As filed with the Securities and Exchange Commission on November 9, 2007
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
FORM S-8
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
Developers Diversified Realty Corporation
(Exact name of registrant as specified in its charter)
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Ohio
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34-1723097
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(State or other jurisdiction of incorporation or organization)
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(I.R.S. Employer Identification Number)
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3300 Enterprise Parkway
Beachwood, Ohio 44122
(216) 755-5500
(Address of Principal Executive Offices)(Zip Code)
DIRECTORS’ DEFERRED COMPENSATION PLAN
(AS AMENDED AND RESTATED ON NOVEMBER 8, 2000), AS AMENDED
2005 DIRECTORS’ DEFERRED COMPENSATION PLAN
(NOVEMBER 1, 2007 RESTATEMENT)
(Full title of the plan)
Scott A. Wolstein, Chief Executive Officer
Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122
(Name and address of agent for service)
(216) 755-5500
(Telephone number, including area code, of agent for service)
Copies of all notices, orders and communication to:
Albert T. Adams, Esq.
Baker & Hostetler LLP
3200 National City Center
1900 East Ninth Street
Cleveland, Ohio 44114
(216) 621-0200
Calculation of Registration Fee
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Proposed maximum
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Proposed maximum
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Title of securities to be
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Amount to be
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offering price
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aggregate
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Amount of
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registered
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registered
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per share
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offering price
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registration fee
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Deferred
Compensation
Obligations (1)
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$
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1,920,000
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100
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%
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$
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1,920,000
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$
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59
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Common Shares,
without par value (2)
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115,000
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$
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47.20
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$
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5,428,000
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$
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167
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(3)
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(1)
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Represents $1,920,000 of deferred compensation obligations offered under the 2005
Directors’ Deferred Compensation Plan (November 1, 2007 Restatement) (the “2005 Plan”).
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(2)
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In addition to the shares set forth in the table, pursuant to Rule 416(a) under the
Securities Act of 1933, as amended (the “Securities Act”), the number of shares registered
includes an indeterminable number of additional common shares issuable under the Directors’
Deferred Compensation Plan (as Amended and Restated on November 8, 2000), as amended, and the
2005 Plan as a result of stock splits, stock dividends and other capital adjustments effected
without receipt of consideration by the Registrant.
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(3)
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The amount of the registration fee with respect to the Common Shares has been calculated
pursuant to Rule 457(c) and (h) under the Securities Act based on the average of the high and
low sale prices on November 6, 2007 of the Registrant’s Common Shares as reported on the New
York Stock Exchange.
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TABLE OF CONTENTS
PART II
INFORMATION REQUIRED IN REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The documents listed in (a) through (d) below are incorporated by reference into this
Registration Statement, excluding any information contained therein or attached as exhibits thereto
which has been furnished but not filed with the Securities and Exchange Commission (the
“Commission”):
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(a)
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Annual Report on Form 10-K of Developers Diversified Realty Corporation (the
“Company”) for the fiscal year ended December 31, 2006, as amended by Form 10-K/A filed
on March 6, 2007 and Form 10-K/A (Amendment No. 2) filed on October 25, 2007;
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(b)
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The Company’s Quarterly Reports on Form 10-Q for the fiscal quarters ended
March 31, 2007 and June 30, 2007;
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(c)
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The Company’s Current Reports on Form 8-K filed on February 7, 2007, February
9, 2007, February 13, 2007, February 20, 2007, February 22, 2007, February 26, 2007,
February 27, 2007, March 5, 2007, March 6, 2007, March 9, 2007, March 16, 2007, April
12, 2007, April 24, 2007, July 2, 2007, November 9, 2007 and November 9, 2007; and
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(d)
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The description of the Company’s common shares, without par value (the “Common
Shares”), contained in the Company’s Registration Statement on Form 8-A dated January
26, 1993 and all amendments or reports filed with the Commission for the purpose of
updating such description.
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All other documents filed by the Company pursuant to Sections 13(a), 13(c), 14 and 15(d) of
the Securities Exchange Act of 1934, as amended (the “Exchange Act”), subsequent to the date of
filing of this Registration Statement and prior to the filing of a post-effective amendment to this
Registration Statement that indicates that all securities offered have been sold or that
deregisters all securities that remain unsold, shall be deemed to be incorporated by reference
herein and to be part hereof from the date of filing of such documents.
Any statement contained in a document incorporated or deemed incorporated herein by reference
shall be deemed to be modified or superseded for the purpose of this Registration Statement to the
extent that a statement contained herein or in any subsequently filed document which also is, or is
deemed to be, incorporated herein by reference is modified or superseded by a statement contained
in a subsequently filed document. Any such statement so modified or superseded shall not be
deemed, except as so modified or superseded, to constitute part of this Registration Statement.
Item 4. Description of Securities.
This Registration Statement covers deferred compensation obligations (“DCOs”) that may be
offered under the 2005 Directors’ Deferred Compensation Plan (November 1, 2007 Restatement) (the
“2005 Plan”) to eligible directors of the Company who have elected to participate in the 2005 Plan
(“Participants”). The following summary of the DCOs is qualified in its entirety by reference to
the Plan, a copy of which has been filed as an exhibit to this Registration Statement.
The DCOs represent obligations of the Company to pay to Participants certain compensation
amounts that the Participants have elected to defer. The 2005 Plan is intended to provide
Participants the ability to defer income that would otherwise be payable to them for tax planning
purposes.
1
Subject to the terms and conditions set forth in the 2005 Plan, each eligible director may
elect to defer receipt of all or part of the cash component of the fees otherwise payable to him.
In lieu of payment of such fees, the Company will credit to each Participant’s deferral account an
amount equivalent to the fees that would have been paid to him if he had not made a deferral
election under the 2005 Plan. The credit will be made on the date on which the fee would have been
paid absent a deferral election.
Until distributed to a Participant, amounts credited to the deferral account of that
Participant will be increased or decreased as measured by the market value of the Common Shares,
plus the value of dividends or other distributions on the Common Shares. Each amount credited to a
deferral account will be assigned a number of share units (including fractions of a share unit)
determined by dividing the amount credited to the deferral account, whether in lieu of payment of
fees for service as a director or as a dividend or other distribution attributable to such share
units, by the fair market value of the Common Shares on the date of credit. Fair market value will
be the closing price of a Common Share on the New York Stock Exchange on the day preceding the
concerned date or, if no sales occurred on such preceding date, on the most recent preceding date
on which sales occurred. Each share unit will have the value of a Common Share. The number of
share units will be adjusted to reflect stock splits, stock dividends, or other capital adjustments
effected without receipt of consideration by the Company.
Subject to certain exceptions specified in the 2005 Plan, distribution of a Participant’s
deferral account will not commence earlier than the January 1 following the year in which the
Participant attains age 55, and will commence not later than the January 1 following the year in
which the Participant attains age 72. A Participant may elect that payment be made in one lump
sum, or in substantially equal annual installments of the deferral account balance over a period of
between one and ten years (as elected by the Participant). The Participant may elect to receive
distributions in Common Shares, cash, or a combination thereof, as permitted by the 2005 Plan’s
administrators.
The obligation to distribute the balance of each Participant’s deferral account is a general
unsecured obligation of the Company. The DCOs do not represent rights to acquire Common Shares. A
Participant’s right to the DCOs cannot be alienated, sold, transferred, assigned or encumbered.
Item 5. Interests of Named Experts and Counsel.
Not applicable.
Item 6. Indemnification of Directors and Officers.
The Ohio Revised Code (the “Ohio Code”) authorizes Ohio corporations to indemnify officers and
directors from liability if the officer or director acted in good faith and in a manner reasonably
believed by the officer or director to be in or not opposed to the best interests of the
corporation, and, with respect to any criminal actions, if the officer or director had no reason to
believe his action was unlawful. In the case of an action by or on behalf of a corporation,
indemnification may not be made (1) if the person seeking indemnification is adjudged liable for
negligence or misconduct, unless the court in which such action was brought determines such person
is fairly and reasonably entitled to indemnification, or (2) if liability asserted against such
person concerns certain unlawful distributions. The indemnification provisions of the Ohio Code
require indemnification if a director or officer has been successful on the merits or otherwise in
defense of any action, suit or proceeding that he or she was a party to by reason of the fact that
he or she is or was a director or officer of the corporation. The indemnification authorized under
Ohio law is not exclusive and is in addition to any other rights granted to officers and directors
under the articles of incorporation or code of regulations of the corporation or any agreement
between officers and directors and the corporation. A corporation may purchase and maintain
insurance or furnish similar protection on behalf of any officer or director against any liability
asserted against such person and incurred by person in his or her capacity, or arising out of the
status, as an officer or director, whether or not the corporation would have the power to indemnify
him against such liability under the Ohio Code.
The Company’s code of regulations provides for the indemnification of directors and officers
of the registrant to the maximum extent permitted by Ohio law as authorized by the board of
directors of the Company and for the advancement of expenses incurred in connection with the
defense of any action, suit or proceeding that he or she was a party to by reason of the fact that
he or she is or was a director or officer of the Company upon the receipt
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of an undertaking to repay such amount unless it is ultimately determined that the director or
officer is entitled to indemnification.
The Company maintains a directors’ and officers’ insurance policy which insures the directors
and officers of the Company from claims arising out of an alleged wrongful act by such persons in
their respective capacities as directors and officers of the Company, subject to certain
exceptions.
The Company has entered into indemnification agreements with its directors and officers which
provide for indemnification to the fullest extent permitted under Ohio law.
Item 7. Exemption from Registration Claimed.
Not applicable.
Item 8. Exhibits.
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4.1
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Amended and Restated Articles of Incorporation of the Company (1)
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4.2
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Second Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.3
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Third Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.4
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Fourth Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.5
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Fifth Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.6
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Sixth Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.7
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Seventh Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.8
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Eighth Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.9
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Amended and Restated Code of Regulations of the Company (1)
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4.10
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Specimen Certificate for Common Shares (2)
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4.11
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Directors’ Deferred Compensation Plan (as Amended and Restated on November 8, 2000), as
amended by First Amendment, dated as of December 19, 2005, and Second Amendment, dated as
of November 7, 2007
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4.12
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2005 Directors’ Deferred Compensation Plan (November 1, 2007 Restatement)
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5
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Opinion of Baker & Hostetler LLP
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23.1
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Consent of Baker & Hostetler LLP (included in Exhibit 5)
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23.2
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Consent of PricewaterhouseCoopers LLP
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23.3
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Consent of KPMG LLP
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(1)
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Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2007 filed with the Commission on August 9, 2007.
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(2)
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Incorporated by reference from the Company’s Registration Statement on Form S-3 (No.
33-78778) filed with the Commission on May 10, 1994.
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Item 9. Undertakings.
(a) The undersigned registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective amendment
to this registration statement:
(i) To include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) To reflect in the prospectus any facts or events arising after the effective date of
the registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in the registration statement; and
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(iii) To include any material information with respect to the plan of distribution not
previously disclosed in the registration statement or any material change to such
information in the registration statement;
Provided, however
,
(A) that paragraphs (a)(1)(i) and (a)(1)(ii) of this section do not apply if the registration
statement is on Form S-8, and the information required to be included in a post-effective amendment
by those paragraphs is contained in reports filed with or furnished to the Commission by the
registrant pursuant to section 13 or section 15(d) of the Exchange Act that are incorporated by
reference in the registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment shall be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time shall be deemed to be
the initial bona fide offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities being
registered which remain unsold at the termination of the offering.
(4) That, for the purpose of determining liability of the registrant under the Securities Act to
any purchaser in the initial distribution of the securities:
The undersigned registrant undertakes that in a primary offering of securities of the undersigned
registrant pursuant to this registration statement, regardless of the underwriting method used to
sell the securities to the purchaser, if the securities are offered or sold to such purchaser by
means of any of the following communications, the undersigned registrant will be a seller to the
purchaser and will be considered to offer or sell such securities to such purchaser:
(i) Any preliminary prospectus or prospectus of the undersigned registrant relating to the
offering required to be filed pursuant to Rule 424;
(ii) Any free writing prospectus relating to the offering prepared by or on behalf of the
undersigned registrant or used or referred to by the undersigned registrant;
(iii) The portion of any other free writing prospectus relating to the offering containing
material information about the undersigned registrant or its securities provided by or on
behalf of the undersigned registrant; and
(iv) Any other communication that is an offer in the offering made by the undersigned
registrant to the purchaser.
(b) The undersigned registrant hereby undertakes that, for purposes of determining any liability
under the Securities Act, each filing of the registrant’s annual report pursuant to Section 13(a)
or Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit
plan’s annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by
reference into this registration statement shall be deemed to be a new registration statement
relating to the securities offered therein, and the offering of such securities at that time shall
be deemed to be the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be permitted to
directors, officers or controlling persons of the registrant pursuant to the foregoing provisions,
or otherwise, the registrant has been advised that, in the opinion of the Commission, such
indemnification is against public policy as expressed in the Securities Act and is, therefore,
unenforceable. In the event that a claim for indemnification against such liabilities (other than
the payment by the registrant of expenses incurred or paid by a director, officer, or controlling
person of the registrant in the successful defense of any action, suit or proceeding) is asserted
by such director, officer or controlling person in connection with the securities being registered,
the registrant will, unless in the opinion of its counsel the matter has been settled by
controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
4
SIGNATURES
Pursuant to the requirements of the Securities Act, the registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this registration statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the City of Beachwood, State of Ohio, on this 9th day of November, 2007.
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DEVELOPERS DIVERSIFIED REALTY
CORPORATION
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By:
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/s/ Scott A. Wolstein
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Scott A. Wolstein
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Chief Executive Officer and Chairman
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POWER OF ATTORNEY
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature appears below constitutes and
appoints Scott A. Wolstein, Daniel B. Hurwitz and William H. Schafer, or any one of them, his true
and lawful attorneys-in-fact and agents, with full power of substitution and resubstitution, for
him and in his name, place and stead, in any and all capacities, to sign any and all pre- and
post-effective amendments to this Registration Statement, and to file the same, with all exhibits
hereto, and other documents in connection herewith, with the Securities and Exchange Commission,
granting unto said attorneys-in-fact and agents, and each of them, full power and authority to do
and perform each and every act and thing requisite or necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in person, hereby ratifying
and confirming all that said attorneys-in-fact and agents, or any of them, or their or his
substitute or substitutes may lawfully do or cause to be done by virtue hereof.
Pursuant to the requirements of the Securities Act, this registration statement has been
signed below by the following persons in the capacities indicated on the 9th day of November, 2007.
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/s/ Scott A. Wolstein
Scott A. Wolstein
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Chairman of the Board, Chief Executive Officer and Director (Principal
Executive Officer)
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/s/ William H. Schafer
William H. Schafer
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Senior Vice President and Chief Financial Officer
(Principal Financial Officer and Principal Accounting Officer)
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/s/ Dean S. Adler
Dean S. Adler
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Director
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/s/ Terrance R. Ahern
Terrance R. Ahern
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Director
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/s/ Robert H. Gidel
Robert H. Gidel
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Director
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/s/ Victor B. MacFarlane
Victor B. MacFarlane
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Director
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/s/ Craig Macnab
Craig Macnab
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Director
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/s/ Scott D. Roulston
Scott D. Roulston
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Director
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Director
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/s/ William B. Summers, Jr.
William B. Summers, Jr.
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Director
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5
EXHIBIT INDEX
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4.1
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Amended and Restated Articles of Incorporation of the Company (1)
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4.2
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Second Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.3
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Third Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.4
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Fourth Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.5
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Fifth Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.6
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Sixth Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.7
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Seventh Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.8
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Eighth Amendment to the Amended and Restated Articles of Incorporation of the Company (1)
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4.9
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Amended and Restated Code of Regulations of the Company (1)
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4.10
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Specimen Certificate for Common Shares (2)
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4.11
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Directors’ Deferred Compensation Plan (as Amended and Restated on November 8, 2000), as
amended by First Amendment, dated as of December 19, 2005, and Second Amendment, dated as
of November 7, 2007
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4.12
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2005 Directors’ Deferred Compensation Plan (November 1, 2007 Restatement)
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5
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Opinion of Baker & Hostetler LLP
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23.1
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Consent of Baker & Hostetler LLP (included in Exhibit 5)
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23.2
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Consent of PricewaterhouseCoopers LLP
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23.3
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Consent of KPMG LLP
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(1)
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Incorporated by reference from the Company’s Quarterly Report on Form 10-Q for the fiscal
quarter ended June 30, 2007 filed with the Commission on August 9, 2007.
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(2)
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Incorporated by reference from the Company’s Registration Statement on Form S-3 (No.
33-78778) filed with the Commission on May 10, 1994.
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6
Exhibit 4.11
DIRECTORS’ DEFERRED COMPENSATION PLAN
(As Amended and Restated on November 8, 2000)
Developers Diversified Realty Corporation
(the “Company”) desires to establish a Directors’
Deferred Compensation Plan (the “Plan”) to assist it in attracting an retaining persons of
competence and stature to serve as outside directors by giving them the option of deferring receipt
of the fees payable to them by the Company for their services as directors.
Therefore, the Company hereby adopts the Plan as hereinafter set forth:
1.
Effective Date
.
The Plan shall apply to all elections to defer made after its
adoption and shall be applicable to all directors’ fees payable with respect to periods commencing
with the Company’s fiscal quarter which began April 1, 1994.
2.
Participation
.
Each director of the Company (a) who is duly elected to the
Company’s Board of Directors and (b) who receives fees for services as a director, may elect to
defer receipt of fees otherwise payable to him, as provided for in the Plan. Each such director
who elects to defer fees shall be a Participant in the Plan.
3.
Administration
.
The Company’s Board of Directors appoints David M. Jacobstein and
James A. Schoff, directors and officers of the Company who are not eligible to become Participants,
to act as the Administrators of the Plan (“Administrators”). They shall serve at the pleasure of
the Board of Directors and shall administer, construe and interpret the Plan. The Administrators
shall not be liable for any act done or determination made in good faith. The Board of Directors
shall have the power to designate additional or replacement Administrators at its discretion.
4.
Deferrals
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(a)
Deferral Election
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Any eligible director may file with the Company, and/or the
Administrators of the Plan, an election in writing to participate in the Plan with respect to fees
for services to be rendered after the date of such election. When a deferral election is filed, no
fees will be paid for services so designated for the year (or portion thereof) and all succeeding
years. If an election has been filed to participate in the Plan and a Participant wishes to
discontinue deferral of future fees, an election to terminate participation in the Plan for any
year must be filed prior to January 1 of that year.
(b)
Accounting
.
Appropriate records shall be maintained by the Company (“Deferral
Accounts”) which shall list and reflect each Participant’s credits and valuations. The Company
shall credit to each Participant’s Deferral Account an amount equivalent to the fees that would
have been paid to him if he had not elected to participate in the Plan. The credit shall be made
on the date on which the fee would have been paid absent a deferral election. No funds shall be
segregated into the Deferral Accounts of Participants; said Accounts shall represent general
unsecured obligations of the Company.
(c)
Valuation
.
Until the first distribution to a Participant, amounts credited to a
Deferral Account of such Participant shall be increased or decreased as measured by the market
value of the Company’s Common Shares plus the value of dividends or other distributions on the
Company’s Common Shares. Each amount credited to a Deferral Account shall be assigned a number of
Share Units (including fractions of a Share) determined by dividing the amount credited to the
Deferral Account, whether in lieu of payment of fees for service as a director or as a dividend or
other distribution attributable to such Share Units, by the fair market vale of share of the
Company’s Common Shares on the date of credit. Fair market value shall be the mean between the
high and low selling price of a share of the Company’s Common Share on the New York Stock Exchange
on the concerned date or, if no sales occurred on such date, on the most recent preceding date on
which sales occurred. Each Share Unit shall have the value of a Common Share of the Company. The
number of Share Units shall be adjusted to reflect stock splits, stock dividends or other capital
adjustments effected without receipt of consideration by the Company.
5.
Distribution
. A Participant shall elect in writing, at the time he makes each
deferral election under subparagraph 4(a), the date on which distribution of the credit to his
Deferral Account to which the deferral election relates shall commence and the method of
distribution, as permitted hereunder. In the event a Participant continues to serve as a director
of the Company on the date two years prior to the date distributions are to commence, such
Participant may elect on or before such date in writing to defer further the commencement of
distributions hereunder. Payment shall commence not earlier than the January 1 following year in
which the Participant attains age 55, and not later than the January 1 following the year in which
the Participant attains age 72. Commencing immediately prior to the first distribution to a
Participant and continuing thereafter, amounts credited to the Deferral Account of such Participant
shall be credited with interest, compounded quarterly, calculated at a rate per annum equal to the
prime rate of interest as published in
The Wall Street Journal
in effect on the first day
of each fiscal quarter of the Company. Payment may be made in one lump sum, or five or ten equal
annual installments of the Deferral Account balance allocated to each installment payments
determined as of the December 31 immediately preceding commencement of distribution, with each
payment accompanied by any interest credited during the period proceeding payment of the
installment. The time of and method of distribution of benefits may vary with each separate
election, but except as otherwise provided herein, each election shall be irrevocable. The
Deferral Accounts do not represent rights to acquire the Company’s Common Shares; payment shall
only be made in cash.
6.
Death or Disability
.
(a) In the event a Participant’s service is terminated by reason of death or disability prior
to the distribution of any portion of his benefits, the Company shall, within ninety (90) days of
the date of service termination, commence distribution of benefits to the Participant (or to the
beneficiary or beneficiaries in the event of death). Distribution shall be made in accordance with
the method of distribution elected by the Participant pursuant to paragraph 5 hereof. In the event
a Participant’s death or disability occurs after distribution of benefits hereunder has begun, the
Company shall continue to make distributions to the Participant (or to the beneficiary or
beneficiaries in the event of death) in accordance with the methods of distribution elected by the
Participant pursuant to paragraph 5 hereof.
(b) Each Participant shall have the right to designate one or more beneficiaries to receive
distributions in the event of the Participant’s death by filing with the Company a beneficiary
designation on a form provided. The designated beneficiary or beneficiaries may be changed by a
Participant at any time prior to his death by the delivery to the Company of a new beneficiary
designation form. If no beneficiary shall have been designated, or if no designated beneficiary
shall survive the Participant, distribution pursuant to this provision shall be made to the
Participant’s estate.
7.
Assignment and Alienation of Benefits
. The right of the each Participant to any
account, benefit or payment hereunder shall not, to the extent permitted by law, be subject in any
manner to attachment or other legal process for the debts of such Participant; and no account,
benefit or payment shall be subject to anticipation, alienation, sale, transfer, assignment or
encumbrance.
8.
Amendment or Termination
. The Board of Directors of the Company may amend or
terminate this Plan at any time and from time to time. Any amendment or termination of this Plan
shall not affect the rights of a Participant accrued prior thereto without his written consent.
9.
Taxes
. The Company shall not be responsible for the tax consequences under federal,
state or local law of any lection made by any Participant under the Plan. All payments under the
Plan shall be subject to withholding and reporting requirements to the extent permitted by
applicable law.
10.
Applicable Law
. This plan shall be interpreted under the laws of the State of
Ohio.
.
IN WITNESS WHEREOF
, the Company has caused this Plan, as amended and restated, to be executed
by its President this 12th day of December, 2000.
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DEVELOPERS DIVERSIFIED
REALTY CORPORATION
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By:
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/s/ David M. Jacobstein
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David M. Jacobstein, President
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and Chief Operating Officer
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FIRST AMENDMENT
TO THE
DEVELOPERS DIVERSIFIED REALTY CORPORATION
DIRECTORS’ DEFERRED COMPENSATION PLAN
WHEREAS,
Developers Diversified Realty Corporation (the “Company”) adopted the Developers
Diversified Realty Corporation Directors’ Deferred Compensation Plan (the “Plan”), most recently
amended and restated effective November 8, 2000;
WHEREAS,
the Company desires to amend such Plan;
NOW, THEREFORE,
pursuant to the power reserved to the Company in Section 8 of the Plan, the
Company hereby amends the Plan in the following particulars:
1. Effective as of January 1, 2004, by substituting the phrase “one year” for the phrase “two
years” in the second sentence of Section 5 of the Plan.
2. Effective as of January 1, 2005, by adding the following Supplement A to the Plan
immediately following Section 10 thereof;
“
Supplement A
Deferral Elections Designed to Comply with Transition Guidance under the
American Jobs Creation Act of 2004
A-1. Introduction. The Company maintains the Plan, under which
Participants made deferrals of directors’ fees payable prior to
January 1, 2005. Effective as of January 1, 2005, the Company will
establish a new 2005 Directors’ Deferred Compensation Plan (the ‘2005
Plan’) to allow eligible participants to make deferrals of directors’
fees payable on and after January 1, 2005. The 2005 Plan is designed
to comply with the provisions of the American Jobs Creation Act of
2004 (the ‘Jobs Act’) and Section 409A of the Internal Revenue Code
(the ‘Code’) and the regulations thereunder. However, except as
provided in this Supplement A, this Plan is not subject to the Jobs
Act and Section 409A of the Code.
A-2. Deferral Elections Designed to Comply with the Jobs Act. In
accordance with Q&A-21 of IRS Notice 2005-1, Plan Participants shall
have the right to file deferral elections relating to 2005 directors’
fees that are not yet payable (‘Transition Deferral Elections’)
prior to March 15,
2005. Any amounts deferred pursuant to a Transition Deferral Election shall be
subject to the requirements and restrictions of the Jobs Act and Section 409A of the
Code.
A-3. Separate Accounting of Contributions. Beginning January 1, 2005, the
Company shall separately account for all amounts under the Plan that
are subject to the Jobs Act and Section 409A of the Code. Such
amounts shall be kept separate from all amounts that are not subject
to said requirements.
A-4. Revocation and Modification of 2005 Deferral Elections. In accordance
with Q&A-20 of IRS Notice 2005-1 and the IRS proposed regulations
under Section 409A of the Code, Plan Participants shall have the
right to cancel a deferral election or reduce the amount of
directors’ fees deferred for the 2005 calendar year at any time
during 2005.
A-5. Modification of Distribution Elections Applicable to Jobs Act
Accounts. In accordance with Q&A-19(c) of IRS Notice 2005-1 and the
IRS proposed regulations under Section 409A of the Code, during 2005
and 2006, Plan Participants shall have the right to modify their
elections with respect to the form and timing of payment of their
Jobs Act Accounts, notwithstanding any restrictions of the Jobs Act
and Section 409A of the Code that generally become applicable
effective January 1, 2005. A modification made during 2006 pursuant
to this paragraph A-5 shall only apply to amounts that would not
otherwise be payable in 2006 and may not cause an amount to be paid
in 2006 that otherwise would not be payable in such year.
A-6. Use of Terms. Terms used in this Supplement A with respect to the
Plan shall, unless defined in this Supplement A, have the meanings of
those terms as defined in the Plan.”
IN WITNESS WHEREOF, the undersigned duly authorized officer of the Company has executed this
instrument this 19th day of December, 2005.
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DEVELOPERS DIVERSIFIED REALTY
CORPORATION
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By:
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/s/ Joan U. Allgood
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Joan U. Allgood
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Title:
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Executive Vice President
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SECOND AMENDMENT
TO
DEVELOPERS DIVERSIFIED REALTY CORPORATION
DIRECTORS’ DEFERRED COMPENSATION PLAN
WHEREAS,
Developers Diversified Realty Corporation (the “Company”) maintains the Developers
Diversified Realty Corporation Directors’ Deferred Compensation Plan (the “Plan”), under an
instrument amended and restated effective November 8, 2000, as amended on one subsequent occasion;
and
WHEREAS,
the Company desires further to amend such Plan, but not in any manner constituting a
material modification for purposes of Section 409A of the Internal Revenue Code;
NOW, THEREFORE,
pursuant to the power reserved to the Company in paragraph 8 of the Plan, the
Company hereby amends the Plan in the following particulars:
1. Effective as of May 8, 2007, by replacing the Administrators named in paragraph 3 of the
Plan with Joan U. Allgood and Nan R. Zieleniec.
2. Effective as if originally set forth in the Plan, by restating the third sentence of
subparagraph 4(c) to provide as follows:
Fair market value shall be the closing price of a share of the Company’s
Common Shares on the New York Stock Exchange on the day preceding the
concerned date or, if no sales occurred on such preceding date, on the most
recent preceding date on which sales occurred.
3. Effective as if originally set forth in the Plan, by restating the fourth sentence of
paragraph 5 to provide as follows:
Commencing immediately prior to the first distribution to a Participant and
continuing thereafter, amounts credited to the Deferral Account of such
Participant shall be credited with earnings equal to the value of dividends
or other distributions on the Company’s Common Shares as if each Share Unit
were a Common Share, and such earnings amount shall be assigned the
appropriate number of additional Share Units as described in paragraph 4.
IN WITNESS WHEREOF, the undersigned duly authorized officer of the Company has executed this
instrument this 7th day of November, 2007.
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DEVELOPERS DIVERSIFIED REALTY
CORPORATION
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By:
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/s/ Joan U. Allgood
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Joan U. Allgood, Executive Vice President
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Exhibit 4.12
DEVELOPERS DIVERSIFIED REALTY CORPORATION
2005 DIRECTORS’ DEFERRED COMPENSATION PLAN
(November 1, 2007 Restatement)
Developers Diversified Realty Corporation
(the “Company”) previously established the
Developers Diversified Realty Corporation Directors’ Deferred Compensation Plan (the “Original
Plan”) to assist it in attracting and retaining persons of competence and stature to serve as
outside directors by giving them the option of deferring receipt of the cash component of the fees
payable to them by the Company for their services as directors. As a result of the new rules
provided under the American Jobs Creation Act of 2004 (the “Act”) and Section 409A of the Internal
Revenue Code (the “Code”), the Company froze deferrals under the Original Plan effective December
31, 2004, and established a new plan to accept deferrals of the cash component of fees paid for
directors’ services rendered on or after January 1, 2005 (the “Plan”). Final Treasury Regulations
have been published under Section 409A of the Code, and the Company desires to amend and restate
the Plan for the purpose of reflecting those Treasury Regulations and for other purposes.
The Plan, which is intended to be a “nonqualified deferred compensation plan” that satisfies
the requirements of the Act and Section 409A of the Code, or any successor provision, shall be
interpreted and administered by the Administrators to the extent possible in a manner consistent
with that intent. The provisions of the Developers Diversified Realty Corporation 2005 Directors’
Deferred Compensation Plan (November 1, 2007 Restatement) are effective generally as of November 1,
2007, except as otherwise provided herein, and are hereinafter set forth. For the period prior to
November 1, 2007, the Plan shall operate based
upon IRS Notice 2005-1, additional notices published by the Treasury Department and the
Internal Revenue Service providing transition guidance, and a good faith, reasonable interpretation
of Section 409A of the Code.
1.
Effective Date
.
The Plan shall apply to the cash component of directors’
fees payable with respect to periods commencing with the Company’s fiscal quarter beginning
January 1, 2005.
2.
Participation
.
Each director of the Company who is duly elected to the
Company’s Board of Directors and who receives fees for services as a director may elect to
defer receipt of all or part of the cash component of the fees otherwise payable to him, as
provided for in the Plan. Each such director who elects to defer fees shall be a
“Participant” in the Plan. No employee of the Company shall be eligible to make an election
under the Plan.
3.
Administration
.
The Company’s Board of Directors appoints Joan U. Allgood
and Nan R. Zieleniec, officers of the Company who are not eligible to become Participants,
to act as the Administrators of the Plan (the “Administrators”), effective May 8, 2007. The
Administrators shall serve at the pleasure of the Board of Directors and shall administer,
construe, and interpret the Plan. The Administrators shall not be liable for any act done
or determination made in good faith. The Board of Directors shall have the power to
designate additional or replacement Administrators at its discretion.
4.
Deferrals
.
(a)
Deferral Election
.
Any eligible director may file with the
Company, and/or the Administrators of the Plan, an election in writing to
participate in the Plan with respect to the cash component of fees for services to
-2-
be rendered after the date of such election. Any such election must be made no
later than December 31 prior to the year in which the services attributable to such
fees are rendered. When a deferral election is filed, only the portion of fees not
deferred will be paid to the Participant for services for the year (or portion
thereof). No election made prior to November 1, 2007, with respect to a year
beginning prior to that date shall continue to be effective after December 31, 2007;
a new deferral election shall be required prior to the beginning of each year with
respect to fees for services otherwise payable in that year which are to be
deferred. Notwithstanding the foregoing, in accordance with Q&A-20 of IRS Notice
2005-1, until December 31, 2005, a Participant may elect to terminate participation
in the Plan or reduce the amount of or revoke a deferral election for 2005
directors’ fees without causing the Plan to fail to conform to the requirements of
Section 409A of the Code. Moreover, after January 1, 2007, and on or before
December 31, 2007, and to the extent permitted by the Company, a Participant may
make a change in a payment election as described in IRS Notice 2006-79, provided
that with respect to an election to change a time and form of payment made after
January 1, 2007 and on or before December 31, 2007, the election may apply only to
amounts that would not otherwise be payable in 2007 and may not cause an amount to
be paid in 2007 that would not otherwise be payable in 2007. Moreover, after
January 1, 2008, and on or before December 31, 2008, and to the extent permitted by
the Company, a Participant may make a change in a payment election as described in
IRS Notice 2007-86, provided that with respect to an election to change a time and
form of payment made after
-3-
January 1, 2008 and on or before December 31, 2008, the election may apply only
to amounts that would not otherwise be payable in 2008 and may not cause an amount
to be paid in 2008 that would not otherwise be payable in 2008.
(b)
Accounting
.
Appropriate records shall be maintained by the Company
(the “Deferral Accounts”), which shall list and reflect each Participant’s credits
and valuations. The Company shall credit to each Participant’s Deferral Account an
amount equivalent to the fees that would have been paid to him if he had not made a
deferral election under the Plan. The credit shall be made on the date on which the
fee would have been paid absent a deferral election. No funds shall be segregated
into the Deferral Accounts of Participants; said Accounts shall represent general
unsecured obligations of the Company.
(c)
Valuation
.
Until distributed to a Participant, amounts credited to
a Deferral Account of such Participant shall be increased or decreased as measured
by the market value of the Company’s Common Shares plus the value of dividends or
other distributions on the Company’s Common Shares. Each amount credited to a
Deferral Account shall be assigned a number of Share Units (including fractions of a
Share) determined by dividing the amount credited to the Deferral Account, whether
in lieu of payment of fees for service as a director or as a dividend or other
distribution attributable to such Share Units, by the fair market value of shares of
the Company’s Common Shares on the date of credit. Fair market value shall be the
closing price of a share of the Company’s Common Shares on the New York Stock
Exchange on the day preceding the concerned date or, if no sales occurred on such
preceding date, on the most recent preceding date
-4-
on which sales occurred. Each Share Unit shall have the value of a Common
Share of the Company. The number of Share Units shall be adjusted to reflect stock
splits, stock dividends, or other capital adjustments effected without receipt of
consideration by the Company.
5.
Distribution
.
(a) A Participant shall elect in writing, at the time he makes each deferral
election under subparagraph 4(a), the date on which distribution of the credits to
his Deferral Account to which the deferral election relates shall commence and the
method of distribution, as permitted hereunder. Distribution of a Participant’s
Deferral Account shall commence not earlier than the January 1 following the year in
which the Participant attains age 55, and not later than the January 1 following the
year in which the Participant attains age 72. A Participant may elect that payment
be made in one lump sum, or in substantially equal annual installments of the
Deferral Account balance over a period of between one and ten years (as elected by
the Participant), as further described herein. In the event a Deferral Account
balance is to be paid in installments, the number of Share Units to be distributed
in each installment shall equal the quotient obtained by dividing the number of
Share Units represented by the Deferral Account balance as of the day immediately
preceding the distribution date by the number of installment payments remaining to
be paid at the time of the calculation, provided that each installment after the
first shall also include any additional Share Units credited to the Deferral Account
balance during the period preceding payment of that installment (such as by reason
of additional Share
-5-
Units being credited for the purpose of reflecting dividends paid on the
Company’s Common Shares subsequent to payment of the most recent prior installment).
The time of and method of distribution of benefits may vary with each separate
election, but each election shall be irrevocable. However, the Participant may
elect as the medium of payment Common Shares, cash, or a combination thereof, as
permitted by the Administrators. If a payment is to be made in the form of the
Company’s Common Shares, each related Share Unit shall be payable by delivery of a
Common Share, with any fractional Share Unit being payable in cash.
(b) In the event a Participant is continuing to serve as a director of the
Company on the date one year prior to the date distributions are to commence, such
Participant may elect on or before such date in writing to defer further the
commencement of distributions hereunder. Any such election shall become irrevocable
on the date one year prior to the date distribution is otherwise to commence. Any
election to further defer the commencement of distributions hereunder must: (i) be
made at least 12 months prior to the scheduled distribution date; (ii) not take
effect until it has been in place for at least 12 months; and (iii) defer the
scheduled distribution date for at least five years.
(c) Notwithstanding any Plan provision to the contrary and the restrictions
contained in paragraph (b) above, in accordance with Q&A-19(c) of IRS Notice 2005-1,
until December 31, 2005, a Participant may elect to modify the form and timing of
payment of amounts deferred in 2005 without causing the Plan to fail to conform to
the requirements of Section 409A of the Code.
-6-
6.
Death or Disability
.
(a) In the event a Participant’s service is terminated by reason of death or
disability prior to the distribution of any portion of his benefits, the Company
shall, within ninety days of the date of service termination, commence distribution
of benefits to the Participant (or to the beneficiary or beneficiaries in the event
of death). For purposes of the Plan, a Participant will be considered to have a
“disability” if the participant is unable to engage in any substantial gainful
activity by reason of any medically determinable physical or mental impairment which
can be expected to result in death or can be expected to last for a continuous
period of not less than 12 months. Distribution shall be made in accordance with
the method of distribution elected by the Participant pursuant to paragraph 5
hereof. In the event a Participant’s death or disability occurs after distribution
of benefits hereunder has begun, the Company shall continue to make distributions to
the Participant (or to the beneficiary or beneficiaries in the event of death) in
accordance with the methods of distribution elected by the Participant pursuant to
paragraph 5 hereof.
(b) Each Participant shall have the right to designate one or more
beneficiaries to receive distributions in the event of the Participant’s death by
filing with the Company a beneficiary designation on a form provided. The
designated beneficiary or beneficiaries may be changed by a Participant at any time
prior to his death by the delivery to the Company of a new beneficiary designation
form. If no beneficiary shall have been designated, or if no designated beneficiary shall survive the Participant, distribution pursuant to
this provision shall be made to the Participant’s estate.
-7-
7.
Assignment and Alienation of Benefits
.
The right of each Participant to any
account, benefit, or payment hereunder shall not, to the extent permitted by law, be subject
in any manner to attachment or other legal process for the debts of such Participant; and no
account, benefit, or payment shall be subject to anticipation, alienation, sale, transfer,
assignment, or encumbrance.
8.
Amendment or Termination
.
The Board of Directors of the Company may amend
or terminate this Plan at any time and time to time. Any amendment or termination of this
Plan shall not affect the rights of a Participant accrued prior thereto without his written
consent; provided, however, that the Company may make any Plan amendments necessary to
conform the Plan with the requirements of Section 409A of the Code.
9.
Taxes
. The Company shall not be responsible for the tax consequences under
federal, state, or local law of any election made by any Participant under the Plan. All
payments under the Plan shall be subject to withholding and reporting requirements to the
extent required by applicable law. The Company shall have the right to deduct from any
payment to be made pursuant to this Plan payment by the Participant of any federal, state,
or local taxes required by law to be withheld with respect to any such payment or
distribution to the Participant.
10.
Unsecured Interest
.
No Participant or party claiming an interest in
amounts deferred by or on behalf of a Participant shall have any interest whatsoever in any
specific asset of the Company. To the extent that any party acquires a right to receive payments under the Plan, such right shall be equivalent to that of an unsecured
general creditor of the Company.
-8-
11.
Authorization for Trust
.
The Company may, but shall not be
required to, establish one or more trusts, with such trustee as the Administrators may
approve, for the purpose of providing for the payment of deferred amounts. Such trust or
trusts may be irrevocable, but the assets thereof shall be subject to the claims of the
creditors of the Company. To the extent any amounts deferred under the Plan are actually
paid from any such trust, the Company shall have no further obligation with respect thereto,
but to the extent not so paid, such deferred amounts shall remain the obligation of, and
shall be paid by, the Company. Any trust established under this Plan will not include
provisions of the type described in Code Section 409A(b)(l) (relating to non-U.S. trusts) or
Code Section 409A(b)(2) (relating to a change in the Company’s financial health). This Plan
is intended to be an unfunded nonqualified deferred compensation plan which is neither an
“employee welfare benefit plan” nor an “employee pension benefit plan” within the meaning of
Section 3(1) or (2) of the Employee Retirement Income Security Act of 1974, as amended, and
shall be interpreted and administered to the extent possible in a manner consistent with
that intent.
12.
Effective Date
.
This Plan was adopted by the Company’s Board of Directors
effective as of January 1, 2005, and shall remain in effect until terminated pursuant to
paragraph 8.
13.
Applicable Law
.
This Plan shall be interpreted under the laws of the State
of Ohio.
-9-
IN WITNESS WHEREOF,
the Company has caused this Plan to be executed by its Executive Vice
President this 7
th
day of November, 2007.
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DEVELOPERS DIVERSIFIED
REALTY CORPORATION
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BY:
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/s/ Joan U. Allgood
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Joan U. Allgood, Executive Vice President
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Exhibit 5
[Baker & Hostetler LLP Letterhead]
November 9, 2007
Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122
Re:
Deferred Compensation Obligations and Common Shares
Ladies and Gentlemen:
We have acted as counsel to Developers Diversified Realty Corporation, an Ohio corporation (the
“Company”), in connection with the Company’s Registration Statement on Form S-8 (the “Registration
Statement”) being filed under the Securities Act of 1933, as amended (the “Act”), relating to the
issuance by the Company of up to $1,920,000 in deferred compensation obligations (“DCOs”) pursuant
to the 2005 Directors’ Deferred Compensation Plan (November 1, 2007 Restatement) (the “2005 Plan”)
and up to 115,000 of its common shares, without par value (the “Common Shares”), pursuant to the
2005 Plan and the Directors’ Deferred Compensation Plan (as Amended and Restated on November 8,
2000), as amended (together with the 2005 Plan, the “Plans”).
We have examined: (i) the articles of incorporation and code of regulations of the Company, (ii)
the Registration Statement, (iii) the Plans and (iv) such other documents, records and matters of
law as we have deemed necessary for purposes of this opinion. In rendering this opinion, we have
assumed, without independent investigation, the genuineness of all signatures on all documents
examined by us, the conformity to original documents of all documents submitted to us as copies,
and the authenticity of all such documents.
Based solely thereon, we are of the opinion that the DCOs, when issued and delivered in accordance
with terms of the 2005 Plan, will be duly authorized, valid and binding obligations of the Company
enforceable in accordance with the terms of the 2005 Plan, except as enforcement thereof may be
limited by bankruptcy, insolvency or other laws of general applicability relating to or affecting
enforcement of creditors’ rights and by general equity principles. We are also of the opinion that
the Common Shares available for issuance under the Plans, when issued and delivered in accordance
with the terms of the Plans, will be legally issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5 to the Registration Statement. In
giving such 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 Securities and Exchange
Commission.
Very truly yours,
/s/ Baker & Hostetler LLP