<PAGE> 1
As filed with the Securities and Exchange Commission on December 10, 1998
Registration Statement No. 333-
- - --------------------------------------------------------------------------------
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON D.C. 20549
---------------------------------
FORM S-3
REGISTRATION STATEMENT
UNDER
THE SECURITIES ACT OF 1933
---------------------------------
DEVELOPERS DIVERSIFIED REALTY CORPORATION
(Exact name of registrant as specified in its charter)
Ohio 34-1723097
(State or other jurisdiction (I.R.S. Employer Identification Number)
of incorporation or organization)
34555 Chagrin Blvd.
Moreland Hills, Ohio 44022
(440) 247-4700
(Address, including zip code, and telephone number, including area
code, of Registrant's principal executive offices)
---------------------------------
SCOTT A. WOLSTEIN, PRESIDENT
Developers Diversified Realty Corporation
34555 Chagrin Blvd.
Moreland Hills, Ohio 44022
(440) 247-4700
(Name, address, including zip code, and telephone number,
including area code, of agent for service)
---------------------------------
Copies to:
Albert T. Adams, Esq. Thomas R. Smith, Jr., Esq.
Baker & Hostetler LLP Brown & Wood LLP
3200 National City Center One World Trade Center
1900 East Ninth Street 58th Floor
Cleveland, Ohio 44114 New York, New York 10048
(216) 621-0200 (212) 839-5300
Approximate date of commencement of proposed sale to public: As soon as
practicable after this registration statement becomes effective.
If the only securities being registered on this form are being offered
pursuant to dividend or interest reinvestment plans, please check the following
box. [ ]
If any of the securities being registered on this form are to be
offered on a delayed or continuous basis pursuant to Rule 415 under the
Securities Act of 1933, other than securities offered only in connection with
dividend or interest reinvestment plans, check the following box. [ ]
If this Form is filed to register additional securities for an offering
pursuant to Rule 462(b) under the Securities Act, please check the following box
and list the Securities Act registration statement number of the earlier
effective registration statement for the same offering. [ X ] 333-37067
If this Form is a post-effective amendment filed pursuant to Rule
462(c) under the Securities Act, check the following box and list the Securities
Act registration statement number of the earlier effective registration
statement for the same offering. [ ]
If delivery of the prospectus is expected to be made pursuant to Rule
434, please check the following box. [ ]
CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
- - -------------------------------- ------------- ------------------------ ----------------- --------------------------
Title of Securities Being Amount to be Maximum Offering Price Maximum Aggregate Amount of Registration Fee
Registered Registered Per Share (1) Offering Price
- - -------------------------------- ------------- ------------------------ ----------------- --------------------------
<S> <C> <C> <C> <C>
Common Shares, without par value 586,930 $18.875 $11,078,309 $3,080
- - -------------------------------- ------------- ------------------------ ----------------- --------------------------
<FN>
(1) Estimated solely for purposes of calculating the registration fee.
</TABLE>
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INCORPORATION OF CERTAIN INFORMATION BY REFERENCE
The information in the Registration Statement filed by Developers
Diversified Realty Corporation with the Securities and Exchange Commission (File
No. 333-37067) pursuant to the Securities Act of 1933, as amended, is
incorporated by reference into this Registration Statement.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, as amended, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-3 and has duly caused this Registration
Statement to be signed on its behalf by the undersigned, thereunto duly
authorized, in the City of Cleveland, State of Ohio, on the 10th day of
December, 1998.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By: /s/ Scott A. Wolstein
----------------------------------------
Scott A. Wolstein, President
and Chief Executive Officer
KNOW ALL MEN BY THESE PRESENTS, that each person whose signature
appears below constitutes and appoints Scott A. Wolstein, James A. Schoff and
Albert T. Adams or any one of them, his true and lawful attorneys-in-fact and
agents, with full power of substitution and resubstitution, for him and in his
name, place and stead, in any and all capacitates, to sign any and all pre- or
post-effective amendments to this Registration Statement, and to file the same,
with all exhibits thereto, and other documents in connection therewith, with the
Securities and Exchange Commission, granting unto said attorneys-in-fact and
agents, and each of them, full power and authority to do and perform each and
every act and thing requisite and necessary to be done in and about the
premises, as fully to all intents and purposes as he might or could do in
person, hereby ratifying and confirming all that said attorneys-in-fact and
agents or any of them, or their or his substitute or substitutes, may lawfully
do or cause to be done by virtue hereof.
PURSUANT TO THE REQUIREMENT OF THE SECURITIES ACT OF 1933, THIS
REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN THE
CAPACITIES AND ON THE DATES INDICATED:
<TABLE>
<S> <C>
/s/ Scott A. Wolstein
- - --------------------------------------------------- Chairman of the Board, Chief Executive Officer and Director
Scott A. Wolstein (Principal Executive Officer)
/s/ James A. Schoff Vice Chairman of the Board, Chief Investment Officer and
- - --------------------------------------------------- Director
/s/ William H. Schafer Vice President and Chief Financial Officer (Principal
- - --------------------------------------------------- Financial Officer and Principal Accounting Officer)
/s/ William N. Hulett III Director
- - ---------------------------------------------------
William N. Hulett III
Director
- - ---------------------------------------------------
Ethan Penner
/s/ Albert T. Adams Director
- - ---------------------------------------------------
Albert T. Adams
/s/ Dean S. Adler Director
- - ---------------------------------------------------
Dean S. Adler
Director
- - ---------------------------------------------------
Barry A. Sholem
</TABLE>
<PAGE> 4
EXHIBIT INDEX
Exhibit No. Description
- - ----------- -----------
5.1 Opinion of Baker & Hostetler LLP as to the legality of the
securities being registered.
8.1 Opinion of Baker & Hostetler LLP as to certain tax matters.
23.1 Consent of PricewaterhouseCoopers LLP, Independent Accountants
23.2 Consent of Baker & Hostetler LLP (included in Exhibit 5.1
hereto)
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Exhibit 5.1
BAKER & HOSTETLER
1900 EAST NINTH STREET
CLEVELAND, OHIO 44114-3485
December 10, 1998
Developers Diversified
Realty Corporation
34555 Chagrin Boulevard
Moreland Hills, Ohio 44022
Gentlemen:
As counsel for Developers Diversified Realty Corporation, an
Ohio corporation (the "Company"), we are furnishing this opinion in connection
with the registration pursuant to the Securities Act of 1933, as amended (the
"Securities Act"), of 586,930 common shares, without par value (the "Common
Shares"), of the Company, with an aggregate public offering price of
$11,078,309. The Common Shares are being registered pursuant to Rule 462(b) (the
"462(b) Filing") under the Securities Act and is the subject of the Company's
Registration Statement on Form S-3 (No. 333-37067) (the "Registration
Statement") that was filed with the Securities and Exchange Commission on
October 24, 1997, including the prospectus contained therein (the "Prospectus"),
which is incorporated by reference into the 462(b) Filing. The Registration
Statement provides that the Common Shares may be offered in amounts, at prices
and on terms to be set forth in one or more prospectus supplements (each a
"Prospectus Supplement") to the Prospectus contained in the Registration
Statement.
In connection with the foregoing, we have examined originals
or copies, certified or otherwise identified to our satisfaction, of those
documents and instruments filed as exhibits to the Registration Statement, the
Amended and Restated Articles of Incorporation of the Company, the Code of
Regulations of the Company, as amended, and such records of the corporate
proceedings of the Company and such other documents as we deemed necessary to
render this opinion.
Based on the foregoing and subject to the qualifications and
limitations set forth below, we are of the opinion that when the Common Shares
shall have been issued and sold as described in the Registration Statement, and
if in an underwritten offering, in accordance with the terms and conditions of
the applicable Underwriting Agreement, substantially in the form filed as an
exhibit to the Registration Statement with the blanks therein and in any related
Terms Agreement appropriately filled in, and in a manner contemplated in the
Registration Statement, including the Prospectus Supplement relating to those
Common Shares, those Common Shares will be validly issued, fully paid and
nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5.1
to the 462(b) Filing and the reference to us under the caption "Legal Matters"
in the Prospectus that is a part of the Registration Statement. In giving such
consent, we do not thereby admit that we are in the category of persons whose
consent is required under Section 7 of the Securities Act of 1933, as amended,
or the rules and regulations of the Securities and Exchange Commission.
Very truly yours,
/s/ Baker & Hostetler LLP
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Exhibit 8.1
BAKER & HOSTETLER LLP
1900 E. Ninth Street
Cleveland, OH 44114-3485
December 10, 1998
Developers Diversified Realty Corporation
34555 Chagrin Blvd.
Moreland Hills, Ohio 44022
RE: STATUS AS A REIT
----------------
Ladies and Gentlemen:
In connection with the registration statement on Form S-3 (the
"Registration Statement") being filed by you on the date hereof with the
Securities and Exchange Commission pursuant to Rule 462(b) under the Securities
Act of 1933, as amended, you have requested our opinion regarding whether the
Company has been organized in conformity with the requirements for qualification
as a real estate investment trust ("REIT"), and whether its method of operation
has enabled the Company to meet, and will enable it to continue to meet, the
requirements for qualification and taxation as a REIT under the Internal Revenue
Code of 1986, as amended (the "Code"). This opinion is based on various
assumptions and is conditioned upon certain representations made by the Company
as to factual matters as set forth in the Registration Statement and the
registration statements on Forms S-3 and S-11 previously filed with the
Securities and Exchange Commission (the "Prior Registrations"). In addition, the
Company has provided a representation letter ("Representation Letter")
certifying, among other items, that it has made a timely election to be taxed as
a REIT under the Code commencing with its initial taxable year ended December
31, 1993, and that commencing with the first taxable year that the Company has
elected to be taxed as a REIT, the Company has operated and will continue to
operate in accordance with the method of operation described in the Registration
Statement and the Prior Registrations.
Based on such assumptions and representations, it is our
opinion that the Company has qualified as a REIT for its taxable years ended
December 31, 1993 through December 31, 1997, and the Company is organized in
conformity with the requirements for qualification as a REIT and the Company's
method of operation has enabled it and will continue to enable it to meet the
requirements for qualification and taxation as a REIT under the Code, provided
the Company meets and continues to meet the asset composition, source of income,
shareholder diversification, distributions and other requirements of the Code
necessary for the Company to qualify as a REIT.
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December 10, 1998
Page 2
This opinion is based on various statutory provisions and
regulations promulgated thereunder, in effect on the date hereof, and the
interpretations of such provisions and regulations by the Internal Revenue
Service and the courts having jurisdiction over such matters, all of which are
subject to change either prospectively or retroactively. Also, any variation
from the factual statements set forth in the Registration Statement, the Prior
Registrations or the Representation Letter may affect the conclusions stated
herein. Moreover, the Company's qualification and taxation as a REIT depends
upon the Company's ability to meet, through actual annual operating results,
distribution levels and diversity of stock ownership, the various qualification
tests imposed under the Code, the results of which will not be reviewed by Baker
& Hostetler LLP. Accordingly, no assurance can be given that the actual results
of the Company's operations for any one taxable year will satisfy such
requirements. We wish to point out that our opinion is not binding on the
Internal Revenue Service and, without limiting our opinion, we note that there
can be no assurance that all of the requirements for qualification as a REIT for
any particular taxable year have in fact been met until the return for such
taxable year has been reviewed by the Internal Revenue Service or the period for
such review has expired.
This opinion is limited to the federal income tax matters
addressed herein, and no other opinions are rendered with respect to other
federal tax matters or to any issues arising under the tax laws of any state or
locality. We undertake no obligation to update the opinions expressed herein
after the date of this letter. This opinion is rendered to the addressee of this
letter solely for the purpose referred to in the first paragraph hereof, and may
not be relied on or referred to by any other person or entity or by any
addressee for any other purpose without the express written consent of this
Firm. We hereby consent to the filing of this opinion as an Exhibit to the
Registration Statement and the reference to us under the caption "Federal
Income Tax Considerations" in the Prospectus that is a part of the Registration
Statement. In giving such consent, we do not thereby admit that we are in the
category of persons whose consent is required under Section 7 of the Securities
Act of 1933, as amended, or the rules and regulations of the Securities and
Exchange Commission.
Very truly yours,
/s/ Baker & Hostetler LLP
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EXHIBIT 23.1
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-3 of our report dated February 12, 1998, which appears in
the Developers Diversified Realty Corporation's Annual Report on Form 10-K for
the year ended December 31, 1997, our reports dated June 16, 1998 relating to
the statements of revenue and certain expenses of The Family Center Properties
and The Sansone Properties, which appear in the Current Report on Form 8-K
of Developers Diversified Realty Corporation dated April 28, 1998, our
report dated April 14, 1998 relating to the statement of revenue and certain
expenses of Belair Centre, which appears in the Current Report on Form 8-K of
Developers Diversified Realty Corporation dated February 25, 1998, our reports
dated January 18, 1998 relating to the statements of revenue and certain
expenses of The Columbus Properties, Sun Center, Dublin Village Center,
Washington Park Plaza and Lennox Town Center, which appear in the Current
Report on Form 8-K of Developers Diversified Realty Corporation dated February
25, 1998, and our reports dated October 7, 1997 and July 28, 1997 relating to
the statements of revenue and certain expenses of Spring Creek Centre and Cooks
Corner, respectively, which appear in the Current Report on Form 8-K of
Developers Diversified Realty Corporation dated November 7, 1997.
PRICEWATERHOUSECOOPERS LLP
Cleveland, Ohio
December 8, 1998
