exv10w1



 




EXHIBIT 10.1










November 9, 2007




Martha R. Carlin

11860 Bell Cross Circle

Parker, Colorado 80138




Re: Separation of Employment from UDR, Inc.




Dear Martha:



As we have discussed, your employment with UDR, Inc. (the “Company”) will end
effective November 8, 2007 (the “Separation Date”). This letter (this “Letter
Agreement”) reflects our agreement with respect to the separation of your
employment with the Company.



1.     Last Day of Employment. Your last day of employment with the Company
will be November 8, 2007.



2.     Vacation Pay. You will be paid an amount equal to all accrued but
unused vacation up to November 8, 2007. You are entitled to payment of all
accrued but unused vacation whether or not you sign this Letter Agreement. You
will not be entitled to use sick leave, salary continuation or disability
benefits after the Separation Date.



3.     Consideration. In consideration for signing this Letter Agreement
the Company agrees that:




     (a)     You may continue to participate in the Company’s group health insurance
plans at the same coverage levels as immediately prior to the Separation Date.
Coverage will continue through the Consolidated Omnibus Budget Reconciliation
Act of 1985 (“COBRA”) until the first to occur of (i) November 7, 2012; (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 (iii) you default in the payment of or no longer continue
to pay your portion of the premiums (the “Severance Period”). During the
Severance 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 Severance
Period, if you do not have health insurance from another employer, you may
continue coverage as required by COBRA at your own expense.








 









 










     Provided that you pay the applicable premiums you may retain your
supplemental life, disability and cancer policies through November 7, 2008.



     You hereby agree to inform Thomas W. Toomey, Chief Executive Officer and
President, UDR, Inc., 1745 Shea Center Drive, Suite 200, Highlands Ranch, CO
80129, immediately upon your acceptance of employment by a third party.



     (b)     The Company shall cause United Dominion Realty, L.P. and/or UDR
Out-Performance III, LLC to repurchase 45,000 Membership Units in UDR
Out-Performance III, LLC, which constitutes 100% of the Membership Units in UDR
Out-Performance III, LLC owned by you, for Forty-Five Thousand Dollars and No
Cents ($45,000.00), such amount to be paid to you within thirty (30) days of the
Separation Date.



     (c)     The Company shall cause United Dominion Realty, L.P. and/or UDR
Out-Performance IV, LLC to repurchase 166,000 Membership Units in UDR
Out-Performance IV, LLC, which constitutes 100% of the Membership Units in UDR
Out-Performance IV, LLC owned by you, for One Hundred Sixty-Six Thousand Dollars
and No Cents ($166,000.00), such amount to be paid to you within thirty (30)
days of the Separation Date.



     (d)     The Company shall cause United Dominion Realty, L.P. and/or UDR
Out-Performance V, LLC to repurchase 115,000 Membership Units in UDR
Out-Performance V, LLC, which constitutes 100% of the Membership Units in UDR
Out-Performance V, LLC owned by you, for One Hundred Fifteen Thousand Dollars
and No Cents ($115,000.00), such amount to be paid to you within thirty (30)
days of the Separation Date.



     (e)     You will be treated as though you were an employee of the Company
through December 31, 2007 and all shares of Common Stock that would have vested
under your Notices of Performance Contingent Restricted Stock Awards (“PARS”) as
of such date shall vest pursuant to the terms of such agreements. With respect
to the 2007 PARS, you will also be treated as though you were an employee of the
Company through December 31, 2007 and pursuant to the terms of your Notice of
Performance Contingent Restricted Stock Award (“Stock Award”) and upon
determination by the Compensation Committee of the Board of Directors of the
Company (“Compensation Committee”) as to the targeted award level for the 2007
PARS Program, you will be vested in 1/4 of the Initial Shares and Additional
Shares (as defined in your Stock Award), if any, upon the Compensation
Committee’s determination of the award level for the 2007 PARS Program.



 









 










     (f)     Except as set forth in Section 3(e), you will forfeit any right to
receive additional shares of Common Stock under your 2004, 2005, 2006 and 2007
Performance Contingent Restricted Stock Award grants.



     (g)     All restrictions on the following Restricted Stock Awards held by you
that remain subject to restrictions on November 8, 2007 shall lapse:



          (i)     2,709 shares of restricted Common Stock granted to you on February 12,
2004;




          (ii)     5,369 shares of restricted Common Stock granted to you on February 18,
2005;




          (iii)     3,973 shares of restricted Common Stock granted to you on February
15, 2006; and




          (iv)     5,924 shares of restricted Common Stock granted to you on February 8,
2007.




     (h)     A bonus for fiscal year 2007 in the amount of $600,000 payable at the
same time the Company pays fiscal year 2007 bonuses to the Company’s other
senior executives.


4.     Other Benefits. Except as provided explicitly in this Letter
Agreement, you shall not be entitled to any other or further benefits from
Company, including, without limitation, participation in health and dental
insurance plans, disability and life insurance plans, stock plans, 401(k) plans,
and profit sharing plans.



5.     Expenses. Your expense report for expenses incurred through the
Separation Date must be received within three business days after the Separation
Date. You will be reimbursed for expenses incurred through the Separation Date
in accordance with ordinary Company reimbursement practices and policies. If a
final accounting of these new expenditures indicates that you owe the Company
any amount (e.g., for charges to Company accounts) after your expense reports
have been processed, you must pay such amount within three days after the later
of the Effective Date or the Separation Date.



6.     Company Property. You acknowledge that you have returned to the
Company all Company documents (including copies) and property which you may
possess, including, but not limited to, the




 









 









following proprietary information of the Company: files, memoranda, notes,
computer-recorded information, personnel records (except copies of any
agreements you may have signed with the Company), equipment, materials, keys,
entry cards, identification, credit cards, and any other materials of any kind
that embodies any confidential or proprietary information of the Company (and
all reproductions thereof).



7.     Revocation. You understand that you have twenty-one (21) days to
consider the preclusive effect of this Letter Agreement prior to executing this
Letter Agreement. You further understand that you may revoke this Letter
Agreement for a period of seven (7) days following your execution of this Letter
Agreement. Any revocation within this period must be submitted, in writing, to:
the Company, c/o Thomas W. Toomey, Chief Executive Officer and President, and
state, “I hereby revoke my acceptance of the Letter Agreement.” The revocation
must be mailed to the Company, c/o Thomas W. Toomey, Chief Executive Officer and
President, or his designee, and postmarked within seven (7) days of execution of
this Letter Agreement. This Letter Agreement shall not become effective or
enforceable until the revocation period has expired. 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.



8.     General Release of Claim 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 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 actions, 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 as of the date of execution of this Letter Agreement,
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;




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;



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 the Released Parties’ personnel practices, policies, or
procedures; and




          (ii)     Arising out of or relating 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 any statements or representations to or about
Executive; and




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




 









 











any allegation for costs, fees, or other expenses including attorneys’ fees
incurred in these matters (collectively the “Released Claims”).



You shall not 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.




     (b)     Except for the obligations created by this Letter Agreement, the
Released Parties hereby covenant not to sue and release and forever discharge
you from any and all claims, known and unknown, which the Release Parties have
or may have against you, including all claims arising from your position as
Executive Vice President — Operations 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 Letter Agreement; provided, however, the
Released Parties do not release you with respect to claims arising out of or
relating to fraud, gross negligence or willful misconduct.


9.     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. 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.



10.     Non-Disparagement. You agree not to make any negative, disparaging,
disruptive or damaging statements, comments or remarks to any third party
concerning the Company and its business. In response to inquiries about you
from individuals outside of Company, Company’s official response shall be to
provide our standard reference information of dates of employment and title.



11.     Assistance. In partial consideration for the benefits provided to
you by the Company under this Letter Agreement, to which you are not otherwise
entitled, you agree to provide reasonable assistance related to transition
matters to the Company and/or its employees.



12.     Confidentiality. You acknowledge that you have been exposed to and
have learned 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 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 by court order, you will not at any time
divulge to any person, agency, institution, the Company or other entity any
information which you know or has 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 12 will continue until the later of twelve (12) months from the
Separation Date, or as long as the Confidential Information remains proprietary
or confidential to the Company.



13.     Non-Solicitation. As further consideration for the benefits
provided in this Letter Agreement for a period terminating twelve (12) months
from the Separation Date, you agree not to directly or indirectly solicit for
employment any person employed by the Company or its affiliates.



14.     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.



15.     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.



16.     Entire Agreement. This Letter Agreement (including the exhibits
hereto) contains the entire agreement between you and the Company and is the
complete, final and exclusive embodiment of our 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 you and an officer of the Company.




 









 









17.     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.



Please sign and return this Letter Agreement to me, keeping a copy for yourself.
Our sincerest wishes in your future endeavors.




	 	 	 	 	 
	Sincerely,





UDR, Inc.

 	 
	/s/ Thomas W. Toomey
 	 
	Thomas W. Toomey 	 
	Chief Executive Officer and President 	 
	 



	 	 	 	 	 	 	 	 	 	 	 
	Accepted and Agreed:	 	 	 	 	 	 	 	 
	 
	 	 	 	 	 	 	 	 	 	 
	Date:

	 	12-27-07
	 	 
	 	By:
	 	/s/ Martha R. Carlin
	 	 
	 

	 	 
	 	 	 	 	 	 	 	 
	 

	 	 	 	 	 	 	 	Martha R. Carlin