EX-10.19



 





Exhibit 10.19




AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT




     THIS AMENDED AND RESTATED CHANGE IN CONTROL AGREEMENT (this “Agreement”), is between
Developers Diversified Realty Corporation, an Ohio corporation (the “Employer”), and Richard E.
Brown (“Executive”) made this 6th day of November, 2006.



RECITALS




     WHEREAS, Executive is presently employed by Employer as its Executive Vice President of Real
Estate Operations;



     WHEREAS, Employer wishes to induce Executive to continue as its Executive Vice President of
Real Estate Operations and, accordingly, to provide certain employment 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 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
Executive Vice President of Real Estate Operation; and



     WHEREAS, Employer and Executive desire for this Amended and Restated Change in Control
Agreement to amend and supersede the Change in Control Agreement, dated as of March 1, 2002,
between Employer and Executive, and any other Change in Control Agreements between Employer and
Executive entered into prior to the date hereof (the “Prior Change in Control Agreements”).



     NOW THEREFORE, IN CONSIDERATION OF EXECUTIVE CONTINUING AS THE EXECUTIVE VICE PRESIDENT OF
REAL ESTATE OPERATIONS 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;
	 
	 	(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.
	 
	5.	 	A “Triggering Event” for the purpose of this Agreement will be deemed to have occurred if:






	 	(a)	 	Within two years from the date on which the Change in Control occurred,
Employer terminates the employment of Executive, other than in the case of a
Termination For Cause, as herein defined;
	 
	 	(b)	 	Within two years from the date on which the Change in Control occurred,
Employer reduces Executive’s title, responsibilities, power or authority in comparison
with the Executive’s title, responsibilities, power or authority at the time of the
Change in Control;
	 
	 	(c)	 	Within two years from the date on which the Change in Control occurred,
Employer assigns Executive duties which are inconsistent with the duties assigned to
Executive on the date on which the Change in Control occurred and which duties Employer
persists in assigning to Executive despite the prior written objection of Executive;
	 
	 	(d)	 	Within two years from the date on which the Change in Control occurred,
Employer (i) reduces Executive’s base compensation, his incentive opportunity bonus
percentages of salary, his group health, life, disability or other insurance programs
(including any such benefits provided to Executive’s family), his pension, retirement
or profit-sharing benefits or any benefits provided by any of Employer’s equity-based
award plans, or any substitute therefor, (ii) establishes criteria and factors to be
achieved for the payment of bonus compensation that are substantially different than
the criteria and factors




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	 	 	 	established for other similar executive officers of the Employer, (iii) fails to pay
Executive any bonus compensation to which Executive is entitled through the
achievement of the criteria and factors established for the payment of such bonus,
or (iv) excludes the Executive from any plan, program or arrangement in which
similar executive officers of Employer are included; or
	 
	 	(e)	 	Within two years from the date on which the Change in Control occurred,
Employer requires Executive to be based at or generally work from any location more
than fifty miles from the geographical center of Cleveland, Ohio.






	6.	 	A “Termination For Cause” for the purposes of this Agreement will be deemed to have occurred
if, and only if, Executive has committed a felony under the laws of the United States of
America, or of any state or territory thereof, and has been convicted of that felony, or has
pled guilty or nolo contendere with respect to that felony, and the commission of that felony
resulted in, or was intended to result in, a loss (monetary or otherwise) to Employer or its
clients, customers, directors, officers or employees.






	7.	 	“Executive’s Annual Bonus” means Executive’s annual bonus at the time of a Triggering Event
or on the date on which the Change in Control occurred, whichever is higher, calculated on the
basis of the maximum bonus available to Executive and the assumption that all performance
goals have been or will be achieved by Employer and Executive in the year in which such
Triggering Event or such Change in Control, as the case may be, occurred.






	8.	 	“Executive’s Annual Salary” means Executive’s annual base salary at the time of a Triggering
Event or on the date on which the Change in Control occurred, whichever is higher.





ARTICLE II




SEVERANCE PAYMENT





	1.	 	Upon the occurrence of a Triggering Event, 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. This lump sum severance payment
will be paid by Employer to Executive within five business days after the occurrence of a
Triggering Event in immediately available funds in an amount equal to the sum of (i) two times
Executive’s Annual Bonus plus (ii) two times Executive’s Annual Salary. In addition, Employer
shall, at its expense, provide Executive, and his family, with life, disability, medical,
hospitalization, vision, dental and accidental death and dismemberment insurance in an amount
not less than that provided at the time of the Triggering Event or, if greater, on the date on
which the Change in Control occurred, until the earlier of (i) in the event that Executive
shall become employed by another employer after a Triggering Event, 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 Triggering Event. Notwithstanding the
foregoing, in the event that it is determined that any payment to be made hereunder is
considered “nonqualified deferred compensation” subject to Section 409A of the American Jobs
Creation Act of 2004, payment under this Section will be delayed for six months following
termination of employment.




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	2.	 	Employer shall provide Executive, at Employer’s expense, with outplacement services and
support, the scope and provider of which will be selected by Executive, for a period of one
year following the date of the Triggering Event.






	3.	 	If all or any portion of the amounts payable to Executive under this Agreement or the
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, but excluding any units or awards
granted or vested pursuant to any Performance Unit Agreement between the Executive and the
Company or any Outperformance Long-Term Incentive Plan Agreement between the Executive and the
Company) constitutes “excess parachute payments” within the meaning of Section 280G of the
Code that are subject to the excise tax imposed by Section 4999 of the Code (or any similar
tax or assessment), the amounts payable to Executive shall be increased to the extent
necessary to place Executive in the same after-tax position as the Executive would have been
in had no such tax been imposed on any such amount paid or payable to Executive under this
Agreement, the Executive’s Amended and Restated Employment Agreement or any other amount that
Executive may receive pursuant thereto (other than pursuant to a Performance Unit Agreement or
an Outperformance Long-Term Incentive Plan Agreement). The determination of the amount of any
such tax and the incremental payment required hereby in connection therewith shall be made by
the accounting firm employed by Executive within thirty (30) calendar days after the severance
payment is made pursuant to Paragraph 1 of this Article II and said incremental payment shall
be made within five (5) calendar days after determination has been made. If, after the date
upon which the payment required by this Article II, Paragraph 3 has been made, it is
determined (pursuant to final regulations or published rulings of the Internal Revenue
Service, final judgment of a court of competent jurisdiction, Internal Revenue Service audit
assessment or otherwise) that the amount of excise or other similar taxes payable by Executive
is greater than the amount initially so determined, then Employer shall pay Executive an
amount equal to the sum of: (i) such additional excise or other taxes, plus (ii) any
interest, fines and penalties resulting from such underpayment, plus (iii) an amount
necessary to reimburse Executive for any income, excise or other tax assessment payable by
Executive with respect to the receipt of the amounts specified in (i) and (ii) above, and the
reimbursement provided by this clause (iii), in the manner described above in this Article II,
Paragraph 3. Payment thereof shall be made within five (5) calendar days after the date upon
which such subsequent determination is made.





ARTICLE III




SETOFF




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



ARTICLE IV




ATTORNEY’S FEES




     All attorney’s fees and related expenses incurred by Executive in connection with or relating
to the enforcement by him of his rights under this Agreement will be paid for by Employer.



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ARTICLE V




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 VI




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.



ARTICLE VII




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 a Board-elected officer or an appointed officer or a key employee (as determined by the Board of
Directors of Employer in its sole discretion and reflected in the minutes of Board of Directors
after notice to such Executive) of Employer prior to a Change in Control of Employer.



ARTICLE VIII




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.



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ARTICLE IX




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 X




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.



ARTICLE XI




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.



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     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:  	Nan R. Zieleniec
 	 
	 	 	NAN R. ZIELENIEC, 	 
	 	 	Senior Vice President of Human Resources 	 



					
	 
	 	/s/ Richard E. Brown
 	 
	 	RICHARD E. BROWN 	 
	 	 	 
	 




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