EX-10.1







EXHIBIT 10.1






INVESTORS’ RIGHTS AGREEMENT




          THIS INVESTORS’ RIGHTS AGREEMENT (the “Agreement”) is made and entered into as of the
11th day of May 2009, by and between Developers Diversified Realty Corporation, an
Ohio corporation (the “Company”), and Mr. Alexander Otto (the “Investor”).




RECITALS




          A. WHEREAS, on February 23, 2009, the Investor and the Company entered into a Stock Purchase
Agreement (the “Stock Purchase Agreement”), which provides for the purchase and sale of up
to 30,000,000 of the Company’s common shares, $0.10 par value per share (“Common Shares”),
to the Investor and a grant of warrants to purchase 10,000,000 Common Shares (the
“Warrants”);




          B. WHEREAS, the terms and conditions of the Stock Purchase Agreement require that the board of
directors of the Company (the “Board of Directors”) nominate up to two director nominees
selected by the Investor to the Board of Directors (the “Investor Director” or
“Investor Directors,” as the case may be);




          C. WHEREAS, as an inducement to the Company to enter into the Stock Purchase Agreement and as
an inducement to the Investor to purchase up to 30,000,000 Common Shares pursuant to the Stock
Purchase Agreement, the Investor and the Company hereby agree that this Agreement shall govern the
rights of the Investor to nominate up to two director nominees selected by the Investor to serve on
the Board of Directors in accordance with the terms set forth below; and




          D. WHEREAS, in order to permit the Investor to sell the Common Shares (including those
underlying the Warrants) purchased pursuant to the Stock Purchase Agreement, the Investor and the
Company hereby agree that this Agreement shall govern the registration rights of the Investor for
the resale of such Common Shares under the Securities Act.




          Unless otherwise provided, all capitalized terms shall have the meaning ascribed to them in
Section 1.




          NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties agree as follows:




     1. Definitions. For purposes of this Agreement:



               (a) “Affiliate” means, with respect to any specified Person, any other Person who, directly or
indirectly, controls, is controlled by, or is under common control with such Person.



 









 





               (b) “beneficially own” shall have the meaning ascribed to such term under Rule 13d-3 of the
Exchange Act.



               (c) “Blackout Period” means a period of time, not to exceed 60 days, during which the Company
may postpone the preparation, filing or effectiveness or suspend the effectiveness of a
registration statement, if the Company, in good faith determines that the registration and/or
distribution of Registrable Securities (i) would materially impede, delay, or interfere with any
financing, acquisition, corporate reorganization or other significant transaction, or any
negotiations, discussions or pending proposals with respect thereto, involving the Company or any
of its subsidiaries or their respective assets, including, without limitation, any primary offering
of securities by the Company, or (b) would require the disclosure of material nonpublic
information, the disclosure of which could adversely affect the Company.



               (d) “Damages” means any loss, damage or liability (joint or several) to which a party hereto
may become subject under the Securities Act, the Exchange Act, or other federal or state law,
insofar as such loss, damage, or liability (or any action in respect thereof) arises out of or is
based upon (i) any untrue statement or alleged untrue statement of a material fact contained in any
registration statement of the Company filed pursuant to the terms of this Agreement, including any
preliminary prospectus or prospectus contained therein or any amendments or supplements thereto, or
(ii) an omission or alleged omission to state therein a material fact required to be stated therein
or necessary to make the statements therein (with respect to any preliminary prospectus or
prospectus or any amendments or supplements thereto, in the light of the circumstances under which
they were made) not misleading.



               (e) “Exchange Act” means the Securities Exchange Act of 1934, as amended, and the rules and
regulations promulgated thereunder.



               (f) “Form S-3” means such form under the Securities Act as in effect on the date hereof or any
registration form under the Securities Act subsequently adopted by the SEC that permits
incorporation of substantial information by reference to other documents filed by the Company with
the SEC.



               (g) “Otto Family” means the Investor and/or a member of the Investor’s family as follows: (i)
Professor Werner Otto, his wife Maren Otto and/or all descendants of Professor Werner Otto,
including without limitation the Investor (illegitimate descendants only if they have obtained the
status of a legitimate descendant by legitimation or adoption by Professor Werner Otto or one of
his legitimate descendants, or if they are children of a female legitimate descendant of Professor
Werner Otto); (ii) any trust or any family foundation which has exclusively been established in
favor of one or several of the individuals named under (i) above, and (iii) any partnership, firm,
corporation, association, trust, unincorporated organization, joint venture, limited liability
company or other legal entity, in which the individuals or entities named under (i) or (ii) hold
(either directly or indirectly) more than 50% of the voting rights or more than 50% of the equity
capital of any such partnership, firm,



2









 




corporation, association, trust, unincorporated organization, joint venture, limited liability
company or other legal entity.




               (h) “Person” means a natural person or any legal, commercial or governmental entity, such as,
but not limited to, a corporation, general partnership, joint venture, limited partnership, limited
liability company, limited liability partnership, trust, business association, group acting in
concert, or any person acting in a representative capacity.



               (i) “Registrable Securities” means (i) Common Shares beneficially owned by the Otto Family in
an amount equal to the aggregate number of Common Shares sold by the Company to the Investor and
its assignees pursuant to the Stock Purchase Agreement, plus any Common Shares distributed to the
Otto Family by the Company as a dividend on such Common Shares, and (ii) Common Shares underlying
the Warrants owned by the Otto Family, plus any Common Shares distributed to the Otto Family by the
Company as a dividend on such Common Shares.



               (j) “SEC” means the United States Securities and Exchange Commission.



               (k) “SEC Rule 144” means Rule 144 promulgated by the SEC under the Securities Act.



               (l) “Securities Act” means the Securities Act of 1933, as amended, and the rules and
regulations promulgated thereunder.



               (m) “Selling Expenses” means all underwriting discounts, selling commissions, and stock
transfer taxes applicable to the sale of Registrable Securities and the fees and disbursements of
counsel to the Investor and any other member of the Otto Family in connection with the sale of
Registrable Securities.



     2. Board of Directors; Control Person



               (a) At any time that the Otto Family collectively beneficially owns 17.5% or more of the
outstanding Common Shares, the Investor, on behalf of the members of the Otto Family, shall have
the right to nominate two Investor Directors pursuant to this Section 2, at every annual meeting of
the shareholders of the Company in which directors are generally elected, including, without
limitation, at every adjournment or postponement thereof, and on any action approval by written
consent of the shareholders of the Company relating to the election of directors generally.



               (b) At any time that the Otto Family collectively beneficially owns less than 17.5% of the
outstanding Common Shares and more than 7.5% of the outstanding Common Shares, the Investor, on
behalf of the members of the Otto Family, shall have the right to nominate one Investor Director
pursuant to this Section 2, at every annual meeting of the shareholders of the Company in which
directors are generally elected, including, without limitation, at every adjournment or
postponement thereof, and



3









 




on any action approval by written consent of the shareholders of the Company relating to the
election of directors generally.




               (c) The following procedures shall be followed with respect to the nomination of Investor
Directors pursuant to Section 2(a) or 2(b):




               (i) For purposes of whether the Investor has a right to nominate an Investor
Director pursuant to Section 2(a) or 2(b), the Otto Family’s beneficial ownership of the
outstanding Common Shares will be measured as of the record date for such annual meeting
or written consent.




               (ii) No later than January 10 of each year, the Investor shall provide the Board of
Directors with the Investor’s nominee(s), as the case may be, for the Investor
Director(s), along with any other information reasonably requested by the Board of
Directors to evaluate the suitability of such candidate(s) for directorship. With
respect to any Investor nominee, Investor shall use its best efforts to ensure that any
such nominee satisfies all stated criteria and guidelines for director nominees of the
Company. The Company shall be entitled to rely on any written direction from Investor
regarding the Investor’s nominee(s) on behalf of the Otto Family without further action
by the Company. In the event Investor is no longer able to select such nominee(s), then
the Company may rely on the nominee(s) proposed by any individual member of the Otto
Family designated as being authorized to propose such Investor Director(s) in lieu of
Investor.




               (iii) Within 20 days of receiving the Investor’s nominee(s) for the Investor
Director(s) in accordance with Section 2(c)(ii), the Board of Directors or any authorized
committee thereof shall have made a good faith and reasonable determination as to the
suitability of the Investor’s nominee(s) for Investor Director(s) and shall notify the
Investor of its determination in writing.




               (iv) If the Board of Directors or any authorized committee thereof approves of the
Investor’s nominee(s) for Investor Director(s), as the case may be, the Board of
Directors shall recommend that the shareholders vote to elect such director(s) at the
next annual meeting of shareholders at which directors will be generally elected.




               (v) If the Board of Directors or any authorized committee thereof raises a
reasonable objection to one or both of the Investor’s nominees, as the case may be, for
the Investor Director(s), then the Investor and the Board of Directors shall use their
best efforts to agree on the nominee(s) for such Investor Director(s), and if the
Investor and the Board of Directors cannot agree on the nominee(s) on or before the tenth
day prior to the proposed filing of the Company’s annual proxy statement, then such
nominee for Investor Director(s) shall not be nominated by the Company at such annual
meeting.



4









 






               (vi) If one or both of the Investor nominees is not nominated (as described in the
foregoing clause (v)), then as soon as practicable after the annual meeting, the Investor
and the Board of Directors shall use their best efforts to agree on the nominee(s) for
such Investor Director(s), which nominee(s) shall be appointed as director(s) by the
Board of Directors promptly after such agreement is reached.



               (d) Notwithstanding anything to the contrary in this Agreement and without any further action
by the Company, the Investor’s right to nominate any Person to the Company’s Board of Directors
shall automatically terminate, and be of no further force and effect, on the date that the Otto
Family beneficially owns 7.5% or less of the outstanding Common Shares. The Investor shall
promptly, but in any case within five days, provide notice to the Company upon the Otto Family
ceasing to beneficially own 7.5% or less of the outstanding Common Shares.



               (e) Each of the Investor Directors, upon appointment or election to the Board of Directors,
will be governed by the same protections and obligations as all other directors of the Company,
including, without limitation, protections and obligations regarding customary liability insurance
for directors and officers, confidentiality, conflicts of interests, fiduciary duties, trading and
disclosure policies, director evaluation process, director code of ethics, director share ownership
guidelines, stock trading and pre-approval policies, and other governance matters. The Company
agrees that it shall offer to enter into an indemnification agreement with each Investor Director
substantially similar to the indemnification agreements then in effect with the Company’s directors
when each Investor Director becomes a member of the Board of Directors.



               (f) Commencing on the election or appointment of the Investor nominees as Investor Directors
of the Company in accordance with this Agreement and thereafter for so long as at least one
Investor Director is serving as a member of the Board of Directors, the Investor will, and will
cause each member of the Otto Family to: (i) with respect to the Company or its Common Shares, not
make, engage or in any way participate in, directly or indirectly, any “solicitation” (as such term
is used in the proxy rules of the SEC) of proxies or consents (whether or not relating to the
election or removal of directors), (ii) except as provided for in this Agreement, and except as
provided for in that certain Voting Agreement by and among the Investor and certain shareholders of
the Company of even date herewith, not seek, alone or in concert with others, election or
appointment to, or representation on, or nominate or propose the nomination of any candidate to,
the Board of Directors, (iii) not initiate, propose or otherwise “solicit” (as such term is used in
the proxy rules of the SEC) shareholders of the Company for the approval of shareholder proposals
made to the Company whether made pursuant to Rule 14a-8 or Rule 14a-4 under the Exchange Act or
otherwise, or cause or encourage or attempt to cause or encourage any other person to initiate any
such shareholder proposal, regardless of its purpose, or (iv) cause all Common Shares beneficially
owned by the Investor and the members of the Otto Family as to which they are entitled to vote at
any meeting of shareholders to be voted in favor of the election of each member of any slate of
directors recommended by the Company’s Board of



5









 




Directors that includes at least one Investor nominee; provided, that each Investor Director
on the Company’s Board of Directors shall have voted in favor of such slate of director nominees.




               (g) The Company agrees that it shall offer to enter into an indemnification agreement with the
Investor, on similar terms as the agreements in effect with the Company’s existing directors as of
the date hereof, indemnifying the Investor against a third party claim of control person liability
within the meaning of Section 15 of the Securities Act and Section 20 of the Exchange Act so long
as the Investor has acted in good faith and not directly or indirectly induced the act or acts
constituting the violation or cause of action giving rise to the third party claim. Any payment to
be made under any indemnification agreement entered into between the Company and the Investor shall
be paid only if nationally recognized counsel selected by the Company and reasonably acceptable to
the Investor provides an opinion either (i) that such payment should not be treated as a
preferential dividend for purposes of Section 562 of the Internal Revenue Code (the “Code”)
or (ii) that such payment should not (a) reduce current earnings and profits of the Company for
purposes of Section 857(d) of the Code below the level necessary for the Company to satisfy its
requirements under Section 857(a)(1) of the Code, or (b) cause declared distributions of the
Company to be treated as preferential dividends and cause the Company to fail to satisfy its
requirements under Section 857(a)(1) of the Code. In the event a payment to Investor will not be
made due to the application of the previous sentence, the Company shall, upon Investor’s request,
seek a private letter ruling and make the payment in the event a favorable private letter ruling is
received.



     3. Registration Rights. The Company covenants and agrees as follows:



          3.1 Registration Rights.




               (a) Form S-3. So long as the Company is eligible to use Form S-3 for secondary
offerings, the Company shall, as promptly as practicable, and in any event within 30 days following
the Second Closing Date (as defined in the Stock Purchase Agreement) or the Non-Tranche Closing
Date (as defined in the Stock Purchase Agreement), as applicable, file a shelf registration
statement on Form S-3 under the Securities Act covering such Registrable Securities.



               (b) Form S-1. In the event the Company is not eligible to use Form S-3 for secondary
offerings, Investor may request in writing that the Company file a shelf registration statement on
Form S-1 with respect to the Registrable Securities. The written request shall specify (i) the
then-current name and address of the member of the Otto Family proposing to have registered
Registrable Securities, (ii) the aggregate number of Registrable Securities proposed to be
registered, (iii) the total number of Common Shares beneficially owned by each member of the Otto
Family proposing to have registered Registrable Securities and (iv) the intended method of
distribution of the Registrable Securities proposed to be registered. The Company shall, as
promptly as practicable, and in any event within 30 days after the date such written request is
received



6









 




by the Company, file a registration statement on Form S-1 under the Securities Act covering
such Registrable Securities.




               (c) In the event the Company becomes eligible to use Form S-3 following the use of Form S-1
upon a demand made pursuant to Section 3.1(b), the Company may elect to file a Form S-3 with
respect to any Registrable Securities registered on such Form S-1; provided, that, the Company
shall maintain the effectiveness of the Form S-1 while registering such Registrable Securities on
Form S-3.



               (d) Notwithstanding the foregoing obligations, the Company shall not be required to file a
registration statement as indicated below:




               (i) with respect to Section 3.1(b), prior to the date of the request, the Company
has already effected four registrations pursuant to such section;




               (ii) prior to the date of the request, the Company has already effected a
registration pursuant to Section 3.1(a) and/or Section 3.1(b) covering all of the
Registrable Securities and such registration statement is still effective;




               (iii) with respect to Sections 3.1(a) and (b), a registration statement is effective
at the time such request is made and such registration statement may be utilized for the
offering and sale of the Registrable Securities requested to be registered; and




               (iv) during the pendency of any Blackout Period.



               (e) The Company shall not be obligated to effect, or to take any action to effect, any
registration pursuant to Sections 3.1(a) or (b) during the period that is 30 days before the
Company’s good faith estimate of the date of filing of, and ending on a date that is 90 days (or
such shorter time period as the managing underwriter of any underwritten offering shall agree to,
but in no case less than 30 days) after the effective date of, a Company-initiated registration
statement, provided that the Company is actively employing in good faith commercially reasonable
efforts to cause such registration statement to become effective.



               (f) Limitation on Sales of Common Shares. Investor hereby agrees, and will use his
best efforts to prohibit each member of the Otto Family, to not sell any Common Shares until the
sixth-month anniversary of the earlier of the Non-Tranche Closing Date or the Second Closing Date
(each as defined in the Stock Purchase Agreement). Following such sixth-month anniversary,
Investor will be permitted to sell up to 15,000,000 Registrable Securities, which shall consist of
5,000,000 Common Shares (which, for the sake of clarity, shall include, in addition to such
5,000,000 Common Shares, any Common Shares issued to Investor as a dividend with respect to such
Registrable Shares) and 10,000,000 Common Shares underlying the Warrants (which, for the sake of
clarity, shall include any Common Shares attributable to such 10,000,000 Common Shares due to any
adjustments made to the Warrants in accordance



7









 




with their terms). At the end of each three-month period following the sixth-month
anniversary of the earlier of the Non-Tranche Closing Date or the Second Closing Date, and
aggregating in each such three-month period, up to an additional 5,000,000 Registrable Securities
(which, for the sake of clarity, shall include, in addition to such 5,000,000 Common Shares, any
Common Shares issued to Investor as a dividend with respect to such Registrable Shares) may be sold
by Investor. In the event that the Company is not eligible to file or maintain the effectiveness
of a registration statement with the SEC for any reason, the restrictions applicable to Registrable
Shares pursuant to this Section 3.1(e) shall immediately terminate.




          3.2 Obligations of the Company. Whenever required under Section 3.1 to effect the
registration of any Registrable Securities, the Company shall:




               (a) prepare and file with the SEC a registration statement with respect to such Registrable
Securities and use its commercially reasonable efforts to cause such registration statement to
become effective under the Securities Act;



               (b) use its commercially reasonable efforts to keep a registration statement that has become
effective continuously effective if it is on Form S-3, and if it is on Form S-1, then until the
earlier of (i) two years following the first day of effectiveness of such registration statement
(subject to extension pursuant to Section 3.3(b) or Section 3.3(c)) and (ii) the date on which all
Registrable Securities covered by such registration statement have been disposed of pursuant to
such registration statement;



               (c) furnish to the Investor such number of copies of a prospectus, including a preliminary
prospectus, as required by the Securities Act, and such other documents as the Investor may
reasonably request in order to facilitate the disposition of Registrable Securities;



               (d) promptly following its actual knowledge thereof, notify the Investor:




               (i) of the time when such registration statement has been declared effective or when
a supplement or amendment to any prospectus forming a part of such registration statement
has been filed (other than any deemed amendment of such registration statement by means
of a document filed by the Company under the Exchange Act);




               (ii) after such registration statement becomes effective, of any request by the SEC
that the Company amend or supplement such registration statement or prospectus forming a
part of such registration statement or for additional information;




               (iii) of the issuance by the SEC or any other governmental authority of any stop
order suspending the effectiveness of such registration statement or the initiation of
any proceeding for such purpose; and



8









 






               (iv) of the occurrence of any event that makes any statement made in the
registration statement or any prospectus forming a part of such registration statement
untrue in any material respect or which requires the making of any changes in such
registration statement or prospectus so that it will not include an untrue statement of a
material fact or omit to state any material fact required to be stated therein or
necessary to make the statements therein not misleading in light of the circumstances
under which they were made;



               (e) use its commercially reasonable efforts to register and qualify the Registrable Securities
covered by such registration statement under the securities or blue-sky laws of such jurisdictions
within the United States as shall be reasonably requested by the Investor; provided that
the Company shall not be required in connection therewith or as a condition thereto to qualify to
do business or otherwise become subject to taxation or service of process in suits in any such
jurisdictions where it is not already so qualified or subject;



               (f) in the event of any underwritten public offering of Registrable Securities, enter into and
perform its obligations under an underwriting agreement, in usual and customary form, with the
underwriter(s) of such offering;



               (g) use its commercially reasonable efforts to cause all such Registrable Securities covered
by such registration statement to be listed on each national securities exchange or trading system
on which the Common Shares are then listed;



               (h) provide a transfer agent and registrar for all Registrable Securities and provide a CUSIP
number for all such Registrable Securities, in each case not later than the effective date of such
registration statement; and



               (i) promptly make available for inspection by the Investor or his representatives and agents,
any managing underwriter(s) participating in any underwritten offering pursuant to such
registration statement, and any attorney or accountant or other agent retained by any such
underwriter or selected by the Investor, all financial and other records, pertinent corporate
documents and properties of the Company during normal business hours at the offices where such
information is typically kept, and cause the Company’s officers, directors, employees and
independent accountants to supply all information reasonably requested by the Investor or any such
underwriter, attorney, accountant, agent or other representative, in each case, as reasonably
necessary or advisable to verify the accuracy of the information in such registration statement and
to conduct appropriate due diligence in connection therewith as is customary for similar due
diligence examinations, provided that, any information that is designated in writing by the
Company, in good faith, as confidential at the time of delivery of such information shall be kept
confidential by the Investor or any such underwriter, attorney, accountant, agent or other
representative.



9









 





          3.3 Obligations of the Investor and Other Members of the Otto Family. Whenever the
Investor has requested that the Company effect the registration of any Registrable Securities under
Section 3.1:




               (a) the Investor and any other member of the Otto Family that has requested inclusion of its
Registrable Securities in a registration statement shall furnish to the Company such information
regarding the Investor and/or other member of the Otto Family, as applicable, and its plan and
method of distribution of such Registrable Securities as the Company may, on advice of counsel,
reasonably determine is required by applicable law, including, without limitation, information
required by Item 507 of Regulation S-K promulgated under the Securities Act, provided that the
Company may refuse to proceed with the registration of the Registrable Securities of the Investor
and /or other member of the Otto Family if such Person fails to provide such information within a
reasonable time after receiving such request;



               (b) upon receipt of any notice from the Company of the occurrence of any event of the type
described in Sections 3.2(d)(ii), 3.2(d)(iii) or 3.2(d)(iv), the Investor and any other member of
the Otto Family that has requested inclusion of its Registrable Securities in a registration
statement will discontinue disposition of Registrable Securities covered by a registration
statement and suspend use of such registration statement or prospectus forming a part of such
registration statement until the Company has provided an amendment or supplement to such
registration statement or prospectus or the Company has advised that the use of the registration
statement or prospectus may be resumed, provided that, in the event that the Company shall give any
such notice, the period of time for which a registration statement must remain effective as set
forth in Section 3.2(b) will be extended by the number of days during the time period from and
including the date of the giving of such notice to and including the date when the Company has
either provided an amendment to such registration statement or prospectus or advised that the use
of the registration statement or prospectus may be resumed;



               (c) upon receipt of any notice from the Company of a Blackout Period, the Investor and any
other member of the Otto Family that has requested inclusion of its Registrable Securities in a
registration statement will discontinue disposition of Registrable Securities covered by a
registration statement and suspend use of such registration statement or prospectus forming a part
of such registration statement until the Company has provided an amendment or supplement to such
registration statement or prospectus or the Company has advised that the use of the registration
statement or prospectus may be resumed, provided that, in the event that the Company shall give any
such notice, the period of time for which a registration statement must remain effective as set
forth in Section 3.2(b) will be extended by the number of days during the time period from and
including the date of the giving of such notice to and including the date when the Company has
either provided an amendment to such registration statement or prospectus or advised that the use
of the registration statement or prospectus may be resumed;



10









 





               (d) in the event of any underwritten public offering of Registrable Securities, the Investor
and any other member of the Otto Family that has requested inclusion of its Registrable Securities
in a registration statement shall enter into and perform its obligations under an underwriting
agreement, in usual and customary form, with the underwriter(s) of such offering;



               (e) in the event of any underwritten public offering of securities by the Company, the
Investor and any other member of the Otto Family that beneficially owns Registrable Securities, if
requested by the Company and any managing underwriter, shall agree not to directly or indirectly
offer, sell, contract to sell, sell any option or contract to purchase, purchase any option or
contract to sell, grant any option, right or warrant for the sale of or otherwise dispose of or
transfer any Common Share held by them for such period that the executive officers and directors of
the Company agree to with the managing underwriter.



          3.4 Expenses of Registration. All expenses (other than Selling Expenses) incurred in
connection with registrations, filings, or qualifications pursuant to this Section 3, including all
registration, filing, and qualification fees, printers’ and accounting fees, and fees and
disbursements of counsel for the Company, shall be borne and paid by the Company; provided,
however, that the Company shall not be required to pay for any expenses of any registration
proceeding begun pursuant to Section 3.1 if the registration request is subsequently withdrawn at
the request of the Investor or any other member of the Otto Family; provided
further that if, at the time of such withdrawal, the Investor shall have learned of a
material adverse change that is reasonably likely to have a material adverse effect on the
financial condition or business of the Company and its subsidiaries considered as one enterprise
from that known to the Investor at the time of the Investor’s request and has withdrawn the request
with reasonable promptness after learning of such information, then the Company shall be required
to pay all of such expenses. All Selling Expenses relating to Registrable Securities registered
pursuant to this Section 3 shall be borne and paid by the Investor.




          3.5 Indemnification. If any Registrable Securities are included in a registration
statement under this Section 3:




               (a) To the extent permitted by law, the Company will indemnify and hold harmless each member
of the Otto Family that has included Registrable Securities in a registration statement and such
member’s officers, directors, managers, partners and shareholders, and each Person who controls
such member (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) against any Damages, and the Company will reimburse each such member of the Otto Family,
controlling Person or other aforementioned Person for any legal or other expenses reasonably
incurred thereby in connection with investigating or defending any claim or proceeding from which
Damages may result, as such expenses are incurred; provided, however, that the indemnity
agreement contained in this Section 3.5(a) shall not apply to amounts paid in settlement of any
such claim or proceeding if such settlement is effected without the consent of the Company, which
consent shall not be unreasonably withheld, nor shall the Company be liable for any Damages to the
extent



11









 




that they arise out of or are based upon actions or omissions made in reliance upon and in
conformity with written information furnished by or on behalf of any such member of the Otto
Family, controlling Person or other aforementioned Person expressly for use in connection with such
registration statement.




               (b) To the extent permitted by law, the Investor will indemnify and hold harmless the Company,
its directors, its officers who have signed the registration statement and each Person who controls
the Company (within the meaning of Section 15 of the Securities Act or Section 20 of the Exchange
Act) against any Damages, and the Investor will reimburse the Company, controlling Person or other
aforementioned Person for any legal or other expenses reasonably incurred thereby in connection
with investigating or defending any claim or proceeding from which Damages may result, as such
expenses are incurred, in each case only to the extent that such Damages arise out of or are based
upon actions or omissions made in reliance upon and in conformity with written information
furnished by or on behalf of any member of the Otto Family that has included Registrable Securities
in a registration statement expressly for use in connection with such registration statement;
provided, however, that the indemnity agreement contained in this Section 3.5(b) shall not
apply to amounts paid in settlement of any such claim or proceeding if such settlement is effected
without the consent of the Investor, which consent shall not be unreasonably withheld; and
provided further that in no event shall the aggregate amounts payable by the Investor by
way of indemnity or contribution under Section 3.5(b) exceed the proceeds from the offering
received by such member of the Otto Family (net of any underwriting discounts and commissions paid
by such member of the Otto Family), except in the case of fraud or willful misconduct by such
member of the Otto Family.



               (c) Promptly after receipt by an indemnified party under this Section 3.5 of notice of the
commencement of any action (including any governmental action) for which a party may be entitled to
indemnification hereunder, such indemnified party will, if a claim in respect thereof is to be made
against any indemnifying party under this Section 3.5, give the indemnifying party notice of the
commencement thereof. In case any such action is brought against any indemnified party and such
indemnified party seeks or intends to seek indemnity from an indemnifying party, the indemnifying
party shall be entitled to participate in, and, to the extent that it shall elect, jointly with all
other indemnifying parties similarly notified, by written notice delivered to the indemnified party
promptly after receiving the aforesaid notice from such indemnified party, to assume the defense
thereof with counsel selected by the indemnifying party that is reasonably satisfactory to such
indemnified party; provided, however, that an indemnified party (together with all other
indemnified parties that may be represented without conflict by one counsel) shall have the right
to retain one separate counsel, with the fees and expenses to be paid by the indemnifying party, if
representation of such indemnified party by the counsel retained by the indemnifying party would be
inappropriate due to actual or potential differing interests between such indemnified party and any
other party represented by such counsel in such action. Upon receipt of notice from the
indemnifying party to such indemnified party of such indemnifying party’s election so to assume the
defense of such action and approval by the indemnified party of counsel, the indemnifying party
will not be liable to such indemnified party under this



12









 




Section 3.5 for any legal or other expenses subsequently incurred by such indemnified party in
connection with the defense thereof unless the indemnified party shall have employed separate
counsel in accordance with the preceding sentence (it being understood, however, that the
indemnifying party shall not be liable for the fees and expenses of more than one separate firm of
attorneys (together with local counsel), representing all of the indemnified parties who are
parties to such action). The failure to give notice to the indemnifying party will not relieve it
of any liability that it may have to any indemnified party otherwise than under this Section 3.5,
except to the extent that the indemnifying party would be materially prejudiced as a proximate
result of such failure to notify.




          3.6 Reports Under Exchange Act by the Company. With a view to making available to the
Otto Family the benefits of SEC Rule 144 and any other rule or regulation of the SEC that may at
any time permit a member of the Otto Family to sell securities of the Company to the public without
registration or pursuant to a registration on Form S-3 or Form S-1, the Company shall:




                (a) make and keep available adequate current public information, as those terms are understood
and defined in SEC Rule 144;




                (b) use commercially reasonable efforts to file with the SEC in a timely manner all reports
and other documents required of the Company under the Securities Act and the Exchange Act; and




                (c) furnish upon request (i) to the extent accurate, a written statement by the Company that
it has complied with the reporting requirements of SEC Rule 144, the Securities Act, and the
Exchange Act, or that it qualifies as a registrant whose securities may be resold pursuant to Form
S-3; (ii) a copy of the most recent annual or quarterly report of the Company and such other
reports and documents filed by the Company with the SEC; and (iii) such other information as may be
reasonably requested in availing any member of the Otto Family of any rule or regulation of the SEC
that permits the selling of any such securities without registration.




          3.7 Reports Under Exchange Act by the Investor and Other Members of the Otto Family.
The Investor acknowledges and agrees that the Investor and the other members of the Otto Family
shall be solely responsible for any required filings under Sections 13 and 16 of the Exchange Act
in connection with any acquisition or disposition of Common Shares. The Investor shall provide the
Company with a copy of any such filing contemporaneously with such filing being submitted to the
SEC.




          3.8 Limitations on Subsequent Registration Rights. From and after the date of this
Agreement, the Company shall not, without the prior written consent of the Investor, enter into any
agreement with any holder or prospective holder of any securities of the Company that would provide
to such holder the right to include such holder’s securities of the Company in any registration
statement that the Company would be required to file pursuant to Section 3.1.




13









 








          3.9 Termination of Registration Rights. Notwithstanding anything to the contrary in
this Agreement, the right of the Investor and any other member of the Otto Family to request
registration or inclusion of Registrable Securities in any registration statement pursuant to
Section 3.1 shall terminate when the Investor no longer has the right to nominate any Investor
Director pursuant to Section 2 hereof.




     4. Miscellaneous.



               (a) Successors and Assigns. Any assignment of this Agreement or any of the rights or
obligations under this Agreement by either of the parties hereto (whether by operation of law or
otherwise) shall be void, invalid and of no effect without the prior written consent of the other
party; provided, however, that the rights under this Agreement may be assigned (but
only with all related obligations) by the Investor to one or more member(s) of the Otto Family so
long as the assignee(s) agree in writing to be bound by the terms and conditions of this Agreement;
provided, further, that any such assignment shall not release, or be construed to
release, the Investor from its duties and obligations under this Agreement. The terms and
conditions of this Agreement inure to the benefit of and are binding upon the respective successors
and permitted assignees of the parties. Nothing in this Agreement, express or implied, is intended
to confer upon any party other than the parties hereto or their respective successors and permitted
assignees any rights, remedies, obligations or liabilities under or by reason of this Agreement,
except as expressly provided herein.



               (b) Termination. This Agreement shall terminate at such time as the Investor or any
assignee of the Investor, as permitted under Section 4(a) hereof, no longer has the authority to
nominate a director to the Board of Directors of the Company pursuant to Section 2. Upon such
termination, no party shall have any further obligations or liabilities hereunder other than
pursuant to Section 2(f) and Section 3.5; provided that such termination shall not relieve any
party from liability for any breach of this Agreement prior to such termination.



               (c) Governing Law. This Agreement and any controversy arising out of or relating to
this Agreement shall be governed by and construed in accordance with the laws of the State of New
York as to matters within the scope thereof, and as to all other matters shall be governed by and
construed in accordance with the internal laws of New York, without regard to conflict of law
principles that would result in the application of any law other than the law of the State of New
York.



               (d) Counterparts; Facsimile. This Agreement may be executed in two or more
counterparts, each of which shall be deemed an original, but all of which together shall constitute
one and the same instrument. This Agreement may also be executed and delivered by portable
document format (pdf) and in two or more counterparts, each of which shall be deemed an original,
but all of which together shall constitute one and the same instrument.



14









 





               (e) Titles and Subtitles. The titles and subtitles used in this Agreement are for
convenience only and are not to be considered in construing or interpreting this Agreement.



               (f) Notices All notices, requests, demands, and other communications hereunder shall
be in writing (which shall include communications by e-mail) and shall be delivered (a) in person
or by courier or overnight service, or (b) by e-mail with a copy delivered as provided in clause
(a), as follows:


If to the Company:



3300 Enterprise Parkway

Beachwood, Ohio 44122

Attention: Chief Executive Officer

Telephone: (216) 755-5500

E-mail: SWolstein@ddr.com



with a copy (which shall not constitute notice) to:



3300 Enterprise Parkway

Beachwood, Ohio 44122

Attention: General Counsel

Telephone: (216) 755-5500

Email: DWeiss@ddr.com



Jones Day

North Point

901 Lakeside Avenue

Cleveland, Ohio 44114

Attention: Michael J. Solecki

Telephone: (216) 586-7103

E-mail: mjsolecki@jonesday.com



If to Investor:



KG CURA Vermögensverwaltung G.m.b.H. & Co.

Wandsbeker Str. 3-7

D-22179 Hamburg

Germany

Attention: Mr. Wilhelm

Telephone: 0049 40 6461 1286

Email: wilhelm@kgcura.de



with a copy (which shall not constitute notice) to:



Alston & Bird LLP

90 Park Avenue




15









 







New York, NY 10016

Attention: Mark F. McElreath

Telephone: (212) 210-9595

E-mail: mark.mcelreath@alston.com




               (g) Amendments and Waivers. Any term of this Agreement may be amended and the
observance of any term of this Agreement may be waived (either generally or in a particular
instance, and either retroactively or prospectively) only with the written consent of both parties.
No waivers of or exceptions to any term, condition, or provision of this Agreement, in any one or
more instances, shall be deemed to be or construed as a further or continuing waiver of any such
term, condition, or provision.



               (h) Severability. In case any one or more of the provisions contained in this
Agreement is for any reason held to be invalid, illegal or unenforceable in any respect, such
invalidity, illegality, or unenforceability shall not affect any other provision of this Agreement,
and such invalid, illegal, or unenforceable provision shall be reformed and construed so that it
will be valid, legal, and enforceable to the maximum extent permitted by law.



               (i) Entire Agreement. This Agreement (including any Schedules and Exhibits hereto)
constitutes the full and entire understanding and agreement among the parties with respect to the
subject matter hereof, and any other written or oral agreement relating to the subject matter
hereof existing between the parties is expressly canceled.



16









 





     IN WITNESS WHEREOF, the parties have executed this Agreement as of the date first written
above.




	 	 	 	 	 	 	 
	 	 	DEVELOPERS DIVERSIFIED REALTY

CORPORATION	 	 
	 
	 	 	 	 	 	 
	 

	 	By:	 	 /s/ Scott A. Wolstein	 
	 

	 	Name:
	 	 Scott A. Wolstein
	 	 
	 

	 	Title:	 	 Chief Executive Officer	 	 
	 
	 	 	 	 	 	 
	 	 	MR. ALEXANDER OTTO	 	 
	 
	 	/s/ Alexander Otto	 	 





17