EX-10.22
UNITED DOMINION REALTY TRUST
DESCRIPTION OF THE SERIES B OUT-PERFORMANCE PROGRAM
BACKGROUND
We compete for management talent with both public and private real
estate investment vehicles and constantly review compensation structures and
practices in an effort to remain highly competitive. Our compensation programs
are designed to further our primary goal of increasing dividend income and share
price appreciation. Our board of directors intends for these goals to be the
primary economic motivation of our executive officers and other key employees.
Our board of directors believes that it is in the best interest of our
shareholders to retain a management team that has a meaningful equity stake in
the long-term success of our company.
Our board of directors does not view stock options as an effective
long-term incentive vehicle, due in part to the relatively low stock price
appreciation in the REIT industry, and therefore does not plan to make ongoing
grants of stock options to our executive officers. Instead, the Out-Performance
Program represents the primary long-term incentive program for the company's
executive officers.
Like the Series A Out-Performance Program approved by our shareholders
in 2001, the Series B Out-Performance Program is designed to provide
participants with the possibility of substantial returns on their investment if
the total return on our common stock exceeds targeted levels, while putting the
participants' investment at risk if those levels are not exceeded. The program
will be administered by our board of directors. Members of our board of
directors who are not our employees are not eligible to participate in the
program.
Following approval by our shareholders in 2003, our board of directors
authorized the sale of a class of OPPSs to a limited liability company, or
"LLC," formed for the benefit of selected executive officers and key employees
who agreed to invest in that class of OPPSs. The participants contributed the
funds for the LLC to purchase the OPPSs and share ownership of the LLC on the
basis of each participant's investment in the LLC. The purchase price was set by
our board of directors based upon the advice of an independent valuation expert.
PARTICIPATION IN SERIES B OPPSs
Our board of directors has developed the principal terms of the Series
B OPPSs. For the Series B OPPSs, participation rights are as follows:
PARTICIPANT NUMBER OF UNITS PERCENTAGE OF UNITS
----------- --------------- -------------------
Thomas W. Toomey 340,000 45%
W. Mark Wallis 140,000 19%
Christopher D. Genry 140,000 19%
Ella S. Neyland 130,000 17%
During fiscal 2003, the LLC repurchased a total of 260,000 membership
units from members of the LLC whose employment with the Company terminated.
The purchase price for the Series B OPPSs has been determined by our
board of directors to be $1,000,000, assuming 100% participation, and was based
upon the advice of an independent valuation expert. The valuation took into
account that any investment in the Series B OPPSs will become worthless if the
targeted Total Return is not achieved. The value of the Series B OPPSs also has
been discounted significantly because of the substantial restrictions on
transfer and the limited redemption rights provided for with respect to the
Series B OPPSs. It is important to recognize that any officer or other employee
who is provided the opportunity to invest is under no obligation to exercise
that right. The Series B OPPSs must be initially subscribed within 45 days of
shareholder approval. However, the LLC has the right, but not the obligation, to
repurchase units from members whose employment with the company terminates and
such units may be re-sold by the LLC to selected executive officers or other key
employees of the company. If some of those eligible to participate elect not to
participate, the remaining OPPSs shall be retained by United Dominion.
The company's performance for the Series B OPPSs will be measured over
a 24-month period beginning June 2003. The starting price for measurement of the
Series B OPPSs will be equal to the ending price of the Series A OPPSs. The LLC
that holds the Series B OPPSs will have no right to receive distributions or
allocations of income or loss, or to redeem those shares prior to the date,
referred to as the "Valuation Date," that is the earlier of (i) the expiration
of the measurement period for the class in 2005, or (ii) the date of a change of
control of the our company (defined as a "Transaction" in the limited
partnership's agreement of limited partnership).
The Series B OPPSs will only be entitled to receive distributions and
allocations of income and loss if, as of the Valuation Date, the cumulative
Total Return of our common stock during the measurement period:
- exceeds the cumulative Total Return of the Morgan Stanley REIT
Index peer group index over the same period; and
- is at least the equivalent of a 22% Total Return or 11%
annualized (the "Minimum Return").
If the thresholds are met, holders of the OPPSs will be entitled to
begin receiving distributions and allocations of income and loss from the
limited partnership equal to the distributions and allocations that would be
received on the number of interests in the limited partnership, referred to as
the "OP Units," obtained by:
(i) determining the amount by which the cumulative Total Return of
our common stock over the measurement period exceeds the
greater of the cumulative Total Return of the Morgan Stanley
REIT Index, which is the peer group index, or the Minimum
Return (such excess being the "Excess Return");
(ii) multiplying 5% of the Excess Return by our Market
Capitalization; and
(iii) dividing the number obtained in clause (ii) by the market
value of one share of our common stock on the Valuation Date,
determined by the weighted average price per day of common
stock for the 20 trading days immediately preceding the
Valuation Date.
For the Series B OPPSs, the number determined pursuant to clause (ii)
in the preceding paragraph is capped at 2% of Market Capitalization. "Market
Capitalization" is defined as the average number of shares outstanding over the
24-month period (including common stock, OP Units, outstanding options and
convertible securities) multiplied by the daily closing price of our common
stock.
If, on the Valuation Date, the cumulative Total Return of our common
stock does not meet the Minimum Return, then holders of Series B OPPSs will
forfeit their initial investment.
The Morgan Stanley REIT Index will be used as the peer group index for
purposes of measuring the Series B OPPSs. The Morgan Stanley REIT Index is a
capitalization-weighted index with dividends reinvested of the most actively
traded real estate investment trusts. The Morgan Stanley REIT Index is comprised
of approximately 112 real estate investment trusts selected by Morgan Stanley &
Co. Incorporated and a total equity market cap of approximately $144 billion.
Our board of directors has selected this index because it believes that it is
the real estate investment trust index most widely reported and accepted among
institutional investors. For the historical performance of the Morgan Stanley
REIT Index, see the Performance Graph on page 16 of this proxy statement. Our
board of directors has the ability to select a different index for future
classes of OPPSs. For example, our board of directors may select a different
index if it determines that the Morgan Stanley REIT Index is no longer an
appropriate comparison for our company; if the Morgan Stanley REIT Index is not
maintained throughout the Measurement Period; or for any other reason that the
board of directors determines.
"Total Return" means, for any security or index and for any period, the
cumulative total return for such security or index over such period, as measured
by the sum of (a) the cumulative amount of dividends paid in respect of such
security or index for such period (assuming that all cash dividends are
reinvested in such security as of the payment date for such dividend based on
the security price on the dividend payment date), and (b) an amount equal to (x)
the security price or index value at the end of such period, minus (y) the
security price or index value at the beginning of the measurement period.
LLC GOVERNANCE AND RESTRICTIONS ON TRANSFER
The Series B OPPSs cannot be transferred by the LLC without the
approval of the managers of the LLC, who are expected to be the two largest
participants in the LLC, as long as they are employees of our company, and two
representatives of the independent directors of our board of directors. Series B
OPPSs may only be transferred by the LLC after targeted returns have been
exceeded and a twenty-four-month vesting period from the date of issuance has
passed. At that time transfers may only be made to participants or to one of
their family members (or a family-owned entity). Individuals who receive Series
B OPPSs after the vesting period may exchange them for an equivalent number of
OP Units. They may not transfer any Series B OPPSs or OP Units received except
to a family member (or a family-owned entity) or in the event of death or
disability.
The terms of the operating agreement of the LLC will restrict the
participants' ability to transfer their interests in the LLC. The LLC will have
the right to repurchase the interest of any participant in the LLC at the
original purchase price if prior to the end of the twenty-four-month vesting
period such participant's employment with our company is terminated for any
reason other than by death or disability. The LLC will be used as a vehicle to
purchase the Series B OPPSs to ensure that there would be no
opportunity for the participants to profit from the ownership of those Series B
OPPSs prior to the Valuation Date.
The Series B Out-Performance Partnership Shares are not convertible
into shares of the company's common stock. However, in the event of a change of
control of our company, the LLC or any participant that holds any Series B OPPSs
will have the same redemption rights as other holders of OP Units. Upon the
occurrence of a change of control, the LLC or participant that holds Series B
OPPSs may require the limited partnership to redeem all or a portion of the
units held by such party in exchange for a cash payment per unit equal to the
market value of a share of the company's common stock at the time of redemption.
However, in the event that any units are tendered for redemption, the limited
partnership's obligation to pay the redemption price will be subject to the
prior right of us to acquire such units in exchange for an equal number of
shares of common stock.
EXAMPLES OF THE VALUE OF SERIES B OPPSs
The following tables illustrate the value of the Series B OPPSs under
different share prices and total returns at the Valuation Date.
This table assumes that the cumulative Total Return of the Morgan
Stanley REIT Index is less than the 22% minimum return:
VALUE TO SHAREHOLDERS
----------------------------------
VALUE OF
STOCK PRICE AT UDR TOTAL SHAREHOLDER VALUE OPPSs
VALUATION DATE RETURN (1) ACHIEVED (2) TO MANAGEMENT (3)
- -------------- ---------- ------------ -----------------
(MILLION) (MILLION)
$15.00 11.7% $235.5 $ 0.0
$16.00 18.6% $373.2 $ 0.0
$17.00 25.4% $510.5 $ 4.6
$18.00 32.2% $647.5 $12.2
$19.00 39.0% $784.1 $20.2
$20.00 45.8% $920.4 $28.6
This table assumes that the cumulative Total Return of the Morgan
Stanley REIT Index is 30% and therefore is the operative threshold instead of
the 22% minimum return:
VALUE TO SHAREHOLDERS
----------------------------------
VALUE OF
STOCK PRICE AT UDR TOTAL SHAREHOLDER VALUE OPPSs
VALUATION DATE RETURN (1) ACHIEVED (2) TO MANAGEMENT (3)
- -------------- ---------- ------------ -----------------
(MILLION) (MILLION)
$15.00 11.7% $235.5 $ 0.0
$16.00 18.6% $373.2 $ 0.0
$17.00 25.4% $510.5 $ 0.0
$18.00 32.2% $647.5 $ 2.4
$19.00 39.0% $784.1 $10.1
$20.00 45.8% $920.4 $18.1
- --------------
(1) Total Return to the UDR shareholders, assuming a 3% dividend growth rate.
(2) Total Return multiplied by beginning market capitalization of $2,008 million
(based on 128,641,783 outstanding shares, OP Units, options and convertible
securities and an assumed per share price of $15.62 at the beginning of the
Series B program).
(3) Out-Performance shareholder value multiplied by management participation of
5% subject to 2% dilution limit.
The numbers used in the table are for illustrative purposes only and
there can be no assurance that actual outcomes will be within the ranges used.
Some of the factors that could affect the results set forth in the table are the
Total Return on our common stock relative to the Total Return of the Morgan
Stanley REIT Index, and the market value of the average outstanding equity of
our company during any Measurement Period. These factors may be affected by
general economic conditions, local real estate conditions and our dividend
policy.
POSSIBLE NEGATIVE EFFECTS OF THE OPPSs
Although we do not believe that the sale of the Series B OPPSs will
have an antitakeover effect, the Series B OPPSs could increase the potential
cost of acquiring control of our company and thereby discourage an attempt to
take control of our company. However, our board of directors is not aware of any
attempt to take control of our company and our board of directors has not
approved the sale of the Series B OPPSs with the intention of discouraging any
such attempt.
If with respect to the Series B OPPSs the Total Return on our common
stock over the Measurement Period exceeds both the Total Return of the Morgan
Stanley REIT Index and exceeds the Minimum Return, then the LLC that holds the
Series B OPPSs could be entitled to receive the same distributions and
allocations as the holder of a significant number of OP Units of the limited
partnership. This could have a dilutive effect on future earnings per share of
our common stock, and on our equity ownership in the limited partnership.