Filed Pursuant to Rule 424(b)(2)
Registration No. 333-162451
CALCULATION OF REGISTRATION FEE
|
|
|
|
|
|
|
|
|
|
Title of Each
Class of Securities
To Be Registered
|
|
Amount To Be
Registered
|
|
Proposed Maximum
Offering Price
Per Unit
|
|
Proposed Maximum
Aggregate
Offering Price
|
|
Amount of
Registration
Fee(1)
|
Common Shares
|
|
18,975,000
|
|
$12.95
|
|
$245,726,250
|
|
$28,160.23
|
|
|
(1)
|
This filing fee is calculated in accordance with Rule 457(r) and relates to the Registration Statement on Form S-3 (No. 333-162451) filed by DDR Corp. on
October 13, 2009.
|
PROSPECTUS SUPPLEMENT
(To prospectus dated October 13, 2009)
16,500,000 Common Shares
DDR Corp.
Common Shares
We have entered into forward sale agreements with Goldman,
Sachs & Co. and Citigroup Global Markets Inc. or their affiliates, which we refer to as the forward purchasers. Such forward purchasers, or affiliates thereof, at our request, are borrowing from third parties and selling to the underwriters
an aggregate of 16,500,000 of our common shares. If any forward purchaser or its affiliate does not borrow and sell all of the common shares to be sold by it, we will issue and sell to the underwriters, at the initial price to public less the
underwriting discount, a number of our common shares equal to the number of common shares that the forward purchaser or its affiliate does not borrow and sell.
We will not receive any proceeds from the sale of our common shares by the forward purchasers or their affiliates. We expect to settle the forward sale agreements and receive proceeds, subject to certain
adjustments, from the sale of those shares only upon one or more future physical settlements of the forward sale agreements on or about June 29, 2012. If we elect to cash settle the forward sale agreements, we may not receive any proceeds, and
we may owe cash to the forward purchasers. If we elect to net share settle the forward sale agreements, we will not receive any proceeds, and we may owe our common shares to the forward purchasers. See Underwriting Forward Sale
Agreements.
Our common shares are listed on the New York Stock Exchange under the symbol DDR. The last
reported sale price of our common shares on January 11, 2012 was $13.07 per share.
|
|
|
|
|
|
|
|
|
|
|
Per Share
|
|
|
Total
|
|
Initial price to public
|
|
$
|
12.9500
|
|
|
$
|
213,675,000
|
|
Underwriting discount
|
|
$
|
0.5180
|
|
|
$
|
8,547,000
|
|
Proceeds, before expenses, to us (1)
|
|
$
|
12.4320
|
|
|
$
|
205,128,000
|
|
(1) We expect to receive net proceeds from the sale of our common shares, before expenses, of $205,128,000 upon
full physical settlement of the forward sale agreements, which we expect will occur on or about June 29, 2012. For the purposes of calculating the aggregate net proceeds to us, we have assumed that the forward sale agreements are fully
physically settled based on the initial forward sale price of $12.432 per share. The forward sale price is subject to adjustment pursuant to the forward sale agreements, and the actual proceeds, if any, will be calculated as described in this
prospectus supplement. Although we expect to settle the forward sale agreements entirely by the full physical delivery of our common shares in exchange for cash proceeds, we may elect cash settlement or net share settlement for all or a portion of
our obligations under the forward sale agreements. See Underwriting Forward Sale Agreements for a description of the forward sale agreements.
We have granted the underwriters a 30-day option from the date of this prospectus supplement, exercisable in whole or in part from time to time, to purchase up to an additional 2,475,000 common shares at
the initial price to public less the underwriting discount. If such option is exercised, for any such exercise, the number of common shares underlying the forward sale agreements will be increased in respect of the number of common shares that are
subject to the exercise of the option. In such event, if any forward purchaser or its affiliate does not borrow and sell all of the common shares to be sold by it in connection with the exercise of such option, we will issue and sell to the
underwriters a number of our common shares equal to the number of common shares that the forward purchaser or its affiliate does not borrow and sell and the number of common shares underlying the relevant forward sale agreement will not be increased
in respect of the number of common shares that we issue and sell.
To assist us in maintaining our qualification as a real
estate investment trust, or REIT, for federal income tax purposes, our articles of incorporation contain certain restrictions on ownership of our common shares. See Description of Common Shares Restrictions on Ownership in the
accompanying prospectus.
Investing in our common shares involves risks. See
Risk
Factors
beginning on page S-4 of this prospectus supplement.
Neither the Securities and Exchange Commission
nor any state securities commission has approved or disapproved of these securities or determined if this prospectus supplement or the accompanying prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The underwriters expect to deliver the shares to purchasers on or about January 18, 2012.
Joint Book-Running Managers
|
|
|
|
|
|
|
Goldman, Sachs & Co.
|
|
Citigroup
|
|
Wells Fargo Securities
|
|
PNC Capital Markets LLC
|
Senior Co-Managers
|
|
|
|
|
Capital One Southcoast
|
|
Morgan Keegan
|
|
RBS
|
Co-Manager
Scotia Capital
The date of this Prospectus Supplement is January
11,
2012.
TABLE OF CONTENTS
Prospectus
We have not, and the underwriters and forward purchasers have not, authorized any dealer, salesperson or other person to give any
information or to make any representation other than those contained in or incorporated by reference into this prospectus supplement, the accompanying prospectus or any free writing prospectus that we may provide to you. You must not rely upon any
information or representation not contained in or incorporated by reference into this prospectus supplement, the accompanying prospectus or any free writing prospectus that we may provide to you. This prospectus supplement, the accompanying
prospectus and any such free writing prospectus do not constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate. Nor do this prospectus supplement, the accompanying
prospectus and any such free writing prospectus constitute an offer to sell or the solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You
should not assume that the information contained in this prospectus supplement, the accompanying prospectus, the documents incorporated herein and therein by reference and any such free writing prospectus is correct on any date after their
respective dates, even though this prospectus supplement, the accompanying prospectus and any such free writing prospectus are delivered or securities are sold on a later date. Our business, financial condition, results of operations and cash flows
may have changed since those dates.
ABOUT THIS PROSPECTUS SUPPLEMENT
This document is in two parts. The first part is this prospectus supplement, which describes the terms of the offering of our common
shares under an underwriting agreement and related forward sale agreements. The second part is the accompanying prospectus, dated October 13, 2009, which we refer to as the accompanying prospectus. Generally, when we refer to this
prospectus, we are referring to both this prospectus supplement and the accompanying prospectus combined. The accompanying prospectus gives more general information, some of which may not apply to the common shares. To the extent there is a conflict
between the information contained in this prospectus supplement, on the one hand, and the information contained in the accompanying prospectus or any document that has previously been filed and is incorporated into this prospectus by reference, on
the other hand, the information in this prospectus supplement shall control.
Before you invest in our common shares, you
should carefully read the registration statement (including the exhibits thereto) of which this prospectus forms a part, this prospectus and the documents incorporated by reference into this prospectus. The incorporated documents are described in
this prospectus supplement under Where You Can Find More Information and Incorporation by Reference of Certain Information.
Unless otherwise indicated or unless the context requires otherwise, all references in this prospectus to we, us, our, the Company or DDR mean
DDR Corp. and all wholly-owned and majority-owned subsidiaries and consolidated joint ventures of DDR Corp.
WHERE YOU CAN FIND MORE INFORMATION
We file annual, quarterly and current reports, proxy statements and other
information with the Securities and Exchange Commission, or the SEC. You may read and copy any document we file with the SEC at the SECs Public Reference Room, 100 F Street, NE, Washington, D.C. 20549. You may obtain information about the
operation of the SECs Public Reference Room by calling the SEC at 1-800-SEC-0330. The SEC also maintains a website that contains reports, proxy and information statements, and other information regarding registrants that file electronically
with the SEC (http://www.sec.gov). Information on or accessible through the SECs website is not part of, or incorporated by reference into, this prospectus, other than documents filed with the SEC that we incorporate by reference.
INCORPORATION BY REFERENCE OF CERTAIN INFORMATION
The SEC allows us to incorporate by reference the information contained in documents we file with the SEC, which means that we
can disclose important information to you by referring to those documents. The information incorporated by reference is an important part of this prospectus. Any statement contained in this prospectus or a document that is incorporated by reference
into this prospectus is automatically updated and superseded if information contained in this prospectus, or information that we later file with the SEC, modifies or replaces that information. Any such statement so modified or superseded shall not
be deemed, except as so modified or superseded, to constitute a part of this prospectus. We incorporate by reference the following documents we filed, excluding any information contained therein or attached as an exhibit thereto which has been
furnished, but not filed, with the SEC:
|
|
|
Our Annual Report on Form 10-K for the fiscal year ended December 31, 2010;
|
|
|
|
Our Quarterly Report on Form 10-Q for the fiscal quarter ended March 31, 2011;
|
|
|
|
Our Quarterly Report on Form 10-Q for the fiscal quarter ended June 30, 2011;
|
|
|
|
Our Quarterly Report on Form 10-Q for the fiscal quarter ended September 30, 2011;
|
|
|
|
Our Current Reports on Form 8-K filed with the SEC on February 1, 2011; February 17, 2011; March 4, 2011; April 15,
2011; April 28, 2011; May 20, 2011; July 1, 2011; September 7, 2011; September 14, 2011; and September 19, 2011; and
|
|
|
|
The description of our common shares contained in our Registration Statement on Form 8-A, dated January 26, 1993, and all amendments or reports
filed with the SEC for the purpose of updating such description.
|
S-ii
Any documents we file pursuant to Sections 13(a), 13(c), 14 or 15(d) of the Securities
Exchange Act of 1934, or the Exchange Act, after the date of this prospectus and prior to the termination of the offering of the common shares to which this prospectus relates will automatically be deemed to be incorporated by reference into this
prospectus and be deemed a part of this prospectus from the date of filing such documents, except to the extent any information contained in or attached to such documents has been furnished, but not filed, with the SEC, including any information
furnished pursuant to Item 2.02 or Item 7.01 of our Current Reports on Form 8-K unless, and except to the extent, specified in such Current Reports.
To receive a free copy of any of the documents incorporated by reference into this prospectus (other than exhibits, unless they are specifically incorporated by reference in any such documents), call or
write to DDR Corp., 3300 Enterprise Parkway, Beachwood, Ohio 44122, Attention: Tim Lordan, Senior Vice President of Investor Relations & Funds Management, at telephone number (216) 755-5500. We also maintain a website that
contains additional information about us (http://www.ddr.com). Information on or accessible through our website is not part of, or incorporated by reference into, this prospectus, other than documents filed with the SEC that we incorporate by
reference.
You should not assume that the information contained in this prospectus and the documents incorporated into this
prospectus by reference is correct on any date after their respective dates, even though this prospectus is delivered, or securities are sold, on a later date.
FORWARD-LOOKING STATEMENTS
This prospectus
and the documents we incorporate by reference contain forward-looking information, as defined in the Private Securities Litigation Reform Act of 1995, that is based on current expectations, estimates and projections. Forward-looking
information includes, without limitation, statements related to acquisitions (including any related pro forma financial information) and other business development activities, future capital expenditures, financing sources and availability and the
effects of environmental and other regulations. Although we believe that the expectations reflected in those forward-looking statements are based upon reasonable assumptions, we can give no assurance that our expectations will be achieved. For this
purpose, any statements contained herein that are not statements of historical fact should be deemed to be forward-looking statements. Without limiting the foregoing, the words will, believes, anticipates,
plans, expects, seeks, estimates and similar expressions are intended to identify forward-looking statements. You should exercise caution in interpreting and relying on forward-looking statements
because they involve known and unknown risks, uncertainties and other factors that are, in some cases, beyond our control and that could cause actual results to differ materially from those expressed or implied in the forward-looking statements and
could materially affect our actual results, performance or achievements. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they were made. We expressly state that we have no
current intention to update any forward-looking statements, whether as a result of new information, future events or otherwise, unless required by law.
Factors that could cause actual results, performance or achievements to differ materially from those expressed or implied by forward-looking statements include, but are not limited to, the following:
|
|
|
We are subject to general risks affecting the real estate industry, including the need to enter into new leases or renew leases on favorable terms to
generate rental revenues, and the economic downturn may adversely affect the ability of our tenants, or new tenants, to enter into new leases or the ability of our existing tenants to renew their leases at rates at least as favorable as their
current rates;
|
|
|
|
We could be adversely affected by changes in the local markets where our properties are located, as well as by adverse changes in national economic and
market conditions;
|
|
|
|
We may fail to anticipate the effects on our properties of changes in consumer buying practices, including catalog sales and sales over the internet
and the resulting retailing practices and space needs of our tenants, or a general downturn in our tenants businesses, which may cause tenants to close stores or default in payment of rent;
|
S-iii
|
|
|
We are subject to competition for tenants from other owners of retail properties, and our tenants are subject to competition from other retailers and
methods of distribution. We are dependent upon the successful operations and financial condition of our tenants, in particular of our major tenants, and could be adversely affected by the bankruptcy of those tenants;
|
|
|
|
We rely on major tenants, which makes us vulnerable to changes in the business and financial condition of, or demand for our space by, such tenants;
|
|
|
|
We may not realize the intended benefits of acquisition or merger transactions. The acquired assets may not perform as well as we anticipated, or we
may not successfully integrate the assets and realize improvements in occupancy and operating results. The acquisition of certain assets may subject us to liabilities, including environmental liabilities;
|
|
|
|
We may fail to identify, acquire, construct or develop additional properties that produce a desired yield on invested capital, or may fail to
effectively integrate acquisitions of properties or portfolios of properties. In addition, we may be limited in our acquisition opportunities due to competition, the inability to obtain financing on reasonable terms or any financing at all, and
other factors;
|
|
|
|
We may fail to dispose of properties on favorable terms. In addition, real estate investments can be illiquid, particularly as prospective buyers may
experience increased costs of financing or difficulties obtaining financing, and could limit our ability to promptly make changes to our portfolio to respond to economic and other conditions;
|
|
|
|
We may abandon a development opportunity after expending resources if we determine that the development opportunity is not feasible due to a variety of
factors, including a lack of availability of construction financing on reasonable terms, the impact of the economic environment on prospective tenants ability to enter into new leases or pay contractual rent, or our inability to obtain all
necessary zoning and other required governmental permits and authorizations;
|
|
|
|
We may not complete development projects on schedule as a result of various factors, many of which are beyond our control, such as weather, labor
conditions, governmental approvals, material shortages or general economic downturn resulting in limited availability of capital, increased debt service expense and construction costs, and decreases in revenue;
|
|
|
|
Our financial condition may be affected by required debt service payments, the risk of default and restrictions on our ability to incur additional debt
or to enter into certain transactions under our credit facilities and other documents governing our debt obligations. In addition, we may encounter difficulties in obtaining permanent financing or refinancing existing debt. Borrowings under our
revolving credit facilities are subject to certain representations and warranties and customary events of default, including any event that has had or could reasonably be expected to have a material adverse effect on our business or financial
condition;
|
|
|
|
Changes in interest rates could adversely affect the market price of our common shares, as well as our performance and cash flow;
|
|
|
|
Debt and/or equity financing necessary for us to continue to grow and operate our business may not be available or may not be available on favorable
terms;
|
|
|
|
Disruptions in the financial markets could affect our ability to obtain financing on reasonable terms and have other adverse effects on us and the
market price of our common shares;
|
|
|
|
We are subject to complex regulations related to our status as a REIT and would be adversely affected if we failed to qualify as a REIT;
|
|
|
|
We must make distributions to shareholders to continue to qualify as a REIT, and if we must borrow funds to make distributions, those borrowings may
not be available on favorable terms or at all;
|
|
|
|
Joint venture investments may involve risks not otherwise present for investments made solely by us, including the possibility that a partner or
co-venturer may become bankrupt, may at any time have interests or goals different from ours and may take action contrary to our instructions, requests, policies or
|
S-iv
|
objectives, including our policy with respect to maintaining our qualification as a REIT. In addition, a partner or co-venturer may not have access to sufficient capital to satisfy its funding
obligations to the joint venture. The partner could cause a default under the joint venture loan for reasons outside of our control. Furthermore, we could be required to reduce the carrying value of our equity method investments if a loss in the
carrying value of the investment is other than temporary;
|
|
|
|
Our decision to dispose of real estate assets, including land held for development and construction in progress, would change the holding period
assumption in our valuation analyses, which could result in material impairment losses and adversely affect our financial results. We evaluate real estate assets for impairment on a periodic basis based on the undiscounted projected cash flow of the
asset over our anticipated holding period. If we change our intended holding period, due to our intention to sell, or otherwise dispose of an asset, then under accounting principles generally accepted in the United States of America we must
reevaluate whether that asset is impaired. Depending on the carrying value of the property at the time we change our intention and the amount that we estimate we would receive on disposal, we may record an impairment loss that would adversely affect
our financial results. This loss could be material to our results of operations in the period that it is recognized;
|
|
|
|
The outcome of pending or future litigation, including litigation with tenants or joint venture partners, may adversely affect our results of
operations and financial condition;
|
|
|
|
We may not realize anticipated returns from our real estate assets outside the United States. We may continue to pursue international opportunities
that may subject us to different or greater risks than those associated with our domestic operations. We own assets in Puerto Rico, an interest in an unconsolidated joint venture that owns properties in Brazil and an interest in consolidated joint
ventures that were formed to develop and own properties in Canada and Russia;
|
|
|
|
International development and ownership activities carry risks in addition to those we face with our domestic properties and operations. These risks
include the following:
|
|
|
|
Adverse effects of changes in exchange rates for foreign currencies;
|
|
|
|
Changes in foreign political or economic environments;
|
|
|
|
Challenges of complying with a wide variety of foreign laws, including tax laws, and addressing different practices and customs relating to corporate
governance, operations and litigation;
|
|
|
|
Different lending practices;
|
|
|
|
Cultural and consumer differences;
|
|
|
|
Changes in applicable laws and regulations in the United States that affect foreign operations;
|
|
|
|
Difficulties in managing international operations; and
|
|
|
|
Obstacles to the repatriation of earnings and cash;
|
|
|
|
Although our international activities are currently a relatively small portion of our business, to the extent we expand our international activities,
these risks could significantly increase and adversely affect our results of operations and financial condition;
|
|
|
|
We are subject to potential environmental liabilities;
|
|
|
|
We may incur losses that are uninsured or exceed policy coverage due to our liability for certain injuries to persons, property or the environment
occurring on our properties;
|
|
|
|
We could incur additional expenses to comply with or respond to claims under the Americans with Disabilities Act or otherwise be adversely affected by
changes in government regulations, including changes in environmental, zoning, tax and other regulations;
|
S-v
|
|
|
We may have to restate certain financial statements as a result of changes in, or the adoption of new, accounting rules and regulations to which we are
subject, including accounting rules and regulations affecting our accounting policies; and
|
|
|
|
The joint venture between us and Blackstone Real Estate Partners VII may be unable to successfully complete the planned acquisition of a portfolio of
46 shopping centers from EPN Group.
|
We also disclose important factors that could cause our actual results,
performance or achievements to differ materially from those expressed or implied by forward-looking statements under Item 1A. Risk Factors in our Annual Report on Form 10-K for the year ended December 31, 2010, which is incorporated
by reference herein.
S-vi
PROSPECTUS SUPPLEMENT SUMMARY
This summary highlights information contained elsewhere in this prospectus. It does not contain all of the information that you should
consider before making an investment decision. We encourage you to carefully read this entire prospectus and the documents that are incorporated herein, especially the Risk Factors and the financial statements included elsewhere herein
or incorporated herein by reference to our Annual Report on Form 10-K for the year ended December 31, 2010 filed with the SEC, before making an investment decision.
The Company
We are a self-administered and self-managed REIT engaged in
the business of owning, managing and developing a portfolio of shopping centers. Our executive offices are located at 3300 Enterprise Parkway, Beachwood, Ohio 44122, and our telephone number is (216) 755-5500. Our website is located at
http://www.ddr.com. Information on or accessible through our website is not part of, or incorporated by reference into, this prospectus, other than documents filed with the SEC that we incorporate by reference.
Recent Developments
On
January 10, 2012, we entered into a joint venture with Blackstone Real Estate Partners VII, a real estate fund managed by The Blackstone Group, L.P. on behalf of its investors, to acquire a portfolio of 46 open-air, value-oriented power shopping
centers, which are currently owned by EPN Group and managed by us. The joint venture has executed a purchase and sale agreement to acquire the properties, which are located in 20 states and represent 10.6 million square feet, in a transaction
valued at approximately $1.43 billion, including assumed debt of $640 million and $305 million of expected new financings. After our contribution to the joint venture of approximately $17 million, our affiliate will own 5% of the common equity of
the joint venture and Blackstone Real Estate Partners VII will own the remaining 95%. We will also invest $150 million in preferred equity in the joint venture with a fixed dividend rate of 10% and will continue to provide leasing and management
services to the properties in the portfolio. In addition, we will have the right of first offer to acquire ten of the assets under specified conditions. The joint ventures acquisition of this portfolio is subject to the satisfaction of
customary closing conditions, and there can be no assurance that the acquisition will be consummated.
In addition, during the
fourth quarter of 2011, we acquired Polaris Town Center in Columbus, Ohio, for approximately $80 million and disposed of 20 shopping centers and seven land parcels for aggregate proceeds of approximately $247 million, of which our share was
approximately $205 million. As December 31, 2011, the approximate aggregate sales price of assets under contract for sale was $89 million, of which our share was approximately $82 million.
We have not yet completed our December 31, 2011 financial statements. As of the date of this prospectus, we expect our total
outstanding consolidated debt as of December 31, 2011 to be approximately $4.1 billion and the weighted average maturity of our consolidated debt as of December 31, 2011 to be approximately 4.3 years.
On January 5, 2012, our board of directors declared a first quarter 2012 common share dividend of $0.12 per share. The dividend is
payable April 3, 2012 to shareholders of record at the close of business on March 16, 2012.
S-1
The Offering
Common Shares Offered by the Forward Purchasers or Affiliates Thereof
|
16,500,000 shares (or 18,975,000 shares if the underwriters option to purchase additional common shares is exercised in full).
|
Common Shares To Be Outstanding after Settlement of the Forward Sale Agreements Assuming Full Physical Settlement
|
293,447,610 shares (or 295,922,610 shares if the underwriters option to purchase additional common shares is exercised in full) (1).
|
Use of Proceeds(2)
|
We will not receive any proceeds from the sale of our common shares by the forward purchasers or their affiliates.
|
|
We expect to receive net proceeds of approximately $205.0 million (after deducting fees and estimated expenses related to the forward sale agreements), subject to
certain adjustments pursuant to the forward sale agreements, only upon full physical settlement of the forward sale agreements, which we expect to occur on or about June 29, 2012.
|
|
We intend to use the net proceeds, if any, received upon the settlement of the forward sale agreements to fund our investment in a joint venture between us and
Blackstone Real Estate Partners VII, as described above under Recent Developments, and any excess proceeds will be used to repay debt and for general corporate purposes. Pending such use, we will invest the net proceeds, if any,
in short term securities. See Use of Proceeds and Risk Factors.
|
Accounting Treatment of the Transaction
|
Before the issuance of our common shares, if any, upon settlement of the forward sale agreements, the forward sale agreements will be reflected in our diluted earnings per share calculations
using the treasury stock method. Under this method, the number of our common shares used in calculating diluted earnings per share is deemed to be increased by the excess, if any, of the number of shares that would be issued upon full physical
settlement of the forward sale agreements over the number of shares that could be purchased by us in the market (based on the average market price during the period) using the proceeds receivable upon full physical settlement (based on the adjusted
forward sale price at the end of the reporting period). Consequently, we anticipate there will be no dilutive effect on our earnings per share except during periods when the average market price of our common shares is above the applicable adjusted
forward sale price, which is initially $12.432 per share, subject to increase or decrease based on the federal funds rate, less a spread, and subject to decrease by amounts related to expected dividends on
|
S-2
|
our common shares during the term of the forward sale agreements.
|
Risk Factors
|
See Risk Factors and other information included in or incorporated by reference in this prospectus supplement and the accompanying prospectus for a discussion of factors you should
carefully consider before deciding to invest in our common shares.
|
New York Stock Exchange (NYSE) Symbol
|
DDR.
|
(1)
|
The forward purchasers have advised us that they or their affiliates intend to acquire common shares to be sold under this prospectus supplement through borrowings from
third-party stock lenders. Subject to the occurrence of certain events, we will not be obligated to deliver common shares, if any, under the forward sale agreements until final settlement of the forward sale agreements, which we expect will occur on
or about June 29, 2012. Except in certain circumstances, we have the right to elect cash settlement or net share settlement under the forward sale agreements. See Underwriting Forward Sale Agreements for a description of the
forward sale agreements. The number of shares to be outstanding after settlement of the forward sale agreements is based on 276,947,610 shares outstanding as of January 10, 2012.
|
(2)
|
Calculated as of January 11, 2012 (assuming that the forward sale agreements are fully physically settled based on the initial forward sale price of $12.432 per share
by the delivery of 16,500,000 of our common shares and that the underwriters have not exercised their option to purchase additional common shares). The forward sale price is subject to adjustment pursuant to the forward sale agreements, and the
actual proceeds are subject to settlement of the forward sale agreements.
|
S-3
RISK FACTORS
An investment in our common shares involves a high degree of risk. You should carefully consider the risks described below, as well as
the risks described in Item 1A Risk Factors of our most recent Annual Report on Form 10-K that has been filed with the SEC and incorporated herein by reference in its entirety, as well as other information in this prospectus and
in any other documents incorporated into this prospectus by reference before purchasing any of our common shares. Each of the risks described below and in these other sections and documents could adversely affect our business, financial condition
and results of operations, and could result in a complete loss of your investment. This prospectus and the incorporated documents also contain forward-looking statements that involve risks and uncertainties. Our actual results could differ
materially from those anticipated in these forward-looking statements as a result of certain factors, including the risks mentioned above.
Risks Related to the Forward Sale Agreements
Settlement provisions contained in the forward sale agreements subject us to certain risks.
Each forward purchaser will have the right to accelerate its forward sale agreement (with respect to all or any portion of the transaction under the forward sale agreement that the forward purchaser
determines is affected by such event) and require us to settle on a date specified by such forward purchaser if:
|
|
|
such forward purchaser is unable to, or would incur a materially increased cost to, establish, maintain or unwind its hedge position with respect to
its forward sale agreement;
|
|
|
|
such forward purchaser determines that it is unable to, or it is commercially impracticable for it to, continue to borrow a number of our common shares
equal to the number of common shares underlying its forward sale agreement or that, with respect to borrowing such number of common shares, it would incur a rate that is greater than the borrow cost specified in such forward sale agreement, subject
to a prior notice requirement;
|
|
|
|
a termination event occurs as a result of us declaring a dividend or distribution on our common shares with a cash value in excess of a specified
amount per calendar year, certain non-cash dividends or a cash dividend or distribution specified as an extraordinary dividend by our board of directors;
|
|
|
|
an extraordinary event (as such term is defined in such forward sale agreement and which includes certain mergers and tender offers and the delisting
of our common shares) occurs or our board of directors votes to approve or there is a public announcement of, in either case, any action that, if consummated, would constitute such an extraordinary event; or
|
|
|
|
certain other events of default, termination events or other specified events occur, including, among other things, any material misrepresentation made
by us in connection with entering into such forward sale agreement, our bankruptcy or a change in law (as such terms are defined in such forward sale agreement).
|
Each forward purchasers decision to exercise its right to accelerate the settlement of the relevant forward sale agreement will be
made irrespective of our need for capital. In such cases, we could be required to issue and deliver common shares under the physical settlement provisions or, if we so elect and such forward purchaser so permits our election, net share settlement
provisions of the relevant forward sale agreement irrespective of our capital needs, which would result in dilution to our earnings per share, return on equity and dividends per share.
We expect that each forward sale agreement will settle on or about June 29, 2012 and each forward sale agreement may be settled earlier in
whole or in part at our option. Each forward sale agreement will be physically settled by delivery of our common shares, unless we elect to cash settle or net share settle such forward sale agreement. Upon physical settlement or, if we so elect, net
share settlement of the forward sale agreements,
S-4
delivery of our common shares in connection with such physical settlement or, to the extent we are obligated to deliver our common shares, net share settlement will result in dilution to our
earnings per share and return on equity. If we elect cash settlement or net share settlement with respect to all or a portion of the common shares underlying the forward sale agreements, we expect each forward purchaser (or an affiliate thereof) to
purchase a number of common shares necessary to satisfy its or its affiliates obligation to return the common shares borrowed from third parties in connection with sales of our common shares under this prospectus supplement. In addition, the
purchase of our common shares in connection with such forward purchaser or its affiliate unwinding its hedge positions could cause the price of our common shares to increase over such time (or prevent a decrease over such time), thereby increasing
the amount of cash we would owe to such forward purchaser (or decreasing the amount of cash that such forward purchaser would owe us) upon a cash settlement of the relevant forward sale agreement or the number of common shares we would deliver to
such forward purchaser (or decreasing the number of common shares that such forward purchaser would deliver to us) upon net share settlement of the relevant forward sale agreement. The forward sale price that we expect to receive upon physical
settlement of the forward sale agreements will be subject to adjustment on a daily basis based on a floating interest rate factor equal to the federal funds rate less a spread and will be decreased based on amounts related to expected dividends on
our common shares during the term of the forward sale agreements. If the federal funds rate is less than the spread on any day, the interest factor will result in a daily reduction of the forward sale price. As of the date of this prospectus
supplement, the federal funds rate was less than the spread. If the market value of our common shares during the relevant valuation period under the respective forward sale agreement is above the relevant forward sale price, in the case of cash
settlement, we would pay the forward purchaser under such forward sale agreement an amount in cash equal to the difference or, in the case of net share settlement, we would deliver to such forward purchaser a number of common shares having a value
equal to the difference. Thus, we could be responsible for a potentially substantial cash payment. If the market value of our common shares during the relevant valuation period under the respective forward sale agreement is below the relevant
forward sale price, in the case of cash settlement, we would be paid the difference in cash by the forward purchaser under such forward sale agreement or, in the case of net share settlement, we would receive from such forward purchaser a number of
common shares having a value equal to the difference. See Underwriting Forward Sale Agreements for information on the forward sale agreements.
In case of our bankruptcy or insolvency, the forward sale agreements will automatically terminate, and we would not receive the expected proceeds from the sale of our common shares.
If we file for or consent to a proceeding seeking a judgment in bankruptcy or insolvency or any other relief under any
bankruptcy or insolvency law or other similar law affecting creditors rights, or we or a regulatory authority with jurisdiction over us presents a petition for our winding-up or liquidation, and we consent to such a petition, the forward sale
agreements will automatically terminate. If the forward sale agreements so terminate, we would not be obligated to deliver to the relevant forward purchaser any shares not previously delivered, and the relevant forward purchaser would be discharged
from its obligation to pay the relevant forward sale price per share in respect of any common shares not previously settled. Therefore, to the extent that there are any common shares with respect to which the forward sale agreements have not been
settled at the time of the commencement of any such bankruptcy or insolvency proceedings, we would not receive the relevant forward sale price per share in respect of those common shares.
S-5
USE OF PROCEEDS
We will not receive any proceeds from the sale of our common shares by the forward purchasers or their affiliates. Assuming full physical
settlement of the forward sale agreements at an initial forward sale price of $12.432 per share and that the underwriters have not exercised their option to purchase additional common shares, we expect to receive net proceeds of approximately $205.0
million (after deducting fees and estimated expenses related to the forward sale agreements), subject to certain adjustments pursuant to the forward sale agreements, upon settlement of the forward sale agreements, which settlement we expect will
occur on or about June 29, 2012. The forward sale price that we expect to receive upon physical settlement of the forward sale agreements will be subject to adjustment on a daily basis based on a floating interest rate factor equal to the federal
funds rate less a spread and will be decreased based on amounts related to expected dividends on our common shares during the term of the forward sale agreements. If the federal funds rate is less than the spread on any day, the interest factor will
result in a daily reduction of the forward sale price. As of the date of this prospectus supplement, the federal funds rate was less than the spread.
We intend to use the net proceeds, if any, received upon the settlement of the forward sale agreements to fund our investment of approximately $167 million (consisting of approximately $17 million in
common equity and $150 million in preferred equity) in a joint venture between us and Blackstone Real Estate Partners VII, which joint venture is expected to acquire a portfolio of 46 shopping centers from EPN Group, as described above under
Prospectus Supplement Summary Recent Developments. We intend to use any excess proceeds for one or more of the following purposes:
|
|
|
to repay borrowings under our $750 million unsecured revolving credit facility maturing on
February 28, 2016; as of September 30, 2011, total
borrowings under this credit facility aggregated $214.9 million with a weighted average interest rate of 2.3%;
|
|
|
|
to repay borrowings under our $65 million unsecured revolving credit facility maturing on February 28, 2016; as of September 30, 2011, total
borrowings under this credit facility aggregated $11.5 million with a weighted average interest rate of 1.9%; and
|
|
|
|
for general corporate purposes.
|
Pending such use, we will invest the net proceeds, if any, in short-term securities.
Affiliates of each of the representatives and the forward purchasers and certain of the other underwriters are lenders under our $750 million unsecured revolving credit facility, and an affiliate of PNC
Capital Markets LLC is the lender under our $65 million unsecured revolving credit facility. Upon any application of the net proceeds from this offering to repay amounts outstanding under either of these unsecured revolving credit facilities, each
such lender under the respective facility will receive its proportionate share of the amount being repaid.
If, however, we
elect to cash settle the forward sale agreements, we would expect to receive an amount of net proceeds that is significantly lower than the estimate included under this caption, and we may not receive any net proceeds (or may owe cash to the forward
purchasers). If we elect to net share settle the forward sale agreements in full, we would not receive any proceeds from the forward purchasers.
Before the issuance of our common shares, if any, upon settlement of the forward sale agreements, the forward sale agreements will be reflected in our diluted earnings per share calculations using the
treasury stock method. Under this method, the number of our common shares used in calculating diluted earnings per share is deemed to be increased by the excess, if any, of the number of shares that would be issued upon full physical settlement of
the forward sale agreements over the number of shares that could be purchased by us in the market (based on the average market price during the period) using the proceeds receivable upon full physical settlement (based on the adjusted forward sale
price at the end of the reporting period).
S-6
PRICE RANGE FOR OUR COMMON SHARES
The high and low sale prices per share of our common shares and declared dividends per common share for the quarterly periods indicated
were as follows:
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
High
|
|
|
Low
|
|
|
Dividends
|
|
2012:
|
|
|
|
|
|
|
|
|
|
|
|
|
First (through January 11, 2012)
|
|
$
|
13.32
|
|
|
$
|
12.05
|
|
|
$
|
0.12
|
(1)
|
2011:
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
|
|
$
|
13.30
|
|
|
$
|
9.76
|
|
|
$
|
0.08
|
|
Third
|
|
|
15.28
|
|
|
|
10.19
|
|
|
|
0.06
|
|
Second
|
|
|
14.94
|
|
|
|
13.03
|
|
|
|
0.04
|
|
First
|
|
|
14.53
|
|
|
|
12.98
|
|
|
|
0.04
|
|
2010:
|
|
|
|
|
|
|
|
|
|
|
|
|
Fourth
|
|
$
|
14.39
|
|
|
$
|
11.15
|
|
|
$
|
0.02
|
|
Third
|
|
|
12.01
|
|
|
|
8.84
|
|
|
|
0.02
|
|
Second
|
|
|
13.73
|
|
|
|
9.79
|
|
|
|
0.02
|
|
First
|
|
|
13.16
|
|
|
|
8.11
|
|
|
|
0.02
|
|
(1)
|
The dividend is payable April 3, 2012 to shareholders of record at the close of business on March 16, 2012.
|
S-7
CERTAIN FEDERAL INCOME TAX CONSIDERATIONS
The following is a general summary of the material U.S. federal income tax considerations relating to our qualification and taxation as a
REIT and the acquisition, ownership and disposition of our common shares. The information in this section is based on the Internal Revenue Code of 1986, as amended, which we refer to as the Code, current, temporary and proposed Treasury Regulations
promulgated under the Code, the legislative history of the Code, current administrative interpretations and practices of the Internal Revenue Service, which we refer to as the IRS (including its practices and policies as expressed in certain private
letter rulings which are not binding on the IRS except with respect to the particular taxpayers who requested and received such rulings), and court decisions, all as of the date of this prospectus supplement. Future legislation, Treasury
Regulations, administrative interpretations and practices and court decisions may adversely affect, perhaps retroactively, the tax considerations described herein. We have not requested, and do not plan to request, any rulings from the IRS
concerning our tax treatment and the statements in this prospectus supplement are not binding on the IRS or any court. Thus, we can provide no assurance that these statements will not be challenged by the IRS or sustained by a court if challenged by
the IRS.
This summary is for general information only, and does not purport to discuss all aspects of U.S. federal income
taxation that may be relevant to a particular holder in light of its investment or tax circumstances, or to certain types of holders subject to special tax rules, such as financial institutions, insurance companies, tax-exempt organizations (except
to the extent discussed under the subheadings Taxation of Tax-Exempt Shareholders, below), broker-dealers, partnerships and other pass-through entities, shareholders holding our common shares as part of a conversion transaction,
or a hedge or hedging transaction or as a position in a straddle for tax purposes, and Non-U.S. Shareholders (as defined below) (except to the extent discussed under the subheading Taxation of Non-U.S. Shareholders, below).
You are advised to consult your tax advisor regarding the specific tax consequences to you of the acquisition, ownership
and sale of our common shares, including the federal, state, local, foreign and other tax consequences of such acquisition, ownership and sale and of potential changes in applicable tax laws.
Taxation of the Company
General.
We elected to be taxed as a REIT under the Code, commencing with our taxable year ended
December 31, 1993. We believe we have been organized and have operated in a manner which allows us to qualify for taxation as a REIT under the Code, commencing with our taxable year ended December 31, 1993. We intend to continue to operate
in this manner.
The law firm of Jones Day has acted as our tax counsel in connection with the filing of this prospectus
supplement. We have received the opinion of Jones Day to the effect that we have qualified as a REIT under the Code for our taxable years ended December 31, 1993 through December 31, 2011, and our current and proposed method of operation
will enable us to meet the requirements for qualification and taxation as a REIT under the Code for our taxable year ending December 31, 2012 and for future taxable years. The opinion of Jones Day is based on current law, which is subject to
change, possibly with retroactive effect. It must be emphasized that the opinion of Jones Day is based upon certain assumptions and representations as to factual matters made by us, including representations made by us in a representation letter and
certificate provided by one of our officers and our factual representations set forth in this prospectus supplement and in the accompanying prospectus. Any variation from the factual statements set forth herein, in the accompanying prospectus, or in
the representation letter and certificate we have provided to Jones Day may affect the conclusions upon which its opinion is based.
Furthermore, an opinion of counsel is not binding on the IRS or any court and no assurance can be given that the IRS will not challenge our qualification as a REIT. Moreover, our qualification and
taxation as a REIT depend upon our ability, through actual annual operating results and methods of operation, to meet the various qualification tests imposed under the Code discussed below, including income types, asset composition, distribution
levels and diversity of share ownership, the results of which have not been and will not be reviewed or verified by Jones Day. In addition, our ability to qualify as a REIT also depends in part upon the operating results, organizational structure
and entity classification for federal income tax purposes of certain affiliated
S-8
entities, including affiliates that have made elections to be taxed as REITs and for whom the actual results of the various REIT qualification tests are not being reviewed by Jones Day.
Accordingly, no assurance can be given that our actual results of operation for any particular year have satisfied or will satisfy those requirements for qualification and taxation as a REIT. Similarly, we have significant subsidiaries that have
elected to be taxed as REITs and are therefore subject to the same qualification tests.
Provided we qualify for taxation as a
REIT, we generally will not be subject to U.S. federal corporate income taxes on our taxable income that is distributed currently to our shareholders. This treatment substantially eliminates the double taxation (once at the corporate
level when earned and once again at the shareholder level when distributed) that generally results from investment in a C corporation. However, we will be subject to U.S. federal income tax as follows:
First, we will be taxed at regular corporate rates on any undistributed REIT taxable income, including undistributed net capital gains.
Second, we may be subject to the alternative minimum tax on our items of tax preference under some circumstances.
Third, if we have (a) net income from the sale or other disposition of foreclosure property (defined
generally as property we acquired through foreclosure or after a default on a loan secured by the property or a lease of the property) which is held primarily for sale to customers in the ordinary course of business or (b) other nonqualifying
income from foreclosure property, we will be subject to tax at the highest U.S. federal corporate income tax rate on this income.
Fourth, we will be subject to a 100% tax on any net income from prohibited transactions (which are, in general, certain sales or other dispositions of property (other than foreclosure property) held
primarily for sale to customers in the ordinary course of business).
Fifth, if we fail to satisfy the 75% or 95% gross income
tests (as discussed below), but have maintained our qualification as a REIT because we satisfied certain other requirements, we will be subject to a 100% tax on an amount equal to (a) the gross income attributable to the greater of the amounts
by which we fail the 75% or 95% gross income tests multiplied by (b) a fraction intended to reflect our profitability.
Sixth, if we fail to satisfy any of the REIT asset tests (as described below) by more than a de minimis amount, due to reasonable cause
and we nonetheless maintain our REIT qualification because of specified cure provisions, we will be required to pay a tax equal to the greater of $50,000 or the highest corporate tax rate multiplied by the net income generated by the nonqualifying
assets that caused us to fail such test.
Seventh, if we fail to distribute during each calendar year at least the sum of
(a) 85% of our REIT ordinary income for the year, (b) 95% of our REIT capital gain net income for the year (other than certain long-term capital gains for which we make a capital gains designation (described below) and on which we pay the
tax), and (c) any undistributed taxable income from prior periods, we would be subject to a 4% excise tax on the excess of the required distribution over the amounts actually distributed.
Eighth, if we acquire any asset from a corporation which is or has been a C corporation in a transaction in which the basis of the asset
in our hands is determined by reference to the basis of the asset in the hands of the C corporation, and we subsequently recognize gain on the disposition of the asset during the ten-year period beginning on the date on which we acquired the asset,
then we will be subject to tax at the highest regular corporate tax rate on the excess of (a) the fair market value of the asset over (b) our adjusted basis in the asset, in each case determined as of the date we acquired the asset. The
results described in this paragraph with respect to the recognition of gain assume that the C corporation will not make an election pursuant to existing Treasury Regulations to recognize such gain at the time we acquire the asset.
Ninth, we will be required to pay a 100% tax on any redetermined rents, redetermined deductions or excess
interest. In general, redetermined rents are rents from real property that are overstated as a result of services furnished to any of our tenants by a taxable REIT subsidiary of ours. Redetermined deductions and excess interest
generally represent amounts that are deducted by a taxable REIT subsidiary of ours for amounts paid to us that are in excess of the amounts that would have been deducted based on arms length negotiations.
S-9
Tenth, if we fail to satisfy any provision of the Code that would result in our failure to
qualify as a REIT (other than a violation of the REIT gross income tests or certain violations of the asset tests described below) and the violation is due to reasonable cause, we may retain our REIT qualification but we will be required to pay a
penalty of $50,000 for each such failure.
Requirements for Qualification as a REIT.
The Code
defines a REIT as a corporation, trust or association:
(1) that is managed by one or more trustees or directors;
(2) that issues transferable common shares or transferable certificates to evidence its beneficial ownership;
(3) that would be taxable as a domestic corporation, but for the special provisions of the Code applicable to REITs;
(4) that is not a financial institution or an insurance company within the meaning of the Code;
(5) that is beneficially owned by 100 or more persons;
(6) not more than 50% in value of the outstanding stock of which is owned, actually or constructively, by five or fewer individuals (as defined in the Code to include certain entities) during the last
half of each taxable year;
(7) that meets certain other tests, described below, regarding the nature of its income and assets
and the amount of its distributions;
(8) that elects to be a REIT, or has made such election for a previous year, and
satisfies the applicable filing and administrative requirements to maintain qualification as a REIT; and
(9) that adopts a
calendar year accounting period.
The Code provides that conditions (1) to (4), inclusive, must be met during the entire
taxable year and that condition (5) must be met during at least 335 days of a taxable year of 12 months, or during a proportionate part of a taxable year of less than 12 months. Conditions (5) and (6) do not apply until after the
first taxable year for which an election is made to be taxed as a REIT. For purposes of condition (6), certain pension funds and other tax-exempt entities are treated as individuals, subject to a look-through exception with respect to
certain pension funds.
We believe that we have satisfied each of the above conditions. In addition, our articles of
incorporation and code of regulations provide for restrictions regarding ownership and transfer of common shares. These restrictions are intended to assist us in continuing to satisfy the share ownership requirements described in (5) and
(6) above. These restrictions, however, may not ensure that we will, in all cases, be able to satisfy the share ownership requirements described in (5) and (6) above. In general, if we fail to satisfy these share ownership
requirements, our status as a REIT will terminate. However, if we comply with the rules in applicable Treasury Regulations that require us to ascertain the actual ownership of our common shares, and we do not know, or would not have known through
the exercise of reasonable diligence, that we failed to meet the requirement described in condition (6) above, we will be treated as having met this requirement.
Ownership of Interests in Partnerships and Limited Liability Companies.
In the case of a REIT that is a partner in a partnership or a member in a limited liability company
treated as a partnership for U.S. federal income tax purposes, Treasury Regulations provide that the REIT will be deemed to own its proportionate share of the assets of the partnership or limited liability company, based on its capital interest in
the partnership or limited liability company, subject to special rules relating to the 10% REIT asset test (described below). Also, the REIT will be deemed to be entitled to its proportionate share of the income of that entity. The assets and items
of gross income of the partnership or limited liability company retain the same character in the hands of the REIT for purposes of Section 856 of the Code, including satisfying the gross income tests and the asset tests. Thus, our proportionate
share of the assets and items of income of partnerships and limited liability companies taxed as partnerships, in which we are, directly or indirectly through other partnerships or limited liability companies taxed as partnerships, a partner or
member, are treated as our assets and items of income for purposes of applying the REIT qualification requirements described in this prospectus supplement (including the income and asset tests described below).
S-10
Ownership of Interests in Qualified REIT Subsidiaries.
We own
100% of the stock of a number of corporate subsidiaries that are qualified REIT subsidiaries (each, a QRS) and may acquire stock of one or more new subsidiaries. A corporation qualifies as a QRS if 100% of its outstanding stock is held
by us, and we do not elect to treat the corporation as a taxable REIT subsidiary, as described below. A QRS is not treated as a separate corporation, and all assets, liabilities and items of income, deduction and credit of a QRS are treated as our
assets, liabilities and items of income, deduction and credit for all purposes of the Code, including the REIT qualification tests. For this reason, references to our income and assets include the income and assets of any QRS. A QRS is not subject
to U.S. federal income tax, and our ownership of the voting stock of a QRS is ignored for purposes of determining our compliance with the ownership limits described below under Asset Tests.
Ownership of Interests in Taxable REIT Subsidiaries.
For taxable years beginning after December 1,
2000, REITs may own more than 10% of the voting power and value of securities in a taxable REIT subsidiary (TRS). A TRS is a corporation other than a REIT in which a REIT directly or indirectly holds stock, and that has made a joint
election with the REIT to be treated as a TRS. A TRS also includes any corporation other than a REIT with respect to which a TRS owns securities possessing more than 35% of the total voting power or value of the outstanding securities of such
corporation. Other than some activities relating to lodging and health care facilities, a TRS may generally engage in any business, including the provision of customary or non-customary services to tenants of its parent REIT. A TRS is subject to
income tax as a regular C corporation. In addition, a TRS may be prevented from deducting interest on debt funded directly or indirectly by its parent REIT if certain tests regarding the TRSs debt to equity ratio and interest expense are not
satisfied. A REITs ownership of securities of a TRS will not be subject to the 10% or 5% asset tests described below, and its operations will be subject to the provisions described above.
Income Tests.
We must satisfy two gross income requirements annually to maintain our qualification as a
REIT. First, in each taxable year at least 75% of our gross income (excluding gross income from prohibited transactions) must be derived directly or indirectly from investments relating to real property or mortgages secured by real property,
including rents from real property, dividends from other REITs, interest income derived from mortgage loans secured by real property and gains from the sale of real estate assets, as well as certain types of temporary investment income.
Second, in each taxable year at least 95% of our gross income (excluding gross income from prohibited transactions) must be derived directly or indirectly from income from the real property investments described above or dividends, interest and gain
from the sale or disposition of stock or securities (or from any combination of the foregoing).
Rents we receive will qualify
as rents from real property for purposes of satisfying the gross income tests for a REIT described above only if all of the following conditions are met:
|
|
|
The amount of rent must not be based in any way on the income or profits of any person, although rents generally will not be excluded solely because
they are based on a fixed percentage or percentages of gross receipts or gross sales.
|
|
|
|
We, or an actual or constructive owner of 10% or more of our outstanding common shares, must not actually or constructively own 10% or more of the
interests in the tenant, or, if the tenant is a corporation, 10% or more of the voting power or value of all classes of stock of the tenant. Rents received from such tenant that is our TRS, however, will not be excluded from the definition of
rents from real property as a result of this condition if at least 90% of the space at the property to which the rents relate is leased to third parties, and the rents paid by the TRS are comparable to rents paid by our other tenants for
comparable space. Whether rents paid by a TRS are substantially comparable to rents paid by other tenants is determined at the time the lease with the TRS is entered into, extended, and modified, if such modification increases the rents due under
such lease. Notwithstanding the foregoing, however, if a lease with a controlled taxable REIT subsidiary is modified and such modification results in an increase in the rents payable by such TRS, any such increase will not qualify as
rents from real property. For purposes of this rule, a controlled taxable REIT subsidiary is a TRS in which we own shares possessing more than 50% of the voting power or more than 50% of the total value of outstanding shares
of such TRS.
|
S-11
|
|
|
Rent attributable to personal property, leased in connection with a lease of real property, is not greater than 15% of the total rent received under
the lease. If this condition is not met, then the portion of the rent attributable to personal property will not qualify as rents from real property.
|
|
|
|
For rents received to qualify as rents from real property, the REIT generally must not operate or manage the property or furnish or render
services to the tenants of the property (subject to a 1% de minimis exception), other than through an independent contractor from whom the REIT derives no revenue or through a TRS. The REIT may, however, directly perform certain services that are
usually or customarily rendered in connection with the rental of space for occupancy only and are not otherwise considered rendered to the occupant of the property. Any amounts we receive from a TRS with respect to the
TRSs provision of non-customary services will, however, be nonqualifying income under the 75% gross income test and, except to the extent received through the payment of dividends, the 95% gross income test.
|
We do not intend to charge rent for any property that is based in whole or in part on the net income or profits of any person (except by
reason of being based on a percentage of gross receipts or sales, as heretofore described), and we do not intend to rent any personal property (other than in connection with a lease of real property where less than 15% of the total rent is
attributable to personal property). We directly perform services under certain of our leases, but such services are not rendered to the occupant of the property. Furthermore, these services are usual and customary management services provided by
landlords renting space for occupancy in the geographic areas in which we own property. To the extent that the performance of any services provided by us would cause amounts received from our tenants to be excluded from rents from real property, we
intend to hire a TRS, or an independent contractor from whom we derive no revenue, to perform such services.
On
February 23, 2009, we entered into a stock purchase agreement with Mr. Alexander Otto to issue and sell to him and certain members of his family (collectively, the Otto Family) our common shares representing in excess of 20% of
our outstanding common shares. In connection therewith, we entered into a waiver agreement pursuant to which we agreed to waive the related party limit contained in our articles of incorporation that would otherwise have prohibited the Otto Family
(and other persons who may be deemed to have constructive ownership of common shares owned by the Otto Family) from constructively owning more than 9.8% of our outstanding common shares. The waiver agreement contains provisions for monitoring and
restricting ownership by the Otto Family of our tenants. These provisions, however, may not ensure that rents from our tenants will qualify as rents from real property.
For purposes of these gross income tests, the term interest generally does not include any amount received or accrued
(directly or indirectly) if the determination of some or all of the amount depends in any way on the income or profits of any person. However, an amount received or accrued generally will not be excluded from the term interest solely by
reason of being based on a fixed percentage or percentages of receipts or sales.
From time to time, we enter into hedging
transactions with respect to one or more of our assets or liabilities. Our hedging activities may include entering into interest rate swaps, caps, and floors, options to purchase these items, and futures and forward contracts. Except to the extent
determined by the IRS, income from a hedging transaction, including gain from the sale or disposition of such a transaction, that is clearly identified as such as specified in the Code and that hedges indebtedness incurred or to be incurred by us to
acquire or carry real estate as specified in the Code will not constitute gross income for purposes of the 95% gross income test (for hedging transactions entered into on or after January 1, 2005) and the 75% gross income test (for hedging
transactions entered into after July 30, 2008) and therefore will be exempt from these gross income tests. Gross income from such hedging transactions entered into prior to July 30, 2008 is treated as nonqualifying income for purposes of
the 75% gross income test. The term hedging transaction, as used above, generally means any transaction we enter into in the normal course of our business primarily to manage risk of interest rate changes or fluctuations with respect to
borrowings made or to be made by us (and for transactions entered into after July 30, 2008, it also includes a transaction entered into to manage the risk of currency fluctuations with respect to any item of income or gain that would be
qualifying income under the 75% and 95% gross income tests). To the extent that we hedge with other types of financial instruments, the income from those transactions is not likely to be treated as
S-12
qualifying income for purposes of the gross income tests. We intend to structure any hedging transactions in a manner that does not jeopardize our status as a REIT.
If we fail to satisfy one or both of the 75% or 95% gross income tests for any taxable year, we may nevertheless qualify as a REIT for the
year if we are entitled to relief under certain provisions of the Code. Commencing with our taxable year beginning January 1, 2005, we generally may make use of the relief provisions if:
|
|
|
following our identification of the failure to meet the 75% or 95% gross income tests for any taxable year, we file a schedule with the IRS setting
forth each item of our gross income for purposes of the 75% or 95% gross income tests for such taxable year in accordance with Treasury Regulations; and
|
|
|
|
our failure to meet these tests was due to reasonable cause and not due to willful neglect.
|
For taxable years ending before January 1, 2005, we generally may avail ourselves of the relief provisions if:
|
|
|
our failure to meet the 75% and 95% gross income tests was due to reasonable cause and not due to willful neglect;
|
|
|
|
we attach a schedule of the sources of our income to our federal income tax return; and
|
|
|
|
any incorrect information on the schedule was not due to fraud with intent to evade tax.
|
It is not possible, however, to state whether in all circumstances we would be entitled to the benefit of these relief provisions. For
example, if we fail to satisfy the gross income tests because nonqualifying income that we intentionally accrue or receive exceeds the limits on nonqualifying income, the IRS could conclude that our failure to satisfy the tests was not due to
reasonable cause. If these relief provisions do not apply to a particular set of circumstances, we will not qualify as a REIT. As discussed above, even if these relief provisions apply, and we retain our status as a REIT, a tax would be imposed with
respect to our nonqualifying income. We may not always be able to comply with the gross income tests for REIT qualification despite periodic monitoring of our income.
Prohibited Transaction Income.
Any gain we realize on the sale of any property held primarily for sale to customers in the ordinary course of business other than foreclosure
property will be treated as income from a prohibited transaction that is subject to a 100% penalty tax. Whether property is held primarily for sale to customers in the ordinary course of a trade or business depends on all the facts and circumstances
surrounding the particular transaction. We do not intend to engage in prohibited transactions.
Penalty
Tax.
Any redetermined rents, redetermined deductions or excess interest we generate will be subject to a 100% penalty tax. In general, redetermined rents are rents from real property that are overstated as a result of any
services furnished to any of our tenants by one of our TRSs, and redetermined deductions and excess interest represent any amounts that are deducted by a TRS for amounts paid to us that are in excess of the amounts that would have been deducted
based on arms-length negotiations. Rents we receive will not constitute redetermined rents if they qualify for certain safe harbor provisions contained in the Code. These determinations are inherently factual, and the IRS has broad discretion
to assert that amounts paid between related parties should be reallocated to clearly reflect their respective incomes. If the IRS successfully made such an assertion, we would be required to pay a 100% penalty tax on the excess of an
arms-length fee for tenant services over the amount actually paid.
Asset Tests.
At the
close of each quarter of our taxable year, we also must satisfy four tests relating to the nature and diversification of our assets. First, at least 75% of the value of our total assets must be represented by real estate assets, cash, cash items and
government securities. For purposes of this test, real estate assets include real property (including interests in real property and interests in mortgages on real property) and common stock (or transferable certificates of beneficial interest) in
other REITs, as well as any stock or debt instruments that are purchased with the proceeds of a stock offering or public offering of debt with a maturity date of at least five years, but only for the one-year period beginning on the date we receive
such proceeds. Second, not more than 25% of our total assets may be represented by securities, other than those securities includable in the 75% asset
S-13
test. Third, of the investments included in the 25% asset class, and except for investments in another REIT, a QRS or a TRS, the value of any one issuers securities may not exceed 5% of the
value of our total assets, and we may not own more than 10% of the total vote or value of the outstanding securities of any one issuer except, in the case of the 10% value test, securities satisfying the straight debt safe-harbor.
Certain types of securities we may own are disregarded as securities solely for purposes of the 10% value test, including, but not limited to, any loan to an individual or an estate, any obligation to pay rents from real property and any security
issued by a REIT. In addition, commencing with our taxable year beginning January 1, 2005, solely for purposes of the 10% value test, the determination of our interest in the assets of a partnership or limited liability company in which we own
an interest will be based on our proportionate interest in any securities issued by the partnership or limited liability company, excluding for this purpose certain securities described in the Code. Fourth, no more than 25% (20% for taxable years
beginning before January 1, 2009) of the value of our assets may be comprised of securities of one or more TRSs.
After
initially meeting the asset tests at the close of any quarter, we will not lose our status as a REIT for failure to satisfy the asset tests at the end of a later quarter solely by reason of changes in asset values. If we fail to satisfy an asset
test because we acquire securities or other property during a quarter, we can cure this failure by disposing of sufficient nonqualifying assets within 30 days after the close of that quarter. We believe we have maintained and intend to continue to
maintain adequate records of the value of our assets to ensure compliance with the asset tests. If we failed to cure any noncompliance with the asset tests within the 30 day cure period, we would cease to qualify as a REIT unless we are eligible for
certain relief provisions discussed below.
Commencing with our taxable year beginning January 1, 2005, certain relief
provisions may be available to us if we fail to satisfy the asset tests described above after the 30 day cure period. Under these provisions, we will be deemed to have met the 5% and 10% REIT asset tests if the value of our nonqualifying assets
(i) does not exceed the lesser of (a) 1% of the total value of our assets at the end of the applicable quarter or (b) $10,000,000, and (ii) we dispose of the nonqualifying assets or otherwise satisfy such tests within six months
after the last day of the quarter in which the failure to satisfy the asset tests is discovered or the period of time prescribed by Treasury Regulations to be issued. For violations due to reasonable cause and not willful neglect that are in excess
of the de minimis exception described above, we may avoid disqualification as a REIT under any of the asset tests, after the 30 day cure period, by taking steps including (i) the disposition of sufficient nonqualifying assets, or the taking of
other actions, which allow us to meet the asset test within six months after the last day of the quarter in which the failure to satisfy the asset tests is discovered or the period of time prescribed by Treasury Regulations to be issued,
(ii) paying a tax equal to the greater of (a) $50,000 or (b) the highest corporate tax rate multiplied by the net income generated by the nonqualifying assets and (iii) disclosing certain information to the IRS.
Although we expect to satisfy the asset tests described above and plan to take steps to ensure that we satisfy such tests for any quarter
with respect to which retesting is to occur, there can be no assurance we will always be successful. If we fail to cure any noncompliance with the asset tests in a timely manner, and the relief provisions described above are not available, we would
cease to qualify as a REIT.
Annual Distribution Requirements.
To maintain our qualification as a
REIT, we are required to distribute dividends (other than capital gain dividends) to our shareholders in an amount at least equal to (i) the sum of (a) 90% of our REIT taxable income (computed without regard to the dividends
paid deduction and our net capital gain) and (b) 90% of our net income (after tax), if any, from foreclosure property minus (ii) the excess of (a) the sum of certain items of noncash income (
i.e.
, income attributable to leveled
stepped rents, original issue discount on purchase money debt, or a like-kind exchange that is later determined to be taxable) over (b) 5% of REIT taxable income as described above.
In addition, if we dispose of any asset we acquired from a corporation which is or has been a C corporation in a transaction in which our
basis in the asset is determined by reference to the basis of the asset in the hands of that C corporation, within the ten-year period following our acquisition of such asset, we would be required to distribute at least 90% of the after-tax gain, if
any, we recognized on the disposition of the asset, to the extent that gain does not exceed the excess of (a) the fair market value of the asset on the date we acquired the asset over (b) our adjusted basis in the asset on the date we
acquired the asset.
S-14
We must pay the distributions described above in the taxable year to which they relate
(current distributions), or in the following taxable year if they are either (i) declared before we timely file our tax return for such year and paid on or before the first regular dividend payment after such declaration
(throwback distributions) or (ii) paid during January to shareholders of record in October, November or December of the prior year (deemed current distributions). Throwback distributions are taxable to our shareholders
for the year in which they are paid, even though the distributions relate to the prior year for purposes of our 90% distribution requirement. Current distributions are taxable for the year they are paid and deemed current distributions, although
distributed in January are taxable for the year of their record date. The amount distributed must not be preferential
i.e.
, every shareholder of the class of equity securities to which a distribution is made must be treated the same as
every other shareholder of that class, and no class of equity securities may be treated otherwise than in accordance with its dividend rights as a class. To the extent that we do not distribute all of our net capital gain or distribute at least 90%,
but less than 100%, of our REIT taxable income, as adjusted, we will be subject to tax thereon at regular ordinary and capital gain corporate tax rates. We believe we have made and intend to continue to make timely distributions
sufficient to satisfy these annual distribution requirements.
We generally expect that our REIT taxable income will be less
than our cash flow because of the allowance of depreciation and other non-cash charges in computing REIT taxable income. Accordingly, we anticipate that we will generally have sufficient cash or liquid assets to enable us to satisfy the distribution
requirements described above. However, from time to time, we may not have sufficient cash or other liquid assets to meet these distribution requirements because of timing differences between the actual receipt of income and actual payment of
deductible expenses, and the inclusion of income and deduction of expenses in arriving at our taxable income. If these timing differences occur, in order to meet the distribution requirements, we may need to arrange for short-term, or possibly
long-term, borrowings or need to pay dividends in the form of taxable share dividends.
Under certain circumstances, we may be
able to rectify a failure (due to, for example, an IRS adjustment such as an increase in our taxable income or a reduction in reported expenses) to meet the 90% distribution requirement for a year by paying deficiency dividends to
shareholders in a later year, which may be included in our deduction for dividends paid for the earlier year. Thus, we may be able to avoid being taxed on amounts distributed as deficiency dividends. However, we will be required to pay interest to
the IRS based on the amount of any deduction taken for deficiency dividends.
In addition, we would be subject to a 4% excise
tax to the extent we fail to distribute during each calendar year (or in the case of distributions with declaration and record dates falling in the last three months of the calendar year, by the end of January immediately following such year) at
least the sum of 85% of our REIT ordinary income for such year, 95% of our REIT capital gain income for the year (other than certain long-term capital gains for which we make a Capital Gains Designation (as defined below) and on which we pay the
tax), and any undistributed taxable income from prior periods. Any REIT taxable income and net capital gain on which a REIT-level corporate income tax is imposed for any year is treated as an amount distributed during that year for purposes of
calculating the excise tax.
Earnings and Profits Distribution Requirement.
In order to qualify
as a REIT, we cannot have at the end of any taxable year any undistributed earnings and profits that are attributable to a C corporation taxable year (
i.e.,
a year in which a corporation is neither a REIT nor an S
corporation).
We intend to make timely distributions to satisfy the annual distribution requirements.
Failure To Qualify
Commencing with our taxable year beginning January 1, 2005, specified cure provisions are available to us in the event that we
violate a provision of the Code that would result in our failure to qualify as a REIT. These cure provisions would reduce the instances that could lead to our disqualification as a REIT for violations due to reasonable cause and would instead
generally require the payment of a monetary penalty. If we fail to qualify for taxation as a REIT in any taxable year, and the relief provisions do not apply, we will be subject to tax (including any applicable alternative minimum tax) on our
taxable income at regular corporate rates. Distributions to shareholders in any year in which we fail to qualify will not be deductible by us, and we will not be required to
S-15
distribute any amounts to our shareholders. As a result, our failure to qualify as a REIT would reduce the cash available for distribution by us to our shareholders. In addition, if we fail to
qualify as a REIT, all distributions to shareholders will be taxable as ordinary income to the extent of our current and accumulated earnings and profits, and, subject to certain limitations of the Code, corporate distributees may be eligible for
the dividends received deduction. Unless entitled to relief under specific statutory provisions, we would also be disqualified from taxation as a REIT for the four taxable years following the year during which we lost our qualification. It is not
possible to state whether in all circumstances we would be entitled to this statutory relief.
Taxation of Taxable U.S. Shareholders
The following summary describes certain U.S. federal income tax consequences to taxable U.S. Shareholders (as defined
below) with respect to an investment in our common shares. Certain U.S. federal income tax consequences applicable to tax-exempt shareholders are described under the subheading Taxation of Tax-Exempt Shareholders, below and
certain U.S. federal income tax consequences applicable to Non-U.S. Shareholders are described under the subheading Taxation of Non-U.S. Shareholders, below.
As used herein, the term U.S. Shareholder means a beneficial owner of common shares who, for U.S. federal income tax purposes:
|
|
|
is a citizen or resident of the United States;
|
|
|
|
is a corporation or other entity classified as a corporation for U.S. federal income tax purposes, created or organized in or under the laws of the
United States or of any state thereof or in the District of Columbia;
|
|
|
|
is an estate the income of which is subject to U.S. federal income taxation regardless of its source; or
|
|
|
|
is a trust (1) whose administration is subject to the primary supervision of a U.S. court and that has one or more U.S. persons who have the
authority to control all substantial decisions of the trust or (2) that has a valid election in effect under applicable U.S. Treasury Regulations to be treated as a U.S. person.
|
If a partnership, including for this purpose any arrangement or entity that is treated as a partnership for U.S. federal income tax
purposes, holds our common shares, the tax treatment of a partner in the partnership will generally depend on the status of the partner and the activities of the partnership. If you are a partner in a partnership holding our common shares, you are
urged to consult your tax advisors about the consequences of the purchase, ownership and disposition of our common shares by the partnership.
Distributions Generally.
As long as we qualify as a REIT, distributions out of our current or accumulated earnings and profits, other than capital gain dividends discussed
below, generally will constitute dividends taxable to our taxable U.S. Shareholders as ordinary income. For purposes of determining whether distributions to holders of our common shares are out of current or accumulated earnings and profits, our
earnings and profits will be allocated first to our outstanding preferred shares and then to our common shares. These distributions will not be eligible for the dividends-received deduction in the case of U.S. Shareholders that are corporations.
Because we generally are not subject to U.S. federal income tax on the portion of our REIT taxable income distributed to our
shareholders, our ordinary dividends generally are not eligible for the reduced 15% rate currently available to most non-corporate taxpayers through 2012, and will continue to be taxed at the higher tax rates applicable to ordinary income. However,
the reduced 15% rate does apply to our distributions:
|
|
|
to the extent attributable to dividends received by us from non-REIT corporations, such as a TRS; and
|
|
|
|
to the extent attributable to income upon which we have paid corporate income tax (for example, if we distribute taxable income that we retained and
paid tax on in the prior year).
|
To the extent that we make distributions in excess of our current and
accumulated earnings and profits, these distributions will be treated first as a tax-free return of capital to each U.S. Shareholder. This treatment will reduce the adjusted basis that each U.S. Shareholder has in its common shares for tax purposes
by the amount of the distribution (but not below zero). Distributions in excess of a U.S. Shareholders adjusted basis in its common shares will be taxable as capital gains (provided that the common shares have been held as a capital asset) and
S-16
will be taxable as long-term capital gain if the common shares have been held for more than one year. Dividends we declare in October, November, or December of any year and payable to a
shareholder of record on a specified date in any of these months shall be treated as both paid by us and received by the shareholders on December 31 of that year, provided we actually pay the dividend on or before January 31 of the
following calendar year. Shareholders may not include in their own income tax returns any of our net operating losses or capital losses.
Stock Dividends.
Revenue Procedure 2010-12 sets forth a safe harbor, which currently applies to dividends declared on or before December 31, 2012 with respect to a
taxable year ending on or before December 31, 2011 pursuant to which certain part-stock and part cash distributions made by REITs will satisfy the REIT distribution requirement. Under this safe harbor, a REIT may pay up to 90% of a distribution
in common stock. No determination has been made as to whether we will make future distributions in a combination of cash and common shares that meet the IRS requirements. Paying all or a portion of a dividend in a combination of cash and common
shares would allow us to satisfy our REIT taxable income distribution requirement, while enhancing our financial flexibility and balance sheet strength.
If we make a dividend distribution in a combination of cash and common shares that satisfies the revenue procedure, a U.S. Shareholder generally would include the sum of the value of the common shares and
the amount of cash received in its gross income as dividend income to the extent that such U.S. Shareholders share of the distribution is made out of its share of the portion of our current and accumulated earnings and profits allocable to
such distribution. The value of any common shares received as part of a distribution generally is equal to the amount of cash that could have been received instead of the common shares. Depending on the circumstances of the U.S. Shareholder, the tax
on the distribution may exceed the amount of the distribution received in cash, in which case such U.S. Shareholder would have to pay the tax using cash from other sources. A U.S. Shareholder that receives common shares pursuant to a distribution
generally has a tax basis in such common shares equal to the amount of cash that could have been received instead of such common shares as described above, and a holding period in such common shares that begins on the day following the payment date
for the distribution.
Capital Gain Distributions.
Distributions that we properly designate as
capital gain dividends (and undistributed amounts for which we properly make a capital gains designation) will be taxable to U.S. Shareholders as gains (to the extent that they do not exceed our actual net capital gain for the taxable year) from the
sale or disposition of a capital asset. Depending on the period of time we have held the assets which produced these gains, and on certain designations, if any, which we may make, these gains may be taxable to non-corporate U.S. Shareholders at
either a 15% or a 25% rate, depending on the nature of the asset giving rise to the gain. Corporate U.S. Shareholders may, however, be required to treat up to 20% of certain capital gain dividends as ordinary income.
Passive Activity Losses and Investment Interest Limitations.
Distributions we make and gain arising from the
sale or exchange by a U.S. Shareholder of our common shares will be treated as portfolio income. As a result, U.S. Shareholders generally will not be able to apply any passive losses against this income or gain. A U.S. Shareholder may
elect to treat capital gain dividends, capital gains from the disposition of common shares and qualified dividend income as investment income for purposes of computing the investment interest limitation, but in such case, the shareholders will be
taxed at ordinary income rates on such amount. Other distributions we make (to the extent they do not constitute a return of capital) generally will be treated as investment income for purposes of computing the investment interest limitation. Gain
arising from the sale or other disposition of our common shares, however, will not be treated as investment income under certain circumstances.
S-17
Retention of Net Long-Term Capital Gains.
We may elect to
retain, rather than distribute as a capital gain dividend, our net long-term capital gains. If we make this election (a Capital Gains Designation) we would pay tax on our retained net long-term capital gains. In addition, to the extent
we make a Capital Gains Designation, a U.S. Shareholder generally would:
|
|
|
include its proportionate share of our undistributed long-term capital gains in computing its long-term capital gains in its income tax return for its
taxable year in which the last day of our taxable year falls (subject to certain limitations as to the amount that is includable);
|
|
|
|
be deemed to have paid the capital gains tax imposed on us on the designated amounts included in the U.S. Shareholders long-term capital gains;
|
|
|
|
receive a credit or refund for the amount of tax deemed paid by it;
|
|
|
|
increase the adjusted basis of its common shares by the difference between the amount of includable gains and the tax deemed to have been paid by it;
and
|
|
|
|
in the case of a U.S. Shareholder that is a corporation, appropriately adjust its earnings and profits for the retained capital gains in accordance
with Treasury Regulations to be promulgated.
|
Dispositions of Common Shares
Generally, if you are a U.S. Shareholder and you sell or dispose of your common shares, you will recognize gain or loss for U.S. federal
income tax purposes in an amount equal to the difference between the amount of cash and the fair market value of any property you receive on the sale or other disposition and your adjusted basis in the common shares for tax purposes. This gain or
loss will be capital if you have held the common shares as a capital asset and will be long-term capital gain or loss if you have held the common shares for more than one year.
However, if you are a U.S. Shareholder and you recognize loss upon the sale or other disposition of common shares that you have held for six months or less (after applying certain holding period rules),
the loss you recognize will be treated as a long-term capital loss, to the extent you received distributions from us that were required to be treated as long-term capital gains.
The maximum tax rate for individual taxpayers on net long-term capital gains (
i.e.
, the excess of net long-term capital gain over
net short-term capital loss) is currently 15% for most assets. In the case of individuals whose ordinary income is taxed at a 10% or 15% rate, the 15% rate is reduced to 5%. Absent future legislation, the maximum tax rate on long-term capital gains
will return to 20% in 2013.
Backup Withholding
We report to our U.S. Shareholders and the IRS the amount of dividends paid during each calendar year, and the amount of any tax withheld. Under the backup withholding rules, a shareholder may be subject
to backup withholding with respect to dividends paid unless the holder is a corporation or comes within certain other exempt categories and, when required, demonstrates this fact, or provides a taxpayer identification number, certifies as to no loss
of exemption from backup withholding, and otherwise complies with applicable requirements of the backup withholding rules. A U.S. Shareholder that does not provide us with its correct taxpayer identification number may also be subject to penalties
imposed by the IRS. Backup withholding is not an additional tax. Any amount paid as backup withholding will be creditable against the shareholders income tax liability. In addition, we may be required to withhold a portion of capital gain
distributions to any shareholders who fail to certify their non-foreign status. See Taxation of Non-U.S. Shareholders.
Recent Legislation
Under recently enacted legislation, certain U.S. stockholders who are individuals, estates or trusts will be required to pay a 3.8%
Medicare tax on, among other things, dividends on and capital gains from the sale or other disposition of stock, subject to certain exceptions. This tax will apply broadly to essentially all dividends and all
S-18
gains from dispositions of stock, including dividends from REITs and gains from the disposition of REIT shares, such as our common shares. As enacted, the tax will apply for taxable years
beginning after December 31, 2012. U.S. Shareholders are urged to consult their tax advisors regarding the effect, if any, of this new legislation on taxable income arising from ownership and disposition of our common shares.
Taxation of Tax-Exempt Shareholders
The IRS has ruled that amounts distributed as dividends by a qualified REIT do not constitute unrelated business taxable income (UBTI) when received by a tax-exempt entity. Based on that
ruling, and provided that (i) a tax-exempt U.S. shareholder has not held our common shares as debt financed property within the meaning of the Code (
i.e.
, where the acquisition or ownership of common shares is financed
through a borrowing by the tax-exempt shareholder) and (ii) our common shares are not otherwise used in an unrelated trade or business, dividend income from us and income from the sale of our common shares generally will not be UBTI to a
tax-exempt shareholder.
Tax-exempt shareholders that are social clubs, voluntary employee benefit associations, supplemental
unemployment benefit trusts and qualified group legal services plans exempt from U.S. federal income taxation under sections 501(c)(7), (c)(9), (c)(17) and (c)(20) of the Code, respectively, are subject to different UBTI rules, that generally will
require them to characterize distributions from us as UBTI.
Notwithstanding the above, a pension trust (i) that is
described in Section 401(a) of the Code and is tax-exempt under Section 501(a) of the Code and (ii) that owns more than 10% of the value of our common shares could be required to treat a percentage of the dividends from us as UBTI if
we are a pension-held REIT. We will not be a pension-held REIT unless (i) either (a) one pension trust owns more than 25% of the value of our common shares or (b) a group of pension trusts, each individually holding more
than 10% of the value of our common shares, collectively owns more than 50% of our outstanding common shares and (ii) we would not have qualified as a REIT without relying upon the look through exemption for certain trusts under
Section 856(h)(3) of the Code to satisfy the requirement that not more than 50% in value of our outstanding common shares is owned by five or fewer individuals. We do not expect to be classified as a pension-held REIT, but because our common
shares are publicly traded, we cannot guarantee this will always be the case.
Tax-exempt shareholders are encouraged to
consult their own tax advisors concerning the U.S. federal, state, local and foreign tax consequences of an investment in our common shares.
Taxation of Non-U.S. Shareholders
The following discussion addresses the rules governing U.S. federal income taxation of the ownership and disposition of common shares by persons that are Non-U.S. Shareholders. As used herein, a
Non-U.S. Shareholder means a beneficial owner of our common shares that is not a U.S. Shareholder and is not a partnership or other entity that is treated as a partnership for U.S. federal income tax purposes. The rules governing U.S.
federal income taxation of Non-U.S. Shareholders are complex and no attempt is made herein to provide more than a brief summary of such rules. Non-U.S. Shareholders are urged to consult their own tax advisors concerning the U.S. federal, state,
local and foreign tax consequences to them of an acquisition of our common shares, including tax return filing requirements and the U.S. federal, state, local and foreign tax treatment of dispositions of interests in, and the receipt of
distributions from, us.
Distributions Generally.
Distributions that are neither attributable to
gain from our sale or exchange of U.S. real property interests nor designated by us as capital gain dividends will be treated as dividends of ordinary income to the extent that they are made out of our current or accumulated earnings and profits.
Such distributions ordinarily will be subject to withholding of U.S. federal income tax at a 30% rate or such lower rate as may be specified by an applicable income tax treaty, unless the distributions are treated as effectively connected with the
conduct by you of a U.S. trade or business. Under some treaties, however, lower withholding rates generally applicable to dividends do not apply to dividends from REITs. Dividends that are treated as effectively connected with the conduct of a U.S.
trade or business will be subject to tax on a net basis (that is, after allowance for deductions) at graduated rates, in the same manner as dividends paid to U.S. Shareholders are subject to tax, and
S-19
are generally not subject to withholding. Any such dividends received by a Non-U.S. Shareholder that is a corporation may also be subject to an additional branch profits tax at a 30% rate or such
lower rate as may be specified by an applicable income tax treaty.
We expect to withhold U.S. income tax at the rate of 30% on
any distributions made to you unless:
|
|
|
a lower treaty rate applies and you file with us an IRS Form W-8BEN evidencing eligibility for that reduced treaty rate; or
|
|
|
|
you file an IRS Form W-8ECI with us claiming that the distribution is income effectively connected with your U.S. trade or business.
|
Distributions in excess of our current and accumulated earnings and profits will not be taxable to you to
the extent that such distributions do not exceed your adjusted basis in our common shares. Instead, the distribution will reduce the adjusted basis of such common shares. To the extent that such distributions exceed your adjusted basis in our common
shares, they will give rise to gain from the sale or exchange of such common shares. The tax treatment of this gain is described below. Because we generally cannot determine at the time we make a distribution whether the distribution will exceed our
current and accumulated earnings and profits, we expect to treat all distributions as made out of our current or accumulated earnings and profits and we therefore expect to withhold tax on the entire amount of any distribution at the same rate as we
would withhold on a dividend. However, amounts withheld should generally be refundable if it is subsequently determined that the distribution was, in fact, in excess of our current and accumulated earnings and profits.
Capital Gain Dividends and Distributions Attributable to a Sale or Exchange of U.S. Real Property
Interests.
Distributions to you that we properly designate as capital gain dividends, other than those arising from the disposition of a U.S. real property interest, generally should not be subject to U.S. federal income
taxation, unless (1) the investment in our common shares is treated as effectively connected with your U.S. trade or business, in which case you will be subject to the same treatment as U.S. Shareholders with respect to such gain, except that a
Non-U.S. Shareholder that is a foreign corporation may also be subject to the 30% branch profits tax, as discussed above; or (2) you are a nonresident alien individual who is present in the United States for 183 days or more during the taxable
year and certain other conditions are met, in which case you will be subject to a 30% tax on your capital gains.
Distributions
that are attributable to gain from sales or exchanges of U.S. real property interests by us are taxable to a Non-U.S. Shareholder under special provisions of the Code known as the Foreign Investment in Real Property Tax Act
(FIRPTA). The term U.S. real property interests includes interests in U.S. real property. Under FIRPTA, subject to the 5% Exception (discussed below), a distribution attributable to gain from sales of U.S. real property
interests is considered effectively connected with a U.S. business of the Non-U.S. Shareholder and will be subject to U.S. federal income tax at the rates applicable to U.S. Shareholders (subject to a special alternative minimum tax adjustment in
the case of nonresident alien individuals), without regard to whether the distribution is designated as a capital gain dividend. In addition, we will be required to withhold tax equal to 35% of the amount of distribution attributable to gain from
the sale or exchange of the U.S. real property interest.
However, any distribution with respect to any class of equity
securities which is regularly traded on an established securities market located in the United States is not subject to FIRPTA, and therefore, not subject to the 35% U.S. withholding tax described above, if you did not own more than 5% of such class
of equity securities at any time during the one-year period ending on the date of the distribution (the 5% Exception). Instead, such distributions will be treated as ordinary dividend distributions and, as a result, Non-U.S. Shareholders
generally would be subject to withholding tax on such distributions in the same manner as they are subject to ordinary dividends.
Stock Dividends.
Revenue Procedure 2010-12 sets forth a safe harbor, which currently applies to dividends declared on or before December 31, 2012 with respect to a
taxable year ending on or before December 31, 2011 pursuant to which certain part-stock and part-cash distributions made by REITs will satisfy the REIT distribution requirement. Under this safe harbor, a REIT may pay up to 90% of a distribution
in common stock. No determination has been made as to whether we will make future distributions in a combination of cash and
S-20
common shares that meet the IRS requirements. Such distributions would, however, be subject to withholding tax in the same manner as described herein under Distributions
Generally and Capital Gain Dividends and Distributions Attributable to a Sale or Exchange of U.S. Real Property Interests.
Retention of Net Capital Gains.
Although the law is not clear on the matter, it appears that amounts designated by us as retained capital gains in respect of the common
shares held by Non-U.S. Shareholders generally should be treated in the same manner as actual distributions by us of capital gain dividends. Under this approach, you would be able to offset as a credit against your U.S. federal income tax liability
resulting from your proportionate share of the tax paid by us on such retained capital gains, and to receive from the IRS a refund to the extent your proportionate share of such tax paid by us exceeds your actual U.S. federal income tax liability.
Sale of Common Shares.
Gain recognized by a Non-U.S. Shareholder upon the sale or exchange of
our common shares generally will not be subject to United States taxation unless such common shares constitute a U.S. real property interest. Our common shares will not constitute a U.S. real property interest if we are a domestically-controlled
qualified investment entity, which includes a REIT. A REIT is domestically-controlled if, at all times during a specified testing period, less than 50% in value of its common shares are held directly or indirectly by Non- U.S. Shareholders. We
believe that we are, and expect to continue to be, a domestically-controlled REIT. However, because our common shares are publicly traded, no assurance can be given that we are or will be a domestically-controlled REIT.
Even if we do not qualify as a domestically-controlled REIT at the time you sell or exchange our common shares, gain arising from such a
sale or exchange would not be subject to tax under FIRPTA as a sale of a U.S. real property interest provided that (i) such common shares are of a class of our common shares that is regularly traded, as defined by applicable Treasury
Regulations, on an established securities market such as the NYSE; and (ii) you owned, actually and constructively, 5% or less in value of such class of our common shares throughout the shorter of the period during which you held such common
shares or the five-year period ending on the date of the sale or exchange.
If gain on the sale or exchange of our common
shares were subject to taxation under FIRPTA, you would be subject to regular U.S. federal income tax with respect to such gain in the same manner as a taxable U.S. Shareholder (subject to any applicable alternative minimum tax and a special
alternative minimum tax adjustment in the case of nonresident alien individuals) and the purchaser of the common shares would be required to withhold and remit to the IRS 10% of the purchase price.
Notwithstanding the foregoing, gain from the sale or exchange of our common shares not otherwise subject to FIRPTA will be taxable to you
if either (i) the investment in our common shares is effectively connected with your U.S. trade or business or (ii) you are a nonresident alien individual who is present in the United States for 183 days or more during the taxable year and
certain other conditions are met.
Backup Withholding Tax and Information Reporting.
Generally,
we must report annually to the IRS the amount of dividends paid to you, your name and address, and the amount of tax withheld, if any. A similar report is sent to you. Pursuant to tax treaties or other agreements, the IRS may make its reports
available to tax authorities in your country of residence.
Payments of dividends or of proceeds from the disposition of common
shares made to you may be subject to information reporting and backup withholding unless you establish an exemption, for example, by properly certifying your Non-U.S. Shareholder status on an IRS Form W-8BEN or another appropriate version of IRS
Form W-8. Notwithstanding the foregoing, backup withholding and information reporting may apply if either we have or our paying agent has actual knowledge, or reason to know, that you are a U.S. person.
Backup withholding is not an additional tax. Rather, the United States income tax liability of persons subject to backup withholding will
be reduced by the amount of tax withheld. If withholding results in an overpayment of taxes, a refund or credit may be obtained, provided that the required information is furnished to the IRS.
S-21
HIRE Act
Legislation enacted on March 18, 2010 will impose a 30% withholding tax on (i) dividends paid with respect to our common shares after December 31, 2013 and (ii) certain gross proceeds
from the disposition of our common shares paid after December 31, 2014 to (a) foreign financial institutions (as defined in Section 1471(d)(4) of the Code) unless they agree to collect and disclose to the Secretary of the Treasury
information regarding their direct and indirect U.S. account holders and (b) certain other foreign entities unless they certify certain information regarding their direct and indirect U.S. owners. Under some circumstances, a foreign owner may
be eligible for refunds or credits of such taxes. You are encouraged to consult with your tax advisor regarding the possible implications of this legislation on an investment in our common shares.
State and Local Tax Consequences
We may be subject to state or local taxation in various state or local jurisdictions, including those in which we transact business and our shareholders may be subject to state or local taxation in
various state or local jurisdictions, including those in which they reside. Our state and local tax treatment may not conform to the federal income tax treatment discussed above. In addition, your state and local tax treatment may not conform to the
federal income tax treatment discussed above. You are urged to consult your own tax advisors regarding the effect of state and local tax laws on an investment in our common shares.
S-22
UNDERWRITING
Under the terms and subject to the conditions of an underwriting agreement dated the date of this prospectus supplement, the underwriters,
for whom Goldman, Sachs & Co., Citigroup Global Markets Inc., Wells Fargo Securities, LLC and PNC Capital Markets LLC are acting as representatives, have agreed, severally and not jointly, to purchase, and the forward purchasers (or their
affiliates) have agreed to sell to them, the following number of common shares set forth opposite their name:
|
|
|
|
|
Underwriter
|
|
Number
of
Common Shares
|
|
Goldman, Sachs & Co.
|
|
|
3,382,500
|
|
Citigroup Global Markets Inc.
|
|
|
3,382,500
|
|
Wells Fargo Securities, LLC
|
|
|
3,176,250
|
|
PNC Capital Markets LLC
|
|
|
3,176,250
|
|
Capital One Southcoast, Inc.
|
|
|
990,000
|
|
Morgan Keegan & Company, Inc.
|
|
|
990,000
|
|
RBS Securities Inc.
|
|
|
990,000
|
|
Scotia Capital (USA) Inc.
|
|
|
412,500
|
|
|
|
|
|
|
Total
|
|
|
16,500,000
|
|
|
|
|
|
|
The underwriters are offering the common shares subject to their acceptance of the common shares from the
forward purchasers (or their affiliates) and subject to prior sale. The underwriting agreement provides that the obligations of the underwriters to pay for and accept delivery of the common shares offered by this prospectus supplement are subject to
the approval of certain legal matters by their counsel and to certain other conditions. The underwriters are obligated to take and pay for all of the common shares offered by this prospectus supplement if any such shares are taken, other than those
shares covered by the option described below.
Common shares sold by the underwriters to the public will initially be offered
at the initial price to public set forth on the cover page of this prospectus supplement. Any common shares sold by the underwriters to securities dealers may be sold at a discount of up to $0.3108 per share from the initial price to public. After
the initial offering of the common shares, the representatives may change the offering price and the other selling terms. The offering of the common shares by the underwriters is subject to receipt and acceptance and subject to the
underwriters right to reject any order in whole or in part.
The following table shows the per share and total
underwriting discounts to be paid to the underwriters.
|
|
|
|
|
|
|
|
|
|
|
No Exercise
|
|
|
Full Exercise
|
|
Per Share
|
|
$
|
0.5180
|
|
|
$
|
0.5180
|
|
Total
|
|
$
|
8,547,000
|
|
|
$
|
9,829,050
|
|
The information assumes (a) either no exercise or full exercise by the underwriters of their option
to purchase additional common shares, and (b) that the forward sale agreements are fully physically settled based upon the initial forward sale price of $12.432 per share. If we physically settle the forward sale agreements based upon the
initial forward sale price, we expect to receive net proceeds of approximately $205.0 million (assuming that the underwriters have not exercised their option to purchase additional common shares and after deducting fees and estimated expenses
related to the forward sale agreements) subject to certain adjustments as described below, upon settlement of the forward sale agreements, which settlement we expect will occur on or about June 29, 2012.
In connection with this offering, the underwriters may purchase and sell common shares in the open market. These transactions may include
short sales, stabilizing transactions and purchases to cover positions created by short sales. Short sales involve the sale by the underwriters of a greater number of common shares than they are required to purchase in this offering, and a short
position represents the amount of such sales that have not been covered by subsequent purchases. A covered short position is a short position that is not greater than the amount of additional common shares for which the
underwriters option described below may be exercised. The underwriters may cover any covered short position by either exercising their option to purchase additional common shares or purchasing common shares in the open market. In determining
the source of common shares to cover the covered short position, the underwriters will consider, among other things, the price of common
S-23
shares available for purchase in the open market as compared to the price at which they may purchase additional common shares pursuant to the option described below. Naked short sales
are any short sales that create a short position greater than the amount of additional common shares for which the option described below may be exercised. The underwriters must cover any such naked short position by purchasing common shares in the
open market. A naked short position is more likely to be created if the underwriters are concerned that there may be downward pressure on the price of the common shares in the open market after pricing that could adversely affect investors who
purchase in this offering. Stabilizing transactions consist of various bids for or purchases of common shares made by the underwriters in the open market prior to the completion of this offering.
The underwriters may also impose a penalty bid. This occurs when a particular underwriter repays to the underwriters a portion of the
underwriting discount received by it because the representatives have repurchased common shares sold by or for the account of such underwriter in stabilizing or short covering transactions.
Purchases to cover a short position and stabilizing transactions, as well as other purchases by the underwriters for their own accounts,
may have the effect of preventing or retarding a decline in the market price of our common shares, and together with the imposition of the penalty bid, may stabilize, maintain or otherwise affect the market price of our common shares. As a result,
the price of our common shares may be higher than the price that otherwise might exist in the open market. The underwriters are not required to engage in these activities and may end any of these activities at any time. These transactions may be
effected on the NYSE, in the over-the-counter market or otherwise.
We have agreed to indemnify severally the underwriters and
the forward purchasers against certain liabilities, including liabilities under the Securities Act of 1933.
The expenses of
the offering are estimated at $175,000 and are payable by us.
Our common shares are traded on the NYSE under the trading
symbol DDR.
Forward Sale Agreements
We have entered into forward sale agreements with Goldman, Sachs & Co. and Citigroup Global Markets Inc., or their affiliates, as the forward purchasers relating to an aggregate of 16,500,000 of
our common shares. In connection with the execution of such forward sale agreements and at our request, Goldman, Sachs & Co. and Citigroup Global Markets Inc., as agents for the forward purchasers or their affiliates, are borrowing from
third parties and selling in this offering an aggregate of 16,500,000 of our common shares. If any forward purchaser or its affiliate does not borrow and sell all of the common shares to be sold by it pursuant to the terms of the underwriting
agreement, we will issue and sell directly to the underwriters the number of common shares not borrowed and delivered by the relevant forward purchaser or its affiliate and the number of common shares underlying the relevant forward sale agreement
will be decreased in respect of the number of common shares that we issue and sell. Under any such circumstance, the commitment of the underwriters to purchase our common shares from the forward purchasers or their affiliates, as described above,
will be replaced with the commitment to purchase from us, at the price set forth on the cover page of this prospectus supplement at which the underwriters have agreed to purchase the common shares from the forward purchasers, the relevant number of
common shares not borrowed and delivered by the forward purchasers or their affiliates. In such event, the underwriters will have the right to postpone the closing date for one business day to effect any necessary changes to the documents or
arrangements.
We will receive an amount equal to the net proceeds from the sale of the borrowed common shares sold in this
offering, subject to certain adjustments pursuant to the forward sale agreements, at the applicable forward sale price (as described below), from the forward purchasers upon full physical settlement of the forward sale agreements. We will only
receive such proceeds if we elect to fully physically settle the forward sale agreements.
We expect each forward sale
agreement to settle on or about June 29, 2012, subject to acceleration by the relevant forward purchasers upon the occurrence of certain events. On a settlement date, if we decide to physically settle a forward sale agreement, we will issue our
common shares to the forward purchaser under its forward sale agreement at the then-applicable forward sale price. The forward sale price initially will be equal to the initial price to public less the underwriting discount per share, as set forth
on the cover page of this
prospectus supplement. The forward sale agreements provide that the forward sale price will be subject to
S-24
increase or decrease based on the federal funds rate, less a spread, and subject to decrease by amounts related to expected dividends on our common shares during the term of the forward sale
agreements. If the federal funds rate is less than the spread on any day, the interest factor will result in a daily reduction of the forward sale price. As of the date of this prospectus supplement, the federal funds rate was less than the spread.
Before settlement of the forward sale agreements, the forward sale agreements will be reflected in our diluted earnings per
share, return on equity and dividends per share calculations using the treasury stock method. Under this method, the number of our common shares used in calculating diluted earnings per share, return on equity and dividends per share is deemed to be
increased by the excess, if any, of the number of common shares that would be issued upon full physical settlement of the forward sale agreements over the number of common shares that could be purchased by us in the market (based on the average
market price during the period) using the proceeds receivable upon full physical settlement (based on the adjusted forward sale price at the end of the reporting period). Consequently, we anticipate there will be no dilutive effect on our earnings
per share, except during periods when the average market price of our common shares is above the applicable forward sale price, which is initially $12.432 per share (equal to the initial price to public less the underwriting discount per share,
as set forth on the cover page of this prospectus supplement).
Except under limited circumstances described below, we have the
right to elect physical, cash or net share settlement under the forward sale agreements. Although we expect to settle the forward sale agreements entirely by delivering our common shares in connection with full physical settlement, we may, subject
to certain conditions, elect cash settlement or net share settlement for all or a portion of our obligations if we conclude that it is in our interest to cash settle or net share settle. For example, we may conclude that it is in our interest to
cash settle or net share settle if we have no then current use for all or a portion of the net proceeds that we would receive upon physical settlement. In addition, subject to certain conditions, we may elect to accelerate the settlement of all or a
portion of the number of common shares underlying the relevant forward sale agreement. In the event that we elect to cash settle or net share settle, the settlement amount will be generally related to (1) (a) the market value of our common
shares during the relevant valuation period under the relevant forward sale agreement (which valuation period will consist of alternating scheduled trading days that do not coincide with the scheduled trading days comprising the valuation period
under the other forward sale agreement and which market value shall be subject to certain parameters set forth in the forward sale agreements related to Rule 10b-18 under the Exchange Act) minus (b) the applicable forward sale price; multiplied
by (2) the number of common shares underlying the relevant forward sale agreement subject to such cash settlement or net share settlement. If this settlement amount is a negative number, the relevant forward purchaser will pay us the absolute
value of that amount or deliver to us a number of our common shares having a value equal to the absolute value of such amount. If this settlement amount is a positive number, we will pay the relevant forward purchaser that amount or deliver to such
forward purchaser a number of our common shares having a value equal to such amount. In connection with any cash settlement or net share settlement, we would expect the relevant forward purchaser or its affiliate to purchase our common shares in
secondary market transactions for delivery to third-party stock lenders in order to close out its (or its affiliates) hedge position in respect of its forward sale agreement. The purchase of our common shares in connection with a forward
purchaser or its affiliate unwinding its hedge positions could cause the price of our common shares to increase over time (or prevent a decrease over time), thereby increasing the amount of cash we owe to the relevant forward purchaser (or
decreasing the amount of cash that such forward purchaser owes us) upon cash settlement or increasing the number of our common shares that we are obligated to deliver to such forward purchaser (or decreasing the number of our common shares that such
forward purchaser is obligated to deliver to us) upon net share settlement. See Risk Factors Risks Related to the Forward Sale Agreements.
Each forward purchaser will have the right to accelerate its forward sale agreement (with respect to all or any portion of the transaction under the forward sale agreement that the forward purchaser
determines is affected by such event) and require us to settle on a date specified by such forward purchaser if (1) such forward purchaser is unable to, or would incur a materially increased cost to, establish, maintain or unwind its hedge
position with respect to its forward sale agreement; (2) such forward purchaser determines that it is unable to, or it is commercially impracticable for it to, continue to borrow a number of our common shares equal to the number of common
shares underlying its forward sale agreement or that, with respect to borrowing
S-25
such number of common shares, it would incur a rate that is greater than the borrow cost specified in such forward sale agreement, subject to a prior notice requirement; (3) a termination event
occurs as a result of us declaring a dividend or distribution on our common shares with a cash value in excess of a specified amount per calendar quarter, certain non-cash dividends or a cash dividend or distribution specified as an
extraordinary dividend by our board of directors; (4) an extraordinary event (as such term is defined in such forward sale agreement and which includes certain mergers and tender offers and the delisting of our common shares)
occurs, or our board of directors votes to approve or there is a public announcement of, in either case, any action that, if consummated, would constitute such an extraordinary event; or (5) certain other events of default, termination events
or other specified events occur, including, among other things, any material misrepresentation made by us in connection with entering into such forward sale agreement, our bankruptcy or a change in law (as such terms are defined in such forward sale
agreement). Each forward purchasers decision to exercise its right to accelerate the settlement of the relevant forward sale agreement will be made irrespective of our need for capital. In such cases, we could be required to issue and deliver
common shares under the physical settlement provisions or, if we so elect and such forward purchaser so permits our election, net share settlement provisions of the relevant forward sale agreement irrespective of our capital needs which would result
in dilution to our earnings per share, return on equity and dividends per share. In addition, upon certain events of bankruptcy, insolvency or reorganization relating to us, the forward sale agreements will terminate without further liability of
either party. Following any such termination, we would not issue any common shares and we would not receive any proceeds pursuant to the forward sale agreements. See Risk Factors Risks Related to the Forward Sale Agreements.
Option to Purchase Additional Common Shares
We have granted the underwriters a 30-day option from the date of this prospectus supplement, exercisable in whole or in part from time to time, to purchase up to an additional 2,475,000 common shares at
the initial price to public less the underwriting discount. If the underwriters exercise this option, each underwriter will be obligated, subject to the conditions contained in the underwriting agreement, to purchase a number of additional common
shares proportionate to that underwriters initial allocation reflected in the above table. If such option is exercised, for any such exercise, the number of common shares underlying the forward sale agreements will be increased in respect of
the number of common shares that are subject to the exercise of the option. In such event, if any forward purchaser or its affiliate does not borrow and sell all of the common shares to be sold by it in connection with the exercise of such option,
we will issue and sell to the underwriters a number of our common shares equal to the number of common shares that the forward purchaser or its affiliate does not borrow and sell and the number of common shares underlying the relevant forward sale
agreement will not be increased in respect of the number of common shares that we issue and sell. In such event, the representatives will have the right to postpone the closing date for the exercise of such option for one business day to effect any
necessary changes to the documents or arrangements.
No Sales of Similar Securities
We and each of our directors and executive officers have agreed that, for a period of 45 days from the date of this prospectus supplement,
and subject to certain exceptions (including sales of common shares by our directors and executive officers to satisfy tax obligations in connection with the granting or vesting of equity awards acquired pursuant to one or more of our equity
incentive plans or the distribution of a deferred equity award pursuant to a deferred equity plan and sales by Daniel B. Hurwitz, our President and Chief Executive Officer, pursuant to his existing 10b5-1 plan), we and they will not, without the
prior written consent of the representatives, offer, sell, contract to sell, pledge, grant any option to purchase, make any short sale or otherwise dispose of any of our common shares, or any options or warrants to purchase any of our common shares,
or any securities convertible into, exchangeable for or that represent the right to receive our common shares. In the event that either (x) during the last 17 days of this restricted period, we issue an earnings release or a press release
announcing a significant event or (y) prior to the expiration of this restricted period, we announce that we will release earnings results or a press release announcing a significant event during the 17-day period beginning on the last day of
the restricted period, the restrictions described under this caption shall continue to apply until the expiration of the 17-day period beginning on the first day following the date of the earnings release or press
S-26
release. However, such extension will not apply if, within three business days prior to the 15th calendar day before the last day of the restricted period, we deliver a certificate signed by our
Chief Executive Officer or Chief Financial Officer, certifying that our common shares are actively traded securities as defined in Regulation M.
None of our significant shareholders have agreed, in connection with this offering, to any limitation on their ability to sell or otherwise dispose of common shares owned or held by them.
Relationship with Underwriters and Forward Purchasers
The underwriters, the forward purchasers and/or their respective affiliates are full service financial institutions engaged in various activities, which may include securities trading, commercial and
investment banking, financial advisory, investment management, investment research, principal investment, hedging, financing and brokerage activities. The underwriters, the forward purchasers and/or their respective affiliates have from time to time
provided, and expect to provide in the future, investment banking, commercial banking and other financial services to us and our affiliates, for which they have received and may continue to receive customary fees and commissions. In the ordinary
course of their various business activities, the underwriters, the forward purchasers and/or their respective affiliates may make or hold a broad array of investments and actively trade debt and equity securities (or related derivative securities)
and financial instruments (including bank loans) for their own account and for the accounts of their customers, and such investment and securities activities may involve securities and/or instruments of ours. The underwriters, the forward purchasers
and/or their respective affiliates may also make investment recommendations and/or publish or express independent research views in respect of such securities or instruments and may at any time hold, or recommend to clients that they acquire, long
and/or short positions in such securities and instruments.
Affiliates of each of the representatives and the forward
purchasers and certain of the other underwriters are lenders under our $750 million unsecured revolving credit facility and our secured term loan, and an affiliate of PNC Capital Markets LLC is the lender under our $65 million unsecured
revolving credit facility. Upon any application of the net proceeds from this offering to repay amounts outstanding under either of these unsecured revolving credit facilities, each such lender under the respective facility will receive its
proportionate share of the amount being repaid. See Use of Proceeds.
Goldman, Sachs & Co. served as advisor to
us on the acquisition by our joint venture with Blackstone Real Estate Partners VII of a portfolio of 46 shopping centers currently owned by EPN Group.
An affiliate of Goldman, Sachs & Co. has an investment in MacFarlane Partners Investment Management, LLC, of which Victor MacFarlane, one of our independent directors, is the majority owner.
Selling Restrictions
Other than in the United States, no action has been taken by us or the underwriters that would permit a public offering of the securities offered by this prospectus supplement in any jurisdiction where
action for that purpose is required. The securities offered by this prospectus supplement may not be offered or sold, directly or indirectly, nor may this prospectus supplement or any other offering material or advertisements in connection with the
offer and sale of any such securities be distributed or published in any jurisdiction, except under circumstances that will result in compliance with the applicable rules and regulations of that jurisdiction. Persons into whose possession this
prospectus supplement comes are advised to inform themselves about and to observe any restrictions relating to the offering and the distribution of this prospectus supplement. This prospectus supplement does not constitute an offer to sell or a
solicitation of an offer to buy any securities offered by this prospectus supplement in any jurisdiction in which such an offer or a solicitation is unlawful.
The underwriters may arrange to sell securities offered hereby in certain jurisdictions outside the United States, either directly or through affiliates, where they are permitted to do so.
In relation to each Member State of the European Economic Area (the EEA) that has implemented the Prospectus Directive, as
defined below (each, a Relevant Member State), the underwriters will be deemed to have represented and agreed that they and each of their respective affiliates, with effect from and including the date on which the Prospectus Directive is
implemented in that Relevant Member State (the Relevant Implementation Date), have not made and will not make an offer to the public of any common shares that are the subject of the offering contemplated in this prospectus supplement and
the accompanying prospectus prior to the publication of a prospectus in relation to such common shares which has been approved by the competent
S-27
authority in that Relevant Member State or, where appropriate, approved in another Relevant Member State and notified to the competent authority in that Relevant Member State, all in accordance
with the Prospectus Directive, except that they may, with effect from the Relevant Implementation Date, make an offer to the public in that Relevant Member State of any of the common shares at any time under the following exemptions under the
Prospectus Directive, if they have been implemented in that Relevant Member State:
(a) at any time to any
legal entity which is a qualified investor as defined in the Prospectus Directive;
(b) by the
underwriters to fewer than 100 or, if the Relevant Member State has implemented the relevant provisions of the 2010 PD Amending Directive, 150 natural or legal persons (other than qualified investors, as defined in the Prospectus
Directive), as permitted under the Prospectus Directive, subject to obtaining the prior consent of the underwriters for any such offer; or
(c) in any other circumstances falling within Article 3(2) of the Prospectus Directive,
provided
that no such offer of the common shares shall result in a requirement for us or the underwriters to publish a prospectus pursuant to Article 3 of the Prospectus Directive.
Any person making or intending to make any offer within the EEA of the common shares that are the subject of the offering contemplated in this prospectus supplement and the accompanying prospectus should
only do so in circumstances in which no obligation arises for us or the underwriters to produce a prospectus for such offer. Neither we nor the underwriters have authorized, or will authorize, the making of any offer of the common shares offered
hereby through any financial intermediary, other than offers made by the underwriters that constitute the final offering of the securities contemplated in this prospectus supplement and the accompanying prospectus.
For the purposes of this provision and the buyers representation below, the expression an offer to the public in
relation to the common shares in any Relevant Member State means the communication in any form and by any means of sufficient information on the terms of the offer and the common shares to be offered so as to enable an investor to decide to purchase
or subscribe the common shares, as the same may be varied in that Relevant Member State by any measure implementing the Prospectus Directive in that Relevant Member State, and the expression Prospectus Directive means Directive
2003/71/EC (and amendments thereto, including the 2010 PD Amending Directive to the extent implemented in the Relevant Member State) and includes any relevant implementing measure in each Relevant Member State and the expression 2010 PD
Amending Directive means Directive 2010/73/EU.
Each person in a Relevant Member State who receives any communication in
respect of, or who acquires any of the common shares that are the subject of the offering contemplated by this prospectus supplement and the accompanying prospectus, will be deemed to have represented, warranted and agreed to and with the
underwriters and us that:
(a) it is a qualified investor within the meaning of the law in that Relevant Member
State implementing Article 2(1)(e) of the Prospectus Directive; and
(b) in the case of any common shares
acquired by it as a financial intermediary, as that term is used in Article 3(2) of the Prospectus Directive, (i) the common shares acquired by it in the offering have not been acquired on behalf of, nor have they been acquired with a view to
their offer or resale to, persons in any Relevant Member State other than qualified investors, as defined in the Prospectus Directive, or in circumstances in which the prior consent of the underwriters has been given to the offer or
resale; or (ii) where the common shares have been acquired by it on behalf of persons in any Relevant Member State other than qualified investors, the offer of those common shares to it is not treated under the Prospectus Directive as having
been made to such persons.
In relation to the United Kingdom, each of the underwriters will be deemed to have represented and
agreed that it and each of its affiliates:
(a) has only communicated or caused to be communicated and will
only communicate or cause to be communicated any invitation or inducement to engage in investment activity (within the meaning of section 21 of the Financial Services and Markets Act 2000 (the FSMA)) received by it in connection with the
issue or sale of any common shares in circumstances in which section 21(1) of the FSMA does not apply to us; and
S-28
(b) it has complied and will comply with all applicable provisions of the
FSMA with respect to anything done by it in relation to the common shares in, from or otherwise involving the United Kingdom.
This prospectus supplement, as well as any other material relating to the common shares which are the subject of the offering contemplated
by this prospectus supplement, do not constitute an issue prospectus pursuant to Article 652a or 1156 of the Swiss Code of Obligations. The common shares will not be listed on the SIX Swiss Exchange and, therefore, the documents relating to the
common shares, including, but not limited to, this prospectus supplement and the accompanying prospectus, do not claim to comply with the disclosure standards of the listing rules of SIX Swiss Exchange and corresponding prospectus schemes annexed to
the listing rules of the SIX Swiss Exchange.
The common shares may qualify as a non-Swiss collective investment scheme
pursuant to the Swiss Federal Act on Collective Investment Schemes (the CISA). The common shares have not been, nor will they be, licensed for public distribution in and from Switzerland and they may only be offered, distributed or sold
to qualified investors in accordance with the private placement exemptions set forth by the CISA and its implementing ordinance (in particular, Article 10 para. 3 CISA and Article 6 of the ordinance to CISA). We have not been licensed
and are not subject to the supervision by the Swiss Financial Market Supervisory Authority FINMA (the FINMA). Therefore, investors in the common shares do not benefit from the specific investor protection provided by the CISA and the
supervision by the FINMA.
The common shares are being offered in Switzerland by way of a private placement, that is to a small
number of selected investors only, without any public offer and only to investors who do not purchase the common shares with the intention to distribute them to the public. The investors will be individually approached by us from time to time. This
prospectus supplement and the accompanying prospectus, as well as any other material relating to the common shares, are personal and confidential and do not constitute an offer to any other person. This prospectus supplement and the accompanying
prospectus may only be used by those investors to whom they have been handed out in connection with the offering described herein and may neither directly nor indirectly be distributed or made available to other persons without our express consent.
They may not be used in connection with any other offer and shall in particular not be copied and/or distributed to the public in (or from) Switzerland.
This prospectus supplement and the accompanying prospectus relate to an exempt offer in accordance with the Offered Securities Rules of the Dubai Financial Services Authority. This prospectus supplement
and the accompanying prospectus are intended for distribution only to persons of a type specified in those rules. They must not be delivered to, or relied on by, any other person. The Dubai Financial Services Authority has no responsibility for
reviewing or verifying any documents in connection with exempt offers. The Dubai Financial Services Authority has not approved this prospectus supplement or the accompanying prospectus nor taken steps to verify the information set out in them, and
has no responsibility for them. The common shares which are the subject of the offering contemplated by this prospectus supplement and the accompanying prospectus may be illiquid and/or subject to restrictions on their resale. Prospective purchasers
of the common shares offered should conduct their own due diligence on the common shares. If you do not understand the contents of this prospectus supplement and the accompanying prospectus you should consult an authorized financial adviser.
LEGAL MATTERS
The legality of the common shares offered hereby and certain other legal matters will be passed upon for us by Jones Day. Sidley Austin LLP will pass upon certain legal matters in connection with this
offering for the underwriters.
EXPERTS
The financial statements and managements assessment of the effectiveness of internal control over financial reporting (which is
included in Managements Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on Form 10-K for the year ended December 31, 2010 have been so incorporated in reliance on the
report of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the authority of said firm as experts in auditing and accounting.
S-29
PROSPECTUS
Developers Diversified Realty Corporation
Debt Securities
Preferred Shares
Depositary Shares Representing Preferred Shares
Common Shares
Common Share Warrants
We may offer and
sell from time to time our debt securities, preferred shares, depositary shares representing preferred shares, common shares and common share warrants. We may sell any combination of these securities in one or more offerings with an indeterminate
aggregate initial offering price.
We will provide the specific terms of the securities to be offered in one or more
supplements to this prospectus. You should read this prospectus and the applicable prospectus supplement carefully before you invest in our securities. This prospectus may not be used to offer and sell our securities unless accompanied by a
prospectus supplement describing the method and terms of the offering of those offered securities.
We may sell the securities
directly or to or through underwriters or dealers, and also to other purchasers or through agents. The names of any underwriters or agents that are included in a sale of securities to you, and any applicable commissions or discounts, will be stated
in an accompanying prospectus supplement. In addition, the underwriters, if any, may over-allot a portion of the securities.
Our common shares are listed on the New York Stock Exchange under the symbol DDR. Our Class G Cumulative Preferred
Shares, Class H Cumulative Redeemable Preferred Shares and Class I Cumulative Redeemable Preferred Shares are listed on the New York Stock Exchange under the symbols DDR-PG, DDR-PH and DDR-PI,
respectively.
Investing in any of our securities involves risks. Please read carefully the section entitled
Risk
Factors
beginning on page 1 of this prospectus.
Our executive offices are located at 3300 Enterprise
Parkway, Beachwood, Ohio 44122, and our telephone number is (216) 755-5500.
We impose certain restrictions on the
ownership of our common shares so that we can maintain our qualification as a real estate investment trust. You should read the information under the heading Description of Common Shares Restrictions on Ownership in this
prospectus for a description of those restrictions.
Neither the Securities and Exchange Commission nor any state securities
commission has approved or disapproved of these securities or determined if this prospectus is truthful or complete. Any representation to the contrary is a criminal offense.
The date of this prospectus is October 13, 2009.
We have not authorized any dealer, salesman or other person to give any information or to
make any representation other than those contained in or incorporated by reference into this prospectus, any applicable supplement to this prospectus or any applicable free writing prospectus. You must not rely upon any information or representation
not contained in or incorporated by reference into this prospectus, any applicable supplement to this prospectus or any applicable free writing prospectus as if we had authorized it. This prospectus and any applicable prospectus supplement do not
constitute an offer to sell or the solicitation of an offer to buy any securities other than the registered securities to which they relate. Nor do this prospectus and any accompanying prospectus supplement constitute an offer to sell or the
solicitation of an offer to buy securities in any jurisdiction to any person to whom it is unlawful to make such offer or solicitation in such jurisdiction. You should not assume that the information contained in this prospectus or any applicable
prospectus supplement is correct on any date after their respective dates, even though this prospectus or an applicable supplement is delivered or securities are sold on a later date. Our business, financial condition and results of operations may
have changed since those dates.
TABLE OF CONTENTS
ABOUT THIS PROSPECTUS
This prospectus is part of a registration statement that we filed with the SEC using a shelf registration process. Under this
shelf process, we may from time to time sell any combination of the securities described in this prospectus in one or more offerings of an indeterminate number and amount of securities.
This prospectus provides you with a general description of the securities we may offer. Each time we sell securities, we will provide a
prospectus supplement that will contain specific information about the terms of that offering. For a more complete understanding of the offering of the securities, you should refer to the registration statement, including its exhibits. The
prospectus supplement may also add, update or change information contained in this prospectus. You should read both this prospectus and any prospectus supplement together with additional information under the heading Where You Can Find More
Information and Information We Incorporate By Reference.
You should rely only on the information contained
or incorporated by reference in this prospectus and in any prospectus supplement or in any free writing prospectus that we may provide you. We have not authorized anyone to provide you with different information. You should not assume that the
information contained in this prospectus, any prospectus supplement, any document incorporated by reference or any free writing prospectus is accurate as of any date, other than the date of the applicable document. We are not making offers to sell
the securities in any jurisdiction in which an offer or solicitation is not authorized or in which the person making such offer or solicitation is not qualified to do so or to anyone to whom it is unlawful to make an offer or solicitation.
Unless otherwise indicated or unless the context requires otherwise, all references in this prospectus to we,
us, our, the Company or DDR mean Developers Diversified Realty Corporation and all wholly-owned and majority-owned subsidiaries and consolidated joint ventures of Developers Diversified Realty
Corporation.
THE COMPANY
We are an Ohio corporation and are a self-administered and self-managed real estate investment trust, or a REIT, operating as a fully
integrated real estate company which acquires, develops and leases shopping centers.
Our executive offices are located at 3300
Enterprise Parkway, Beachwood, Ohio 44122, and our telephone number is (216) 755-5500. Our website is located at http://www.ddr.com. Information on, or accessible through, our website is not part of, or incorporated by reference into, this
prospectus other than the documents that we file with the Securities and Exchange Commission, or the SEC, and incorporate by reference into this prospectus.
RISK FACTORS
Investing in our securities
involves risk. Prior to making a decision about investing in our securities, you should carefully consider the specific factors discussed under the heading Risk Factors in our most recent Annual Report on Form 10-K and in our most
recent Quarterly Reports on Form 10-Q, which are incorporated herein by reference and may be amended, supplemented or superseded from time to time by other reports we file with the SEC in the future. The risks and uncertainties we have
described are not the only ones we face. Additional risks and uncertainties not presently known to us or that we currently deem immaterial may also affect our operations. If any of these risks actually occurs, our business, results of operations and
financial condition could suffer. In that case, the trading price of our securities could decline, and you could lose all or a part of your investment.
1
DISCLOSURE REGARDING FORWARD-LOOKING STATEMENTS
This prospectus and the documents we incorporate by reference contain forward-looking information, as defined in the Private
Securities Litigation Reform Act of 1995, that is based on current expectations, estimates and projections. Forward-looking information includes, without limitation, statements related to acquisitions (including any related pro forma financial
information) and other business development activities, future capital expenditures, financing sources and availability and the effects of environmental and other regulations. Although we believe that the expectations reflected in those
forward-looking statements are based upon reasonable assumptions, we can give no assurance that our expectations will be achieved. For this purpose, any statements contained herein that are not statements of historical fact should be deemed to be
forward-looking statements. Without limiting the foregoing, the words will, believes, anticipates, plans, expects, seeks, estimates, projects,
intends, potential, forecasts and similar expressions are intended to identify forward-looking statements. You should exercise caution in interpreting and relying on forward-looking statements because they involve
known and unknown risks, uncertainties and other factors that are, in some cases, beyond our control and that could cause actual results to differ materially from those expressed or implied in the forward-looking statements and could materially
affect our actual results, performance or achievements. You are cautioned not to place undue reliance on these forward-looking statements, which speak only as of the date on which they were made. We expressly state that we have no current intention
to update any forward-looking statements, whether as a result of new information, future events or otherwise, unless required by law.
Factors that could cause actual results, performance or achievements to differ materially from those expressed or implied by forward-looking statements include, but are not limited to, the following:
|
|
|
We are subject to general risks affecting the real estate industry, including the need to enter into new leases or renew leases on favorable terms to
generate rental revenues, and the current economic downturn may adversely affect the ability of our tenants, or new tenants, to enter into new leases or the ability of our existing tenants to renew their leases at rates at least as favorable as
their current rates;
|
|
|
|
We could be adversely affected by changes in the local markets where our properties are located, as well as by adverse changes in national economic and
market conditions;
|
|
|
|
We may fail to anticipate the effects on our properties of changes in consumer buying practices, including catalog sales and sales over the Internet
and the resulting retailing practices and space needs of our tenants or a general downturn in our tenants businesses, which may cause tenants to close stores;
|
|
|
|
We are subject to competition for tenants from other owners of retail properties, and our tenants are subject to competition from other retailers and
methods of distribution. We are dependent upon the successful operations and financial condition of our tenants, in particular of our major tenants, and could be adversely affected by the bankruptcy of those tenants;
|
|
|
|
We rely on major tenants, which makes us vulnerable to changes in the business and financial condition of, or demand for our space, by such tenants;
|
|
|
|
We may fail to dispose of properties on favorable terms. In addition, real estate investments can be illiquid, particularly as prospective buyers may
experience increased costs of financing or difficulties obtaining financing, and could limit our ability to promptly make changes to our portfolio to respond to economic and other conditions;
|
|
|
|
We may not realize the intended benefits of acquisition or merger transactions. The acquired assets may not perform as well as we anticipated, or we
may not successfully integrate the assets and realize the improvements in occupancy and operating results that we anticipate. The acquisition of certain assets may subject us to liabilities, including environmental liabilities;
|
|
|
|
We may fail to identify, acquire, construct or develop additional properties that produce a desired yield on invested capital, or may fail to
effectively integrate acquisitions of properties or portfolios of properties;
|
2
|
|
|
We may be limited in our acquisition opportunities due to competition, the inability to obtain financing on reasonable terms or any financing at all
and other factors;
|
|
|
|
We may abandon a development opportunity after expending resources if we determine that the development opportunity is not feasible due to a variety of
factors, including a lack of availability of construction financing on reasonable terms, the impact of the current economic environment on prospective tenants ability to enter into new leases or pay contractual rent, or our inability to obtain
all necessary zoning and other required governmental permits and authorizations;
|
|
|
|
We may not complete development projects on schedule as a result of various factors, many of which are beyond our control, such as weather, labor
conditions, governmental approvals, material shortages or general economic downturn resulting in limited availability of capital, increased debt service expense and construction costs and decreases in revenue;
|
|
|
|
Our financial condition may be affected by required debt service payments, the risk of default and restrictions on our ability to incur additional debt
or enter into certain transactions under our credit facilities and other documents governing our debt obligations. In addition, we may encounter difficulties in obtaining permanent financing or refinancing existing debt. Borrowings under our credit
facilities are subject to certain representations and warranties and customary events of default, including any event that has had or could reasonably be expected to have a material adverse effect on our business or financial condition;
|
|
|
|
Changes in interest rates could adversely affect the market price of our securities, as well as our performance and cash flow;
|
|
|
|
Debt and/or equity financing necessary for us to continue to grow and operate our business may not be available or may not be available on favorable
terms or at all;
|
|
|
|
Recent disruptions in the financial markets could affect our ability to obtain financing on reasonable terms and have other adverse effects on us and
the market price of our securities;
|
|
|
|
We are subject to complex regulations related to our status as a real estate investment trust, or REIT, and would be adversely affected if we failed to
qualify as a REIT;
|
|
|
|
We must make distributions to shareholders to continue to qualify as a REIT, and if we must borrow funds to make distributions, those borrowings may
not be available on favorable terms or at all;
|
|
|
|
Joint venture investments may involve risks not otherwise present for investments made solely by us, including the possibility that a partner or
co-venturer may become bankrupt, may at any time have different interests or goals than our interests or goals and may take action contrary to our instructions, requests, policies or objectives, including our policy with respect to maintaining our
qualification as a REIT. In addition, a partner or co-venturer may not have access to sufficient capital to satisfy its funding obligations to the joint venture. The partner could default on the loans outside of our control. Furthermore, if the
current constrained credit conditions in the capital markets persist or deteriorate further, we could be required to reduce the carrying value of our equity method investments if a loss in the carrying value of the investment is other than a
temporary decline pursuant to Accounting Principles Board No. 18, The Equity Method of Accounting for Investments in Common Stock;
|
|
|
|
We may not realize anticipated returns from our real estate assets outside the United States. We expect to continue to pursue international
opportunities that may subject us to different or greater risks than those associated with our domestic operations. We own assets in Puerto Rico, an interest in an unconsolidated joint venture that owns properties in Brazil and an interest in
consolidated joint ventures that will develop and own properties in Canada, Russia and Ukraine;
|
3
|
|
|
International development and ownership activities carry risks that are different from those we face with our domestic properties and operations. These
risks include:
|
|
|
|
Adverse effects of changes in exchange rates for foreign currencies;
|
|
|
|
Changes in foreign political or economic environments;
|
|
|
|
Challenges of complying with a wide variety of foreign laws including tax laws and addressing different practices and customs relating to corporate
governance, operations and litigation;
|
|
|
|
Different lending practices;
|
|
|
|
Cultural and consumer differences;
|
|
|
|
Changes in applicable laws and regulations in the United States that affect foreign operations;
|
|
|
|
Difficulties in managing international operations; and
|
|
|
|
Obstacles to the repatriation of earnings and cash;
|
|
|
|
Although our international activities are currently a relatively small portion of our business, to the extent we expand our international activities,
these risks could significantly increase and adversely affect our results of operations and financial condition;
|
|
|
|
We are subject to potential environmental liabilities;
|
|
|
|
We may incur losses that are uninsured or exceed policy coverage due to our liability for certain injuries to persons, property or the environment
occurring on our properties; and
|
|
|
|
We could incur additional expenses in order to comply with or respond to claims under the Americans with Disabilities Act or otherwise be adversely
affected by changes in government regulations, including changes in environmental, zoning, tax and other regulations.
|
These factors and the other risk factors described in this prospectus and any prospectus supplement, including the documents incorporated by reference, are not necessarily all of the important factors
that could cause our actual results, performance or achievements to differ materially from those expressed in or implied by any of our forward-looking statements. Other unknown or unpredictable factors also could harm our results. Consequently,
there can be no assurance that the actual results or developments anticipated by us will be realized or, even if substantially realized, that they will have the expected consequences to or effects on us.
USE OF PROCEEDS
We intend to use the net proceeds from the sale of our securities offered under this prospectus for working capital and general corporate purposes including, but not limited to: the repayment of our
indebtedness; the redemption of outstanding securities; the acquisition or development of properties (including using the net proceeds for possible portfolio or asset acquisitions or in business combinations or joint ventures) as suitable
opportunities arise; and the expansion and improvement of certain properties in our portfolio.
Pending any specific
application, we may initially invest funds in short-term marketable securities or apply them to the reduction of short-term indebtedness.
4
RATIO OF EARNINGS TO FIXED CHARGES AND
RATIO OF EARNINGS TO COMBINED FIXED CHARGES AND PREFERRED SHARE DIVIDENDS
The following table sets forth our ratios of earnings to fixed charges for the periods indicated. For this purpose, earnings
consist of earnings from continuing operations, excluding income taxes, non-controlling interest share in earnings and fixed charges, other than capitalized interest, and fixed charges consist of interest on borrowed funds, including
amounts that have been capitalized, and amortization of capitalized debt issuance costs, debt premiums and debt discounts.
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
|
Year Ended December 31,
|
|
|
Six Months
Ended June 30,
|
|
|
|
2004
|
|
|
2005
|
|
|
2006(a)
|
|
|
2007(a)
|
|
|
2008(a)
|
|
|
2009
|
|
Ratio of Earnings to Fixed Charges
|
|
|
2.9x
|
|
|
|
2.3x
|
|
|
|
2.0x
|
|
|
|
1.7x
|
|
|
|
(b
|
)
|
|
|
(b
|
)
|
Ratio of Earnings to Combined Fixed Charges and Preferred Share Dividends
|
|
|
2.05x
|
|
|
|
1.79x
|
|
|
|
1.58x
|
|
|
|
1.52x
|
|
|
|
(c
|
)
|
|
|
(c
|
)
|
(a)
|
These periods have been adjusted to reflect the retroactive adoption of FSP APB 14-1, also known as ASC 470-02, for interest expense related to our convertible debt.
|
(b)
|
Due to our loss from continuing operations for the six months ended June 30, 2009 and the year ended December 31, 2008, the ratio coverage was less than 1:1.
We would have needed to generate additional earnings of $121.7 million and $118.1 million to achieve a coverage of 1:1 for the six months ended June 30, 2009 and the year ended December 31, 2008.
|
The loss from continuing operations for the six months ended June 30, 2009 includes impairment charges, including impairment of joint
venture investments, of $159.1 million that are discussed in our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2009. The loss from continuing operations for 2008 includes impairment charges, including
impairment of joint venture investments, of $183.2 million that are discussed in our Current Report on Form 8-K filed August 10, 2009, which updates certain portions of our Annual Report on Form 10-K for the year ended
December 31, 2008.
(c)
|
Due to our loss from continuing operations for the six months ended June 30, 2009 and the year ended December 31, 2008, the ratio coverage was less than 1:1.
We would have needed to generate additional earnings of $142.8 million and $160.4 million to achieve a coverage of 1:1 for the six months ended June 30, 2009 and the year ended December 31, 2008.
|
The loss from continuing operations for 2008 includes impairment charges, including impairment of joint ventures, of $183.2 million
that are discussed in our Current Report of Form 8-K filed August 10, 2009, which updates certain portions of our Annual Report on Form 10-K for the year ended December 31, 2008. The loss from continuing operations for the six
months ended June 30, 2009 includes impairment charges, including impairments of joint ventures, of $159.1 million that are discussed in our Quarterly Report on Form 10-Q for the quarterly period ended June 30, 2009.
DESCRIPTION OF DEBT SECURITIES
Our senior securities will be issued under a senior indenture dated as of May 1, 1994, as amended or supplemented from time to time, between the Company and U.S. Bank National Association, as
Trustee. Our subordinated securities will be issued under a subordinated indenture dated as of May 1, 1994, as amended or supplemented from time to time between the Company and The Bank of New York Mellon, as Trustee.
The following description is a summary of the material provisions of the indentures including references to the applicable section of the
indentures. It does not restate the indentures in their entirety. We urge you to read the indentures because they, and not this description, define the rights of holders of debt securities. Except as
5
otherwise defined herein, terms used in this description but not otherwise defined herein are used as defined in the indentures. When we refer to DDR, we, our,
us, and the Company in this section, we are referring to Developers Diversified Realty Corporation excluding its subsidiaries, unless the context otherwise requires or as otherwise expressly stated herein.
The indentures have been incorporated by reference as exhibits to the Registration Statement of which this prospectus is a part. The
indentures are available for inspection at the corporate trust offices of the applicable Trustee as follows: (i) U.S. Bank National Association, 100 Wall Street, Suite 1600, New York, NY 10005, and (ii) The Bank of New York
Mellon, 101 Barclay Street, Floor 8W, New York, New York 10286. The indentures are subject to, and are governed by, the Trust Indenture Act of 1939. All section references appearing in this description are to sections of the applicable
indenture.
General
Our debt securities will be direct, unsecured obligations. The debt securities issued under each indenture are not limited as to aggregate principal amount and may be issued in one or more series. The
principal amount and series will be established from time to time in or pursuant to authority granted by a resolution of our board of directors. The principal amount and series also may be established in one or more indentures supplemental to the
applicable indenture. All debt securities of one series need not be issued at the same time (section 301 of the indentures). Unless otherwise provided, a series may be reopened for issuances of additional debt securities of such series without
the consent of the holders of the debt securities of such series (section 301 of the indentures). Either Trustee may resign or be removed with respect to one or more series of debt securities issued under the applicable indenture, and a
successor Trustee may be appointed to act with respect to such series.
Reference is made to each prospectus supplement for the
specific terms of the series of debt securities being offered thereby, including:
(1) the title of such debt
securities;
(2) the aggregate principal amount of such debt securities and any limit on such aggregate
principal amount;
(3) the percentage of the principal amount at which such debt securities will be issued
and, if other than the principal amount thereof, the portion of the principal amount thereof payable upon declaration of acceleration of the maturity of such debt securities, or (if applicable) the portion of the principal amount of such debt
securities which is convertible into our common shares or other equity securities, or the method by which any such portion shall be determined;
(4) if such debt securities are convertible, any limitation on the ownership or transferability of our common shares or other equity securities into which such debt securities are convertible in
connection with the preservation of our status as a REIT;
(5) the date(s), or the method for determining
the date(s), on which the principal of such debt securities will be payable;
(6) the rate(s) (which may
be fixed or variable) at which such debt securities will bear interest, if any, or the method by which such rate(s) shall be determined;
(7) the date(s), or the method for determining the date(s), from which interest, if any, will accrue;
(8) the date(s) on which any interest will be payable;
(9) the record date(s) for an interest payment, or the method by which such record date(s) shall be determined (the
record date for an interest payment is the date on which a Person must be a holder in order to receive the interest payment);
6
(10) the Person to whom any interest shall be payable;
(11) the basis upon which any interest shall be calculated if other than that of a 360-day year of twelve 30-day
months;
(12) the place(s) where:
a. the principal of (and premium, if any) or interest, if any, on such debt securities will be payable,
b. such debt securities may be surrendered for conversion or registration of transfer or exchange, and
c. notices or demands in respect of such debt securities and the applicable indenture may be served;
(13) the period(s) within which, the price(s) at which, and the terms and conditions upon which such debt securities
may be redeemed at our option, as a whole or in part, if we are to have the option to redeem such debt securities;
(14) our obligation, if any, to redeem, repay or purchase such debt securities pursuant to any sinking fund or analogous provision or at the option of a holder thereof, and the period(s) within
which, the price(s) at which, and the terms and conditions upon which we are obligated, if at all, to redeem, repay or purchase such debt securities, as a whole or in part, pursuant to any sinking fund or analogous provision or at the option of a
holder thereof;
(15) if other than U.S. dollars, the currency or currencies in which such debt
securities are denominated and payable, which may be a foreign currency or units of two or more foreign currencies or a composite currency or currencies, and the terms and conditions relating thereto;
(16) whether the amount of payments of principal of (and premium, if any) or interest, if any, on such debt
securities may be determined with reference to an index, formula or other method and the manner in which such amounts shall be determined (the index, formula or method may, but need not be, based on a currency, currencies, currency unit or units or
composite currency or currencies);
(17) any additions to, modifications of or deletions from the terms of
such debt securities with respect to the Events of Default or covenants set forth in the applicable indenture;
(18) whether such debt securities will be issued in certificated or book-entry form;
(19) whether such debt securities will be in registered or bearer form or both and, if and to the extent in
registered form, the denominations thereof if other than $1,000 and any integral multiple thereof and, if and to the extent in bearer form, the denominations thereof and terms and conditions relating thereto;
(20) the applicability, if any, of the defeasance and covenant defeasance provisions of the applicable indenture;
(21) the terms, if any, upon which such debt securities may be convertible into our common shares or
other equity securities (and the class thereof) and the terms and conditions upon which such conversion will be effected, including, without limitation, the initial conversion price or rate and the conversion period;
(22) whether and under what circumstances we will pay Additional Amounts on such debt securities in respect of any
tax, assessment or governmental charge and, if so, whether we will have the option to redeem such debt securities in lieu of making such payment; and
(23) any other terms of such debt securities not inconsistent with the provisions of the applicable indenture.
7
The debt securities may provide for the payment of less than the entire principal amount
upon declaration of acceleration of the maturity of the debt securities. Such debt securities are known as Original Issue Discount Securities. Any material U.S. federal income tax, accounting and other considerations applicable to
Original Issue Discount Securities will be described in the applicable prospectus supplement.
Except as set forth under the
captions Material Covenants Limitation on Incurrence of Debt and Maintenance of Unencumbered Real Estate Assets, which relate solely to the senior indenture and the senior securities, or as may be
contained in a supplemental indenture relating to a series of debt securities, neither indenture contains any additional provision that would limit our ability to incur indebtedness or that would afford holders of debt securities protection in a
highly leveraged or similar action involving DDR or in the event of a change of control of DDR. However, certain restrictions on ownership and transfer of our common shares and other equity securities designed to preserve our status as a REIT may
act to prevent or hinder a change of control. See Description of Common Shares, Description of Preferred Shares and Description of Depositary Shares Representing Preferred Shares. Reference is made to the
applicable prospectus supplement for information with respect to any deletion from, modification of or addition to the Events of Default or our covenants that are described below, including any addition of a covenant or other provision providing
event risk or similar protection.
Denominations, Interest, Registration and Transfer
Unless otherwise described in the applicable prospectus supplement, the debt securities of any series will be issued in denominations of
$1,000 and integral multiples thereof (section 302 of the indentures).
Unless otherwise specified in the applicable
prospectus supplement, principal, premium, if any, and interest payments on any series of debt securities will be made at the corporate trust office of the applicable Trustee as follows: (i) U.S. Bank National Association, 100 Wall Street,
Suite 1600, New York, NY 10005 and (ii) The Bank of New York Mellon, 101 Barclay Street, Floor 8W, New York, New York 10286. However, we may elect to pay interest by check mailed to the address of the holder as it appears in the register
for debt securities of such series or by wire transfer of funds to the holder at an account maintained within the United States (sections 301, 305, 306, 307 and 1002 of the indentures).
Any interest with respect to a debt security that is not punctually paid or duly provided for on the date the interest is due and payable
will cease to be payable thereafter to the holder on the applicable record date. The interest may be paid to the holder at the close of business on a special record date fixed by the applicable Trustee for the payment of the interest. Notice of such
payment must be given to the holder of such debt security not less than 10 days prior to the special record date. Such interest may also be paid at any time in any other lawful manner, all as more completely described in the applicable
indenture (section 307 of the indentures).
Subject to certain limitations applicable to debt securities issued in
book-entry form, the debt securities of any series will be exchangeable for other debt securities of the same series and of a like aggregate principal amount and tenor of different authorized denominations upon surrender of such debt securities at
the corporate trust office of the applicable Trustee. In addition, subject to certain limitations applicable to debt securities issued in book-entry form, the debt securities of any series may be surrendered for conversion or registration of
transfer thereof at the corporate trust office of the applicable Trustee. Every debt security surrendered for conversion, registration of transfer or exchange must be duly endorsed or accompanied by a written instrument of transfer. No service
charge will be incurred for any registration of transfer or exchange of any debt securities, but we may require payment of a sum sufficient to cover any tax or other governmental charge payable in connection therewith (section 305 of the
indentures). If the applicable prospectus supplement refers to any transfer agent (in addition to the Trustee) that we initially designated with respect to any series of debt securities, we may at any time rescind the designation of any such
transfer agent or approve a change in the location at which any such transfer agent acts; however, we will be required to maintain a transfer agent in each place where principal, premium, if any, and interest payments on debt securities of such
series are payable. We may designate additional transfer agents with respect to any series of debt securities at any time (section 1002 of the indentures).
8
Neither DDR nor any Trustee will be required:
|
|
|
to issue, register the transfer of or exchange debt securities of any series during a period beginning at the opening of business 15 days before
any selection of debt securities of that series to be redeemed and ending at the close of business on the day of mailing of the relevant notice of redemption;
|
|
|
|
to register the transfer of or exchange any debt security, or portion thereof, called for redemption, except the unredeemed portion of any debt
security being redeemed in part; or
|
|
|
|
to issue, register the transfer of or exchange any debt security that has been surrendered for repayment at the option of the holder, except the
portion, if any, of such debt security not to be repaid (section 305 of the indentures).
|
Merger, Consolidation or
Sale
Each indenture provides that we may consolidate with, or sell, lease or convey all or substantially all of our assets
to, or merge with or into, any other corporation, provided that:
(1) we are the continuing corporation,
or the successor corporation expressly assumes payment of the principal of (and premium, if any), and interest on, all of the outstanding debt securities and the due and punctual performance and observance of all of the covenants and conditions
contained in the applicable indenture;
(2) immediately after giving effect to such transaction and
treating any indebtedness which becomes our or our subsidiaries obligation as a result thereof as having been incurred by us or our subsidiaries at the time of such transaction, no Event of Default under the applicable indenture, and no event
which, after notice or the lapse of time, or both, would become such an Event of Default, occurs and is continuing; and
(3) an officers certificate and legal opinion confirming the satisfaction of the conditions are delivered to the applicable Trustee (sections 801 and 803 of the indentures).
Material Covenants
The
subordinated indenture does not contain the covenants described in this section. It also does not contain any limitation on the amount of Debt (as defined below) of any kind that we may incur or on the amount of dividends or other distributions that
we may pay our shareholders. The senior indenture contains the following covenants:
Limitation on Incurrence of
Debt.
We will not, and will not permit any subsidiary to, incur any Debt if, immediately after the incurrence of such additional Debt, the aggregate principal amount of all our outstanding Debt on a consolidated basis
determined in accordance with generally accepted accounting principles is greater than 65% of the sum of:
(1) our Undepreciated Real Estate Assets (as defined below) as of the end of the calendar quarter covered in our
Annual Report on Form 10-K or Quarterly Report on Form 10-Q most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, filed with the applicable Trustee) prior to the incurrence of such additional
Debt, and
(2) the purchase price of all real estate assets acquired by us or our subsidiaries since
the end of such calendar quarter, including those obtained in connection with the incurrence of such additional Debt (section 1004 of the senior indenture).
We will not, and will not permit any subsidiary to, incur any Debt if Consolidated Income Available for Debt Service (as defined below) for any 12 consecutive calendar months within the 15 calendar months
immediately preceding the date on which such additional Debt is to be incurred shall have been less than 1.5 times the Maximum Annual Service Charge (as defined below) on our consolidated Debt to be outstanding immediately after the incurrence of
such additional Debt (section 1004 of the senior indenture).
9
In addition to the foregoing limitations on the incurrence of Secured Debt, in connection
with the issuance of our 4.625% Notes Due 2010, 3.875% Notes Due 2009, 5.25% Notes Due 2011, 5.0% Notes Due 2010, 5.5% Notes Due 2015, 5.375% Notes Due 2012 and 9.625% Notes Due 2016, we have added a covenant providing
that as long as any of our 4.625% Notes Due 2010, 3.875% Notes Due 2009, 5.25% Notes Due 2011, 5.0% Notes Due 2010, 5.5% Notes Due 2015, 5.375% Notes Due 2012 and 9.625% Notes Due 2016 remain outstanding, we will
not, and will not permit any subsidiary to, incur any Secured Debt, if immediately after giving effect to the incurrence of such Secured Debt and the application of the proceeds from such Secured Debt, the aggregate amount of all of our and our
subsidiaries outstanding Secured Debt on a consolidated basis is greater than 40% of the sum of our Total Assets as of the end of the calendar quarter covered in our Annual Report on Form 10-K or Quarterly Report on Form 10-Q, as the
case may be, most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, with the Trustee) prior to the incurrence of such additional Secured Debt and the increase, if any, in Total Assets from the end of such
quarter, including, without limitation, any increase in Total Assets caused by the application of the proceeds of additional Secured Debt.
Restrictions on Dividends and Other Distributions.
We will not:
|
|
|
declare or pay any dividends (other than dividends payable in our capital stock) on any shares of our capital stock;
|
|
|
|
apply any of our property or assets to the purchase, redemption or other acquisition or retirement of any shares of our capital stock;
|
|
|
|
set apart any sum for the purchase, redemption or other acquisition or retirement of any shares of our capital stock; or
|
|
|
|
make any other distribution on any shares of our capital stock, by reduction of capital or otherwise
|
if, immediately after such declaration or other such action, the aggregate of all such declarations and other actions since the date
on which the indenture was originally executed exceeds the sum of (a) Funds from Operations from December 31, 1993 until the end of the latest calendar quarter covered in our Annual Report on Form 10-K or Quarterly Report on
Form 10-Q most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, with the applicable Trustee) prior to such declaration or other action and (b) $20,000,000.
This limitation does not apply to any declaration or other action referred to above which is necessary to maintain our status as a REIT
under the Code if the aggregate principal amount of all our and our subsidiaries outstanding Debt at such time is less than 65% of our Undepreciated Real Estate Assets as of the end of the latest calendar quarter covered in our Annual Report
on Form 10-K or Quarterly Report on Form 10-Q most recently filed with the SEC (or, if such filing is not permitted under the Exchange Act, with the applicable Trustee) prior to such declaration or other action (section 1005 of the
senior indenture).
Notwithstanding the provisions described above, we will not be prohibited from making the payment of any
dividend within 30 days after the declaration thereof if, at the date of declaration, such payment would have complied with those provisions (section 1005 of the senior indenture).
Existence.
Except as permitted under the provisions of the senior indenture described under the caption
Merger, Consolidation or Sale, we must preserve and keep in full force and effect our corporate existence, rights (charter and statutory) and franchises. We will not be required to preserve any right or franchise if we determine that the
preservation of that right or franchise is no longer desirable in the conduct of our business and that the loss thereof is not disadvantageous in any material respect to the holders of the senior securities (section 1006 of the senior
indenture).
Maintenance of Properties.
All of our properties that are used or useful in the
conduct of our business or the business of our subsidiaries must be maintained and kept in good condition, repair and working order and supplied with all necessary equipment. We also are required to make all necessary repairs, renewals,
10
replacements, betterments and improvements to our properties. We must do these things as necessary in our judgment to conduct the business carried on in connection therewith in a proper and
advantageous manner at all times. However, we and our subsidiaries will not be prevented from selling or otherwise disposing of properties for value in the ordinary course of business (section 1007 of the senior indenture).
Insurance.
We will, and will cause each of our subsidiaries to, keep all of our or their respective
insurable properties insured against loss or damage at least equal to the properties then full insurable value with insurers of recognized responsibility having a rating of at least A:VIII in Bests Key Rating Guide (section 1008 of
the senior indenture).
Payment of Taxes and Other Claims.
We must pay or discharge, or cause to
be paid or discharged, before the same become delinquent:
(1) all taxes, assessments and governmental
charges levied or imposed upon us or any of our subsidiaries or upon our or any of our subsidiaries income, profits or property; and
(2) all lawful claims for labor, materials and supplies that, if unpaid, might by law become a lien upon our property or the property of any of our subsidiaries.
However, we will not be required to pay or discharge, or cause to be paid or discharged, any such tax, assessment, charge or claim whose
amount, applicability or validity is being contested in good faith by appropriate proceedings (section 1009 of the senior indenture).
Provision of Financial Information.
Whether or not we are subject to Section 13 or 15(d) of the Exchange Act, we must, to the extent permitted under the Exchange Act,
file with the SEC the annual reports, quarterly reports and other documents which we would have been required to file with the SEC pursuant to such Section 13 or 15(d) if we were so subject, on or prior to the respective dates by which we would
have been required to file such documents. We must also in any event:
(1) within 15 days after such
document would have been required to be filed:
a. mail to all holders of senior securities, as their
names and addresses appear in the register for debt securities of each series, without cost to such holders, copies of such annual reports and quarterly reports which we would have been required to file with the SEC pursuant to Section 13 or
15(d) of the Exchange Act if we were subject to those sections, and
b. file with the applicable
Trustee copies of such annual reports, quarterly reports and other documents which we would have been required to file with the SEC pursuant to Section 13 or 15(d) of the Exchange Act if we were subject to those Sections, and
(2) if we are not permitted to file such documents with the SEC under the Exchange Act, we must supply copies of such
documents to any prospective holder of senior securities promptly upon written request and payment of the reasonable cost of duplication and delivery of such documents (section 1010 of the senior indenture).
Maintenance of Unencumbered Real Estate Assets.
We must maintain an Unencumbered Real Estate
Asset Value of not less than 135% of the aggregate principal amount of all our and our subsidiaries outstanding unsecured Debt (section 1011 of the senior indenture).
Events of Default, Notice and Waiver
Each indenture provides that the
following events are Events of Default with respect to any series of debt securities issued thereunder:
(1) default for 30 days in the payment of any installment of interest, Additional Amounts or coupons on any debt security of such series;
11
(2) default in the payment of the principal of (or premium, if any, on)
any debt security of such series at the time such payment becomes due and payable;
(3) default in making
any sinking fund payment as required for any debt security of such series;
(4) default in the
performance, or breach, of any other covenant or warranty contained in the applicable indenture continued for 60 days after written notice as provided in such indenture; however, default in the performance, or breach, of a covenant or warranty
added to such indenture solely for the benefit of a series of debt securities issued thereunder other than such series is not an Event of Default;
(5) default under any bond, debenture, note or other evidence of indebtedness of the Company or under any mortgage, indenture or other instrument of the Company under which there may be issued or by
which there may be secured or evidenced any indebtedness of the Company (or by any subsidiary, the repayment of which the Company has guaranteed or for which the Company is directly responsible or liable as obligor or guarantor), which results in
the acceleration of indebtedness in an aggregate principal amount exceeding $10,000,000, but only if such indebtedness is not discharged or such acceleration is not rescinded or annulled as provided in the applicable indenture;
(6) certain events of bankruptcy, insolvency or reorganization, or court appointment of a receiver, liquidator or
trustee, of the Company or of any significant subsidiary of the Company as defined in Regulation S-X promulgated under the Securities Act or of the respective property of either; and
(7) any other Event of Default provided with respect to that series of debt securities (section 501 of the
indentures).
If an Event of Default occurs under either indenture with respect to Outstanding debt securities of any series
issued thereunder and is continuing, then the Trustee or the holders of not less than 25% in principal amount of the Outstanding debt securities of that series may declare the principal amount of all of the debt securities of that series to be due
and payable immediately by written notice to us. If the holders give notice to us, they must also give notice to the applicable Trustee. If the debt securities are Original Issue Discount Securities or Indexed Securities, the amount declared to be
due and payable will be such portion of the principal amount as specified in the terms thereof. However, at any time after a declaration of acceleration with respect to debt securities of such series (or of all debt securities then Outstanding under
such indenture, as the case may be) has been made, the holders of a majority in principal amount of the debt securities of such series or of each series of debt securities then Outstanding under such indenture, as the case may be, may rescind and
annul such declaration and its consequences if:
(1) we have deposited with the applicable Trustee all
required payments of the principal of (and premium, if any) and interest and Additional Amounts payable on the debt securities of such series or of all debt securities then Outstanding under such indenture, as the case may be, plus certain fees,
expenses, disbursements and advances of such Trustee, and
(2) all Events of Default have been cured
or waived as provided in such indenture (except for the nonpayment of accelerated principal (or specified portion thereof) with respect to debt securities of such series or of all debt securities then Outstanding under such indenture)
(section 502 of the indentures).
The indentures also provide that the holders of a majority in principal amount of the
debt securities of any series or of each series of debt securities then Outstanding under the applicable indenture, as the case may be, may waive any past default with respect to such series and its consequences.
However, holders may not waive a default:
|
|
|
in the payment of the principal of (or premium, if any) or interest on any debt security of such series; or
|
|
|
|
in respect of a covenant or provision contained in such indenture that cannot be modified or amended without the consent of the holder of each
Outstanding debt security affected thereby (section 513 of the indentures).
|
12
Each indenture provides that the applicable Trustee is required to give notice to the
holders of debt securities issued thereunder within 90 days of a default under such indenture. However, the Trustee may withhold notice of any default to the holders of any such series of debt securities if certain officers of such Trustee
consider such withholding to be in the interest of the holders. The Trustee may not withhold notice with respect to a default in the payment of the principal of (or premium, if any) or interest on any debt security or in the payment of any sinking
installment in respect of any debt security (section 601 of the indentures).
Each indenture provides that no holder of
debt securities of any series issued thereunder may institute any proceeding, judicial or otherwise, with respect to such indenture or for any remedy thereunder. However, a holder of debt securities may institute a proceeding if the applicable
Trustee fails to act for 60 days after it has received a written request to institute proceedings in respect of an Event of Default from the holders of not less than 25% in principal amount of the Outstanding debt securities of such series, as
well as an offer of reasonable indemnity (section 507 of the indentures). However, this provision will not prevent any holder of debt securities from instituting suit for the enforcement of payment of the principal of (and premium, if any) and
interest on the debt securities held by that holder at the respective due dates thereof (section 508 of the indentures).
Subject to provisions in the applicable indenture relating to its duties in case of default and unless holders of any series of debt
securities then Outstanding under such indenture have offered reasonable security or indemnity to the Trustee, the Trustee is under no obligation to exercise any of its rights or powers under such indenture at the request or direction of the holders
(section 602 of the indentures). The holders of a majority in principal amount of the Outstanding debt securities of any series (or of each series of debt securities then Outstanding under such indenture, as the case may be) shall have the
right to direct the time, method and place of conducting any proceeding for any remedy available to such Trustee. They also have the right to direct the time, method and place of exercising any trust or power conferred upon such Trustee. However,
such Trustee may refuse to follow any direction which is in conflict with such indenture or any law which may involve the Trustee in personal liability or which may be unduly prejudicial to the holders of debt securities of such series not joining
therein (section 512 of the indentures).
Within 120 days after the close of each fiscal year, we must deliver to
each Trustee a certificate signed by one of several specified officers. The certificate must state whether such officer has knowledge of any default under the applicable indenture and, if so, specify each such default and the nature and status
thereof (section 1012 of the senior indenture and section 1004 of the subordinated indenture).
Modification of the Indentures
Modifications and amendments to either indenture may be made only with the consent of the holders of a majority in
principal amount of all Outstanding debt securities issued thereunder which are affected by such modification or amendment. However, unless the consent of the holder of each affected debt security is obtained, no modification or amendment may:
|
|
|
change the date specified in any such debt security as the fixed date on which the principal thereof is due and payable;
|
|
|
|
change the date specified in any such debt security as the fixed date on which any installment of interest (or premium, if any) is due and payable;
|
|
|
|
reduce the principal amount of any such debt security;
|
|
|
|
reduce the rate or amount of interest on any such debt security;
|
|
|
|
reduce the premium payable on redemption of any such debt security;
|
|
|
|
reduce any Additional Amount payable in respect of any such debt security;
|
13
|
|
|
reduce the amount of principal of an Original Issue Discount Security that would be due and payable upon declaration of acceleration of the maturity
thereof or would be provable in bankruptcy, or adversely affect any right of repayment of the holder of any such debt security;
|
|
|
|
change the place of payment of principal of (or premium, if any) or interest on any such debt security;
|
|
|
|
change the currency or currencies for payment of principal of (or premium, if any) or interest on such debt security;
|
|
|
|
change our obligation to pay Additional Amounts;
|
|
|
|
impair the right to institute suit for the enforcement of any payment on or with respect to any such debt security;
|
|
|
|
reduce the percentage of Outstanding debt securities of any series necessary to modify or amend the applicable indenture, to waive compliance with
certain provisions thereof or certain defaults and consequences thereunder, or to reduce the quorum or voting requirements set forth in such indenture; or
|
|
|
|
modify any of the foregoing provisions or any of the provisions relating to the waiver of certain past defaults or certain covenants, except to
increase the required percentage to effect such action or to provide that certain other provisions may not be modified or waived without the consent of the holder of such debt security (section 902 of the indentures).
|
The senior indenture provides that the holders of a majority in principal amount of Outstanding debt
securities issued thereunder have the right to waive our compliance with certain covenants in the senior indenture, including those described in the section of this prospectus captioned Material Covenants (section 1014 of the senior
indenture).
DDR and the applicable Trustee may modify and amend either indenture without the consent of any holder of debt
securities issued thereunder for any of the following purposes:
|
|
|
to evidence the succession of another Person to our obligations under such indenture;
|
|
|
|
to add to our covenants for the benefit of the holders of all or any series of debt securities issued thereunder or to surrender any right or power
conferred upon us in such indenture;
|
|
|
|
to add Events of Default for the benefit of the holders of all or any series of debt securities issued thereunder;
|
|
|
|
to add or change any provisions of such indenture to facilitate the issuance of, or to liberalize certain terms of, debt securities issued thereunder
in bearer form, or to permit or facilitate the issuance of such debt securities in uncertificated form, provided that such action shall not adversely affect the interests of the holders of such debt securities of any series in any material respect;
|
|
|
|
to change or eliminate any provision of such indenture, provided that any such change or elimination shall become effective only when there are no debt
securities Outstanding of any series issued thereunder which are entitled to the benefit of such provision;
|
|
|
|
to secure the debt securities issued thereunder;
|
|
|
|
to establish the form or terms of debt securities of any series issued thereunder, including the provisions and procedures, if applicable, for the
conversion of such debt securities into our common shares or preferred shares;
|
|
|
|
to provide for the acceptance of appointment by a successor Trustee;
|
14
|
|
|
to facilitate the administration of the trusts under such indenture by more than one Trustee;
|
|
|
|
to cure any ambiguity, defect or inconsistency in such indenture, provided that such action shall not adversely affect in any material respect the
interests of holders of debt securities of any series issued thereunder; or
|
|
|
|
to supplement any of the provisions of such indenture to the extent necessary to permit or facilitate defeasance and discharge of any series of debt
securities issued thereunder; however, such action shall not adversely affect in any material respect the interests of the holders of the debt securities of any series issued thereunder (section 901 of the indentures).
|
Each indenture provides that in determining whether the holders of the requisite principal amount of
Outstanding debt securities of a series issued thereunder have given any request, demand, authorization, direction, notice, consent or waiver thereunder or whether a quorum is present at a meeting of holders of such debt securities:
|
|
|
the principal amount of an Outstanding Original Issue Discount Security shall be the amount of the principal that would be due and payable as of the
date of such determination upon declaration of acceleration of the maturity of the security;
|
|
|
|
the principal amount of an Outstanding debt security denominated in a foreign currency shall be the U.S. dollar equivalent, determined on the
issue date for such debt security, of the principal amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent on the issue date of such debt security in the amount determined as provided above);
|
|
|
|
the principal amount of an Outstanding Indexed Security shall be the principal face amount of such Indexed Security at original issuance, unless
otherwise provided with respect to such Indexed Security pursuant to section 301 of such indenture; and
|
|
|
|
debt securities owned by us, any other obligor upon the debt securities, any of our Affiliates or of such other obligor shall be disregarded
(section 101 of the indentures).
|
Each indenture contains provisions for convening meetings of the
holders of an issued series of debt securities (section 1501 of the indentures). The applicable Trustee may call a meeting at any time. DDR or the holders of at least 10% in principal amount of the Outstanding debt securities of such series may
also call a meeting upon request. Notice of a meeting must be given as provided in the applicable indenture (section 1502 of the indentures). Except for any consent that must be given by the holder of each debt security affected by certain
modifications and amendments of such indenture, any resolution presented at a meeting or adjourned meeting duly reconvened at which a quorum is present may be adopted by the affirmative vote of the holders of a majority in principal amount of the
Outstanding debt securities of that series. However, except as referred to above, any resolution with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that may be made, given or taken by the holders
of a specified percentage which is less than a majority in principal amount of the Outstanding debt securities of a series may be adopted at a meeting or adjourned meeting duly reconvened at which a quorum is present by the affirmative vote of the
holders of such specified percentage in principal amount of the Outstanding debt securities of that series. Any resolution passed or decision taken at any duly held meeting of holders of debt securities of any series will be binding on all holders
of debt securities of that series. The quorum at any meeting called to adopt a resolution, and at any reconvened meeting, will be the persons holding or representing a majority in principal amount of the Outstanding debt securities of a series.
However, if any action is to be taken at such meeting with respect to a consent or waiver which may be given by the holders of
not less than a specified percentage in principal amount of the Outstanding debt securities of a series, the persons holding or representing such specified percentage in principal amount of the Outstanding debt securities of such series will
constitute a quorum (section 1504 of the indentures).
15
Notwithstanding the provisions described above, if any action is to be taken at a meeting of
holders of debt securities of any series with respect to any request, demand, authorization, direction, notice, consent, waiver or other action that the applicable indenture expressly provides may be made, given or taken by the holders of a
specified percentage in principal amount of all Outstanding debt securities affected thereby, or of the holders of such series and one or more additional series:
(1) there shall be no minimum quorum requirement for such meeting and
(2) the principal amount of the Outstanding debt securities of such series that vote in favor of such request,
demand, authorization, direction, notice, consent, waiver or other action shall be taken into account in determining whether such request, demand, authorization, direction, notice, consent, waiver or other action has been made, given or taken under
such indenture (section 1504 of the indentures).
Discharge, Defeasance and Covenant Defeasance
We may discharge certain obligations to holders of any series of debt securities that have not already been delivered to the applicable
Trustee for cancellation and that either have become due and payable or will become due and payable within one year (or scheduled for redemption within one year) by irrevocably depositing with such Trustee, in trust, funds in an amount sufficient to
pay the entire indebtedness on such debt securities in respect of principal, premium, if any, and interest to the date of such deposit if such debt securities have become due and payable or to the date specified in such debt securities as the fixed
date on which the payment of principal and interest on such debt securities is due and payable or the date fixed for redemption of such debt securities, as the case may be (section 401 of the indentures). Funds shall be deposited in such
currency or currencies, currency unit(s) or composite currency or currencies in which such debt securities are payable.
Each
indenture provides that, if the provisions of Article Fourteen thereof (relating to defeasance and covenant defeasance) are made applicable to the debt securities of or within any series issued thereunder, we may elect either:
(1) to defease and be discharged from any and all obligations with respect to such debt securities. However, we will
not be discharged from the obligation to pay Additional Amounts, if any, upon the occurrence of certain events of tax, assessment or governmental charge with respect to payments on such debt securities. In addition, we will not be discharged from
the obligations to register the transfer or exchange of such debt securities, to replace temporary or mutilated, destroyed, lost or stolen debt securities, to maintain an office or agency in respect of such debt securities and to hold moneys for
payment in trust (defeasance) (section 1402 of the indentures); or
(2) to be
released from our obligations relating to (a) sections 1004 to 1011, inclusive, of the senior indenture (being the restrictions described under the caption Material Covenants) and, if provided under the senior indenture, our
obligations with respect to any other covenant contained in the senior indenture, and (b) if provided under the subordinated indenture, our obligations with respect to any covenant contained in the subordinated indenture, and any omission to
comply with such obligations shall not constitute a default or an Event of Default with respect to such debt securities (covenant defeasance) (section 1403 of the indentures).
Defeasance or covenant defeasance will occur upon our irrevocable deposit with the applicable Trustee, in trust, of an amount sufficient
to pay the principal of (and premium, if any) and interest on such debt securities, and any mandatory sinking fund or analogous payments, on their scheduled due dates. The amount deposited will be in Government Obligations (as defined below) or such
currency or currencies, currency unit(s) or composite currency or currencies in which such debt securities are payable at maturity, or both.
Such a trust may be established only if, among other things, we have delivered to the applicable Trustee an opinion of counsel (as specified in the applicable indenture) to the effect that the holders of
such debt securities will not recognize income, gain or loss for U.S. federal income tax purposes as a result of such defeasance or
16
covenant defeasance and will be subject to U.S. federal income tax on the same amounts, in the same manner and at the same times as would have been the case if such defeasance or covenant
defeasance had not occurred. In the case of defeasance, the opinion of counsel must refer to and be based upon a ruling of the Internal Revenue Service or a change in applicable United States federal income tax law occurring after the date of such
indenture (section 1404 of the indentures).
Government Obligations
means securities that are
(1) direct obligations of the United States of America or the government which issued the foreign
currency in which the debt securities of a particular series are payable, and for which the full faith and credit of the applicable government is pledged, or
(2) obligations of a Person controlled or supervised by and acting as an agency or instrumentality of the United
States of America or such government which issued the foreign currency in which the debt securities of such series are payable. The payment of these obligations must be unconditionally guaranteed as a full faith and credit obligation by the United
States of America or such other government, and the obligations may not be callable or redeemable at the option of the issuer thereof. Such obligations also include a depository receipt issued by a bank or trust company as custodian with respect to
any such Government Obligation or a specific payment of interest on or principal of any such Government Obligation held by such custodian for the account of the holder of a depository receipt, provided that (except as required by law) such custodian
is not authorized to make any deduction from the amount payable to the holder of such depository receipt from any amount received by the custodian in respect of the Government Obligation or the specific payment of interest on or principal of the
Government Obligation evidenced by such depository receipt (section 101 of the indentures).
Unless otherwise provided in
the applicable prospectus supplement, if after we have deposited funds and/or Government Obligations to effect defeasance or covenant defeasance with respect to debt securities of any series:
(1) the holder of a debt security of such series is entitled to, and does, elect under the applicable indenture or
the terms of such debt security to receive payment in a currency, currency unit or composite currency other than that in which such deposit has been made in respect of such debt security, or
(2) a Conversion Event (as defined below) occurs in respect of the currency, currency unit or composite currency in
which such deposit has been made, the indebtedness represented by such debt security shall be deemed to have been, and will be, fully discharged and satisfied through the payment of the principal of (and premium, if any) and interest on such debt
security as they become due out of the proceeds yielded by converting the amount deposited in respect of such debt security into the currency, currency unit or composite currency in which such debt security becomes payable as a result of such
election or such cessation of usage based on the applicable market exchange rate (section 1405 of the indentures). Conversion Event means the cessation of use of:
a. a currency, currency unit or composite currency both by the government of the country which issued such currency
and for the settlement of actions by a central bank or other public institution of or within the international banking community,
b. the ECU both within the European Monetary System and for the settlement of transactions by public institutions of or within the European Communities, or
c. any currency unit or composite currency other than the ECU for the purposes for which it was established
(section 101 of the indentures).
Unless otherwise described in the applicable prospectus supplement, all payments of
principal of (and premium, if any) and interest on any debt security that is payable in a foreign currency that ceases to be used by its government of issuance shall be made in U.S. dollars.
17
In the event we effect covenant defeasance with respect to any debt securities and such debt
securities are declared due and payable because of the occurrence of any Event of Default, other than:
(1) with respect to senior securities, the Event of Default described in clause (4) under Events of
Default, Notice and Waiver or
(2) with respect to all debt securities, the Event of Default
described in clause (7) under Events of Default, Notice and Waiver with respect to any other covenant as to which there has been covenant defeasance, the amount in such currency, currency unit or composite currency in which such
debt securities are payable, and Government Obligations on deposit with the applicable Trustee, will be sufficient to pay amounts due on such debt securities at the fixed date on which they become due and payable but may not be sufficient to pay
amounts due on such debt securities at the time of the acceleration resulting from such Event of Default. In any such event, we would remain liable to make payment of such amounts due at the time of acceleration.
The applicable prospectus supplement may further describe the provisions, if any, permitting such defeasance or covenant defeasance,
including any modifications to the provisions described above, with respect to the debt securities of or within a particular series.
Senior Securities and Senior Indebtedness
Each series of senior securities will constitute Senior Indebtedness (as described below) and will rank equally with each other series of senior securities and other Senior Indebtedness. All subordinated
indebtedness will be subordinated to the senior securities and other Senior Indebtedness. Subordinated indebtedness includes, but is not limited to, all subordinated securities issued under the subordinated indenture.
Senior Indebtedness is defined in the subordinated indenture to mean:
(1) the principal of (and premium, if any) and unpaid interest on indebtedness for money borrowed,
(2) purchase money and similar obligations,
(3) obligations under capital leases,
(4) guarantees, assumptions or purchase commitments relating to indebtedness of others, or other transactions as a
result of which we are responsible for the payment of indebtedness of others,
(5) renewals, extensions
and refunding of any such indebtedness,
(6) interest or obligations in respect of any indebtedness
accruing after the commencement of any insolvency or bankruptcy proceedings, and
(7) obligations
associated with derivative products such as interest rate and currency exchange contracts, foreign exchange contracts, commodity contracts, and similar arrangements.
The indebtedness or obligations described above are not Senior Indebtedness to the extent the instrument by which we incurred, assumed or guaranteed the indebtedness or obligations provides that such
indebtedness or obligation is subordinate or junior in right of payment to any of our other indebtedness or obligations.
Subordination of
Subordinated Securities
Subordinated Indenture.
The principal of (and premium, if any) and
interest payments on the subordinated securities will be subordinated as set forth in the subordinated indenture to our Senior Indebtedness whether outstanding on the date of the subordinated indenture or thereafter incurred (section 1701 of
the subordinated indenture).
18
Ranking.
No class of subordinated securities is subordinated
to any other class of subordinated debt securities. See Subordination Provisions below.
Subordination
Provisions.
In the event:
(1) of any distribution of our assets upon any
dissolution, winding-up, liquidation or reorganization, whether in bankruptcy, insolvency, reorganization or receivership proceeding or upon an assignment for the benefit of creditors or any other marshalling of our assets and liabilities or
otherwise, except a distribution in connection with a merger or consolidation or a conveyance or transfer of all or substantially all of our properties which complies with the requirements of Article Eight of the subordinated indenture,
(2) that a default shall have occurred and be continuing with respect to the payment of principal of (or
premium, if any) or interest on any Senior Indebtedness, or
(3) that the principal of the
subordinated securities of any series issued under the subordinated indenture (or in the case of Original Issue Discount Securities, the portion of the principal amount thereof referred to in
(4) section 502 of the subordinated indenture) shall have been declared due and payable pursuant to
section 502 of the subordinated indenture, and such declaration has not been rescinded and annulled, then:
a. in a circumstance described in clause (1) or (2) above, the holders of all Senior Indebtedness, and in
the circumstance described in clause (3) above, the holders of all Senior Indebtedness outstanding at the time the principal of such issued subordinated securities (or in the case of Original Issue Discount Securities, such portion of the
principal amount) has been declared due and payable, shall first be entitled to receive payment of the full amount due thereon in respect of principal, premium (if any) and interest, or provision shall be made for such payment in money or
moneys worth, before the holders of any of the subordinated securities are entitled to receive any payment on account of the principal of (or premium, if any) or interest on the subordinated securities;
b. any payment by us, or distribution of our assets, of any kind or character, whether in cash, property or
securities (other than certain subordinated securities issued in a reorganization or readjustment), to which the holder of any of the subordinated securities would be entitled except for the provisions of Article Seventeen of the subordinated
indenture shall be paid or delivered by the Person making such payment or distribution directly to the holders of Senior Indebtedness (as provided in clause (a) above), or on their behalf, to the extent necessary to make payment in full of all
Senior Indebtedness (as provided in clause (a) above) before any payment or distribution is made to or in respect of the holders of the subordinated securities. Such payment or distribution will be made ratably according to the aggregate amount
remaining unpaid on account of such Senior Indebtedness. The amount of Senior Indebtedness remaining unpaid shall be calculated after giving effect to any concurrent payment or distribution (or provisions therefor) to the holders of Senior
Indebtedness; and
c. in the event that, notwithstanding the foregoing, any payment by us, or
distribution of our assets, of any kind or character is received by the holders of any of the subordinated securities issued under the subordinated indenture before all Senior Indebtedness is paid in full, such payment or distribution shall be paid
over to the holders of such Senior Indebtedness or on their behalf, ratably as stated above, for application to the payment of all such Senior Indebtedness remaining unpaid until all such Senior Indebtedness shall have been paid in full. The amount
of Senior Indebtedness remaining unpaid shall be calculated after giving effect to any concurrent payment or distribution (or provisions therefor) to the holders of such Senior Indebtedness.
Because of subordination in favor of the holders of Senior Indebtedness in the event of insolvency, certain of our general creditors,
including holders of Senior Indebtedness, may recover more, ratably, than the holders of the subordinated securities.
19
Convertible Debt Securities
The following provisions will apply to debt securities that will be convertible into our common shares or other equity securities (Convertible debt securities) unless otherwise described in
the prospectus supplement for such Convertible debt securities.
Our board of directors will determine the terms and conditions
of any Convertible debt securities, if any, issued pursuant to the senior indenture (Senior Convertible debt securities). Such terms and conditions may include whether the Senior Convertible debt securities are convertible into our
common or preferred shares (including, without limitation, the initial conversion price or rate, the conversion period, any adjustment of the applicable conversion price and any requirements relative to the reservation of such shares for purposes of
conversion) (section 301 of the senior indenture).
The holder of any Convertible debt securities issued pursuant to the
subordinated indenture (Subordinated Convertible debt securities) will have the right to convert those Subordinated Convertible debt securities into our common shares or other equity securities at the conversion price or rate for each
$1,000 principal amount of Subordinated Convertible debt securities set forth in the applicable prospectus supplement. This conversion right is exercisable at any time during the time period specified in the applicable prospectus supplement unless
the Subordinated Convertible debt security has been previously redeemed. The holder of any Subordinated Convertible debt security may convert a portion thereof, which is $1,000 or any integral multiple of $1,000 (section 1602 of the
subordinated indenture). In the case of Subordinated Convertible debt securities called for redemption, conversion rights will expire at the close of business on the date fixed for the redemption specified in the prospectus supplement. However, in
the case of repayment at the option of the applicable holder, conversion rights will terminate upon our receipt of written notice of the exercise of such option (section 1602 of the subordinated indenture).
In certain events, the conversion price or rate will be subject to adjustment as contemplated in the subordinated indenture. For debt
securities convertible into common shares, such events include:
|
|
|
the issuance of our common shares as a dividend;
|
|
|
|
subdivisions and combinations of common shares;
|
|
|
|
the issuance to all holders of rights or warrants entitling such holders of common shares to subscribe for a purchase of common shares at a price per
share less than the current market price per common share; and
|
|
|
|
the distribution to all holders of common shares of shares of our capital stock (other than common shares), evidences of our indebtedness or assets
(excluding cash dividends or distributions paid from our retained earnings or subscription rights or warrants other than those referred to above).
|
The conversion price or rate is not required to be adjusted if the adjustment would require a cumulative increase or decrease in price or rate of less than 1% (section 1605 of the subordinated
indenture). Fractional common shares will not be issued upon conversion; instead, we will pay cash adjustments (section 1606 of the subordinated indenture). Unless otherwise specified in the applicable prospectus supplement, Subordinated
Convertible debt securities convertible into common shares surrendered for conversion between any record date for an interest payment and the related interest payment date (except such Subordinated Convertible debt securities called for redemption
on a redemption date during such period) must be accompanied by the interest payment that the holder thereof is entitled to receive (section 1604 of the subordinated indenture).
To protect our status as a REIT, a Person may not own or convert any Subordinated Convertible debt security if as a result of such
ownership or upon such conversion such Person would then be deemed to Beneficially Own more than 5.0% of our outstanding capital stock (section 1601 of the subordinated indenture). For purposes of determining the percentage ownership of our
common shares or other equity securities held by an investor, common shares or other equity securities that may be acquired upon the conversion of Convertible
20
debt securities directly or constructively held by such investor, but not common shares or other equity securities issuable with respect to the conversion of Convertible debt securities held by
others, are deemed to be outstanding (a) at the time of purchase of the Convertible debt securities, and (b) prior to the conversion of the Convertible debt securities. See Certain Federal Income Tax Considerations.
The adjustment provisions for debt securities convertible into our equity securities other than common shares will be determined at the
time of issuance of such debt securities and will be set forth in the applicable prospectus supplement.
Except as set forth in
the applicable prospectus supplement, any Convertible debt securities called for redemption, unless surrendered for conversion on or before the close of business on the redemption date, are subject to being purchased from the holder of such
Convertible debt securities by one or more investment bankers or other purchasers who may agree with us to purchase such Convertible debt securities and convert them into our common shares or other equity securities, as the case may be
(section 1108 of the indentures).
Reference is made to the sections captioned Description of Common Shares,
Description of Preferred Shares and Description of Depositary Shares Representing Preferred Shares for a general description of securities to be acquired upon the conversion of Convertible debt securities, including a
description of certain restrictions on the ownership of the common shares and the preferred shares.
The Trustees
U.S. Bank National Association serves as Trustee for our senior securities pursuant to the senior indenture. The Bank of New York
Mellon serves as Trustee for our subordinated securities pursuant to the subordinated indenture.
Definitions
Set forth below are defined terms used in the indentures. Reference is made to the indentures for a full disclosure of all such terms, as
well as any other capitalized terms used herein for which no definition is provided.
Additional Amounts
means any additional amounts which are required by a debt security or by or pursuant to a resolution of our board of directors, under circumstances specified therein, to be paid by us in respect of certain taxes imposed on certain holders and which
are owing to such holders.
Affiliate
of any Person means any other Person directly or indirectly
controlling or controlled by or under direct or indirect common control with such Person. Control means the power to direct the management and policies of a Person, directly or indirectly, whether through the ownership of voting securities, by
contract or otherwise.
Beneficially Own
means the ownership of our common shares by a Person who would be
treated as an owner of such common shares either directly or through the application of Section 544 of the Code, as modified by Section 856(b)(1)(B) of the Code.
Consolidated Income Available for Debt Service
for any period means Consolidated Net Income (as defined below) of DDR and its subsidiaries:
(1) plus amounts which have been deducted for
a. interest on our and our subsidiaries Debt,
b. provision for our and our subsidiaries taxes based on income,
c. amortization of debt discount,
d. depreciation and amortization, and
21
(2) adjusted, as appropriate, for
a. the effect of any noncash charge resulting from a change in accounting principles in determining Consolidated Net
Income for such period, and
b. the effect of equity in net income or loss of joint ventures in which
we own an interest to the extent not providing a source of, or requiring a use of, cash, respectively.
Consolidated
Net Income
for any period means the amount of our and our subsidiaries net income (or loss) for such period determined on a consolidated basis in accordance with generally accepted accounting principles.
Debt
means any of our or our subsidiaries indebtedness, whether or not contingent, in respect of:
(1) borrowed money or evidenced by bonds, notes, debentures or similar instruments;
(2) indebtedness secured by any mortgage, pledge, lien, charge, encumbrance or any security interest existing on
property owned by us or our subsidiaries;
(3) letters of credit or amounts representing the balance
deferred and unpaid of the purchase price of any property except any such balance that constitutes an accrued expense or trade payable; or
(4) any lease of property by us or our subsidiaries as lessee which is reflected on our Consolidated Balance Sheet as a capitalized lease in accordance with generally accepted accounting principles,
in the case of items of indebtedness under (1) through (3) above to the extent that any such items (other than letters of credit) would appear as a liability on our Consolidated Balance Sheet in accordance with generally accepted
accounting principles. Debt also includes, to the extent not otherwise included, any obligation of ours or our subsidiaries to be liable for, or to pay, as obligor, guarantor or otherwise (other than for purposes of collection in the ordinary course
of business), indebtedness of another Person (other than us or our subsidiaries). Debt shall be deemed to be incurred by us or our subsidiaries whenever we or any such subsidiary shall create, assume, guarantee or otherwise become liable in respect
thereof.
Funds from Operations
for any period means the Consolidated Net Income of us and our subsidiaries
for such period without giving effect to depreciation and amortization, gains or losses from extraordinary items, gains or losses on sales of real estate (except for real estate sold through our or our subsidiaries merchant building program),
gains or losses on investments in marketable securities and any provision/benefit for income taxes for such period, plus funds from operations of unconsolidated joint ventures, all determined on a consistent basis in accordance with generally
accepted accounting principles.
Holder
means the Person in whose name a debt security is registered in the
register for each series of debt securities.
Indexed Security
means a debt security for which the principal
amount payable on the date specified in such debt security as the fixed date on which the principal of such security is due and payable may be more or less than the principal face amount thereof at original issuance.
Maximum Annual Service Charge
as of any date means the maximum amount which may become payable in a period of 12
consecutive calendar months from such date for interest on, and required amortization of, Debt. The amount payable for amortization will include the amount of any sinking fund or other analogous fund for the retirement of Debt. It will also include
the amount payable on account of principal of any such Debt which matures serially other than at the final maturity date of such Debt.
Outstanding,
when used with respect to debt securities, means, as of the date of determination, all debt securities theretofore authenticated and delivered under the indenture, except:
(1) debt securities theretofore canceled by the Trustee or delivered to the Trustee for cancellation;
22
(2) debt securities, or portions thereof, for whose payment or
redemption or repayment at the option of the holder money in the necessary amount has been deposited with the Trustee or any paying agent (other than by us) in trust or set aside and segregated in trust by us (if we shall act as our own paying
agent) for the holders of such debt securities and any coupons appertaining thereto, provided that, if such debt securities are to be redeemed, notice of such redemption has been duly given pursuant to the indenture or provision therefor
satisfactory to the Trustee has been made;
(3) debt securities, except to the extent provided in
sections 1402 and 1403 of the indenture, with respect to which we have effected defeasance and/or covenant defeasance;
(4) debt securities which have been paid pursuant to section 306 or in exchange for or in lieu of which other debt securities have been authenticated and delivered pursuant to the indenture,
other than any such debt securities in respect of which there shall have been presented to the Trustee proof satisfactory to it that such debt securities are held by a bona fide purchaser in whose hands such debt securities are our valid
obligations; and
(5) debt securities converted into common shares or preferred shares in accordance
with or as contemplated by the indenture, if the terms of such debt securities provide for convertibility pursuant to section 301;
provided,
however, that in determining whether the holders of the requisite principal amount of the Outstanding securities have given any request, demand, authorization, direction, notice, consent of waiver hereunder or are present at a meeting of holders for
quorum purposes, and for the purpose of making the calculations required by section 313 of the Trust Indenture Act of 1939, as amended:
(1) the principal amount of an Original Issue Discount Security that may be counted in making such determination or calculation and that shall be deemed to be Outstanding for such purpose shall be
equal to the amount of principal that would be (or shall have been declared to be) due and payable, at the time of such determination, upon a declaration of acceleration of the maturity thereof;
(2) the principal amount of any debt security denominated in a foreign currency that may be counted in making such
determination or calculation and that shall be deemed Outstanding for such purpose shall be equal to the U.S. dollar equivalent, determined pursuant to section 301 as of the date such debt security is originally issued by us, of the principal
amount (or, in the case of an Original Issue Discount Security, the U.S. dollar equivalent as of such date of original issuance of the amount determined as provided in clause (1) above) of such debt security;
(3) the principal amount of any Indexed Security that may be counted in making such determination or calculation and
that shall be deemed Outstanding for such purpose shall be equal to the principal face amount of such Indexed Security at original issuance, unless otherwise provided with respect to such Indexed Security pursuant to section 301; and
(4) debt securities owned by us or any other obligor upon the debt securities or any Affiliate of ours or
of such other obligor shall be disregarded and deemed not to be Outstanding, except that, in determining whether the Trustee shall be protected in making such calculation or in relying upon any such request, demand, authorization, direction, notice,
consent or waiver, only debt securities which the Trustee knows to be so owned shall be so disregarded. Debt securities so owned which have been pledged in good faith may be regarded as Outstanding if the pledgee establishes to the satisfaction of
the Trustee the pledgees right so to act with respect to any such debt securities and that the pledgee is not us or any other obligor upon the debt securities or any Affiliate of ours or of such other obligor.
Person
means any individual, corporation, partnership, joint venture, association, joint-stock company, trust,
unincorporated organization or government or any agency or political subdivision thereof.
Secured Debt
means, without duplication, Debt that is secured by a mortgage, trust deed, deed of trust, deed to secure Debt, security agreement, pledge, conditional sale or other title retention agreement, capitalized
23
lease, or other like agreement granting or conveying security title to or a security interest in real property or other tangible asset(s). Secured Debt shall be deemed to be incurred (i) on
the date the obligor thereon creates, assumes, guarantees or otherwise becomes liable in respect thereof if it is secured in the manner described in the preceding sentence on such date or (ii) on the date the obligor thereon first secures such
Debt in the manner described in the preceding sentence if such Debt was not so secured on the date it was incurred.
Subsidiary
means an entity a majority of the outstanding voting stock of which is owned, directly or indirectly, by us
or by one or more of our other subsidiaries. For purposes of this definition, voting stock means stock having voting power for the election of directors, whether at all times or only so long as no senior class of stock has such voting
power by reason of any contingency.
Total Assets
as of any date means the sum of (i) Undepreciated
Real Estate Assets and (ii) all other assets of the Company and its subsidiaries determined on a consolidated basis in accordance with generally accepted accounting principles (but excluding intangibles and trade receivables related to rent and
other charges derived from leases with tenants) after eliminating intercompany accounts and transactions.
Undepreciated Real Estate Assets
as of any date means the amount of our and our subsidiaries real estate assets
on such date, before depreciation and amortization and determined on a consolidated basis in accordance with generally accepted accounting principles.
Unencumbered Real Estate Asset Value
as of any date means the sum of:
(1) our Undepreciated Real Estate Assets, which are not encumbered by any mortgage, lien, charge, pledge or security interest, as of the end of the latest calendar quarter covered in our Annual
Report on Form 10-K or Quarterly Report on Form 10-Q, as the case may be, most recently filed with the SEC (or, if that filing is not required under the Exchange Act, with the Trustee) prior to such date; and
(2) the purchase price of any real estate assets that are not encumbered by any mortgage, lien, charge, pledge, or
security interest and were acquired by us or any subsidiary after the end of such calendar quarter.
Book-Entry Debt Securities
We may issue debt securities of a series in whole or in part in the form of one or more global securities. We will deposit
such global securities with, or on behalf of, a depository identified in the applicable prospectus supplement. We may issue global securities in either registered or bearer form and in either temporary or permanent form. Unless we specify otherwise
in the applicable prospectus supplement, debt securities that are represented by a global security will be issued in denominations of $1,000 or any integral multiple thereof and will be issued in registered form only, without coupons. We will make
payments of principal of, premium, if any, and interest on debt securities represented by a global security to the applicable trustee under the applicable indenture, which will then forward such payments to the depository.
We anticipate that any global securities will be deposited with, or on behalf of, The Depository Trust Company, New York, New York
(DTC), and that such global securities will be registered in the name of Cede & Co., DTCs nominee. We further anticipate that the following provisions will apply to the depository arrangements with respect to any such
global securities. We will describe any additional or differing terms of the depository arrangements in the applicable prospectus supplement relating to a particular series of debt securities issued in the form of global securities.
So long as DTC or its nominee is the registered owner of a global security, DTC or its nominee, as the case may be, will be considered the
sole holder of the debt securities represented by such global security for all purposes under the applicable indenture. Except as described below, owners of beneficial interests in a global security:
(1) will not be entitled to have debt securities represented by such global security registered in their names;
24
(2) will not receive or be entitled to receive physical delivery of
debt securities in certificated form; and
(3) will not be considered the owners or holders thereof
under the applicable indenture.
The laws of some states require that certain purchasers of securities take physical delivery
of such securities in certificated form; accordingly, such laws may limit the transferability of beneficial interests in a global security.
Unless we specify otherwise in the applicable prospectus supplement, each global security representing book-entry notes will be exchangeable for certificated notes only if:
(1) DTC notifies us that it is unwilling or unable to continue as depository or DTC ceases to be a clearing agency
registered under the Exchange Act (if so required by applicable law or regulation) and, in either case, a successor depository is not appointed by us within 90 days after we receive such notice or become aware of such unwillingness, inability
or ineligibility;
(2) we, in our sole discretion, determine that the global securities shall be
exchangeable for certificated notes; or
(3) there shall have occurred and be continuing an event of
default under an indenture with respect to the notes and beneficial owners representing a majority in aggregate principal amount of the book-entry notes represented by global securities advise DTC to cease acting as depository. Upon any such
exchange, owners of a beneficial interest in the global security or securities representing book-entry notes will be entitled to physical delivery of individual debt securities in certificated form of like tenor and rank, equal in principal amount
to such beneficial interest, and to have such debt securities in certificated form registered in the names of the beneficial owners, which names shall be provided by DTCs relevant participants (as identified by DTC) to the applicable trustee.
Unless we describe otherwise in the applicable prospectus supplement, debt securities so issued in certificated form will be
issued in denominations of $1,000 or any integral multiple thereof, and will be issued in registered form only, without coupons.
DTC will act as securities depository for the debt securities. The debt securities will be issued as fully registered securities
registered in the name of Cede & Co. (DTCs partnership nominee) or such other name as may be requested by an authorized representative of DTC. Except as otherwise provided, one fully registered debt security certificate will be issued
with respect to each series of the debt securities, each in the aggregate principal amount of such series, and will be deposited with DTC. If, however, the aggregate principal amount of any series exceeds $500 million, one certificate will be
issued with respect to each $500 million of principal amount and an additional certificate will be issued with respect to any remaining principal amount of such series.
The following is based on information furnished to us by DTC:
DTC, the worlds largest securities depository, is a limited-purpose trust company organized under the New York
Banking Law, a banking organization within the meaning of the New York Banking Law, a member of the Federal Reserve System, a clearing corporation within the meaning of the New York Uniform Commercial Code, and a
clearing agency registered pursuant to the provisions of Section 17A of the Exchange Act. DTC holds and provides asset servicing for over 2.2 million issues of U.S. and non-U.S. equity issues, corporate and municipal
debt issues, and money market instruments from over 100 countries that DTCs participants (Direct Participants) deposit with DTC. DTC also facilitates the post-trade settlement among Direct Participants of sales and other securities
transactions in deposited securities through electronic computerized book-entry transfers and pledges between Direct Participants accounts. This eliminates the need for physical movement of securities certificates. Direct Participants include
both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, clearing corporations, and certain other organizations. DTC is a wholly-owned subsidiary of The Depository Trust & Clearing Corporation
25
(DTCC). DTCC, in turn, is owned by a number of Direct Participants of DTC and members of the National Securities Clearing Corporation, Fixed Income Clearing Corporation, and Emerging
Markets Clearing Corporation (NSCC, FICC, and EMCC are also subsidiaries of DTCC), as well as by the New York Stock Exchange, Inc., the American Stock Exchange LLC, and the National Association of Securities Dealers, Inc. Access to the DTC system is
also available to others such as both U.S. and non-U.S. securities brokers and dealers, banks, trust companies, and clearing corporations that clear through or maintain a custodial relationship with a Direct Participant, either directly or
indirectly (Indirect Participants). DTC has Standard & Poors highest rating: AAA. The DTC rules applicable to its Participants are on file with the SEC. More information about DTC can be found at
www.dtcc.com
and
www.dtc.org.
Purchases of debt securities under the DTC system must be made by or through Direct Participants, which
will receive a credit for the debt securities on DTCs records. The ownership interest of each actual purchaser of each debt security (Beneficial Owner) is in turn to be recorded on the Direct and Indirect Participants
records. Beneficial Owners will not receive written confirmation from DTC of their purchase, but Beneficial Owners are, however, expected to receive a written confirmation providing details of the transaction, as well as periodic statements of their
holdings, from the Direct or Indirect Participant through which the Beneficial Owner entered into the transaction. Transfers of ownership interests in debt securities are to be accomplished by entries made on the books of Direct and Indirect
Participants acting on behalf of Beneficial Owners. Beneficial Owners will not receive certificates representing their ownership interests in debt securities, except in the event that use of the book-entry system for the debt securities is
discontinued.
To facilitate subsequent transfers, all debt securities deposited by Direct Participants with DTC are registered
in the name of DTCs partnership nominee, Cede & Co, or such other name as may be requested by an authorized representative of DTC. The deposit of the debt securities with DTC and their registration in the name of Cede & Co.
or such other DTC nominee do not effect any change in beneficial ownership. DTC has no knowledge of the actual Beneficial Owners of the debt securities; DTCs records reflect only the identities of the Direct Participants to whose accounts debt
securities are credited, which may or may not be the Beneficial Owners. The Direct and Indirect Participants will remain responsible for keeping account of their holdings on behalf of their customers.
Conveyance of notices and other communications by DTC to Direct Participants, by Direct Participants to Indirect Participants, and by
Direct Participants and Indirect Participants to Beneficial Owners will be governed by arrangements among them, subject to any statutory or regulatory requirements as may be in effect from time to time.
Neither DTC nor Cede & Co. (nor any other DTC nominee) will consent or vote with respect to the debt securities unless authorized
by a Direct Participant in accordance with DTCs procedures. Under its usual procedures, DTC mails a proxy (an Omnibus Proxy) to the issuer as soon as possible after the record date. The Omnibus Proxy assigns Cede &
Co.s consenting or voting rights to those Direct Participants to whose accounts the debt securities are credited on the record date (identified on a list attached to the Omnibus Proxy).
Principal, premium, if any, interest payments and redemption proceeds on the debt securities will be made to Cede & Co., or such
other nominee, as may be requested by an authorized representative of DTC. DTCs practice is to credit Direct Participants accounts upon DTCs receipt of funds and corresponding detail information from us or the trustee, on the
payment date in accordance with their respective holdings shown on DTCs records. Payments by Participants to Beneficial Owners will be governed by standing instructions and customary practices, as is the case with securities held for the
accounts of customers in bearer form or registered in street name and will be the responsibility of such Participant and not of DTC, nor its nominee, the applicable Trustee or us, subject to any statutory or regulatory requirements as
may be in effect from time to time. Payment of principal, premium, if any, interest and redemption proceeds to Cede & Co. (or such other nominee as may be requested by an authorized representative of DTC) is our responsibility or the
applicable Trustees, disbursement of such payments to Direct Participants will be the responsibility of DTC, and disbursement of such payments to the Beneficial Owners will be the responsibility of Direct and Indirect Participants.
26
If applicable, redemption notices shall be sent to DTC. If less than all of the book-entry
notes within an issue are being redeemed, DTCs practice is to determine by lot the amount of the interest of each Direct Participant in such issue to be redeemed.
A Beneficial Owner shall give notice of any option to elect to have its book-entry notes repaid by us, through its Participant, to the applicable Trustee, and shall effect delivery of such book-entry
notes by causing the Direct Participant to transfer the Participants interest in the global security or securities representing such book-entry notes, on DTCs records, to such Trustee. The requirement for physical delivery of book-entry
notes in connection with a demand for repayment will be deemed satisfied when the ownership rights in the global security or securities representing such book-entry notes are transferred by Direct Participants on DTCs records and followed by a
book-entry credit of tendered securities to the Trustees DTC account.
DTC may discontinue providing its services as
securities depository with respect to the debt securities at any time by giving reasonable notice to the applicable Trustee or us. Under such circumstances, in the event that a successor securities depository is not appointed, debt security
certificates are required to be printed and delivered.
We may decide to discontinue use of the system of book-entry transfers
through DTC (or a successor securities depository). In that event, debt security certificates will be printed and delivered to DTC.
The information in this section concerning DTC and DTCs book-entry system has been obtained from sources that we believe to be reliable, but we take no responsibility for the accuracy thereof.
Unless stated otherwise in the prospectus supplement, the underwriters or agents with respect to a series of debt securities
issued as global securities will be Direct Participants in DTC.
Neither we, the applicable Trustee nor any applicable paying
agent will have any responsibility or liability for any aspect of the records relating to or payments made on account of beneficial interests in a global security, or for maintaining, supervising or reviewing any records relating to such beneficial
interest.
DESCRIPTION OF PREFERRED SHARES
Capitalization
Our
articles of incorporation authorize us to issue up to:
|
|
|
750,000 Class A Cumulative Preferred Shares, without par value, or the Class A Shares, of which 460,000 shares have been designated as 9
1
/
2
% Class A Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Class B Cumulative Preferred Shares, without par value, or the Class B Shares, of which 177,500 shares have been designated as
9.44% Class B Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Class C Cumulative Preferred Shares, without par value, or the Class C Shares, of which 460,000 shares have been designated as 8
3
/
8
% Class C Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Class D Cumulative Preferred Shares, without par value, or the Class D Shares, of which 230,000 shares have been designated as
8.68% Class D Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Class E Cumulative Preferred Shares, without par value, or the Class E Shares, of which 750,000 shares have been designated as
Class E Series I Cumulative Preferred Shares;
|
|
|
|
750,000 Class F Cumulative Preferred Shares, without par value, or the Class F Shares, of which 690,000 shares have been designated as
8.60% Class F Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Class G Cumulative Preferred Shares, without par value, or the Class G Shares, of which 736,000 shares have been designated as
8% Class G Cumulative Redeemable Preferred Shares;
|
27
|
|
|
750,000 Class H Cumulative Preferred Shares, without par value, or the Class H Shares, of which 410,000 shares have been designated as 7
3
/
8
% Class H Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Class I Cumulative Preferred Shares, without par value, or the Class I Shares, of which 345,000 shares have been designated as
7.50% Class I Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Class J Cumulative Preferred Shares, without par value, or the Class J Shares, of which 450,000 shares have been designated as
9% Class J Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Class K Cumulative Preferred Shares, without par value, or the Class K Shares, of which 350,000 shares have been designated as 8
7
/
8
% Class K Cumulative Redeemable Preferred Shares;
|
|
|
|
750,000 Noncumulative Preferred Shares, without par value, or the noncumulative shares; and
|
|
|
|
2,000,000 Cumulative Voting Preferred Shares, without par value, or the cumulative voting preferred shares.
|
General
We refer to the
Class A Shares, the Class B Shares, the Class C Shares, the Class D Shares, the Class E Shares, the Class F Shares, the Class G Shares, the Class H Shares, the Class I Shares, the Class J Shares, the
Class K Shares and the noncumulative shares collectively as the nonvoting preferred shares.
The outstanding nonvoting
preferred shares are represented by depositary shares. Each depositary share represents a fractional interest in the respective preferred share. The preferred shares have been deposited with a depositary, under a deposit agreement between us, the
depositary and the holders from time to time of the depositary receipts issued under the deposit agreement. The depositary receipts evidence the depositary shares. Each holder of a depositary receipt evidencing a depositary share will be entitled to
all the rights and preferences of a fractional interest in a corresponding preferred share, including dividend, voting, redemption and liquidation rights and preferences.
The following description summarizes certain general terms and provisions of each class of nonvoting preferred shares and the cumulative voting preferred shares. This summary may not contain all of the
information that is important to you. For more detail, you should refer to the applicable provisions of our articles of incorporation and code of regulations that are filed as exhibits to the registration statement of which this prospectus forms a
part.
Except as discussed below, the nonvoting preferred shares rank on a parity with each other and are identical to each
other. The cumulative voting preferred shares rank equally, except with respect to voting rights, with all of the nonvoting preferred shares. Dividends on the Class A Shares, the Class B Shares, the Class C Shares, the Class D
Shares, the Class E Shares, the Class F Shares, the Class G Shares, the Class H Shares, the Class I Shares, the Class J Shares, the Class K Shares and the cumulative voting preferred shares will be cumulative,
while dividends on the noncumulative shares will not be cumulative.
Prior to the issuance of shares of each series of each
class of nonvoting preferred shares, our board of directors may, under our articles of incorporation and Ohio law, fix:
|
|
|
the designation of the series;
|
|
|
|
the authorized number of shares of the series. Our board of directors may, except when otherwise provided in the creation of the series, increase or
decrease the authorized number of shares before or after issuance of the series (but not below the number of shares of such series then outstanding);
|
|
|
|
the dividend rate or rates of the series, including the means by which such rates may be established;
|
|
|
|
the date(s) from which dividends shall accrue and be cumulative and, with respect to all nonvoting preferred shares, the date on which and the
period(s) for which dividends, if declared, shall be payable, including the means by which such date(s) and period(s) may be established;
|
28
|
|
|
redemption rights and prices, if any;
|
|
|
|
the terms and amounts of the sinking fund, if any;
|
|
|
|
the amounts payable on shares of the series in the event of any voluntary or involuntary liquidation, dissolution or winding-up of our affairs;
|
|
|
|
whether the shares of the series shall be convertible into common shares or shares of any other class;
|
|
|
|
if the shares are convertible, the conversion rate(s) or price(s), any adjustments to the rate or price and all other terms and conditions upon which
such conversion may be made; and
|
|
|
|
restrictions on the issuance of shares of the same or any other class or series.
|
Rank
All preferred
shares will be equal to all other preferred shares with respect to dividend rights (subject to dividends on noncumulative shares being noncumulative) and rights upon our liquidation, dissolution or winding-up.
The preferred shares will:
|
|
|
rank prior to all classes of common shares and to all other equity securities ranking junior to such preferred shares with respect to dividend rights
and rights upon our liquidation, dissolution or winding-up;
|
|
|
|
be equal to all of our equity securities the terms of which specifically provide that such equity securities are equal to the preferred shares with
respect to dividend rights and rights upon our liquidation, dissolution or winding-up; and
|
|
|
|
be junior to all of our equity securities the terms of which specifically provide that such equity securities rank prior to the preferred shares with
respect to dividend rights and rights upon our liquidation, dissolution or winding-up.
|
Dividends
The holders of each series of each class of preferred shares are entitled to receive, if, when and as declared, out of funds legally
available for payment, dividends in cash at the rate determined for such series in preference to the holders of common shares and of any other class of shares ranking junior to the preferred shares. Dividends shall be payable on the date fixed for
such series. Dividends with respect to each series of Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares, Class G Shares, Class H Shares, Class I Shares,
Class J Shares, Class K Shares and the cumulative voting preferred shares will be cumulative from the dates fixed for the series. Dividends will be payable to holders of record as they appear on our stock transfer books on the record dates
fixed by our board of directors. Any dividend payment made on the preferred shares that have been designated under the Class A Shares, Class B Shares, Class C Shares, Class D Shares, Class E Shares, Class F Shares,
Class G Shares, Class H Shares, Class I Shares, Class J Shares and Class K Shares, which we refer to collectively as the designated preferred shares, will first be credited against the earliest accumulated but unpaid
dividend due with respect to such shares which remains payable.
Dividends on our preferred shares will accumulate whether or
not we have earnings, whether or not there are funds legally available for the payment of such dividends and whether or not such dividends are declared.
Accumulated but unpaid dividends on the designated preferred shares will not bear interest.
If preferred shares are outstanding, dividends may not be paid or declared or set apart for any series of preferred shares for any dividend period unless at the same time:
|
|
|
a proportionate dividend for the dividend periods terminating on the same or any earlier date for all issued and outstanding shares of all series of
such class entitled to receive such dividend (but, if such series are
|
29
|
series of noncumulative shares, then only with respect to the current dividend period), ratably in proportion to the respective annual dividend rates fixed therefor, have been paid or declared or
set apart; and
|
|
|
|
the dividends payable for the dividend periods terminating on the same or any earlier date for all other classes of issued and outstanding preferred
shares entitled to receive such dividends (but, with respect to noncumulative shares, only with respect to the then-current dividend period), ratably in proportion to the respective dividend rates fixed therefor, have been paid or declared and set
apart.
|
If any series of preferred shares is outstanding, a dividend shall not be paid or declared or any
distribution made in respect of the common shares or any other shares ranking junior to such series of preferred shares, and common shares or any other shares ranking junior to such series of preferred shares shall not be purchased, retired or
otherwise acquired by us unless:
|
|
|
all accrued and unpaid dividends on all classes of outstanding preferred shares, including the full dividends for all current dividend periods for the
nonvoting preferred shares (except, with respect to noncumulative shares, for the then-current dividend period only), have been declared and paid or a sum sufficient for payment thereof set apart; and
|
|
|
|
with respect to the nonvoting preferred shares, there are no arrearages with respect to the redemption of any series of any class of preferred shares
from any sinking fund provided for such class in accordance with our articles of incorporation. However, common shares and any other shares ranking junior to such series of preferred shares may be purchased, retired or otherwise acquired using the
proceeds of a sale of common shares or other shares junior to such preferred shares received subsequent to the first date of issuance of such preferred shares. In addition, we may pay or declare or distribute dividends payable in common shares or
other shares ranking junior to such preferred shares.
|
The preceding restrictions on the payment of dividends
or other distributions on, or on the purchase, redemption, retirement or other acquisition of, common shares or any other shares ranking equal to or junior to any class of preferred shares generally will be inapplicable to:
|
|
|
any payments in lieu of issuance of fractional shares, upon any merger, conversion, stock dividend or otherwise in the case of the nonvoting preferred
shares;
|
|
|
|
the conversion of preferred shares into common shares; or
|
|
|
|
the exercise of our rights to repurchase shares of capital stock in order to preserve our status as a REIT under the Internal Revenue Code of 1986, as
amended, or the Code.
|
When dividends are not paid in full (or a sum sufficient for full payment is not set
apart) upon the preferred shares of any series and the shares of any other series of preferred shares ranking on a parity as to dividends with such series, all dividends declared upon preferred shares of such series and any other series of preferred
shares ranking on a parity as to dividends with such preferred shares shall be declared pro rata so that the amount of dividends declared per share on the shares of such series of preferred shares shall in all cases bear to each other the same ratio
that accrued dividends per share on the preferred shares of such series (which shall not include any accumulation in respect of unpaid dividends for prior dividend periods for noncumulative shares) and such other series bear to each other.
Redemption
If our board of directors so provides, a series of preferred shares will be subject to mandatory redemption or redemption at our option,
as a whole or in part, in each case upon the terms, at the times and at the redemption prices determined by our board of directors. The redemption price per share will include an amount equal to all accrued and unpaid dividends on such preferred
shares as of the date of redemption; however, the redemption price of noncumulative shares will include only unpaid dividends for the current dividend period. The redemption price may be payable in cash or other property.
30
We may not purchase or redeem, for sinking fund purposes or otherwise, less than all of a
class of outstanding preferred shares except in accordance with a stock purchase offer made to all holders of record of such class, unless all dividends on that class of outstanding preferred shares for previous and current dividend periods (except,
in the case of noncumulative shares, dividends for the current dividend period only) have been declared and paid or funds set apart and all accrued sinking fund obligations applicable thereto have been complied with. However, we may repurchase
shares of capital stock in order to maintain our qualification as a REIT under the Code.
If fewer than all of our outstanding
shares of any class of preferred shares are to be redeemed, we will determine the number of shares to be redeemed. Our board of directors will determine the manner for selecting by lot the shares to be redeemed.
We will mail notice of redemption at least 30 days but not more than 60 days before the redemption date to each holder of record
of a preferred share to be redeemed at the address shown on our stock transfer books. If fewer than all the preferred shares of any series are to be redeemed, the notice of redemption will also specify the number of preferred shares to be redeemed
from each holder. If notice of redemption of any preferred shares has been given and if the funds necessary for such redemption have been set aside by us in trust for the benefit of the holders of the preferred shares to be redeemed, dividends will
cease to accrue on such preferred shares. In addition, the holders of preferred shares to be redeemed will cease to be shareholders with respect to such shares and will have no right or claim against us with respect to such shares as of the
redemption date. However, such holders will have the right to receive the redemption price without interest or to exercise before the redemption date any unexercised privileges of conversion.
The terms of redemption, if any, for the existing classes of preferred shares are included in our articles of incorporation that are filed
as an exhibit to the registration statement of which this prospectus forms a part.
Liquidation Preference
In the event of our voluntary liquidation, dissolution or winding-up, the holders of any series of any class of preferred shares shall be
entitled to receive in full out of our assets, including our capital, before any amount shall be paid or distributed among the holders of the common shares or any other shares ranking junior to such series, the amounts fixed by our board of
directors with respect to such series. In addition, each holder will receive an amount equal to all dividends accrued and unpaid on that series of preferred shares to the date of payment of the amount due pursuant to our liquidation, dissolution or
winding-up. However, holders of noncumulative shares will only receive dividends for the current dividend period. After holders of the preferred shares are paid the full preferential amounts to which they are entitled, they will have no right or
claim to any of our remaining assets.
If liquidating distributions are made in full to all holders of preferred shares, our
remaining assets will be distributed among the holders of any other classes or series of capital stock ranking junior to the preferred shares upon liquidation, dissolution or winding-up. The distributions will be made according to the holders
respective rights and preferences and, in each case, according to their respective number of shares. Our merger or consolidation into or with any other corporation, or the sale, lease or conveyance of all or substantially all of our assets, shall
not constitute a dissolution, liquidation or winding-up.
Voting Rights
Nonvoting Preferred Shares
Holders of nonvoting preferred shares have only the voting rights described below that apply to all preferred shares, whether nonvoting or voting, and as from time to time required by law.
If and when we are in default in the payment of (or, with respect to noncumulative shares, have not paid or declared and set aside a sum
sufficient for the payment of) dividends on any series of any class of outstanding
31
nonvoting preferred shares, for dividend payment periods, whether consecutive or not, which in the aggregate contain at least 540 days, all holders of shares of such class, voting separately
as a class, together and combined with all other preferred shares upon which like voting rights have been conferred and are exercisable, will be entitled to elect a total of two members to our board of directors. This voting right shall be vested
and any additional directors shall serve until all accrued and unpaid dividends (except, with respect to noncumulative shares, only dividends for the then-current dividend period) on such outstanding preferred shares have been paid or declared and a
sufficient sum set aside for payment thereof.
The affirmative vote of the holders of at least two-thirds of a class of
outstanding nonvoting preferred shares, voting separately as a class, shall be necessary to effect either of the following:
|
|
|
The authorization, creation or increase in the authorized number of any shares, or any security convertible into shares, ranking prior to such class of
nonvoting preferred shares; or
|
|
|
|
Any amendment, alteration or repeal, whether by merger, consolidation or otherwise, of any of the provisions of our articles of incorporation or our
code of regulations which adversely and materially affects the preferences or voting or other rights of the holders of such class of nonvoting preferred shares which are set forth in our articles of incorporation. However, the amendment of our
articles of incorporation to authorize, create or change the authorized or outstanding number of a class of such preferred shares or of any shares ranking on a parity with or junior to such class of preferred shares does not adversely and materially
affect preferences or voting or other rights of the holders of such class of preferred shares. In addition, amending the code of regulations to change the number or classification of our directors does not adversely or materially affect preferences
or voting rights or other rights. Voting shall be done in person at a meeting called for one of the above purposes or in writing by proxy.
|
The preceding voting provisions will not apply if, at or prior to the time of the action with respect to which such vote would be required, all outstanding shares of such series of preferred shares have
been redeemed or called for redemption and sufficient funds shall have been deposited in trust to effect such redemption.
Cumulative Voting Preferred Shares.
If and when we are in default in the payment of dividends on the cumulative voting preferred shares, for at least six dividend payment periods, whether or not consecutive, all holders of shares of such
class, voting separately as a class, together and combined with all other preferred shares upon which like voting rights have been conferred and are exercisable, will be entitled to elect a total of two members to our board of directors. This voting
right shall be vested and any additional directors shall serve until all accrued and unpaid dividends (except, with respect to noncumulative shares, only dividends for the then-current dividend period) on such outstanding preferred shares have been
paid or declared and a sufficient sum set aside for payment thereof.
The affirmative vote of the holders of at least
two-thirds of the outstanding cumulative voting preferred shares, voting separately as a class, shall be necessary to effect either of the following:
|
|
|
Any amendment, alteration or repeal of any of the provisions of, or the addition of any provisions to, our articles of incorporation or code of
regulations, whether by merger, consolidation or otherwise, which we refer to as an event, that materially adversely affects the voting powers, rights or preferences of the holders of the cumulative voting preferred shares; provided, however, that
the amendment of the provisions of the articles of incorporation (a) so as to authorize or create, or to increase the authorized amount of, or issue, any shares ranking junior to the cumulative voting preferred shares or any shares of any class
or series of shares ranking on a parity with the cumulative voting preferred shares or (b) with respect to the occurrence of any event, so long as the cumulative voting preferred shares remain outstanding with the terms thereof materially
unchanged, taking into account that upon the occurrence of the event, we may not be the surviving entity, shall not in either case be deemed to materially adversely affect the voting power, rights or preferences of the holders of cumulative voting
preferred shares; or
|
32
|
|
|
the authorization, creation of, increase in the authorized amount of, or issuance of any shares of any class or series of shares ranking prior to the
cumulative voting preferred shares or any security convertible into shares of any class or series of shares ranking prior to the cumulative voting preferred shares (whether or not such class or series of shares ranking prior to the cumulative voting
preferred shares is currently authorized).
|
The preceding voting provisions will not apply, if at or prior to
the time of the action with respect to which such vote would be required, all outstanding shares of such series of cumulative voting preferred shares have been redeemed or called for redemption and sufficient funds shall have been deposited in trust
to effect such redemption.
In addition to the foregoing, the holders of cumulative voting preferred shares shall be entitled
to vote on all matters on which holders of our common shares may vote and shall be entitled to one vote for each cumulative voting preferred share entitled to vote at such meeting.
General
Without limiting the provisions described above, under Ohio law, holders of each class of preferred shares will be entitled to vote as a class on any amendment to our articles of incorporation, whether or
not they are entitled to vote thereon by our articles of incorporation, if the amendment would:
|
|
|
increase or decrease the par value of the shares of such class;
|
|
|
|
change the issued shares of such class into a lesser number of shares of such class or into the same or different number of shares of another class;
|
|
|
|
change or add to the express terms of the shares of the class in any manner substantially prejudicial to the holders of such class;
|
|
|
|
change the express terms of any class of issued shares ranking prior to the particular class in any manner substantially prejudicial to the holders of
shares of the particular class;
|
|
|
|
authorize shares of another class that are convertible into, or authorize the conversion of shares of another class into, shares of the particular
class, or authorize the directors to fix or alter conversion rights of shares of another class that are convertible into shares of the particular class;
|
|
|
|
reduce or eliminate our stated capital;
|
|
|
|
substantially change our purposes; or
|
|
|
|
change the Company into a nonprofit corporation.
|
If, and only to the extent that,
|
|
|
a class of preferred shares is issued in more than one series and
|
|
|
|
Ohio law permits the holders of a series of a class of capital stock to vote separately as a class,
|
the affirmative vote of the holders of at least two-thirds of each series of such class of outstanding preferred shares, voting separately as a class,
shall be required for any amendment, alteration or repeal, whether by merger, consolidation or otherwise, of any of the provisions of our articles of incorporation or our code of regulations which adversely and materially affects the preferences or
voting or other rights of the holders of such series as set forth in our articles of incorporation. However, the amendment of our articles of incorporation so as to authorize, create or change the authorized or outstanding number of a class of
preferred shares or of any shares ranking equal to or junior to such class of preferred shares does not adversely and materially affect the preference or voting or other rights of the holders of such series. In addition, the amendment of our code of
regulations to change the number or classification of our directors does not adversely and materially affect the preference or voting or other rights of the holders of such series.
33
Restrictions on Ownership
In order to qualify as a REIT under the Code, not more than 50% in value of our outstanding capital stock may be owned, directly or indirectly, by five or fewer individuals during the last half of a
taxable year. Individual is defined in the Code to include certain entities. In addition, our capital stock must be beneficially owned by 100 or more persons during at least 335 days of a taxable year of 12 months or during a
proportionate part of a shorter taxable year. We also must satisfy certain other requirements. For more information on restrictions on ownership, see Description of Common Shares Restrictions on Ownership.
To ensure that five or fewer individuals do not own more than 50% in value of our outstanding preferred shares, our articles of
incorporation provide that, subject to certain exceptions, no one may own, or be deemed to own by virtue of the attribution provisions of the Code, more than 9.8%, which we refer to as the preferred shares ownership limit, of any series of any class
of our outstanding preferred shares. In addition, because rent from a related party tenant (any tenant 10% of which is owned, directly or constructively, by a REIT, including an owner of 10% or more of a REIT) is not qualifying rent for purposes of
the gross income tests under the Code, our articles of incorporation provide that no individual or entity may own, or be deemed to own by virtue of the attribution provisions of the Code (which differ from the attribution provisions applied to the
preferred shares ownership limit), in excess of 9.8%, which we refer to as the preferred shares related party limit, of our outstanding preferred shares. Our board of directors may exempt a person from the preferred shares ownership limit if the
person would not be deemed an individual and may exempt a person from the preferred shares related party limit. As a condition of any exemption, our board of directors will require appropriate representations and undertakings from the
applicant with respect to preserving our REIT status.
The preceding restrictions on transferability and ownership of preferred
shares may not apply if our board of directors determines that it is no longer in our best interests to attempt to qualify, or to continue to qualify, as a REIT.
Even if the REIT provisions of the Code are changed so as to no longer contain any ownership concentration limitation or if the ownership concentration limitation is increased, the preferred shares
ownership limit and the preferred shares related party limit will not be automatically removed. Any change in the preferred shares ownership limit or the preferred shares related party limit would require an amendment to our articles of
incorporation, even if our board of directors determines that maintenance of REIT status is no longer in our best interests. Amendments to our articles of incorporation require the affirmative vote of holders owning not less than a majority of our
outstanding common shares. If it is determined that an amendment would materially and adversely affect the holders of any class of preferred shares, such amendment would also require the affirmative vote of holders of not less than two-thirds of
such class of preferred shares.
If preferred shares in excess of the preferred shares ownership limit or the preferred shares
related party limit are issued or transferred to any person absent a waiver of such limit, such issuance or transfer will be null and void to the intended transferee, and the intended transferee will acquire no rights to the shares. In addition, if
an issuance or transfer would cause our shares to be beneficially or constructively owned by fewer than 100 persons or would result in our being closely held within the meaning of Section 856(h) of the Code, such issuance or
transfer will be null and void to the intended transferee, and the intended transferee will acquire no rights to the shares. Preferred shares transferred or proposed to be transferred in excess of the preferred shares ownership limit or the
preferred shares related party limit or which would otherwise jeopardize our REIT status will be subject to repurchase by us. The purchase price of such preferred shares will be equal to the lesser of:
|
|
|
the price in such proposed transaction; and
|
|
|
|
the fair market value of such shares reflected in the last reported sales price for the shares on the trading day immediately preceding the date on
which we or our designee determine to exercise our repurchase right if the shares are listed on a national securities exchange, or such price for the shares on the principal exchange if the shares are then listed on more than one national securities
exchange.
|
34
If the shares are not listed on a national securities exchange, the purchase price will be
equal to the lesser of:
|
|
|
the price in such proposed transaction; and
|
|
|
|
the latest bid quotation for the shares if the shares are then traded over the counter, or, if such quotation is not available, the fair market value
as determined by our board of directors in good faith, on the last trading day immediately preceding the day on which notice of such proposed purchase is sent by us.
|
From and after the date fixed for our purchase of such preferred shares, the holder will cease to be entitled to distributions, voting
rights and other benefits with respect to such shares except the right to payment of the purchase price for the shares. Any dividend or distribution paid to a proposed transferee on such preferred shares must be repaid to us upon demand. If the
foregoing transfer restrictions are determined to be void or invalid by virtue of any legal decision, statute, rule or regulation, then the intended transferee of any such preferred shares may be deemed, at our option, to have acted as our agent in
acquiring such preferred shares and to hold such preferred shares on our behalf.
All certificates for preferred shares will
bear a legend referring to the restrictions described above.
Our articles of incorporation provide that all persons who own,
directly or by virtue of the attribution provisions of the Code, more than 5% of the preferred shares must give written notice to us stating the name and address of such person, the number of shares owned, and a description of how such shares are
held each year by January 31. In addition, each of those shareholders must provide supplemental information that we may request, in good faith, in order to determine our status as a REIT.
DESCRIPTION OF DEPOSITARY SHARES REPRESENTING PREFERRED SHARES
General
We may issue
receipts for depositary shares representing preferred shares, or depositary receipts. Each depositary receipt will represent a fractional interest or a share of a particular series of a class of nonvoting preferred shares, as specified in the
applicable prospectus supplement. Preferred shares of each series of each class represented by depositary shares will be deposited under a separate Deposit Agreement among us, the depositary named therein and the holders from time to time of the
Depositary Receipts. Subject to the terms of the Deposit Agreement, each owner of a Depositary Receipt will be entitled to all the rights and preferences of the preferred shares represented by such depositary shares including dividend, voting,
conversion, redemption and liquidation rights. Such rights and preferences will be proportionate to the fractional interest of a share of the particular series of preferred shares represented by the depositary shares evidenced by such Depositary
Receipt. As of the date of this prospectus, there are issued and outstanding:
|
|
|
7,200,000 Depositary Shares each representing
1
/
10
of a share of 8% Class G Cumulative Redeemable Preferred Shares;
|
|
|
|
8,200,000 Depositary Shares each representing
1
/
20
of a share of the
73
/
8
% Class H Cumulative Redeemable Preferred Shares; and
|
|
|
|
6,800,000 Depositary Shares each representing
1
/
20
of a share of 7.50% Class I Redeemable Preferred Shares.
|
See Description of Preferred Shares. These depositary shares representing preferred shares are listed on the New York Stock
Exchange under the symbols DDR-PG, DDR-PH and DDR-PI, respectively.
The depositary shares representing preferred shares will
be evidenced by Depositary Receipts issued pursuant to the applicable Deposit Agreement. Immediately after we issue and deliver the preferred shares to the depositary, we will cause the depositary to issue the Depositary Receipts on our behalf.
Copies of the applicable form of Deposit Agreement and Depositary Receipt may be obtained from us upon request.
35
Dividends and Other Distributions
The depositary will distribute all cash dividends or other cash distributions received on behalf of the preferred shares proportionately
to the record holders of the related Depositary Receipts owned by such holder. Such distributions are subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the
depositary.
In the event of a non-cash distribution, the depositary will distribute property it receives to the record holders
of Depositary Receipts entitled to the property unless the depositary determines that it is not feasible to make such distribution, in which case the depositary may, with our approval, sell such property and distribute the net proceeds of such sale
to holders. Such distributions by the depositary are subject to certain obligations of holders to file proofs, certificates and other information and to pay certain charges and expenses to the depositary.
Withdrawal of Shares
Unless the related depositary shares representing preferred shares have previously been called for redemption, upon surrender of the
Depositary Receipts at the corporate trust office of the depositary, the holders thereof will be entitled to delivery at such office, to or upon such holders order, of the number of whole or fractional preferred shares and any money or other
property represented by the depositary shares evidenced by such Depositary Receipts. Holders of Depositary Receipts will be entitled to receive whole or fractional shares of the related preferred shares on the basis of the proportion of preferred
shares represented by each depositary share as specified in the applicable prospectus supplement, but holders of such preferred shares will not thereafter be entitled to receive depositary shares representing preferred shares therefor. If the
Depositary Receipts delivered by the holder evidence a number of depositary shares in excess of the number of depositary shares representing the preferred shares to be withdrawn, the depositary will deliver to such holder at the same time a new
Depositary Receipt evidencing such excess number of depositary shares.
Redemption of Depositary Shares Representing Preferred Shares
Whenever we redeem preferred shares held by the depositary, the depositary will redeem as of the same redemption date the
number of depositary shares representing the preferred shares so redeemed, provided we have paid in full to the depositary the redemption price of the preferred shares to be redeemed plus an amount equal to any accrued and unpaid dividends thereon
to the date fixed for redemption. With respect to Noncumulative Shares, dividends will be paid for the current dividend period only. The redemption price per depositary share will be equal to the redemption price and any other amounts per share
payable with respect to the preferred shares. If less than all the depositary shares representing preferred shares are to be redeemed, the depositary shares representing preferred shares to be redeemed will be selected by the depositary by lot.
After the date fixed for redemption, the depositary shares representing preferred shares called for redemption will no longer
be deemed to be outstanding and all rights of the holders of the Depositary Receipts evidencing the depositary shares representing preferred shares called for redemption will cease. However, the holders will have the right to receive any moneys
payable upon redemption and any money or other property that the holders of such Depositary Receipts were entitled to at the time of redemption when they surrender their Depositary Receipts to the depositary.
Voting of the Underlying Preferred Shares
Upon receipt of notice of any meeting at which the holders of the preferred shares are entitled to vote, the depositary will mail the information contained in such notice to the record holders of the
Depositary Receipts related to such preferred shares. Each record holder of Depositary Receipts on the record date will be entitled to instruct the depositary as to the exercise of the voting rights of the preferred shares related to such
holders Depositary Receipts. The record date for Depositary Receipts will be the same date as the record date for
36
preferred shares. The depositary will vote the preferred shares related to such Depositary Receipts in accordance with such instructions, and we will agree to take all reasonable action that the
depositary deems necessary to enable it to vote the preferred shares. The depositary will abstain from voting preferred shares represented by such depositary shares to the extent it does not receive specific instructions from the holders of
Depositary Receipts.
Liquidation Preference
In the event of our liquidation, dissolution or winding-up, whether voluntary or involuntary, each holder of a Depositary Receipt will be entitled to the fraction of the liquidation preference accorded
each preferred share represented by the depositary share evidenced by such Depositary Receipt, as set forth in the applicable prospectus supplement.
Conversion of Preferred Shares
The depositary shares representing
preferred shares, as such, are not convertible into common shares or any of our other securities or property. Nevertheless, if so specified in the applicable prospectus supplement relating to an offering of depositary shares representing preferred
shares, the Depositary Receipts may be surrendered by holders thereof to the depositary with written instructions to the depositary to instruct us to cause conversion of the preferred shares represented by the depositary shares into whole common
shares, other preferred shares or other shares of capital stock. We have agreed that upon receipt of such instructions and any amounts payable in respect thereof, we will cause the conversion thereof utilizing the same procedures as those provided
for delivery of preferred shares to effect such conversion. If the depositary shares representing preferred shares evidenced by a Depositary Receipt are to be converted in part only, one or more new Depositary Receipts will be issued for any
depositary shares not to be converted. No fractional common shares will be issued upon conversion. If conversion will result in a fractional share being issued, we will pay in cash an amount equal to the value of the fractional interest based upon
the closing price of the common shares on the last business day prior to the conversion.
Amendment and Termination of the Deposit
Agreement
The form of Depositary Receipt evidencing the depositary shares which represent the preferred shares and any
provision of the Deposit Agreement may at any time be amended by agreement between the depositary and us. However, any amendment that materially and adversely alters the rights of the holders of Depositary Receipts will not be effective unless it
has been approved by the existing holders of at least a majority of the depositary shares evidenced by outstanding Depositary Receipts.
We may terminate the Deposit Agreement upon not less than 30 days prior written notice to the depositary if (1) such termination is to preserve our status as a REIT or (2) a majority
of each class of preferred shares affected by such termination consents to such termination. Upon termination of the Deposit Agreement, the depositary shall deliver or make available to each holder of Depositary Receipts, upon surrender of the
Depositary Receipts held by such holder, such number of whole or fractional preferred shares as are represented by the depositary shares evidenced by such Depositary Receipts. In addition, the Deposit Agreement will automatically terminate if:
(1) all outstanding depositary shares have been redeemed,
(2) there has been a final distribution in respect of the related preferred shares in connection with any
liquidation, dissolution or winding-up and such distribution has been distributed to the holders of Depositary Receipts evidencing the depositary shares representing such preferred shares, or
(3) each related preferred share shall have been converted into capital stock that is not represented by depositary
shares.
37
Charges of Preferred Shares Depositary
We will pay all transfer and other taxes and governmental charges arising solely from the existence of the Deposit Agreement. In addition,
we will pay the fees and expenses of the depositary in connection with the performance of its duties under the Deposit Agreement. However, holders of Depositary Receipts will pay the depositarys fees and expenses for any duties that holders
request to be performed which are outside those expressly provided for in the Deposit Agreement.
Resignation and Removal of Depositary
The depositary may resign at any time by delivering to us notice of its resignation, and we may remove the depositary at
any time. Any such resignation or removal will take effect upon the appointment of a successor depositary. A successor depositary must be appointed within 60 days after delivery of the notice of resignation or removal. A successor depositary
must be a bank or trust company having its principal office in the United States and having a combined capital and surplus of at least $100,000,000.
Miscellaneous
The depositary will forward to holders of Depositary
Receipts any reports and communications from us which it receives with respect to the related preferred shares.
Neither we nor
the depositary will be liable if it is prevented from or delayed, by law or any circumstances beyond its control, in performing its obligations under the Deposit Agreement. The obligations of the Company and the depositary under the Deposit
Agreement will be limited to performing our respective duties thereunder in good faith and without negligence, gross negligence or willful misconduct. DDR and the depositary will not be obligated to prosecute or defend any legal proceeding in
respect of any Depositary Receipts, depositary shares or preferred shares represented thereby unless satisfactory indemnity is furnished. DDR and the depositary may rely on written advice of counsel or accountants, or information provided by persons
presenting preferred shares represented thereby for deposit, holders of Depositary Receipts or other persons believed to be competent to give such information, and on documents believed to be genuine and signed by a proper party.
If the depositary shall receive conflicting claims, requests or instructions from any holders of Depositary Receipts, on the one hand, and
us, on the other hand, the depositary shall be entitled to act on such claims, requests or instructions received from us.
DESCRIPTION OF COMMON SHARES
Capitalization
Our articles of incorporation authorize us to issue up to 500,000,000 common shares, $0.10 par value per share.
General
The following description summarizes certain general terms and
provisions of our common shares. This summary may not contain all of the information that is important to you. For more detail, you should refer to the applicable provisions of our articles of incorporation and our code of regulations that are filed
as exhibits to the registration statement of which this prospectus forms a part.
Holders of our common shares are entitled to
receive dividends when, as and if declared by our board of directors, out of funds legally available therefor. Any payment and declaration of dividends by us on our common shares and purchases thereof will be subject to certain restrictions if we
fail to pay dividends on any outstanding preferred shares. See Description of Preferred Shares Dividends. If we are liquidated, dissolved or involved in any winding-up, the holders of our common shares are entitled to receive
ratably any assets
38
remaining after we have fully paid all of our liabilities, including the preferential amounts we owe with respect to any preferred shares. Holders of our common shares possess ordinary voting
rights, with each share entitling the holder to one vote. Holders of our common shares have cumulative voting rights in the election of directors. Holders of our common shares do not have preemptive rights, which means that they have no right to
acquire any additional common shares that we may subsequently issue.
Restrictions on Ownership
In order for us to qualify as a REIT under the Code, not more than 50% in value of our outstanding capital stock may be owned, directly or
indirectly, by five or fewer individuals during the last half of a taxable year. Individual is defined in the Code to include certain entities. In addition, our capital stock must be beneficially owned by 100 or more persons during at
least 335 days of a taxable year of 12 months or during a proportionate part of a shorter taxable year. Additionally, certain other requirements must be satisfied.
To ensure that five or fewer individuals do not own more than 50% in value of our outstanding common shares, our articles of incorporation provide that, subject to certain exceptions (including those set
forth below), no holder may own, or be deemed to own by virtue of the attribution provisions of the Code, more than 5%, which we refer to as the ownership limit, of our outstanding common shares. The existing holder, which includes,
collectively, (a) Iris Wolstein and/or all descendants of Iris Wolstein (which includes Scott A. Wolstein), (b) trusts or family foundations established for the benefit of the individuals named in (a) above and (c) other entities
controlled by the individuals named in (a) above (or trusts or family foundations established for the benefit of those individuals) may own, or be deemed to own by virtue of the attribution provisions of the Code, no more than 5.1% of our
outstanding common shares. The exempt holder, which includes, collectively, (x) Professor Werner Otto, his wife Maren Otto and/or all descendants of Professor Werner Otto, including, without limitation, Alexander Otto,
(y) trusts or family foundations established for the benefit of the individuals named in (x) above and (z) other entities controlled by the individuals named in (x) above (or trusts or family foundations established for the
benefit of those individuals) may own, or be deemed to own by virtue of the attribution provisions of the Code, no more than 29.8% of our outstanding common shares.
In addition, because rent from a related party tenant (any tenant 10% of which is owned, directly or constructively, by a REIT, including an owner of 10% or more of a REIT) is not qualifying rent for
purposes of the gross income tests under the Code, our articles of incorporation provide that no individual or entity may own, or be deemed to own by virtue of the attribution provisions of the Code (which differ from the attribution provisions
applied to the ownership limit), in excess of 9.8% of our outstanding common shares, which we refer to as the related party limit. Our board of directors may exempt a person from the ownership limit if the person would not be deemed an
individual and may exempt a person from the related party limit if an opinion of counsel or a ruling from the Internal Revenue Service, or IRS, is provided to our board of directors to the effect that the ownership will not then or in
the future jeopardize our status as a REIT. Our board of directors may also exempt the exempt holder and any person who would constructively own common shares constructively owned by the exempt holder from the ownership limit in its sole discretion.
As a condition of any exemption, our board of directors will require appropriate representations and undertakings from the applicant with respect to preserving our REIT status.
Additionally, our articles of incorporation prohibit any transfer of common shares that would cause us to cease to be a domestically controlled qualified investment entity as defined in
Section 897(h)(4)(B) of the Code.
The preceding restrictions on transferability and ownership of common shares may not
apply if our board of directors determines that it is no longer in our best interests to continue to qualify as a REIT. The ownership limit and the related party limit will not be automatically removed even if the REIT provisions of the Code are
changed to no longer contain any ownership concentration limitation or if the ownership concentration limitation is increased. In addition to preserving our status as a REIT, the effects of the ownership limit and the related party limit are to
prevent any person or small group of persons from acquiring unilateral control of us. Any change in the ownership limit, other than modifications that may be made by our board of directors as permitted
39
by our articles of incorporation, requires an amendment to the articles of incorporation, even if our board of directors determines that maintenance of REIT status is no longer in our best
interests. Amendments to the articles of incorporation require the affirmative vote of holders owning a majority of our outstanding common shares. If it is determined that an amendment would materially and adversely affect the holders of any class
of preferred shares, that amendment also would require the affirmative vote of holders of two-thirds of the affected class of preferred shares.
Our articles of incorporation provide that upon a transfer or non-transfer event that results in a person beneficially or constructively owning common shares in excess of the applicable ownership limits
or that results in us being closely held within the meaning of Section 856(h) of the Code, the person, which we refer to as a prohibited owner, will not acquire or retain any rights or beneficial economic interest in the shares that
would exceed such applicable ownership limits or result in us being closely held, which we refer to as excess shares. Instead, the excess shares will be automatically transferred to a person or entity unaffiliated with and designated by us to serve
as trustee of a trust for the exclusive benefit of a charitable beneficiary to be designated by us within five days after the discovery of the transaction that created the excess shares. The trustee will have the exclusive right to designate a
person who may acquire the excess shares without violating the applicable restrictions, which we refer to as a permitted transferee, to acquire all of the shares held by the trust. The permitted transferee must pay the trustee an amount equal to the
fair market value (determined at the time of transfer to the permitted transferee) for the excess shares. The trustee will pay to the prohibited owner the lesser of (a) the value of the shares at the time they became excess shares and
(b) the price received by the trustee from the sale of the excess shares to a permitted transferee. The beneficiary will receive the excess of (x) the sale proceeds from the transfer to a permitted transferee over (y) the amount paid
to the prohibited owner, if any, in addition to any dividends paid with respect to the excess shares.
All certificates
representing our common shares bear a legend referring to the preceding restrictions.
Our articles of incorporation provide
that all persons who own, directly or by virtue of the attribution provisions of the Code, more than 5% of our outstanding common shares must give written notice to us stating the name and address of such person, the number of shares owned, and a
description of how such shares are held each year by January 31. In addition, each of those shareholders must provide supplemental information that we may request, in good faith, in order to determine our status as a REIT.
DESCRIPTION OF COMMON SHARE WARRANTS
We may issue common share warrants for the purchase of common shares. We may issue common share warrants independently or together with
any other securities offered by any prospectus supplement. The common share warrants we issue may be attached to or separate from such offered securities. Each series of common share warrants will be issued under a separate warrant agreement to be
entered into between us and a warrant agent specified in the applicable prospectus supplement. The warrant agent will act solely as our agent in connection with the common share warrants of such series and will not assume any obligation or
relationship of agency or trust for or with any holders or beneficial owners of common share warrants. The following sets forth certain general terms and provisions of the common share warrants that may be offered under this Registration Statement.
Further terms of the common share warrants and the applicable warrant agreements will be set forth in the applicable prospectus supplement.
The applicable prospectus supplement will describe the terms of the common share warrants in respect of which this prospectus is being delivered, including, where applicable, the following:
(1) the title of such common share warrants;
(2) the aggregate number of such common share warrants;
(3) the price or prices at which such common share warrants will be issued;
40
(4) the number of common shares purchasable upon exercise of such
common share warrants;
(5) the designation and terms of the other Offered Securities with which such
common share warrants are issued and the number of such common share warrants issued with each such Offered Security;
(6) the date, if any, on and after which such common share warrants and the related common shares will be separately transferable;
(7) the price at which each common share purchasable upon exercise of such common share warrants may be purchased;
(8) the date on which the right to exercise such common share warrants shall commence and the date on
which such right shall expire;
(9) the minimum or maximum amount of such common share warrants which may
be exercised at any one time;
(10) information with respect to book-entry procedures, if any;
(11) a discussion of certain federal income tax considerations; and
(12) any other terms of such common share warrants, including terms, procedures and limitations relating to the
exchange and exercise of such common share warrants.
You should also read the section captioned Description of Common
Shares for a general description of the common shares to be acquired upon the exercise of the common share warrants, including a description of certain restrictions on the ownership of common shares. We will treat as outstanding any common
shares that may be acquired upon the exercise of common share warrants, directly or constructively held by an investor, at the following times:
(1) at the time of acquisition of the common share warrants, and
(2) prior to the exercise of the common share warrants, for purposes of determining the percentage ownership of common shares held by such investor.
CERTAIN ANTI-TAKEOVER PROVISIONS OF OHIO LAW
Certain provisions of Ohio law may have the effect of discouraging or rendering more difficult an unsolicited acquisition of a
corporation or its capital stock to the extent the corporation is subject to those provisions. We have opted out of one such provision. We remain subject to the foregoing provisions, which are described below.
Chapter 1704 of the Ohio Revised Code prohibits certain transactions, including mergers, sales of assets, issuances or purchases of
securities, liquidation or dissolution, or reclassifications of the then-outstanding shares of an Ohio corporation with 50 or more shareholders involving, or for the benefit of, certain holders of shares representing 10% or more of the voting power
of the corporation (any such shareholder, a 10% Shareholder), unless:
(1) the transaction is
approved by the directors before the 10% Shareholder becomes a 10% Shareholder;
(2) the acquisition of
10% of the voting power is approved by the directors before the 10% Shareholder becomes a 10% Shareholder; or
41
(3) the transaction involves a 10% Shareholder who has been a 10%
Shareholder for at least three years and is approved by the directors before the 10% Shareholder becomes a 10% Shareholder, is approved by holders of two-thirds of our voting power and the holders of a majority of the voting power not owned by the
10% Shareholder, or certain price and form of consideration requirements are met.
Chapter 1704 of the Ohio Revised Code
may have the effect of deterring certain potential acquisitions of us which might be beneficial to shareholders.
Section 1707.041 of the Ohio Revised Code regulates certain control bids for corporations in Ohio with fifty or more
shareholders that have significant Ohio contacts and permits the Ohio Division of Securities to suspend a control bid if certain information is not provided to offerees.
PLAN OF DISTRIBUTION
We may sell the offered
securities in and outside the United States:
|
|
|
through underwriters or dealers;
|
|
|
|
directly to purchasers;
|
|
|
|
in at the market offerings, within the meaning of Rule 415(a)(4) of the Securities Act, to or through a market maker or into an
existing trading market on an exchange or otherwise;
|
|
|
|
through a combination of any of these methods.
|
The prospectus supplement will include the following information:
|
|
|
the terms of the offering;
|
|
|
|
the names of any underwriters or agents;
|
|
|
|
the name or names of any managing underwriter or underwriters;
|
|
|
|
the purchase price or initial public offering price of the securities;
|
|
|
|
the net proceeds from the sale of the securities;
|
|
|
|
any delayed delivery arrangements;
|
|
|
|
any underwriting discounts, commissions and other items constituting underwriters compensation;
|
|
|
|
any discounts or concessions allowed or reallowed or paid to dealers; and
|
|
|
|
any commissions paid to agents.
|
Sale through Underwriters or Dealers
If underwriters are used in the sale,
the underwriters will acquire the securities for their own account. The underwriters may resell the securities from time to time in one or more transactions, including negotiated transactions, at a fixed public offering price or at varying prices
determined at the time of sale. Underwriters may offer securities to the public either through underwriting syndicates represented by one or more managing underwriters or directly by one or more firms acting as underwriters. Unless we inform you
otherwise in the prospectus supplement, the obligations of the underwriters to purchase the securities will be subject to certain conditions, and the underwriters will be obligated to purchase all the offered securities if they purchase any of them.
The underwriters may change from time to time any initial public offering price and any discounts or concessions allowed or reallowed or paid to dealers.
42
If we offer securities in a subscription rights offering to our existing security holders,
we may enter into a standby underwriting agreement with dealers, acting as standby underwriters. We may pay the standby underwriters a commitment fee for the securities they commit to purchase on a standby basis. If we do not enter into a standby
underwriting agreement, we may retain a dealer-manager to manage a subscription rights offering for us.
During and after an
offering through underwriters, the underwriters may purchase and sell the securities in the open market. These transactions may include overallotment and stabilizing transactions and purchases to cover syndicate short positions created in connection
with the offering. The underwriters may also impose a penalty bid, which means that selling concessions allowed to syndicate members or other broker-dealers for the offered securities sold for their account may be reclaimed by the syndicate if the
offered securities are repurchased by the syndicate in stabilizing or covering transactions. These activities may stabilize, maintain or otherwise affect the market price of the offered securities, which may be higher than the price that might
otherwise prevail in the open market. If commenced, the underwriters may discontinue these activities at any time.
Some or all
of the securities that we offer though this prospectus may be new issues of securities with no established trading market. Any underwriters to whom we sell our securities for public offering and sale may make a market in those securities, but they
will not be obligated to do so and they may discontinue any market making at any time without notice. Accordingly, we cannot assure you of the liquidity of, or continued trading markets for, any securities that we offer.
If dealers are used in the sale of securities, we will sell the securities to them as principals. They may then resell those securities to
the public at fixed prices or at varying prices determined by the dealers at the time of resale. We will include in the prospectus supplement the names of the dealers and the terms of the transaction.
Direct Sales and Sales through Agents
We may sell the securities directly. In this case, no underwriters or agents would be involved. We may also sell the securities through agents designated from time to time. In the prospectus supplement,
we will name any agent involved in the offer or sale of the offered securities, and we will describe any commissions payable to the agent. Unless we inform you otherwise in the prospectus supplement, any agent will agree to use its reasonable best
efforts to solicit purchases for the period of its appointment.
We may sell the securities directly to institutional investors
or others who may be deemed to be underwriters within the meaning of the Securities Act with respect to any sale of those securities. We will describe the terms of any sales of these securities in the prospectus supplement.
Remarketing Arrangements
Offered securities may also be offered and sold, if so indicated in the applicable prospectus supplement, in connection with a remarketing
upon their purchase, in accordance with a redemption or repayment pursuant to their terms, or otherwise, by one or more remarketing firms, acting as principals for their own accounts or as agents for us. Any remarketing firm will be identified and
the terms of its agreements, if any, with us and its compensation will be described in the applicable prospectus supplement.
Delayed
Delivery Contracts
If we so indicate in the prospectus supplement, we may authorize agents, underwriters or dealers to
solicit offers from certain types of institutions to purchase securities from us at the public offering price under delayed delivery contracts. These contracts would provide for payment and delivery on a specified date in the future. The contracts
would be subject only to those conditions described in the prospectus supplement. The prospectus supplement will describe the commission payable for solicitation of those contracts.
43
General Information
We may have agreements with the agents, dealers, underwriters and remarketing firms to indemnify them against certain civil liabilities, including liabilities under the Securities Act, or to contribute
with respect to payments that the agents, dealers, underwriters or remarketing firms may be required to make. Agents, dealers, underwriters and remarketing firms may be customers of, engage in transactions with or perform services for us in the
ordinary course of their businesses.
LEGAL MATTERS
Jones Day will pass upon the validity of the securities being offered by this prospectus.
EXPERTS
The financial statements incorporated in this prospectus by reference to Developers Diversified Realty Corporations Current Report on Form 8-K filed August 10, 2009 and managements
assessment of the effectiveness of internal control over financial reporting (which is included in Managements Report on Internal Control over Financial Reporting) incorporated in this prospectus by reference to the Annual Report on
Form 10-K of Developers Diversified Realty Corporation for the year ended December 31, 2008 have been so incorporated in reliance on the reports of PricewaterhouseCoopers LLP, an independent registered public accounting firm, given on the
authority of said firm as experts in auditing and accounting.
WHERE YOU CAN FIND MORE
INFORMATION
We file annual, quarterly and current reports, proxy statements and other information with the SEC. You may
read and copy any document we file with the SEC at the SECs Public Reference Room at 100 F Street, N.E., Washington, D.C. 20549. You may obtain information about the operation of the SECs Public Reference Room by calling
the SEC at 1-800-SEC-0330. The SEC also maintains a website that contains reports, proxy and information statements, and other information regarding registrants that file electronically with the SEC (http://www.sec.gov).
INFORMATION WE INCORPORATE BY REFERENCE
The SEC allows us to incorporate by reference the information we file with them, which means:
|
|
|
incorporated documents are considered part of the prospectus;
|
|
|
|
we can disclose important information to you by referring you to those documents; and
|
|
|
|
information that we file with the SEC after the date of this prospectus will automatically update and supersede the information contained in this
prospectus and incorporated filings.
|
We incorporate by reference the documents listed below that we filed
with the SEC under the Exchange Act:
|
|
|
our Annual Report on Form 10-K for the year ended December 31, 2008, as amended by Form 10-K/A filed on April 29, 2009;
|
|
|
|
our Quarterly Reports on Form 10-Q for the quarters ended March 31, 2009 and June 30, 2009;
|
44
|
|
|
our Current Reports on Form 8-K filed on January 6, 2009; February 27, 2009; March 11, 2009; April 7, 2009; May 11, 2009;
June 12, 2009; July 1, 2009; July 31, 2009; August 3, 2009; August 10, 2009; August 14, 2009; September 10, 2009; September 18, 2009, September 21, 2009; September 25, 2009 and September 29,
2009; and
|
|
|
|
the description of our common shares contained in our Registration Statement on Form 8-A dated January 26, 1993 and all amendments or reports
filed with the SEC for the purpose of updating such description.
|
Our Current Report on Form 8-K filed
with SEC on August 10, 2009 for purposes of, among other things, reflecting the impact of the classification of discontinued operations of properties sold after January 1, 2009, pursuant to the requirements of Statement No. 144
Accounting for the Impairment or Disposal of Long-Lived Assets, updates Items 6, 7, 7A, 15(a)(i) and 15(a)(2) of our Annual Report on Form 10-K for the year ended December 31, 2008.
We also incorporate by reference each of the documents that we file with the SEC under Sections 13(a), 13(c), 14 or 15(d) of the
Exchange Act after the date of this prospectus until the offering of the securities terminates. We will not, however, incorporate by reference in this prospectus any documents or portions of any documents that are not deemed filed with
the SEC, including any information furnished pursuant to Item 2.02 or Item 7.01 of our current reports on Form 8-K unless, and except to the extent, specified in such current reports.
We will provide you with a copy of any of these filings (other than an exhibit to these filings, unless the exhibit is specifically
incorporated by reference into the filing requested) at no cost if you submit a request to us by writing or telephoning us at the following address and telephone number:
Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122
Telephone Number: (216) 755-5500
Attn: Investor Relations
We also maintain a web site that contains additional information about us (http://www.ddr.com). The information on, or accessible through,
our web site is not part of, or incorporated by reference into, this prospectus other than the documents that we file with the SEC and incorporate by reference into this prospectus.
Any statement contained or incorporated by reference in this prospectus shall be deemed to be modified or superseded for purposes of this
prospectus to the extent that a statement contained in this prospectus, or in any subsequently filed document which also is incorporated herein by reference, modifies or supersedes such earlier statement. Any statement so modified or superseded
shall not be deemed, except as so modified or superseded, to constitute a part of this prospectus. Any statement made in this prospectus concerning the contents of any contract, agreement or other document is only a summary of the actual contract,
agreement or other document. If we have filed or incorporated by reference any contract, agreement or other document as an exhibit to the registration statement, you should read the exhibit for a more complete understanding of the document or matter
involved. Each statement regarding a contract, agreement or other document is qualified by reference to the actual document.
45
16,500,000 Common Shares
DDR Corp.
Common Shares
PROSPECTUS
SUPPLEMENT
Joint Book-Running Managers
Goldman, Sachs & Co.
Citigroup
Wells Fargo Securities
PNC Capital Markets LLC
Senior Co-Managers
Capital One Southcoast
Morgan Keegan
RBS
Co-Manager
Scotia Capital
January 11, 2012
Developers Realty (NYSE:DDR)
Historical Stock Chart
From Aug 2024 to Sep 2024
Developers Realty (NYSE:DDR)
Historical Stock Chart
From Sep 2023 to Sep 2024