Developers Diversified Realty Corp - Securities Registration: Employee Benefit Plan (S-8)
November 09 2007 - 3:28PM
Edgar (US Regulatory)
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.
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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
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(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.
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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
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