable laws change after the date hereof or if any facts or circumstances come to our attention after the date hereof that might change this opinion.
     (b) We have made no investigation of, and we express no opinion as to, the laws of any jurisdiction other than the laws of the State of Maryland. To the extent that any documents referred to herein are governed by the laws of a jurisdiction other than the State of Maryland, we have assumed that the laws of such jurisdiction are the same as the laws of the State of Maryland.
     (c) We express no opinion as to compliance with the securities (or “blue sky”) laws or the real estate syndication laws of the State of Maryland.
     (d) We assume that all of the issued and outstanding shares of Common Stock of the Company have not violated and the issuance of the Shares will not violate the ownership limitations set forth in the Charter.

 

 

UDR, Inc.
December 9, 2008
Page 3
     (e) This opinion is limited to the matters set forth herein, and no other opinion should be inferred beyond the matters expressly stated.
     We hereby consent to the filing of this opinion as an exhibit to the Company’s Current Report on Form 8-K to be filed with the Commission on or about December 9, 2008, which will be incorporated by reference in the Registration Statement, and to the reference to our firm under the heading “Legal Matters” in the Prospectus Supplement related to the Shares. In giving our consent, we do not thereby admit that we are in the category of persons whose consent is required under Section 7 of the Act or the rules and regulations of the Commission thereunder.
Very truly yours,
DLA PIPER LLP (US)
/s/ DLA PIPER LLP (US)

 

Exhibit 10.1
SIXTH AMENDMENT TO THE
AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF UNITED DOMINION REALTY, L.P.
               This SIXTH AMENDMENT TO THE AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF UNITED DOMINION REALTY, L.P., dated as of December 9, 2008 (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 on the General Partner pursuant to 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 to date (the “Agreement”). Capitalized terms used, but not otherwise defined herein, shall have the respective meanings ascribed thereto in the Agreement.
               WHEREAS, the Board of Directors of the General Partner has approved this Amendment.
               NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.   Section 8.05(f)(i) of the Agreement is hereby amended to read in its entirety as follows:
“In the event that the Company (A) declares or pays a dividend on its outstanding REIT Shares in REIT Shares or makes a distribution to all holders of its outstanding REIT Shares in REIT Shares, (B) subdivides its outstanding REIT Shares, or (C) combines its outstanding REIT Shares into a smaller number of REIT Shares, the Conversion Factor shall be adjusted by multiplying the Conversion Factor by a fraction, the numerator of which shall be the number of REIT Shares issued and outstanding on the record date for such dividend, distribution, subdivision or combination (assuming for such purposes that such dividend, distribution, subdivision or combination has occurred as of such time), and the denominator of which shall be the actual number of REIT Shares (determined without the above assumption) issued and outstanding on such date; provided, however, that notwithstanding the foregoing, if the Company declares or pays a dividend on its outstanding REIT Shares in REIT Shares or makes a distribution to all holders of its outstanding REIT Shares in REIT Shares (including a dividend in which stockholders may elect to receive all or a portion of such dividend in cash), no adjustment shall be made if, promptly thereafter, with respect to any dividend

 

 

or distribution with respect to REIT Shares, the Partnership pays a distribution with respect to each Partnership Unit consisting of a number of Partnership Units (or fraction thereof) equal to the product of (i) the quotient obtained by dividing (a) the aggregate number of REIT Shares paid by the Company as a dividend to all stockholders, by (b) the aggregate number of REIT Shares outstanding as of the close of business on the record date for such dividend, and (ii) the number of REIT Shares for which such Partnership Unit is then redeemable pursuant to Section 8.05.”
2.   The definition of “Dividend Equivalent” as set forth in Section 1.01 of the Agreement is hereby amended to read in its entirety as follows:
“DIVIDEND EQUIVALENT” as to any Partner means the amount of distributions such Partner would have received for the quarter (or other distribution period) from REIT Shares if such Partner owned the number of REIT Shares equal to the product of such Partner’s Partnership Units and the Conversion Factor for the Partnership Record Date pertaining to such quarter (or other distribution period); provided, however, that for purposes of determining any Partner’s Dividend Equivalent for any period for which the Company pays a dividend with respect to REIT Shares in which holders of REIT Shares have an option to elect to receive such dividend in cash or additional REIT Shares, the amount of distributions such Partner shall be deemed to have received with respect to such dividend (if such Partner was deemed to own the specified number of REIT Shares) shall be equal to the product of (i) the specified number of REIT Shares deemed to be owned by such Partner, and (ii) the quotient obtained by dividing (a) the aggregate amount of cash paid by the Company in such dividend to all holders of REIT Shares, by (b) the aggregate number of REIT Shares outstanding as of the close of business on the record date for such dividend.”
3.   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.

2

 

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

UDR, INC.
  		 
  By:   /s/ Warren L. Troupe  
    Name:   Warren L. Troupe   
    Title:   Senior Executive Vice President   
 

Exhibit 10.2
THIRD AMENDMENT TO THE
SECOND AMENDED AND RESTATED AGREEMENT OF
LIMITED PARTNERSHIP OF HERITAGE COMMUNITIES L.P.
This THIRD AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF HERITAGE COMMUNITIES L.P., dated as of December 9, 2008 (this “Amendment”), is being executed by ASR Investments Corporation, a Maryland corporation, as the sole member of ASR of Delaware LLC, a Delaware limited liability company (collectively the “General Partner”), the general partner of Heritage Communities L.P., a Delaware limited partnership (the “Partnership”), pursuant to the authority conferred on the General Partner pursuant to Section 14.2(c) of the Second Amended and Restated Agreement of Limited Partnership of Heritage Communities L.P., dated as of September 18, 1997, as amended to date (the “Agreement”). Capitalized terms used, but not otherwise defined herein, shall have the respective meanings ascribed thereto in the Agreement.
WHEREAS, the Board of Directors of the General Partner has approved this Amendment.
NOW, THEREFORE, in consideration of the foregoing, and other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties hereto agree as follows:
1.   The definition of “Unit Adjustment Factor” in Section 1.1.80 of the Agreement is hereby amended and restated to read in its entirety as follows:
“Unit Adjustment Factor means initially 1.0; provided that in the event that UDR, Inc. (“UDR”) (i) declares or pays a dividend on its outstanding Shares in Shares or makes a distribution to all holders of its outstanding Shares in Shares, (ii) subdivides its outstanding Shares, or (iii) combines its outstanding Shares into a smaller number of Shares, the Unit Adjustment Factor shall be adjusted by multiplying the Unit Adjustment Factor by a fraction, the numerator of which shall be the number of Shares issued and outstanding on the record date (assuming for such purposes that such dividend, distribution, subdivision or combination has occurred as of such time), and the denominator of which shall be the actual number of Shares (determined without the above assumption) issued and outstanding on the record date for such dividend, distribution, subdivision or combination; provided however, that notwithstanding the foregoing, if UDR declares or pays a dividend on its outstanding Shares in Shares or makes a distribution to all holders of its outstanding Shares in Shares (including a dividend in which stockholders may elect to receive all or a portion of such dividend in cash), no adjustments to the Unit Adjustment Factor shall be made if, promptly thereafter, the

 

 

Partnership pays a distribution with respect to each Partnership Unit consisting of a number of Partnership Units (or fraction thereof) equal to the product of (i) the quotient obtained by dividing (a) the aggregate number of Shares paid by UDR as a dividend to all stockholders, by (b) the aggregate number of Shares outstanding as of the close of business on the record date for such dividend, and (ii) the number of shares for which such Partnership Unit is then exchangeable pursuant to Section 4.2.2.”
2.   Section 5.1.1(c) is hereby amended to read in its entirety as follows:
“third, to each Limited Partner to the extent of and in proportion to an amount per Limited Partner Unit held by such Limited Partner equal to the quotient obtained by dividing (i) the aggregate amount of cash paid by UDR as a dividend to holders of Shares for such quarter, by (ii) the aggregate number of Shares outstanding as of the close of business on the record date for such dividend,”
3.   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.

 

 

               IN WITNESS WHEREOF, this Amendment has been executed as of the date first written above.
             
    HERITAGE COMMUNITIES L.P.,    
    a Delaware limited partnership    
 
           
 
  By:   ASR OF DELAWARE LLC,    
 
      a Delaware limited liability company, its General Partner    
 
           
 
  By:   ASR INVESTMENTS CORPORATION,    
 
      a Maryland corporation, its Sole Member    
 
           
 
      /s/ Warren L. Troupe
 
Warren L. Troupe
Senior Executive Vice President