EX-10.35






Exhibit 10.35




AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT




     THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this “Agreement”), is entered into as
of the 29th day of December, 2008, between Developers Diversified Realty Corporation, an
Ohio corporation (the “Employer”), and David M. Jacobstein (“Executive”).



RECITALS




     WHEREAS, Executive is presently employed by Employer;



     WHEREAS, Employer wishes to induce Executive to continue as its employee and, accordingly, to
provide certain security to Executive in the event of a “Change in Control” (as hereinafter
defined);



     WHEREAS, Employer believes that it is in the best interest of its shareholders for Executive
to continue on and after the date of this Agreement in his position on an objective and impartial
basis and without distraction or conflict of interest as a result of a possible or actual Change in
Control;



     WHEREAS, in consideration of this Agreement Executive is willing to continue as Employer’s
employee; and



     WHEREAS, Employer and Executive desire for this Amended and Restated Change in Control
Agreement to amend and supersede any and all Change in Control Agreements between Employer and
Executive that were entered into prior to the date hereof (the “Prior Change in Control
Agreements”).



     NOW THEREFORE, IN CONSIDERATION OF EXECUTIVE CONTINUING AS THE EMPLOYEE OF EMPLOYER AND OF THE
MUTUAL PROMISES HEREIN CONTAINED, EXECUTIVE AND EMPLOYER, INTENDING TO BE LEGALLY BOUND, HEREBY
AGREE AS FOLLOWS;



ARTICLE I




DEFINITIONS





	1.	 	A “Change in Control” for the purpose of this Agreement means the occurrence of any of the
following:






	 	(a)	 	the Board of Directors or shareholders of the Employer approve a consolidation
or merger in which the Employer is not the surviving corporation, the sale of
substantially all of the assets of the Employer, or the liquidation or dissolution of
the Employer;
	 
	 	(b)	 	any person or other entity (other than the Employer or a Subsidiary or any
Employer employee benefit plan (including any trustee of any such plan acting in its
capacity as trustee» purchases any Shares (or securities convertible into Shares)
pursuant to a tender or exchange offer without the prior consent of the Board of
Directors, or becomes the beneficial owner of securities of the Employer representing
20% or more of the voting power of the Employer’s outstanding securities;




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	 	(c)	 	during any two-year period, individuals who at the beginning of such period
constitute the entire Board of Directors cease to constitute a majority of the Board of
Directors, unless the election or the nomination for election of each new director is
approved by at least two-thirds of the directors then still in office who were
directors at the beginning of that period; or
	 
	 	(d)	 	A record date is established for determining shareholders of Employer entitled
to vote upon (i) a merger or consolidation of Employer with another real estate
investment trust, partnership, corporation or other entity in which Employer is not the
surviving or continuing entity or in which all or a substantial part
of the outstanding shares are to be converted into or exchanged for cash, securities or other property,
(ii) a sale or other disposition of all or substantially all of the assets of Employer
or (iii) the dissolution of Employer.






	2.	 	“Code” means the Internal Revenue Code of 1986, as amended.
	 
	3.	 	“Shares” means the Common Shares, without par value, of the Employer.
	 
	4.	 	“Subsidiary” means any corporation (other than the Employer) in an unbroken chain of
corporations beginning with the Employer if each of the corporations (other than the last
corporation in the unbroken chain) owns stock possessing 50% or more of the total combined
voting power of all classes of stock in one of the other corporations in that chain.





ARTICLE II




SEVERANCE PAYMENT





	1.	 	Upon the occurrence of a Change in Control on or after the date of this Agreement, Employer
shall pay to Executive a lump sum severance benefit which will be in addition to any other
compensation or remuneration to which Executive is, or becomes, entitled to receive from
Employer in an amount equal to the total amount of base salary payable during the term
remaining after the date of the Change in Control, if any, of the Amended and Restated
Employment Agreement of even date herewith between Employer and Employee. In addition,
Employer shall, at its expense, provide Executive, and his family, with life, health,
hospitalization, vision, dental, disability and accidental death and dismemberment insurance
in an amount not less than that provided at the time of the Change in Control, until the
earlier of (i) in the event that Executive shall become employed by another employer after a
Change in Control, the date on which Executive shall be eligible to receive benefits from such
employer which are substantially equivalent to or greater than the benefits Executive and his
family received from Employer or (ii) the second anniversary of the date of the Change in
Control.
	 
	2.	 	Employer will pay the lump sum amount pursuant to Article II, Paragraph 1 to Executive in
immediately available funds within the seven-day period following the occurrence of the Change
in Control. To assure compliance with Section 409A of the Code, the timing of the provision
of the insurance benefits described in Article II, Paragraph 1 will be subject to Sections B.1
and B.3 of the Tax Provision Exhibit if and to the extent either of those sections is
applicable according to its terms.




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ARTICLE III




TAX PROVISION EXHIBIT




     All of the terms of the Tax Provision Exhibit attached to this Agreement as Exhibit A are
hereby incorporated in this Agreement as fully as if those terms were included in the main text of
this Agreement.



ARTICLE IV




SETOFF




     No amounts otherwise due or payable under this Agreement will be subject to setoff or
counterclaim by either party hereto.



ARTICLE V




ATTORNEY’S FEES




     All attorney’s fees and related expenses incurred by Executive at any time from the date of
this Agreement through the fifth anniversary of Executive’s death in connection with or relating to
the enforcement by him of his rights under this Agreement will be paid for by Employer. To assure
compliance with Section 409A of the Code, the timing of the provision of payment of fees and
expenses described in this Article V will be subject to Sections B.1 and B.3 of the Tax Provision
Exhibit if and to the extent either of those sections is applicable according to its terms.



ARTICLE VI




SUCCESSORS AND PARTIES IN INTEREST




     This Agreement will be binding upon and will inure to the benefit of Employer and its
successors and assigns, including, without limitation, any corporation which acquires, directly or
indirectly, by purchase, merger, consolidation or otherwise, all or substantially all of the
business or assets of Employer. Without limitation of the foregoing, Employer will require any
such successor, by agreement in form and substance satisfactory to Executive, expressly to assume
and agree to perform this Agreement in the same manner and to the same extent that it is required
to be performed by Employer. This Agreement will be binding upon and will inure to the benefit of
Executive, his heirs at law and his personal representatives.



ARTICLE VII




ATTACHMENT




     Neither this Agreement nor any benefits payable hereunder will be subject to anticipation,
alienation, sale, transfer, assignment, pledge, encumbrance or charge or to execution, attachment,
levy or similar process at law, whether voluntary or involuntary.



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ARTICLE VIII




EMPLOYMENT CONTRACT




     This Agreement will not in any way constitute an employment agreement between Employer and
Executive and it will not oblige Executive to continue in the employ of Employer, nor will it
oblige Employer to continue to employ Executive, but it will merely require Employer to pay
severance benefits to Executive under certain circumstances, as aforesaid. In addition, this
Agreement will be considered terminated, and of no further force and effect, if Executive ceases to
be an employee of Employer prior to a Change in Control of Employer.



ARTICLE IX




RIGHTS UNDER OTHER PLANS AND AGREEMENTS




     Except as provided in the Amended and Restated Employment Agreement between the Employer and
Executive, the severance benefits herein provided will be in addition to, and are not intended to
reduce, restrict or eliminate any benefit to which Executive may otherwise be entitled by virtue of
his termination of employment or otherwise.



ARTICLE X




NOTICES




     All notices and other communications required to be given hereunder shall be in writing and
will be deemed to have been delivered or made when mailed, by certified mail, return receipt
requested, if to Executive, to the last address which Executive shall provide to Employer, in
writing, for this purpose, but if Executive has not then provided such an address, then to the last
address of Executive then on file with Employer; and if to Employer, then to the last address which
Employer shall provide to Executive, in writing, for this purpose, but if Employer has not then
provided Executive with such an address, then to:



Corporate Secretary

Developers Diversified Realty Corporation

3300 Enterprise Parkway

Beachwood, Ohio 44122




ARTICLE XI




GOVERNING LAW AND JURISDICTION




     This Agreement will be governed by, and construed in accordance with, the laws of the State of
Ohio, except for the laws governing conflict of laws. If either party institutes a suit or other
legal proceedings, whether in law or equity, Executive and Employer hereby irrevocably consent to
the jurisdiction of the Common Pleas Court of the State of Ohio (Cuyahoga County) or the United
States District Court for the Northern District of Ohio.



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ARTICLE XII




ENTIRE AGREEMENT




     This Agreement constitutes the entire understanding between Employer and Executive concerning
the subject matter hereof and supersedes all prior written or oral agreements or understandings
between the parties hereto, including, without limitation, the Prior Change in Control Agreements.
No term or provision of this Agreement may be changed, waived, amended or terminated except by a
written instrument.



     IN WITNESS WHEREOF, and as conclusive evidence of the adoption of this Agreement, the parties
have hereunto set their hands as of the date and year first above written.



	 	 	 	 	 
	 	DEVELOPERS DIVERSIFIED REALTY CORPORATION

 	 
	 	By:  	/s/ Daniel B. Hurwitz
 	 
	 	 	Daniel B. Hurwitz, President and 	 
	 	 	Chief Operating Officer 	 
	 
	 	 	 
	 	  	                       /s/ David M. Jacobstein
 	 
	 	 	DAVID M. JACOBSTEIN 	 
	 	 	 	 



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EXHIBIT A




Tax Provision Exhibit




280G Gross-Up and Compliance with Section 409A





	A.	 	Gross-Up of Payments Deemed to be Excess Parachute Payments.






	 	A.1	 	Acknowledgement; Determination by Accounting Firm. Employer and Executive
acknowledge that, following a Change in Ownership or Control, one or more payments or
distributions to be made by Employer or an affiliated entity to or for the benefit of
Executive under this Agreement or Executive’s Amended and Restated Employment Agreement
(including, without limitation, the issuance of common shares of Employer; the granting
or vesting of restricted shares; and the granting, vesting, exercise or termination of
options) (a “Payment”) may be determined to be an “excess parachute payment” that is not
deductible by Employer or its affiliated entity for Federal income tax purposes and with
respect to which Executive will be subject to an excise tax because of Sections 280G and
4999, respectively, of the Code. If a Change in Ownership or Control occurs, either
Executive or Employer may direct the Accounting Firm, which, subject to any inconsistent
position asserted by the Internal Revenue Service, will make all determinations required
to be made under this Section A.1, to determine whether any Payment will be an excess
parachute payment and to communicate its determination, together with detailed supporting
calculations, to Employer and to Executive within 30 days after its receipt of the
direction from Executive or Employer, as the case may be. Employer and Executive will
cooperate with each other and the Accounting Firm and will provide necessary information
so that the Accounting Firm may make all such determinations.
	 
	 	A.2	 	Gross-Up Payments. If the Accounting Firm determines that any Payment
gives rise, directly or indirectly, to liability on the part of Executive for excise tax
under Section 4999 (and/or any penalties and/or interest with respect to any such excise
tax), Employer will make additional cash payments (each, a “Gross-Up Payment”) to
Executive, from time to time in such amounts as are necessary to put Executive in the
same position, after payment of all federal, state, and local taxes (whether income
taxes, excise taxes under Section 4999 or otherwise, or other taxes) and any and all
penalties and interest with respect to any such excise tax, as Executive would have been
in after payment of all federal, state, and local income taxes if the Payments (other
than in respect of or regarding any units or awards granted or vested pursuant to any
Performance Unit Agreement between Executive and Employer, or any equity awards granted
or issued pursuant to any outperformance award plans (including the Outperformance
Long-Term Incentive Plan) or supplemental equity award plans (including the 2007
Supplemental Equity Plan) of Employer) had not given rise to an excise tax under Section
4999 and no such penalties or interest had been imposed. Employer’s obligation to make
Gross-Up Payments under this Section A is not contingent on termination of Executive’s
employment with Employer. Employer will make each Gross-Up Payment to Executive within
30 days of the time that the related Payment constituting an excess parachute payment is
paid or provided to Executive.
	 
	 	A.3	 	Further Gross-Up Payments as Determined by the IRS. If the Internal
Revenue Service determines that any Payment gives rise, directly or indirectly, to
liability on the part of Executive for excise tax under Section 4999 (and/or any
penalties and/or interest with respect to any such excise tax) in excess of the amount,
if any, previously determined by the Accounting Firm, Employer will make further Goss-Up
Payments to Executive in cash and in




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	 	 	 	such amounts as are necessary to put Executive in the same position, after payment of
all federal, state, and local taxes (whether income taxes, excise taxes under Section
4999 or otherwise, or other taxes) and any and all penalties and interest with respect
to any such excise tax, as Executive would have been in after payment of all federal,
state, and local income taxes if the Payments (other than in respect of or regarding any
units or awards granted or vested pursuant to any Performance Unit Agreement between
Executive and Employer, or any equity awards granted or issued pursuant to any
outperformance award plans (including the Outperformance Long-Term Incentive Plan) or
supplemental equity award plans (including the 2007 Supplemental Equity Plan) of
Employer) had not given rise to an excise tax under Section 4999 and no such penalties
or interest had been imposed. Employer will make any additional Gross-Up Payments
required by this Section A.3 not later than the due date of any payment indicated by the
Internal Revenue Service with respect to the underlying matters to which the additional
Gross-Up relates.
	 
	 	A.4	 	Contest of IRS Determination by Employer. If Employer desires to contest
any determination by the Internal Revenue Service with respect to the amount of excise
tax under Section 4999, Executive will, upon receipt from Employer of an unconditional
written undertaking to indemnify and hold Executive harmless (on an after tax basis) from
any and all adverse consequences that might arise from the contesting of that
determination, cooperate with Employer in that contest at Employer’s sole expense.
Nothing in this Section A will require Executive to incur any expense other than expenses
with respect to which Employer has paid to Executive sufficient sums so that after the
payment of the expense by Executive and taking into account the payment by Employer with
respect to that expense and any and all taxes that may be imposed upon Executive as a
result of Executive’s receipt of that payment, the net effect is no cost to Executive.
Nothing in this Section A will require Executive to extend the statute of limitations
with respect to any item or issue in Executive’s tax returns other than, exclusively, the
excise tax under Section 4999. If, as the result of the contest of any assertion by the
Internal Revenue Service with respect to excise tax under Section 4999, Executive
receives a refund of a Section 4999 excise tax previously paid and/or any interest with
respect thereto, Executive will promptly pay to Employer such amount as will leave
Executive, net of the repayment and all tax effects, in the same position, after all
taxes and interest, that Executive would have been in if the refunded excise tax had
never been paid. To assure compliance with Section 409A, Employer will make payments to
Executive with respect to expenses as contemplated in this Section A.4 subject to and as
provided in Sections B.1 and B.3.
	 
	 	A.5	 	Accounting Firm Fees and Expenses. Employer will bear and pay all fees and
expenses of the Accounting Firm for services performed pursuant to this Section A
(“Applicable Fees and Expenses”). To assure compliance with Section 409A, Employer will
pay any Applicable Fees and Expenses subject to and as provided in Sections B.1 and B.3.






	B.	 	Compliance with Section 409A.






	 	B.1	 	Six Month Delay on Certain Payments, Benefits, and Reimbursements. If
Executive is a “specified employee” for purposes of Section 409A, as determined under
Employer’s policy for determining specified employees on the Termination Date, each
payment, benefit, or reimbursement paid or provided under this Agreement that constitutes
a “deferral of compensation” within the meaning of Section 409A, that is to be paid or
provided as a result of a “separation from service” within the meaning of Section 409A,
and that would otherwise be paid or provided at any time (a “Scheduled Time”) that is on
or before the date (the “Six Month Date”) that is exactly six months after the
Termination Date (other than payments,




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	 	 	 	benefits, or reimbursements that are treated as separation pay under Section
1.409A-1(b)(9)(v) of the Treasury Regulations) will not be paid or provided at the
Scheduled Time but will be accumulated (together with interest at the applicable federal
rate under Section 7872(f)(2)(A) of the Code in effect on the Termination Date) through
the Six Month Date and paid or provided during the period of 30 consecutive days
beginning on the first business day after the Six Month Date (that period of 30
consecutive days, the “Seventh Month after the Termination Date”), except that if
Executive dies before the Six Month Date, the payments, benefits, or reimbursements will
be accumulated only through the date of Executive’s death and thereafter paid or
provided not later than 30 days after the date of death.






	 	B.2	 	[Reserved].
	 
	 	B.3	 	Additional Limitations on Reimbursements and In-Kind Benefits. The
reimbursement of expenses or in-kind benefits pursuant to any of Article II, Paragraph 1;
Article II, Paragraph 2; Article V; or any other section of this Agreement that are
taxable benefits (and that are not disability pay or death benefit plans within the
meaning of Section 409A of the Code) are intended to comply, to the maximum extent
possible, with the exception to Section 409A set forth in Section 1.409A-1(b)(9)(v) of
the Treasury Regulations. To the extent that any reimbursement of expenses or in-kind
benefits provided pursuant to any of Article II, Paragraph 1; Article II, Paragraph 2;
Article V; or any other section of this Agreement either do not qualify for that
exception, or are provided beyond the applicable time periods set forth in Section
1.409A-1(b)(9)(v) of the Treasury Regulations, then they will be subject to the following
additional rules: (a) any reimbursement of eligible expenses will be paid within 30 days
following Executive’s written request for reimbursement; provided that Executive
provides written notice no later than 60 days before the last day of the calendar year
following the calendar year in which the expense was incurred so that Employer can make
the reimbursement within the time periods required by Section 409A; (b) the amount of
expenses eligible for reimbursement, or in-kind benefits provided, during any calendar
year will not affect the amount of expenses eligible for reimbursement, or in-kind
benefits to be provided, during any other calendar year; and (c) the right to
reimbursement or in-kind benefits will not be subject to liquidation or exchange for any
other benefit.
	 
	 	B.4	 	Compliance Generally. Each payment or reimbursement and the provision of
each benefit under this Agreement shall be considered a separate payment and not one of a
series of payments for purposes of Section 409A. Employer and Executive intend that the
payments and benefits provided under this Agreement will either be exempt from the
application of, or comply with, the requirements of Section 409A. This Agreement is to
be construed, administered, and governed in a manner that effects that intent and
Employer will not take any action that is inconsistent with that intent. Without
limiting the foregoing, the payments and benefits provided under this Agreement may not
be deferred, accelerated, extended, paid out, or modified in a manner that would result
in the imposition of an additional tax under Section 409A upon Executive.
	 
	 	B.5	 	Termination of Employment to Constitute a Separation from Service. The
parties intend that the phrase “termination of employment” and words and phrases of
similar import mean a “separation from service” with Employer within the meaning of
Section 409A. Executive and Employer will take all steps necessary (including taking
into account this Section B.5 when considering any further agreement regarding provision
of services by Executive to Employer after the Termination Date) to ensure that (a) any
termination of employment under this Agreement constitutes a “separation from service”
within the meaning of Section 409A,




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	 	 	 	and (b) the Termination Date is the date on which Executive experiences a “separation
from service” within the meaning of Section 409A.






	C.	 	Definitions.






	 	C.1	 	Accounting Firm. The term “Accounting Firm” means the independent auditors
of Employer for the fiscal year immediately preceding the earlier of (a) the year in
which the Termination Date occurred, or (b) the year, if any, in which occurred the first
Change of Control occurring after the date of this Agreement, and that firm’s successor
or successors; unless that firm is unable or unwilling to serve and perform in the
capacity contemplated by this Agreement, in which case Employer must select another
accounting firm that (x) is of recognized regional or national standing and (y) is not
then the independent auditors for Employer or any affiliated corporation.
	 
	 	C.2	 	Change in Ownership or Control. The term “Change in Ownership or Control”
has the meaning given to that term (without initial caps) in the Treasury Regulations
published under Section 280G.
	 
	 	C.3	 	Sections 280G, 409A, and 4999. Each of the terms “Section 280G,” “Section
409A,” and “Section 4999,” respectively, means that numbered section of the Internal
Revenue Code. References in this Agreement to any of these sections are intended to
include any proposed, temporary, or final regulations, or any other guidance, promulgated
with respect to that specific section by the U.S. Department of Treasury or the Internal
Revenue Service.






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