- Securities Registration: Employee Benefit Plan (S-8)
October 13 2009 - 5:26PM
Edgar (US Regulatory)
As filed with the Securities and Exchange Commission on October 13, 2009.
Registration No. 333-
UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM S-8
REGISTRATION STATEMENT
UNDER THE SECURITIES ACT OF 1933
DEVELOPERS DIVERSIFIED REALTY CORPORATION
(Exact Name of Registrant as Specified in Its Charter)
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Ohio
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34-1723097
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(State or Other Jurisdiction
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(I.R.S. Employer Identification No.)
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of Incorporation or Organization)
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3300 Enterprise Parkway, Beachwood, Ohio 44122
(Address of Principal Executive Offices) (Zip Code)
Amended and Restated 2008 Developers Diversified Realty Corporation
Equity-Based Award Plan (Amended and Restated as of June 25, 2009)
(Full Title of the Plan)
Scott A. Wolstein
Chief Executive Officer
Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122
(216) 755-5500
(Name, Address, and Telephone Number, Including Area Code, of Agent For Service)
Indicate by check mark whether the Registrant is a large accelerated filer, an accelerated filer, a
non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated
filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act.
(Check one):
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Large accelerated filer
þ
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Accelerated filer
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Non-accelerated filer
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(do not check if a smaller reporting company)
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Smaller reporting company
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CALCULATION OF REGISTRATION FEE
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Title of Securities to
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Amount to be
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Proposed Maximum
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Proposed Maximum
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Amount of
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be Registered
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Registered
(1)
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Offering Price Per Share
(2)
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Aggregate Offering Price
(2)
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Registration Fee
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Common Shares, par
value $0.10 per share
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4,500,000
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$8.82
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$39,690,000
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$2,215
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(1)
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Represents the maximum number of common shares, par value $0.10 per share (Common Shares),
of Developers Diversified Realty Corporation (the Registrant) issuable pursuant to the
Amended and Restated 2008 Developers Diversified Realty Corporation Equity-Based Award Plan
(Amended and Restated as of June 25, 2009) (the Plan) being registered hereon. Pursuant to
Rule 416 under the Securities Act of 1933 (the Securities Act), this Registration Statement
also covers such additional Common Shares as may become issuable pursuant to the anti-dilution
provisions of the Plan.
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(2)
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Estimated solely for calculating the amount of the registration fee, pursuant to paragraphs
(c) and (h) of Rule 457 of the General Rules and Regulations under the Securities Act, on the
basis of the average of the high and low sale prices of the Registrants Common Shares on the
New York Stock Exchange on October 5, 2009, a date that is within five business days prior to
filing.
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TABLE OF CONTENTS
EXPLANATORY STATEMENT
The Registrant is filing this Registration Statement to register an additional 4,500,000
Common Shares for issuance under the Plan. Pursuant to General Instruction E to Form S-8, the
contents of the Registration Statement on Form S-8 (File No. 333-155910) filed by the Registrant on
December 4, 2008 with the Securities and Exchange Commission (the Commission), is incorporated
herein by reference, except as modified herein.
PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
Item 3. Incorporation of Documents by Reference.
The following documents have been filed by the Registrant with the Commission and are
incorporated herein by reference:
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(a)
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The Registrants 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;
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(b)
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The Registrants Quarterly Reports on Form 10-Q for the quarters ended March
31, 2009 and June 30, 2009;
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(c)
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The Registrants Current Reports on Form 8-K filed with the Commission 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
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(d)
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The description of the Registrants Common Shares contained in the Registrants
Registration Statement on Form 8-A, dated January 2, 1993, and all amendments and
reports filed with the Commission for the purpose of updating such description.
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The Registrants Current Report on Form 8-K filed with the Commission 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 the Registrants Annual Report on Form 10-K for the year ended December
31, 2008.
All documents filed by the Registrant with the Commission pursuant to Sections 13(a), 13(c),
14 and 15(d) of the Securities Exchange Act of 1934, referred to as the Exchange Act, subsequent to
the date of this Registration Statement and prior to the filing of a post-effective amendment that
indicates that all securities offered have been sold or which deregisters all securities then
remaining unsold, will be deemed to be incorporated by reference in this Registration Statement and
to be part hereof from the date of filing of such documents. Any statement contained in any
document incorporated or deemed to be incorporated by reference herein will be deemed to be
modified or superseded for purposes of this Registration Statement to the extent that a statement
contained herein or in any other subsequently filed document which also is or is deemed to be
incorporated by reference herein modifies or supersedes such statement. Any such statement so
modified or superseded will not be deemed, except as modified or superseded, to constitute a part
of this Registration Statement.
Item 8. Exhibits.
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Exhibit No.
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Description
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4.1
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Second Amended and Restated Articles of Incorporation, as amended (incorporated herein by
reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K (File No. 001-11690)
filed with the Commission on August 10, 2009)
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4.2
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Amended and Restated Code of Regulations (incorporated herein by reference to Exhibit 3.1 to
the Registrants Quarterly Report on Form 10-Q (File No. 001-11690) for the quarter ended
March 31, 2009 filed with the Commission on May 11, 2009)
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4.3
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Specimen Certificate for Common Shares (incorporated herein by reference to the Registrants
Registration Statement on Form S-3 (Registration No. 033-78778) filed with the Commission on
May 10, 1994)
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4.4
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Amended and Restated 2008 Developers Diversified Realty Corporation Equity-Based Award Plan
(Amended and Restated as of June 25, 2009) (incorporated herein by reference to Exhibit 10.3
to the Registrants Quarterly Report on Form 10-Q (File No. 001-11690) for the quarter ended
June 30, 2009 filed with the Commission on August 7, 2009)
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5.1
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Opinion of Counsel
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23.1
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Consent of PricewaterhouseCoopers LLP
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23.2
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Consent of PricewaterhouseCoopers LLP (DDRTC Core Retail Fund LLC)
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23.3
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Consent of PricewaterhouseCoopers (Macquarie DDR Trust)
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23.4
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Consent of Counsel (Included in Exhibit 5.1)
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24.1
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Power of Attorney
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Item 9. Undertakings.
(a) The Registrant hereby undertakes:
(1) To file, during any period in which offers or sales are being made, a post-effective
amendment to this registration statement:
(i) to include any prospectus required by Section 10(a)(3) of the Securities Act;
(ii) to reflect in the prospectus any facts or events arising after the effective date
of this registration statement (or the most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a fundamental change in the information set
forth in this registration statement. Notwithstanding the foregoing, any increase or
decrease in the volume of securities offered (if the total dollar value of securities
offered would not exceed that which was registered) and any deviation from the low or high
end of the estimated maximum offering range may be reflected in the form of a prospectus
filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in
volume and price represent no more than a 20
2
percent change in the maximum aggregate price set forth in the Calculation of
Registration Fee table in the effective registration statement; and
(iii) to include any material information with respect to the plan of distribution not
previously disclosed in this registration statement or any material change to such
information in this registration statement;
provided
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however
, that paragraphs (a)(1)(i) and (a)(1)(ii) do not apply if the
information required to be included in a post-effective amendment by those paragraphs is contained
in periodic reports filed by the Registrant pursuant to Section 13 or Section 15(d) of the Exchange
Act that are incorporated by reference in this registration statement.
(2) That, for the purpose of determining any liability under the Securities Act, each such
post-effective amendment will be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time will be deemed to be
the initial
bona fide
offering thereof.
(3) To remove from registration by means of a post-effective amendment any of the securities
being registered which remain unsold at the termination of the offering.
(b) The Registrant hereby undertakes that, for purposes of determining any liability under the
Securities Act, each filing of the Registrants annual report pursuant to Section 13(a) or
Section 15(d) of the Exchange Act (and, where applicable, each filing of an employee benefit plans
annual report pursuant to Section 15(d) of the Exchange Act) that is incorporated by reference in
this registration statement will be deemed to be a new registration statement relating to the
securities offered therein, and the offering of such securities at that time will be deemed to be
the initial
bona fide
offering thereof.
(c) Insofar as indemnification for liabilities arising under the Securities Act may be
permitted to directors, officers and controlling persons of the Registrant pursuant to the
foregoing provisions, or otherwise, the Registrant has been advised that in the opinion of the
Commission such indemnification is against public policy as expressed in the Securities Act and is,
therefore, unenforceable. In the event that a claim for indemnification against such liabilities
(other than the payment by the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action, suit or proceeding)
is asserted by such director, officer or controlling person in connection with the securities being
registered, the Registrant will, unless in the opinion of its counsel the matter has been settled
by controlling precedent, submit to a court of appropriate jurisdiction the question whether such
indemnification by it is against public policy as expressed in the Securities Act and will be
governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act, the Registrant certifies that it has
reasonable grounds to believe that it meets all of the requirements for filing on Form S-8 and has
duly caused this Registration Statement to be signed on its behalf by the undersigned, thereunto
duly authorized, in the city of Beachwood, state of Ohio, on this 13
th
day of October,
2009.
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DEVELOPERS DIVERSIFIED REALTY CORPORATION
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By:
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/s/ William H. Schafer
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Name:
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William H. Schafer
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Title:
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Executive Vice President and Chief Financial Officer
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Pursuant to the requirements of the Securities Act, this Registration Statement has been
signed by the following persons in the capacities and on October 13, 2009.
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Signature
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Title
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Chairman of the Board of Directors
and Chief Executive Officer and
Director (principal executive
officer)
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/s/ William H. Schafer
William H. Schafer
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Executive Vice President and Chief
Financial Officer (principal
financial officer)
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Senior Vice President and Chief
Accounting Officer (principal
accounting officer)
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President, Chief Operating Officer and Director
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Director
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Director
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Director
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Director
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Director
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Director
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4
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Signature
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Title
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Director
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Director
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Director
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*
William B. Summers, Jr.
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Director
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*
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William H. Schafer, the undersigned attorney-in-fact, by signing his name hereto, does hereby
sign and execute this Registration Statement on behalf of the above indicated officers and
directors pursuant to a power of attorney filed with the Commission.
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October 13, 2009
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By:
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/s/ William H. Schafer
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William H. Schafer, Attorney-in-Fact
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5
EXHIBIT INDEX
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Exhibit No.
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Description
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4.1
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Second Amended and Restated Articles of Incorporation, as amended (incorporated herein by
reference to Exhibit 3.1 to the Registrants Current Report on Form 8-K (File No. 001-11690)
filed with the Commission on August 10, 2009)
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4.2
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Amended and Restated Code of Regulations (incorporated herein by reference to Exhibit 3.1 to
the Registrants Quarterly Report on Form 10-Q (File No. 001-11690) for the quarter ended
March 31, 2009 filed with the Commission on May 11, 2009)
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4.3
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Specimen Certificate for Common Shares (incorporated herein by reference to the Registrants
Registration Statement on Form S-3 (Registration No. 033-78778) filed with the Commission on
May 10, 1994)
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4.4
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Amended and Restated 2008 Developers Diversified Realty Corporation Equity-Based Award Plan
(Amended and Restated as of June 25, 2009) (incorporated herein by reference to Exhibit 10.3
to the Registrants Quarterly Report on Form 10-Q (File No. 001-11690) for the quarter ended
June 30, 2009 filed with the Commission on August 7, 2009)
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5.1
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Opinion of Counsel
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23.1
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Consent of PricewaterhouseCoopers LLP
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23.2
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Consent of PricewaterhouseCoopers LLP (DDRTC Core Retail Fund LLC)
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23.3
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Consent of PricewaterhouseCoopers (Macquarie DDR Trust)
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23.4
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Consent of Counsel (Included in Exhibit 5.1)
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24.1
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Power of Attorney
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6
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