PLAN OF MERGER | 3 PLAN OF MERGER Agreement and Plan of Merger On June 22, 2015, the Company, the Operating Partnership, LSREF4 Lighthouse Acquisitions, LLC, a Delaware limited liability company (“Parent”), LSREF4 Lighthouse Corporate Acquisitions, LLC, a Maryland limited liability company and wholly-owned subsidiary of Parent (“MergerSub”), LSREF4 Lighthouse Operating Acquisitions, LLC, a New York limited liability company and wholly-owned subsidiary of MergerSub (“Partnership MergerSub”), and UDR, Inc., a Maryland corporation (“UDR”), entered into an Agreement and Plan of Merger (the “Merger Agreement”). The Merger Agreement provides for (i) the redemption by the Operating Partnership, in a separate transaction, of limited partnership units of limited partners of the Operating Partnership (other than the Company or any of its subsidiaries) (the “outside limited partners”) who are eligible and have timely elected to have some or all of their limited partnership units redeemed (the “Redemption”), (ii) the merger of Partnership MergerSub with and into the Operating Partnership (the “Partnership Merger”), with the Operating Partnership continuing as the surviving entity, and (iii) the merger of the Company with and into MergerSub (the “Company Merger” and together with the Partnership Merger, the “Mergers”), with MergerSub continuing as the surviving entity and a wholly owned subsidiary of Parent. Pursuant to the terms and subject to the conditions set forth in the Merger Agreement, at the effective time of the Company Merger (the “Company Merger Effective Time”), each share of common stock of the Company (“Company Common Stock”), including each share of Company Common Stock subject to restrictions or conditions, issued and outstanding immediately prior to the Company Merger Effective Time will be converted into the right to receive an amount in cash equal to $75.23, without interest. Under the terms of the Merger Agreement, the Company is not permitted to pay further dividends on Company Common Stock, except as is necessary for the Company to maintain its status as a REIT under the Code, and avoid the imposition of corporate level tax or excise tax under Section 4981 of the Code, which authorization, declaration and payment of any such dividend would reduce the Company Common Share Merger Consideration on a dollar-for-dollar basis. In addition, in accordance with the plan documents, immediately prior to the Company Merger Effective Time: · each option to purchase Company Common Stock will be fully vested, and converted into the right to receive, at the Company Merger Effective Time an amount in cash equal to the product of (x) the total number of shares of Company Common Stock subject to such option and (y) the excess, if any, of the amount of the Company Common Share Merger Consideration over the exercise price per share of Company Common Stock subject to such option, with the aggregate amount of such payment rounded down to the nearest cent (less applicable withholding taxes); and · each restricted stock unit of the Company will be fully vested (with performance-based RSUs vesting in a number of shares not to exceed 118.42% of the target number of shares of Company Common Stock subject to such award), and all shares of Company Common Stock represented thereby will be considered outstanding and subject to the right to receive the Company Common Share Merger Consideration (less applicable withholding taxes) at the Company Merger Effective Time. Pursuant to the Merger Agreement, at the effective time of the Redemption each UPREIT Unit that each outside limited partner has timely and validly elected to have redeemed will be redeemed by the Operating Partnership in exchange for: · 2.15 limited partnership units (“UDR Partnership Units”) in UDR Lighthouse DownREIT L.P., a Delaware limited partnership to be formed by UDR and its affiliates for purposes of this transaction (“UDR DownREIT Partnership”); · $3.01 in cash, which is based on $1.40 for each UDR Partnership Unit received by such outside limited partner; and · the right to subscribe for and purchase 2.15 shares of Series F Preferred Stock, par value $0.01 per share, of UDR (“UDR Preferred Stock”) at a purchase price of $0.0001 per share. Pursuant to the Merger Agreement, at the effective time of the Partnership Merger (the “Partnership Merger Effective Time”), each UPREIT Unit that has not been redeemed for UDR Partnership Units, cash and the right to subscribe for and purchase UDR Preferred Stock as described above will be converted into the right to receive an amount in cash equal to $75.23, without interest. The Merger Agreement contains certain customary representations, warranties and covenants, including, among others, covenants by the Company to conduct its business in all material respects in the ordinary course of business consistent with past practice, subject to certain exceptions, during the period between the execution of the Merger Agreement and the consummation of the Mergers and covenants prohibiting the Company and its subsidiaries and representatives, from soliciting, providing information or entering into discussions concerning proposals relating to alternative business combination transactions, subject to certain limited exceptions. The consummation of the Mergers is subject to certain closing conditions, including, among others: (i) approval of the Partnership Merger and the Merger Agreement by the affirmative vote of a majority of the outstanding limited partnership interests of the Operating Partnership held by outside limited partners; (ii) approval of the Company Merger and the Merger Agreement by the affirmative vote of a majority of the outstanding shares of Company Common Stock as of the record date for the special meeting of stockholders of the Company; (iii) the consummation of the transactions contemplated by the Contribution Agreement (defined below); (iv) the consummation of the Redemption; (v) the absence of a material adverse effect on either the Company or Parent; and (vi) the receipt by Parent of a tax opinion relating to the REIT status of the Company. The obligations of the parties to consummate the Mergers are not subject to any financing condition or the receipt of any financing by Parent, MergerSub or Partnership MergerSub. The Merger Agreement may be terminated under certain circumstances. The Merger Agreement provides that, in connection with the termination of the Merger Agreement under specified circumstances, Parent may be required to pay the Company a termination fee of $300,000, and UDR will be entitled to receive a portion of such termination fee. The Merger Agreement also provides that, in connection with the termination of the Merger Agreement under specified circumstances, the Company may be required to pay Parent a termination fee of either $50,000 or $150,000 (and UDR will be entitled to receive a portion of such termination fee and be reimbursed its transaction expenses) or reimburse Parent’s transaction expenses up to $35,000. In addition, the Merger Agreement provides that, in connection with the termination of the Merger Agreement under specified circumstances, UDR may be required to pay Parent and the Company a termination fee of $90,000, of which the Company will receive $55,000 and Parent will receive $35,000. Under certain circumstances, including upon payment of the applicable termination fee, the Company is permitted to terminate the Merger Agreement to enter into a definitive agreement with a third party with respect to a Superior Proposal (as defined in the Merger Agreement). The board of directors of the Company (the “Company Board”) has unanimously approved the Merger Agreement, the Redemption, the Mergers and the other transactions contemplated by the Merger Agreement. BofA Merrill Lynch and Houlihan Lokey provided fairness opinions to the Board in connection with the transaction. As of June 30, 2015, the Company has incurred $3,385 in costs associated with the evaluation and structuring of the Mergers which are included in other expenses for the three and six months ended June 30, 2015. Contribution Agreement On June 22, 2015, the Operating Partnership, UDR, United Dominion Realty, L.P., a Delaware limited partnership (“UDR Partnership”), and Parent entered into a Contribution Agreement (the “Contribution Agreement”). The Contribution Agreement provides that, upon the terms and subject to the conditions set forth in the Contribution Agreement, the Operating Partnership will contribute or cause to be contributed a portfolio of up to six properties to UDR DownREIT Partnership, and UDR DownREIT Partnership will assume certain outstanding indebtedness secured by the contributed properties, in exchange for the following consideration for each UPREIT Unit that the outside limited partners elect to have redeemed (the “Operating Partnership Contribution”): · 2.15 UDR Partnership Units; · $3.01 in cash; and · the right to subscribe for and purchase 2.15 shares of UDR Preferred Stock. The Contribution Agreement also provides that, upon the terms and subject to the conditions set forth in the Contribution Agreement, UDR and UDR Partnership will contribute or cause to be contributed cash and a portfolio of properties to UDR DownREIT Partnership, and UDR DownREIT Partnership will assume certain outstanding indebtedness secured by the contributed properties, in exchange for UDR Partnership Units (the “UDR Contribution” and together with the Operating Partnership Contribution, the “Contributions”). The Contribution Agreement contains certain customary representations, warranties and covenants, including, among others, covenants by the Operating Partnership to cause the properties to be operated in the ordinary course of business consistent with past practice. The consummation of the Contributions is subject to certain customary closing conditions, including, among others, the satisfaction (or waiver) of certain conditions to closing set forth in the Merger Agreement. The Contribution Agreement automatically terminates upon the termination of the Merger Agreement. In addition, UDR or UDR Partnership may terminate the Contribution Agreement if the Contributions have not been consummated on or before the outside date of December 31, 2015. The Board has unanimously approved the Contribution Agreement, the Operating Partnership Contribution and the other transactions contemplated by the Contribution Agreement. |