EX-10.3






EXHIBIT 10.3




EMPLOYMENT AGREEMENT




This Employment Agreement (this “Agreement”) is entered into as of October 15, 2008, between
Developers Diversified Realty Corporation, an Ohio corporation (“DDR” or the “Company”), and Daniel
B. Hurwitz (“Hurwitz”).



Hurwitz has been and is now serving DDR as its President and Chief Operating Officer. Hurwitz and
DDR have heretofore been party to an employment agreement. DDR and Hurwitz desire to enter into
this Agreement to reflect the terms pursuant to which Hurwitz will continue to serve DDR. (Certain
capitalized terms used in this Agreement have the meanings ascribed to them in Section 22
of this Agreement.)



DDR and Hurwitz agree, effective as of the date first set forth above (the “Effective Date”), as
follows:



1. Employment, Term. DDR engages and employs Hurwitz to render services in the
administration and operation of its affairs as its President and Chief Operating Officer, reporting
directly to DDR’s Chief Executive Officer (the “CEO”), all in accordance with the terms and
conditions of this Agreement, for an initial term extending from the Effective Date through
December 31, 2009. Effective December 31, 2008 and on each succeeding December 31 thereafter
occurring during the term of Hurwitz’s employment under this Agreement, the term of that employment
will be automatically extended for one additional calendar year unless (a) either party has given
written notice to the other at least 30 days in advance of the date on which the term would
otherwise be automatically extended that the term should not be so extended, or (b) Hurwitz’s
employment under this Agreement has been earlier terminated in accordance with the provisions of
one of Sections 6.2 through 6.6 of this Agreement. Thus, for example, if, as of
December 31, 2010, Hurwitz’s employment has not been terminated under any of Sections 6.2
through 6.6 of this Agreement and neither party had given notice to the other, by not later
than December 1, 2010, of its intention that the term not be renewed, the term of Hurwitz’s
employment under this Agreement would be automatically extended, as of December 31, 2010, for one
additional year to December 31, 2012. The term of Hurwitz’s employment under this Agreement is
sometimes referred to below as the “Contract Period.”



2. Full-Time Services. Throughout the Contract Period, Hurwitz will devote substantially
all of his business time and efforts to the service of DDR, except for (a) usual vacation periods
and reasonable periods of illness, (b) reasonable periods of time devoted to his personal financial
affairs, and (c) services as a director or trustee of other corporations or organizations, either
for profit or not for profit, that are not in competition with DDR.



3. Compensation.  For all services to be rendered by Hurwitz to DDR under this Agreement
during the Contract Period, including services as President and Chief Operating Officer and any
other services specified by the CEO or the Board, DDR will pay and provide to Hurwitz the
compensation and benefits specified in this Section 3.




3.1 Base Salary. From and after the Effective Date, DDR will pay Hurwitz base
salary (the “Base Salary”), in equal monthly or more frequent installments, at the rate of
not less than Six Hundred Sixteen Thousand Dollars ($616,000) per year, subject to such
increases as the Board may approve.



 









 






3.2 Annual Bonus. In addition to an annual base salary, if Hurwitz achieves the
factors and criteria for annual bonus compensation hereinafter described for any calendar
year of the Company, then the Company shall pay annual bonus compensation to Hurwitz for
such calendar year (an “Annual Bonus”), not later than 75 days following the end of each
calendar year, determined and calculated in accordance with the percentages set forth on
Exhibit A attached hereto. 50% of the total dollar amount of each Annual Bonus
shall be paid in cash and the remaining 50% of the total dollar amount of each Annual Bonus
shall be paid in the form of equity awards, including, without limitation, restricted shares
and/or options to purchase common shares of the Company, upon terms and conditions as
determined by the Company. For purposes of determining the number of any restricted shares
and/or the number of any options to purchase common shares of the Company that are awarded
in payment of the amount of each Annual Bonus that is to be paid in the form of equity
awards, the value of those restricted shares and/or options shall be determined based on the
fair market value of the common shares of the Company on the date of grant and using the
same methodology and the same valuation assumptions as are utilized by the Company for
determining the value of those restricted shares and/or options for financial statement
reporting purposes. The Company’s award of Annual Bonus compensation to Hurwitz shall be
determined by the factors and criteria, including the financial performance of the Company
and the performance by Hurwitz of his duties hereunder, that may be established from time to
time for the calculation of Annual Bonus awards by the Executive Compensation Committee (the
“Committee”) of the Board. The performance metrics and specific targets applicable to the
Company’s award of Annual Bonus compensation to Hurwitz for the calendar year ended December
31, 2008 have been communicated in writing to Hurwitz by the Company as of the date of this
Agreement. For each of the Company’s calendar years in the Contract Period subsequent to
2008, the Company will provide Hurwitz with written notice of the performance metrics to be
used and the specific targets applicable to the Company’s award of Annual Bonus compensation
to Hurwitz for such calendar year not later than March 15 of such year in a format
substantially similar to that provided by the Company to Hurwitz as described in the
immediately preceding sentence of this Section 3.2.




3.3 Supplemental Equity Awards. Hurwitz shall be entitled to participate in any
equity or other employee benefit plan that is generally available to senior executive
officers, as distinguished from general management, of the Company, including, without
limitation, outperformance award plans and supplemental equity award plans. Hurwitz’s
participation in and benefits under any such plan shall be on the terms and subject to the
conditions specified in the governing documents of the particular plan.



4. Benefits.




4.1 Retirement and Other Benefit Plans Generally. Throughout the Contract Period,
Hurwitz will be entitled to participate in all retirement and other benefit plans maintained
by DDR that are generally available to its employees and with respect to which he is
eligible pursuant to the terms of the underlying plan or plans, including, without
limitation, the DDR 401(k) plan for its employees and any DDR deferred compensation program.




4.2 Insurance, Generally. Throughout the Contract Period, DDR will provide to
Hurwitz and his family life, medical, hospitalization, vision, and dental insurance with
coverage and benefits and at a cost to Hurwitz that is at least as favorable as that
provided to Hurwitz and his family immediately before the Effective Date and at least as
favorable as that provided to any other executive officer of DDR from time to time during
the Contract Period.



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4.3 Insurance, Disability. Except as otherwise provided in the last sentence of
this Section 4.3, DDR will maintain disability insurance in effect with respect to
Hurwitz during the Contract Period sufficient to pay to Hurwitz a monthly benefit in the
event of disability of at least $25,000 per month through age 65 (or, as to so much of that
monthly amount as has previously been provided through a policy that will pay a monthly
benefit only for a shorter term, through the end of that shorter term). If DDR determines
not to continue any particular disability insurance policy for Hurwitz described in this
Section 4.3, DDR’s obligation to continue to maintain such disability insurance
policy will terminate, and DDR will self-insure the disability benefit that would have been
provided to Hurwitz had such disability insurance policy remained in effect through the
date, if any, on which Hurwitz would otherwise have qualified for benefits under such
disability insurance policy, and DDR will pay the same disability benefit to Hurwitz that
would have otherwise been provided under such disability insurance policy.




4.4 Vacation and Sick Leave. Hurwitz will be entitled to such periods of vacation
and sick leave as is consistent with historical practices as established before the
Effective Date and as may be determined by the CEO in his reasonable and good faith
discretion (but in any event not less than four weeks per year or such longer period as may
be provided under the DDR vacation and sick leave policy for executive officers).




4.5 Club Membership. Throughout the Contract Period, DDR will name Hurwitz as a
corporate designee under its membership at Barrington Country Club, will bear the cost of
regular membership fees, assessments, and dues incurred at that club by Hurwitz, and will
reimburse Hurwitz for the amount of any charges reasonably incurred at that club in the
conduct of DDR’s business.



5. Expense Reimbursement. DDR will reimburse Hurwitz or provide him with an expense
allowance during the Contract Period for travel, entertainment, and other expenses reasonably and
necessarily incurred by him in connection with DDR’s business. Hurwitz will provide such
documentation with respect to expenses to be reimbursed as DDR may reasonably request.



6. Termination.




6.1 Upon Expiration following Notice of Non-Renewal. If either party gives timely
written notice to the other of his or its intention to discontinue the otherwise automatic
renewal of the term of Hurwitz’s employment hereunder (a “Non-Renewal Notice”) as
contemplated by clause (a) of Section 1 above, that term will terminate at the close
of business on December 31, 2009 (if the term has never been automatically renewed) or on
such later December 31 through which the term has previously been automatically renewed as
contemplated by Section 1 above.




6.2 Death or Disability. Hurwitz’s employment under this Agreement will terminate
immediately upon his death. DDR may terminate Hurwitz’s employment under this Agreement
immediately upon giving notice of termination if Hurwitz is Totally Disabled (as that term
is defined in Section 9.1 below) for an aggregate of 120 days in any consecutive 12
calendar months or for 90 consecutive days.




6.3 For Cause by DDR.




(a) Before or More than Two Years After a Change in Control. DDR may
terminate Hurwitz’s employment under this Agreement for “Cause” at any time that is
either (x) before the occurrence of a Change in Control or (y) more than two years
after the



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occurrence of the most recent Change in Control, upon the occurrence of any of the
following circumstances: 




(i) (A) Hurwitz commits a fraud or a felony or an act that is not or a
series of acts that are not taken in good faith and (B) the commission of
such fraud, felony or act or series of acts results in material injury to
the business reputation of DDR.




(ii) Hurwitz commits an act or series of repeated acts of dishonesty that
are materially inimical to the best interests of DDR.




(iii) Other than as a result of disability, Hurwitz consistently fails to
perform his duties and responsibilities as specified in Sections 1
and 2 above and the failure continues for 15 days after the Board
has advised him in writing of that failure.




(iv) Hurwitz has materially breached any provision of this Agreement (other
than Section 1 or 2 above, as to any breach of which
Section 6.3(a)(iii) would apply) and the breach has not been cured
in all substantial respects within 30 days after the Board has advised him
in writing of the nature of the breach.




(b) Within Two Years After a Change in Control. During any period beginning
upon the occurrence of any Change in Control and ending on the second anniversary of
that and any later Change in Control, DDR may terminate Hurwitz’s employment under
this Agreement for “Cause” only if DDR has grounds for a “Termination for Cause” as
that term is defined in the Change in Control Agreement.




(c) If DDR notifies Hurwitz that it is terminating his employment for Cause under
this Section 6.3, whether pursuant to Section 6.3(a) or
6.3(b), Hurwitz will have the right to have the justification for the
termination determined by arbitration. Hurwitz may exercise this right by serving a
written request for arbitration on DDR within 30 days after his receipt of notice of
the termination for Cause from DDR. Upon receipt of any such request for
arbitration from Hurwitz, DDR will promptly request the appointment of three
arbitrators by the American Arbitration Association and thereafter the question of
Cause will be determined as provided in Section 20.1. Both Hurwitz and DDR
will use all reasonable efforts to facilitate and expedite any such arbitration and
will act to cause the arbitration to be completed as promptly as possible. During
the pendency of the arbitration, DDR will continue to pay and provide to Hurwitz all
compensation and benefits to which he is entitled during the continuation of his
employment under this Agreement (without regard to the purported termination of that
employment by DDR). If at any time during the pendency of any such arbitration DDR
fails to pay and provide all compensation and benefits to Hurwitz in a timely
manner, DDR will be deemed to have automatically waived whatever rights it then may
have had to terminate Hurwitz’s employment for Cause and DDR’s notice of termination
will be deemed to be automatically rescinded.




6.4 For Good Reason by Hurwitz. Hurwitz may terminate his employment under this
Agreement for “Good Reason” if any of the following circumstances occur:



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(a) DDR materially changes Hurwitz’s duties and responsibilities from those set
forth in Section 1 above and the change has not been rescinded to Hurwitz’s
satisfaction within 15 days after Hurwitz has advised DDR in writing of
dissatisfaction with the change.




(b) DDR changes Hurwitz’s place of employment or its principal executive offices to
a location that is more than 50 miles from the geographical center of Cleveland,
Ohio.




(c) DDR materially breaches any of its obligations under this Agreement (other than
its obligations under Section 1 above, as to any breach of which
Section 6.4(a) would apply) and the breach is not cured in all material
respects within 30 days after Hurwitz has advised the Board in writing of the
breach.




6.5 Without Cause by DDR. DDR may terminate Hurwitz’s employment under this
Agreement at any time without Cause pursuant to written notice provided to Hurwitz not less
than ninety days in advance of such termination upon the affirmative vote of a majority of
all of the members of the Board. Any termination under this Section 6.5 will be
effective at such time as the Board may specify in that written notice.




6.6 Without Good Reason by Hurwitz. Hurwitz may terminate his employment under this
Agreement at any time without Good Reason pursuant to written notice provided to DDR not
less than ninety days in advance of such termination. Any termination under this
Section 6.6 will be effective at such time as Hurwitz may specify in that written
notice.



7. Payments upon Termination.




7.1 Upon Termination For Cause or Without Good Reason. If Hurwitz’s employment
under this Agreement is terminated by DDR for Cause or by Hurwitz without Good Reason
(which, for all purposes of this Agreement, will include termination of Hurwitz’s employment
upon expiration of the term as contemplated by Section 6.1 if the Non-Renewal Notice
was given by Hurwitz), DDR will pay and provide to Hurwitz his Base Salary through the
Termination Date to the extent not already paid and continuing life, disability, medical,
hospitalization, vision, and dental insurance at the levels specified in Section 4.2
through the Termination Date, and, except as may otherwise be required by law, DDR will not
pay or provide to Hurwitz any further compensation or other benefits under this Agreement.
DDR will pay any Base Salary referred to in this Section 7.1 to Hurwitz within 30
days of the Termination Date.




7.2 Upon Termination Without Cause or For Good Reason. If Hurwitz’s employment
under this Agreement is terminated by DDR without Cause (which, for all purposes of this
Agreement, will include termination of Hurwitz’s employment upon expiration of the term as
contemplated by Section 6.1 if the Non-Renewal Notice was given by DDR) or by
Hurwitz for Good Reason, DDR will pay and provide to Hurwitz the amounts and benefits
specified in this Section 7.2, except that DDR will not be obligated to pay the lump
sum amounts specified in either of Sections 7.2(c) or 7.2(d) unless either
(x) DDR is deemed to have waived the obligation to provide a Release as provided in
Section 8.2 or (y) Hurwitz has timely executed a Release as contemplated by
Section 8.3. The amounts and benefits specified in this Section 7.2 are as
follows:




(a) Hurwitz’s Base Salary through the Termination Date, to the extent not already
paid. DDR will pay this amount to Hurwitz within 30 days of the Termination Date.



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(b) The amount of the Annual Bonus with respect to the immediately preceding
calendar year, to the extent not already paid. DDR will pay this amount to Hurwitz
on the same date and in the same amount that the Annual Bonus for that year would
have been paid if Hurwitz’s employment had not been terminated, but in any event not
later than March 15 of the current year.




(c) If the Termination Date is on or prior to December 31, 2008, a lump sum amount
equal to $3 million. Except as otherwise provided in Section 14.2, DDR will
pay this amount to Hurwitz during the Seventh Month after the Termination Date.




(d) If the Termination Date is after December 31, 2008, a lump sum amount equal to
the greater of (i) $3 million or (ii) the sum of (A) Hurwitz’s Base Salary for the
calendar year in which the termination occurs plus (B) the amount of Annual Bonus
paid or payable, as the case may be, to Hurwitz for the calendar year immediately
preceding the calendar year in which such Termination Date occurs. Except as
otherwise provided in Section 14.2, DDR will pay this amount to Hurwitz
during the Seventh Month after the Termination Date.




(e) Continuing life, disability, medical, hospitalization, vision, and dental
insurance to Hurwitz and his family at the levels specified in Section 4.2
through the first anniversary of the Termination Date. To assure compliance with
Section 409A of the Internal Revenue Code, the timing of the provision of these
benefits will be subject to Sections 14.1 and 14.3 if and to the
extent either of those sections is applicable according to its terms.




(f) Notwithstanding any provision of any annual long-term incentive compensation
plan or program of the Company, or any provision in any annual long-term incentive
compensation award agreement between the Company and Hurwitz, all restricted shares
and similar equity awards granted to Hurwitz that vest based solely upon Hurwitz’s
continued employment with the Company or the passage of time, and which awards have
not otherwise vested, shall vest immediately upon the Termination Date. To the
extent applicable, the Company and Hurwitz each intend the provisions of this
Section 7.2(f) to operate as an amendment to all relevant provisions of any
equity compensation plans or programs of the Company and all relevant equity
compensation award agreements between the Company and Hurwitz specifically to effect
the intent of this Section 7.2(f); provided, however, that, notwithstanding
anything to the contrary in the foregoing, this Section 7.2(f) shall not
apply to 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 the Company, which
awards shall vest and be exercisable pursuant to the terms of such plans.




(g) Notwithstanding any provision of any annual long-term incentive compensation
plan or program of the Company, or any provision in any annual long-term incentive
compensation award agreement between the Company and Hurwitz, all stock options and
similar equity awards granted to Hurwitz by the Company that have not otherwise
vested shall be vested immediately upon the Termination Date. To the extent
applicable, the Company and Hurwitz each intend the provisions of this Section
7.2(g) to operate as an amendment to all relevant provisions of any equity
compensation plans or programs of the Company and all relevant equity compensation
award agreements between the Company and Hurwitz specifically to effect the intent
of this Section 7.2(g); provided,



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however, that, notwithstanding anything to the contrary in the foregoing, this
Section 7.2(g) shall not apply to 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 the Company, which awards shall vest and be exercisable pursuant to
the terms of such plans.




7.3 Upon Termination by Reason of Death. If Hurwitz’s employment under this
Agreement is terminated by reason of his death, DDR will pay, or cause to be paid, and
provide, or cause to be provided, to Hurwitz’s personal representative and his family, as
appropriate, the amounts and benefits specified in this Section 7.3, except that DDR
will not be obligated to pay the lump sum amount specified in Section 7.3(c) unless
either (x) DDR is deemed to have waived the obligation to provide a Release as provided in
Section 8.2 or (y) Hurwitz’s personal representative has timely executed a Release
as contemplated by Section 8.3. The amounts and benefits specified in this
Section 7.3 are as follows:




(a) Hurwitz’s Base Salary through the Termination Date, to the extent not already
paid. DDR will pay this amount to Hurwitz’s personal representative within 30 days
of the Termination Date.




(b) The amount of the Annual Bonus with respect to the immediately preceding
calendar year, to the extent not already paid. DDR will pay this amount to
Hurwitz’s personal representative on the same date and in the same amount that the
Annual Bonus for that year would have been paid if Hurwitz’s employment had not been
terminated, but in any event not later than March 15 of the current year.




(c) A lump sum amount equal to $2.5 million, which amount DDR may pay directly or
may provide by arranging for life insurance benefits to be made available to Hurwitz
and his family under one or more life insurance policies obtained by DDR. Hurwitz
agrees, if requested by DDR, to assist DDR in obtaining such life insurance policy
or policies, including by submitting to physical examinations or providing medical
histories or other data that may be required in connection with obtaining any such
policy or policies. Except as otherwise provided in Section 14.2, if DDR is
obligated to make a lump sum payment of this amount (rather than through the
arrangement of certain life insurance benefits for Hurwitz as described in the
immediately prior sentence), it will pay this amount to Hurwitz as soon as
practicable following his death, but in no event later than March 15 of the year
after the year in which his death occurs; provided, that neither Hurwitz nor his
estate may designate the taxable year of payment.




(d) Continuing life, disability, medical, hospitalization, vision, and dental
insurance to Hurwitz’s family at the levels specified in Section 4.2 through
the first anniversary of the Termination Date. To assure compliance with
Section 409A, the timing of the provision of these benefits will be subject to
Sections 14.1 and 14.3 if and to the extent either of those sections
is applicable according to its terms.




7.4 Upon Termination by Reason of Disability. If Hurwitz’s employment under this
Agreement is terminated by DDR pursuant to Section 6.2 following Hurwitz’s
disability, DDR will pay and provide to Hurwitz and his family, as appropriate, the amounts
and benefits specified in this Section 7.4, except that DDR will not be obligated to
pay the lump sum amounts specified in either of Sections 7.4(c) or 7.4(d)
unless either (x) DDR is deemed to have waived the obligation to provide a Releases as
provided in Section 8.2 or (y) Hurwitz (or his personal representative)



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has timely executed a Release as contemplated by Section 8.3. The amounts and
benefits specified in this Section 7.4 are as follows:




(a) Hurwitz’s Base Salary through the Termination Date, to the extent not already
paid. DDR will pay this amount to Hurwitz within 30 days of the Termination Date.




(b) The amount of the Annual Bonus with respect to the immediately preceding
calendar year, to the extent not already paid. DDR will pay this amount to Hurwitz
on the same date and in the same amount that the Annual Bonus for that year would
have been paid if Hurwitz’s employment had not been terminated, but in any event not
later than March 15 of the current year.




(c) A lump sum amount equal to two times Hurwitz’s Base Salary in effect on the
Termination Date. DDR will pay this amount to Hurwitz during the Seventh Month
after the Termination Date.




(d) A lump sum amount payable entirely in cash and equal to a pro rata portion of
the entire Annual Bonus with respect to the calendar year in which Hurwitz’s
employment is terminated by DDR pursuant to Section 6.2 following Hurwitz’s
disability. For purposes of determining this lump sum amount, the entire Annual
Bonus with respect to the calendar year in which the Termination Date occurs will be
calculated as follows: (i) for any applicable performance metrics with specific
quantifiable targets, achievement of such targets will be evaluated based on actual
results for the entire calendar year in which the Termination Date occurs; and (ii)
for any applicable discretionary or other metrics, Hurwitz’s performance will be
evaluated based on his individual performance during the portion of such calendar
year ending on the Termination Date. The pro rata portion of the entire Annual
Bonus (calculated in the manner described in the immediately preceding sentence)
will be based on the number of days in the portion of the calendar year ending on
the Termination Date as compared to the number of days in the entire calendar year.
DDR will pay this lump sum amount to Hurwitz on the same date that the Annual Bonus
for that year would have been paid if Hurwitz’s employment had not been terminated,
but in any event not later than March 15 of the calendar year following the calendar
year in which Hurwitz’s employment is terminated by DDR pursuant to Section
6.2 following Hurwitz’s disability.




For the avoidance of doubt, the following example illustrates the application of
this Section 7.4(d): assuming that (1) Hurwitz’s employment is terminated
by DDR pursuant to Section 6.2 on May 1, 2009, (2) Hurwitz’s target Annual
Bonus opportunity for 2009 (established before Hurwitz’s employment was so
terminated) was $100,000, of which $80,000 was dependent on performance metrics with
specific quantifiable targets and $20,000 was dependent on a discretionary
evaluation of Hurwitz’s individual performance, (3) actual results for 2009 equaled
110% achievement of the specific quantifiable targets, and (4) Hurwitz’s individual
performance during the period from January 1, 2009 through May 1, 2009 was evaluated
as meeting 100% of expectations, then: (A) the entire Annual Bonus for 2009 for
Hurwitz would be $108,000 (representing the sum of $88,000 (which is 110% of the
$80,000 portion of the target Annual Bonus opportunity dependent on specific
quantifiable targets) plus $20,000 (which is 100% of the $20,000 portion of the
target Annual Bonus opportunity dependent on the discretionary evaluation of
Hurwitz’s individual performance)); and (B) the lump sum amount payable pursuant to
this Section 7.4(d) would be $35,803 (representing the entire



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Annual Bonus for 2009 of $108,000 multiplied by a fraction the numerator of which is
121 (which is the number of days during the period from January 1, 2009 through May
1, 2009) and the denominator of which is 365 (which is the number of days in 2009).




(e) Continuing life, disability, medical, hospitalization, vision, and dental
insurance to Hurwitz and his family at the levels specified in Section 4.2
through the first anniversary of the Termination Date. To assure compliance with
Section 409A, the timing of the provision of these benefits will be subject to
Sections 14.1 and 14.3 if and to the extent either of those sections
is applicable according to its terms.



8. Release. This Section 8 will apply only upon termination of Hurwitz’s
employment (a) by reason of his death, (b) by DDR, either without Cause or pursuant to Section
6.2 following Hurwitz’s disability, or (c) by Hurwitz for Good Reason.




8.1 Presentation of Release by DDR. If this Section 8 applies, DDR may
present to Hurwitz (or in the case of Hurwitz’s death or legal incapacity, to Hurwitz’s
personal representative), not later than 21 days after the Termination Date, a form of
release (a “Release”) of all current and future claims, known or unknown, arising on or
before the date on which the Release is to be executed, that Hurwitz or his assigns have or
may have against DDR or any Subsidiary, and the directors, officers, and affiliates of any
of them, in such form as may reasonably be presented by DDR together with a covering message
in which DDR advises Hurwitz (or his personal representative) that the Release is being
presented in accordance with this Section 8.1 and that a failure by Hurwitz (or his
personal representative) to execute and return the Release as contemplated by Section
8.3 would relieve DDR of the obligation to make payments otherwise due to Hurwitz (or to
his personal representative) under one or more portions of any of Sections 7.2,
7.3 or 7.4, as the case may be.




8.2 Effect of Failure by DDR to Present Release. If DDR fails to present a Release
and covering message to Hurwitz (or his personal representative) as contemplated by
Section 8.1 within 21 days of the Termination Date, DDR will be deemed to have
waived the requirement that Hurwitz (or his personal representative) execute a Release as a
condition to receiving payments under any portion of any of Sections 7.2,
7.3 or 7.4, as the case may be.




8.3 Execution of Release by Hurwitz or His Personal Representative. If DDR does
present a Release and covering message to Hurwitz (or his personal representative) as
contemplated by Section 8.1 within 21 days of the Termination Date, Hurwitz (or his
personal representative) will have until 50 days after the Termination Date (i.e., at least
29 days after presentation of the Release to Hurwitz (or his personal representative))
within which to deliver an executed copy of the Release to DDR and thereby satisfy the
condition to receiving payments under any portion of any of Sections 7.2,
7.3 or 7.4, as the case may be, provided that Hurwitz (or his personal
representative) does not revoke the execution of the Release during any applicable
revocation period.




8.4 Effect of Failure to Execute Release or of Revocation of Release. If Hurwitz
(or his personal representative) fails to deliver an executed copy of the Release to DDR
within 50 days after the Termination Date or revokes the execution of the Release during any
applicable revocation period, Hurwitz (or his personal representative) will be deemed to
have waived the right to receive all payments under Sections 7.2, 7.3 or
7.4, as the case may be, that were conditioned on the Release.



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9. Disability Definitions; Physical Examination.




9.1 Definitions. For all purposes of this Agreement:




(a) Hurwitz’s “Own Occupation” means the regular occupation in which he is engaged
under this Agreement at the time he becomes disabled.




(b) “Total Disability” means that, because of sickness or injury, Hurwitz is not
able to perform the material and substantial duties of his Own Occupation.




(c) “Totally Disabled” means that Hurwitz suffers from Total Disability (and Hurwitz
will be deemed to continue to be Totally Disabled so long as he is not able to work
in his Own Occupation even if he works in some other capacity).




9.2 Physical Examination. If either DDR or Hurwitz, at any time or from time to
time after receipt of notice of Hurwitz’s Total Disability from the other, desires to
contend that Hurwitz is not Totally Disabled, Hurwitz will promptly submit to a physical
examination by the chief of medicine of any major accredited hospital in the Cleveland, Ohio
area and, unless that physician issues his written statement to the effect that, in his
opinion, based on his diagnosis, Hurwitz is capable of resuming his Own Occupation and
devoting his full time and energy to discharging the duties of his Own Occupation, Hurwitz
will be deemed to be and to continue to be Totally Disabled for all purposes of this
Agreement.



10. No Set-Off; No Obligation to Seek Other Employment or to Otherwise Mitigate Damages; No
Effect Upon Other Plans. DDR’s obligation to make the payments provided for in this Agreement
and otherwise to perform its obligations under this Agreement will not be affected by any set-off,
counterclaim, recoupment, defense, or other claim whatsoever that DDR or any Subsidiary may have
against Hurwitz, except that the prohibition on set-off, counterclaim, recoupment, defense, or
other claim contained in this sentence will not apply if Hurwitz’s employment is terminated by DDR
for Cause. Hurwitz will not be required to mitigate damages or the amount of any payment provided
for under this Agreement by seeking other employment or otherwise. The amount of any payment
provided for under this Agreement will not be reduced by any compensation or benefits earned by
Hurwitz as the result of employment by another employer or otherwise after the Termination Date.
Neither the provisions of this Agreement nor the making of any payment provided for under this
Agreement, nor the termination of DDR’s obligations under this Agreement, will reduce any amounts
otherwise payable, or in any way diminish Hurwitz’s rights, under any incentive compensation plan,
stock option or stock appreciation rights plan, restricted stock plan or agreement, deferred
compensation, retirement, or supplemental retirement plan, stock purchase and savings plan,
disability or insurance plan, or other similar contract, plan, or arrangement of DDR or any
Subsidiary, all of which will be governed by their respective terms.



11. Payments Are in Lieu of Severance Payments.  If Hurwitz becomes entitled to receive
payments under this Agreement and/or the Change in Control Agreement as a result of termination of
his employment, those payments will be in lieu of any and all other claims or rights that Hurwitz
may have against DDR for severance, separation, and/or salary continuation pay upon that
termination of his employment.



12. Covenants and Confidential Information. Hurwitz acknowledges DDR’s reliance on and
expectation of Hurwitz’s continued commitment to performance of his duties and responsibilities
during the Contract Period and he assumes the obligations set out in this Section 12 in
light of that reliance and expectation on the part of DDR.



10









 






12.1 Noncompetition. During the Contract Period and for a period of one year
thereafter, Hurwitz will not, directly or indirectly, own, manage, control, or participate
in the ownership, management, or control of, or be employed or engaged by or otherwise
affiliated or associated as a consultant, independent contractor, or otherwise with, any of
the four largest real estate investment trusts (excluding the Company) that focus primarily
on neighborhood and community shopping centers, based on market capitalization as of the
Termination Date; provided, however, that the ownership by Hurwitz of not
more than one percent of any class of publicly traded securities of any entity will not be
deemed a violation of this Section 12.1.




12.2 Confidentiality. Throughout the Contract Period and for a period of two years
thereafter, Hurwitz will not disclose, divulge, discuss, copy, or otherwise use or suffer to
be used in any manner, in competition with, or contrary to the interests of, DDR, any
confidential information relating to DDR’s operations, properties, or otherwise to its
particular business or other trade secrets of DDR, it being acknowledged by Hurwitz that all
such information regarding the business of DDR compiled or obtained by, or furnished to,
during his employment by or association with DDR is confidential information and DDR’s
exclusive property. The restrictions in this Section 12.2 will not apply to any
information to the extent that it (a) is clearly obtainable in the public domain, (b)
becomes obtainable in the public domain, except by reason of the breach by Hurwitz of his
obligations under this Section 12.2, (c) was not acquired by Hurwitz in connection
with his employment or affiliation with DDR, (d) was not acquired by Hurwitz from DDR or its
representatives, or (e) is required to be disclosed by rule of law or by order of a court or
governmental body or agency.




12.3 Nonsolicitation. During the Contract Period and for a period of two years
thereafter, Hurwitz will not directly or indirectly solicit or induce or attempt to solicit
or induce any employee of DDR and/or of any Subsidiary or affiliate to terminate his or her
employment with DDR and/or any Subsidiary.




12.4 Remedies. Hurwitz acknowledges that the remedy at law for any breach by him of
this Section 12 may be inadequate and that the damages following from any such
breach may not be readily susceptible to being measured in monetary terms. Accordingly,
Hurwitz agrees that, upon adequate proof of Hurwitz’s violation of any legally enforceable
provision of this Section 12, DDR will be entitled to immediate injunctive relief
and may obtain a temporary order restraining any threatened or further breach. Nothing in
this Section 12 will be deemed to limit DDR’s remedies at law or in equity for any
breach by Hurwitz of any of the provisions of this Section 12 that may be pursued or
availed of by DDR.




12.5 Acknowledgement. Hurwitz has carefully considered the nature and extent of the
restrictions upon him and the rights and remedies conferred upon DDR under this Section
12, and hereby acknowledges and agrees that the same are reasonable in time and
territory, are designed to eliminate competition that otherwise would be unfair to DDR, do
not stifle the inherent skill and experience of Hurwitz, would not operate as a bar to
Hurwitz’s sole means of support, are fully required to protect the legitimate interests of
DDR ,and do not confer a benefit upon DDR disproportionate to the detriment to Hurwitz.



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




13.1 Acknowledgement; Determination by Accounting Firm. DDR and Hurwitz acknowledge
that, following a Change in Ownership or Control, one or more payments or distributions to
be made by DDR or an affiliated entity to or for the benefit of Hurwitz pursuant to the
terms of this



11









 







Agreement or the Change in Control Agreement (including, without limitation, the issuance of
common shares of the Company; 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 DDR or its affiliated entity for
Federal income tax purposes and with respect to which Hurwitz will be subject to an excise
tax because of Sections 280G and 4999, respectively, of the Internal Revenue Code. If a
Change in Ownership or Control occurs, either Hurwitz or DDR 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 13, to determine
whether any Payment will be an excess parachute payment and to communicate its
determination, together with detailed supporting calculations, to DDR and to Hurwitz within
30 days after its receipt of the direction from Hurwitz or DDR, as the case may be. DDR and
Hurwitz will cooperate with each other and the Accounting Firm and will provide necessary
information so that the Accounting Firm may make all such determinations.




13.2 Gross-Up Payments. If the Accounting Firm determines that any Payment gives
rise, directly or indirectly, to liability on the part of Hurwitz for excise tax under
Section 4999 (and/or any penalties and/or interest with respect to any such excise tax), DDR
will make additional cash payments (each, a “Gross-Up Payment”) to Hurwitz, from time to
time in such amounts as are necessary to put Hurwitz 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 Hurwitz 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 Hurwitz and the
Company, 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 the Company) had not given rise to an
excise tax under Section 4999 and no such penalties or interest had been imposed. DDR’s
obligation to make Gross-Up Payments under this Section 13 is not contingent on
termination of Hurwitz’s employment with DDR. DDR will make each Gross-Up Payment to
Hurwitz within 30 days of the time that the related Payment constituting an excess parachute
payment is paid or provided to Hurwitz.




13.3 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 Hurwitz 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, DDR will make further Goss-Up Payments to Hurwitz in cash and in such
amounts as are necessary to put Hurwitz 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 Hurwitz 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 Hurwitz and the Company, 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 the Company) had not given rise to an excise tax under
Section 4999 and no such penalties or interest had been imposed. DDR will make any
additional Gross-Up Payments required by this Section 13.3 not



12









 







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.




13.4 Contest of IRS Determination by DDR. If DDR desires to contest any
determination by the Internal Revenue Service with respect to the amount of excise tax under
Section 4999, Hurwitz will, upon receipt from DDR of an unconditional written undertaking to
indemnify and hold Hurwitz harmless (on an after tax basis) from any and all adverse
consequences that might arise from the contesting of that determination, cooperate with DDR
in that contest at DDR’s sole expense. Nothing in this Section 13 will require
Hurwitz to incur any expense other than expenses with respect to which DDR has paid to
Hurwitz sufficient sums so that after the payment of the expense by Hurwitz and taking into
account the payment by DDR with respect to that expense and any and all taxes that may be
imposed upon Hurwitz as a result of his receipt of that payment, the net effect is no cost
to Hurwitz. Nothing in this Section 13 will require Hurwitz to extend the statute
of limitations with respect to any item or issue in his 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, Hurwitz receives a
refund of a Section 4999 excise tax previously paid and/or any interest with respect
thereto, Hurwitz will promptly pay to DDR such amount as will leave Hurwitz, net of the
repayment and all tax effects, in the same position, after all taxes and interest, that he
would have been in if the refunded excise tax had never been paid. To assure compliance
with Section 409A, DDR will make payments to Hurwitz with respect to expenses as
contemplated in this Section 13.4 subject to and as provided in Sections
14.1 and 14.3.




13.5 Accounting Firm Fees and Expenses. DDR will bear and pay all fees and expenses
of the Accounting Firm for services performed pursuant to this Section 13
(“Applicable Fees and Expenses”). To assure compliance with Section 409A, DDR will pay any
Applicable Fees and Expenses subject to and as provided in Sections 14.1 and
14.3.



14. Compliance with Section 409A.




14.1 Six Month Delay on Certain Payments, Benefits, and Reimbursements. If Hurwitz
is a “specified employee” for purposes of Section 409A, as determined under DDR’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,
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 Hurwitz dies before the Six Month Date,
the payments, benefits, or reimbursements will be accumulated only through the date of his
death and thereafter paid or provided not later than 30 days after the date of death.




14.2 Earlier Payment if Not a Specified Employee. If Hurwitz is not a “specified
employee” for purposes of Section 409A, as determined under DDR’s policy for determining
specified



13









 







employees on the Termination Date, any lump sum payment to be made by DDR to Hurwitz
pursuant to any one or more of Sections 7.2(c), 7.2(d), 7.3(c),
7.4(c) and 7.4(d) will be made by DDR to Hurwitz during the 30-day period
that begins exactly 60 days after the Termination Date rather than during the Seventh Month
after the Termination Date.




14.3 Additional Limitations on Reimbursements and In-Kind Benefits. The
reimbursement of expenses or in-kind benefits provided under Section 7 or under 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 under Section 7 or under 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: (i) any reimbursement of
eligible expenses will be paid within 30 days following Hurwitz’s written request for
reimbursement; provided that Hurwitz 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 DDR can make the reimbursement within the time periods required by Section
409A; (ii) 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 (iii) the right to
reimbursement or in-kind benefits will not be subject to liquidation or exchange for any
other benefit.




14.4 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. DDR and Hurwitz 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 DDR 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 Hurwitz.




14.5 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 DDR within the meaning of Section 409A. Hurwitz and
DDR will take all steps necessary (including taking into account this Section 14.5
when considering any further agreement regarding provision of services by Hurwitz to DDR
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, and
(b) the Termination Date is the date on which Hurwitz experiences a “separation from
service” within the meaning of Section 409A.




14.6 Section 409A Gross-Up. If, notwithstanding the efforts of the parties to
comply with Section 409A, Hurwitz is subject to any excise tax under Section 409A, DDR will
make additional payments (“409A Gross-Up Payments”) to Hurwitz so that after taking into
account any such additional tax and any related interest and/or penalties and the 409A
Gross-Up Payments (other than in respect of or regarding any units or awards granted or
vested pursuant to any Performance Unit Agreement between Hurwitz and the Company, or any
equity awards



14









 







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 the Company), Hurwitz will be in the same position as if no
excise tax under Section 409A and no related interest or penalties had been imposed upon him
pursuant to Section 409A. The Accounting Firm will have the same general duties with
respect to the determination of the amount of any Section 409A Gross-Up as it has with
respect to the determination of Gross-Up Payments with respect to Section 4999 under
Section 13 and the parties will follow procedures in connection with the
determination and payment of any Section 409A Gross-Up Payments that are similar to those
specified in Section 13 in connection with the determination and payment of any
Gross-Up Payments with respect to Section 4999 (including those procedures in Section
13 that relate to the time at which additional payments are made).



15. Indemnification.  DDR will indemnify Hurwitz, to the full extent permitted or
authorized by the Ohio General Corporation Law as it may from time to time be amended, if Hurwitz
is made or threatened to be made a party to any threatened, pending, or completed action, suit, or
proceeding, whether civil, criminal, administrative, or investigative, by reason of the fact that
Hurwitz is or was a director, officer, or employee of DDR and/or of any Subsidiary, or is or was
serving at the request of DDR and/or of any Subsidiary as a director, trustee, officer, or employee
of a corporation, partnership, joint venture, trust, or other enterprise. The indemnification
provided by this Section 15 will not be deemed exclusive of any other rights to which
Hurwitz may be entitled under the articles of incorporation or the regulations of DDR and/or of any
Subsidiary, or any agreement, vote of shareholders or disinterested directors, or otherwise, both
as to action in Hurwitz’s official capacity and as to action in another capacity while holding such
office, and will continue as to Hurwitz after Hurwitz has ceased to be a director, trustee,
officer, or employee and will inure to the benefit of his heirs, executors, and administrators. In
particular, Hurwitz will continue to be entitled to the full benefit of the indemnification
agreement dated June 29, 2004 between Hurwitz and DDR (the “Indemnification Agreement”) for so long
as that Indemnification Agreement remains in effect according to its terms.



16. Certain Expenses. This Section 16 will apply only to expenses that (a) are
otherwise described in one or more of its subsections and (b) are incurred at any time from the
Effective Date through the fifth anniversary of Hurwitz’s death.




16.1 Reimbursement of Certain Expenses. DDR will pay, as incurred, all expenses,
including the reasonable fees of counsel engaged by Hurwitz, of Hurwitz in (a) prosecuting
any action to compel DDR to comply with the terms of this Agreement upon receipt from
Hurwitz of an undertaking to repay DDR for such expenses if it is ultimately determined by a
court of competent jurisdiction that Hurwitz had no reasonable grounds for bringing such
action or (b) defending any action brought by a party other than Hurwitz or his personal
representative to have this Agreement declared invalid or unenforceable.




16.2 Advancement of Certain Expenses. Expenses (including the reasonable fees of
counsel engaged by Hurwitz) incurred by Hurwitz in defending any action, suit, or proceeding
commenced or threatened against Hurwitz for any action or failure to act as an employee,
officer, or director of DDR and/or of any Subsidiary will be paid by DDR, as they are
incurred, in advance of final disposition of the action, suit, or proceeding upon receipt of
an undertaking by or on behalf of Hurwitz in which he agrees to reasonably cooperate with
DDR and/or the Subsidiary, as the case may be, concerning the action, suit, or proceeding,
and (a) if the action, suit, or proceeding is commenced or threatened against Hurwitz for
any action or failure to act as a director, to repay the amount if it is proved by clear and
convincing evidence in a court of competent jurisdiction that his action or failure to act
involved an act or omission undertaken with



15









 







deliberate intent to cause injury to DDR or a Subsidiary or with reckless disregard for the
best interests of DDR or a Subsidiary, or (b) if the action, suit, or proceeding is
commenced or threatened against Hurwitz for any action or failure to act as an officer or
employee, to repay the amount if it is ultimately determined that he is not entitled to be
indemnified. The obligation of DDR to advance expenses provided for in this Section
16.2 will not be deemed exclusive of any other rights to which Hurwitz may be entitled
under the articles of incorporation or the regulations of DDR or of any Subsidiary, or any
agreement, vote of shareholders or disinterested directors, or otherwise.



17. Survival of Obligations. Except as is otherwise expressly provided in this Agreement,
the respective obligations of DDR and Hurwitz under this Agreement will survive any termination of
Hurwitz’s employment under this Agreement.



18. Notices.  Notices and all other communications provided for in this Agreement must be
in writing and will be deemed to have been duly given when delivered in person (to the President of
DDR in the case of notices to DDR and to Hurwitz in the case of notices to Hurwitz) or mailed by
United States registered mail, return receipt requested, postage prepaid, and addressed, if to DDR,
to its principal place of business, attention: President, and, if to Hurwitz, to his home address
last shown on the records of DDR, or to such other address or addresses as either party may furnish
to the other in accordance with this Section 18.



19. Entire Agreement, Certain Prior Arrangements. The parties have entered into a Change
in Control Agreement as of the Effective Date of this Agreement. Except as otherwise set forth
below in this Section 19, this Agreement and that Change in Control Agreement supersede all
prior employment and change in control agreements between the parties and all understandings
between them with respect to the subject matter of this Agreement and of that Change in Control
Agreement. As provided in Section 15, Hurwitz will continue to be entitled to the full
benefit of the Indemnification Agreement for so long as it remains in effect according to its
terms.



20. Mandatory Arbitration Before a Change in Control and To Determine Cause. Section
20.1 will apply if and only if (a) either party notifies the other, in writing, that it is
demanding resolution of a then-current controversy or claim by arbitration and the notice is
provided by the notifying party to the other party before any Change in Control has occurred, or
(b) Hurwitz exercises his right to have DDR’s purported justification for terminating his
employment for Cause submitted to arbitration as contemplated by Section 6.3. Nothing in
this Section 20 will limit the right of DDR to seek and obtain injunctive relief in a court
of equity for any breach or threatened breach by Hurwitz of any of his covenants contained in
Section 12 above.




20.1 Scope of Arbitration. If this Section 20.1 applies, any controversy or
claim arising out of or relating to this Agreement or any breach of this Agreement (if this
Section 20.1 applies by reason of clause (a) above) or the question of whether or
not DDR has Cause to terminate Hurwitz’s employment (if this Section 20.1 applies by
reason of clause (b) above), will be settled by binding arbitration to be held before three
arbitrators and conducted in accordance with the Employment Arbitration Rules and Mediation
Procedures of the American Arbitration Association in the City of Cleveland, Ohio. The
decision of the arbitrators will be final and binding on both parties and judgment on any
award rendered by the arbitrators may be entered in any court of competent jurisdiction.
Costs and expenses of any such arbitration will be borne by the parties as may be directed
by the arbitrators taking into account the extent to which the positions taken by each of
the parties are reasonable. The arbitrators will have the power to issue mandatory orders
and restraining orders in connection with any such arbitration.



16









 






20.2 Other Disputes. If Section 20.1 does not apply to any claim or
controversy between the parties, the parties may nevertheless, but need not, mutually agree
to submit any controversy or claim to arbitration as though Section 20.1 did apply.
Failing any such mutual agreement, either party may bring proceedings against the other with
respect to any claim or controversy in any court of competent jurisdiction that satisfies
the venue requirements set forth in Section 21.8. Nothing in this Section
20.2 imposes upon either party any obligation to discuss possible arbitration of any
claim or controversy to which Section 20.1 does not apply before bringing any court
proceedings with respect to that claim or controversy.



21. Miscellaneous.




21.1 No Conflict. Hurwitz represents and warrants that he is not a party to any
agreement, contract, or understanding, whether employment or otherwise, that would restrict
or prohibit him from undertaking or performing employment in accordance with the terms and
conditions of this Agreement.




21.2 Assistance. During the term of this Agreement and thereafter, Hurwitz will
provide reasonable assistance to DDR in litigation and regulatory matters that relate to
events that occurred during Hurwitz’s period of employment with DDR and its predecessors,
and will provide reasonable assistance to DDR with matters relating to its corporate history
from the period of Hurwitz’s employment with it or its predecessors. Hurwitz will be
entitled to reimbursement of reasonable out-of-pocket travel or related costs and expenses
relating to any such cooperation or assistance that occurs following the Termination Date.




21.3 Severability. The provisions of this Agreement are severable and if any one or
more provision is determined to be illegal or otherwise unenforceable, in whole or in part,
the remaining provisions and any partially unenforceable provision to the extent enforceable
in any jurisdiction nevertheless will be binding and enforceable.




21.4 Benefit of Agreement. The rights and obligations of DDR under this Agreement
will inure to the benefit of, and will be binding on, DDR and its successors and assigns,
and the rights and obligations (other than obligations to perform services) of Hurwitz under
this Agreement will inure to the benefit of, and will be binding upon, Hurwitz and his
heirs, personal representatives, and assigns.




21.5 No Waiver. The failure of either party to enforce any provision or provisions
of this Agreement will not in any way be construed as a waiver of any such provision or
provisions as to any future violations thereof, nor prevent that party from later enforcing
each and every other provision of this Agreement. The rights granted the parties in this
Agreement are cumulative and the waiver of any single remedy will not constitute a waiver of
that party’s right to assert all other legal remedies available to it under the
circumstances.




21.6 Modification. This Agreement may not be modified or terminated orally. No
modification or termination will be valid unless in writing and signed by the party against
which the modification or termination is sought to be enforced.




21.7 Merger or Transfer of Assets of DDR.  DDR will not consolidate with or merge
into any other corporation, or transfer all or substantially all of its assets to another
corporation, unless such other corporation assumes this Agreement in a signed writing and
delivers a copy thereof to Hurwitz, which signed writing may consist of the merger or sale
agreement, or similar document.



17









 






Upon any such assumption, the successor corporation will become obligated to perform the
obligations of DDR under this Agreement, and the terms “DDR” and the “Company,” as used in
this Agreement, will be deemed to refer to that successor corporation.




21.8 Governing Law and Venue. The provisions of this Agreement will be governed by
and construed in accordance with the laws of the State of Ohio applicable to contracts made
in and to be performed exclusively within that State, notwithstanding any conflict of law
provision to the contrary. Subject to the mandatory arbitration provisions of Section
20, the parties consent to venue and personal jurisdiction over them in the courts of
the State of Ohio and federal courts sitting in Cleveland, Ohio, for purposes of construing
and enforcing this Agreement.



22. Definitions.




22.1 Accounting Firm.  The term “Accounting Firm” means the independent auditors of
DDR for the fiscal year immediately preceding the earlier of (i) the year in which the
Termination Date occurred, or (ii) the year, if any, in which occurred the first Change in
Control occurring after the Effective Date, 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 DDR must select another accounting firm that (x) is of recognized
national standing and (y) is not then the independent auditors for DDR or any Subsidiary.




22.2 Cause. The term “Cause” has the meaning set forth in Section 6.3. For
the avoidance of doubt, the term “Termination For Cause,” as used in the Change in Control
Agreement, is defined in the Change in Control Agreement and is distinct from the term
“Cause” as used in this Agreement.




22.3 Change in Control. The term “Change in Control” has the meaning given to that
term in the Change in Control Agreement.




22.4 Change in Control Agreement. The term “Change in Control Agreement” means the
agreement denominated as such between Hurwitz and DDR entered into contemporaneously with
this Agreement, as that agreement may be amended from time to time.




22.5 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.




22.6 Good Reason. The term “Good Reason” has the meaning set forth in Section
6.4.




22.7 Internal Revenue Code. The term “Internal Revenue Code” means the Internal
Revenue Code of 1986, as amended.




22.8 Section. References in this Agreement to one or more “Sections” are to
sections of this Agreement, except for references to any of Sections 409A, 280G, and 4999,
which are references to those respective sections of the Internal Revenue Code.




22.9 Section 280G. The term “Section 280G” means Section 280G of the Internal
Revenue Code. References in this Agreement to Section 280G are intended to include any
proposed, temporary, or final regulations, or any other guidance, promulgated with respect
to Section 280G by the U.S. Department of Treasury or the Internal Revenue Service.



18









 






22.10 Section 409A. The term “Section 409A” means Section 409A of the Internal
Revenue Code. References in this Agreement to Section 409A are intended to include any
proposed, temporary, or final regulations, or any other guidance, promulgated with respect
to Section 409A by the U.S. Department of Treasury or the Internal Revenue Service.




22.11 Section 4999. The term “Section 4999” means Section 4999 of the Internal
Revenue Code. References in this Agreement to Section 4999 are intended to include any
proposed, temporary, or final regulations, or any other guidance, promulgated with respect
to Section 4999 by the U.S. Department of Treasury or the Internal Revenue Service.




22.12 Subsidiary. The term “Subsidiary” means any corporation, partnership, or
other entity a majority of the voting control of which is directly or indirectly owned or
controlled by DDR.




22.13 Termination Date. The term “Termination Date” means the date on which
Hurwitz’s employment with DDR and its Subsidiaries terminates.


[THE REMAINDER OF THIS PAGE INTENTIONALLY LEFT BLANK]



19









 








IN WITNESS WHEREOF, DDR and Hurwitz have executed this Agreement, DDR by its duly authorized Chief
Executive Officer, as of the date first written above.



	 	 	 	 	 
	 	DEVELOPERS DIVERSIFIED REALTY CORPORATION

 	 
	 	By:  	/s/ Scott A. Wolstein
 	 
	 	 	Scott A. Wolstein, Chief Executive Officer 	 
	 	 	 
	 	/s/ Daniel B. Hurwitz
 	 
	 	DANIEL B. HURWITZ 	 
	 	 	 



20









 






	 	 	 	 	 



 EXHIBIT A




INCENTIVE OPPORTUNITY




Annual Bonus

As % of Salary




	 	 	 
	Threshold	 	Maximum
	 	 	 
	300%
	 	600%







21