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AS FILED WITH THE SECURITIES AND EXCHANGE COMMISSION ON AUGUST 20, 1999.
REGISTRATION NO. 333-
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SECURITIES AND EXCHANGE COMMISSION
Washington, D.C. 20549
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FORM S-8
REGISTRATION STATEMENT UNDER THE SECURITIES ACT OF 1933
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DEVELOPERS DIVERSIFIED REALTY CORPORATION
(Exact name of registrant as specified in its charter)
Ohio 34-1723097
(State or other jurisdiction of (I.R.S. Employer Identification No.)
incorporation or organization)
3300 Enterprise Parkway, Beachwood, Ohio 44122
(Address of Principal Executive Offices) (Zip Code)
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DEVELOPERS DIVERSIFIED REALTY CORPORATION
PROFIT SHARING PLAN AND TRUST
(Full title of the plan)
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SCOTT A. WOLSTEIN, PRESIDENT
Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122
(Name and address of agent for service)
(216) 755-5500
(Telephone number, including area code, of agent for service)
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CALCULATION OF REGISTRATION FEE
<TABLE>
<CAPTION>
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Title of Amount Proposed maximum Proposed maximum Amount of
securities to be offering aggregate registration
to be registered price per offering fee(1)
registered unit(1) price(1)
- --------------------------------------------------------------------------------------------------
<S> <C> <C> <C> <C>
Common Shares,
without par
value 50,000 Shares $14.91 $745,500 $208
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</TABLE>
(1) The registration fee has been calculated pursuant to Rule 457(c) and
(h) based on the average of the high and low sale prices on August 17,
1999 of the Registrant's Common Shares as reported on the New York
Stock Exchange.
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PART II
INFORMATION REQUIRED IN THE REGISTRATION STATEMENT
ITEM 3. INCORPORATION OF DOCUMENTS BY REFERENCE.
The documents listed in (a) through (f) below are incorporated by
reference in this Registration Statement. All documents filed by the Registrant
pursuant to Sections 13(a), 13(c), 14 and 15(d) of the Securities Exchange Act
of 1934, as amended ("Exchange Act"), subsequent to the date of the filing of
this Registration Statement and prior to the filing of a post-effective
amendment that indicates that all securities registered hereunder have been
sold, or that deregisters all securities then remaining unsold, shall be deemed
to be incorporated by reference in this Registration Statement and to be a part
hereof from the date of the filing of such documents.
(a) The Registrant's Annual Report on Form 10-K for the
fiscal year ended December 31, 1998;
(b) The Profit Sharing Plan and Trust's Annual Report on
Form 11-K for the fiscal year ended December 31, 1998;
(c) The description of the Common Shares contained in the
Registrant's Registration Statement on Form 8-A dated
January 26, 1993;
(d) The description of the Preferred Share Purchase
Rights contained in the Registrant's Registration
Statement on Form 8-A dated June 10, 1999;
(e) Quarterly Reports on Form 10-Q for the fiscal quarters
ended March 31, 1999 and June 30, 1999; and
(f) Current Reports on Form 8-K dated January 15, 1999,
February 24, 1999 and April 23, 1999.
ITEM 5. INTERESTS OF NAMED EXPERTS AND COUNSEL.
The legality of the Common Shares offered hereby has been passed upon
for the Company by Baker & Hostetler LLP, Cleveland, Ohio. Albert T. Adams, a
director of the Company, is a partner of Baker & Hostetler LLP.
ITEM 6. INDEMNIFICATION OF DIRECTORS AND OFFICERS.
The Ohio Revised Code ("Ohio Code") authorizes Ohio corporations to
indemnify officers and directors from liability if the officer or director acted
in good faith and in a manner reasonably believed by the officer or director to
be in or not opposed to the best interests of the corporation, and, with respect
to any criminal actions, if the officer or director had no reason to believe his
action was unlawful. In the case of an action by or on behalf of a corporation,
indemnification may not be made (i) if the person seeking indemnification is
adjudged liable for negligence or misconduct, unless the court in which such
action was brought determines such person is fairly and reasonably entitled to
indemnification, or (ii) if liability asserted against such person concerns
certain unlawful distributions. The indemnification provisions of the Ohio Code
require indemnification if a director or officer has been successful on the
merits or otherwise in defense of any action, suit or proceeding that he or she
was a party to by reason of the fact that he or she is or was a director or
officer of the corporation. The indemnification authorized under Ohio law is not
exclusive and is in addition to any other rights granted to officers and
directors under the articles of incorporation or code of regulations of the
corporation or any agreement between officers and directors and the corporation.
A corporation may purchase and maintain insurance or furnish similar protection
on behalf of any officer or director against any liability asserted against him
and incurred by him in his capacity, or arising out of his status, as an officer
or director, whether or not the corporation would have the power to indemnify
him against such liability under the Ohio Code.
The Registrant's Code of Regulations provides for the indemnification
of directors and officers of the Registrant to the maximum extent permitted by
Ohio law as authorized by the Board of Directors of the Registrant and for the
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advancement of expenses incurred in connection with the defense of any action,
suit or proceeding that he or she was a party to by reason of the fact that he
or she is or was a director or officer of the Registrant upon the receipt of an
undertaking to repay such amount unless it is ultimately determined that the
director or officer is entitled to indemnification.
The Registrant maintains a directors' and officers' insurance policy
which insures the officers and directors of the Registrant from claims arising
out of an alleged wrongful act by such persons in their respective capacities as
officers and directors of the Registrant, subject to certain exceptions.
The Registrant has entered into indemnification agreements with its
officers and directors which provide for indemnification to the fullest extent
permitted under Ohio law.
ITEM 8. EXHIBITS.
Exhibit Number Description of Exhibit
- -------------- ----------------------
4.01 Amended and Restated Articles of Incorporation of
Developers Diversified Realty Corporation, as amended(1)
4.02 Code of Regulations of Developers Diversified Realty
Corporation, as amended(1)
5.01 Opinion of Baker & Hostetler LLP
23.01 Consent of PricewaterhouseCoopers LLP
23.02 Consent of Baker & Hostetler LLP (included in Exhibit 5.01
hereto)
24.01 Powers of Attorney (included at page II-4)
99.01 Developers Diversified Realty Corporation Profit Sharing
Plan and Trust(2)
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(1) Incorporated by reference from the Registrant's Quarterly Report on Form
10-Q for the fiscal quarter ended June 30, 1999.
(2) Incorporated by reference from the Registrant's Registration Statement on
Form S-8 (No. 33-84606) filed on September 30, 1994.
ITEM 9. UNDERTAKINGS
The undersigned Registrant hereby undertakes:
(1) To file, during any period in which offers or sales
are being made, a post-effective amendment to this
Registration Statement: (i) to include any prospectus
required by Section 10(a)(3) of the Securities Act of
1933 (the "Securities Act"); (ii) to reflect in the
prospectus any facts or events arising after the
effective date of the Registration Statement (or the
most recent post-effective amendment thereof) which,
individually or in the aggregate, represent a
fundamental change in the information set forth in
the Registration Statement; notwithstanding the
foregoing, any
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increase or decrease in the volume of securities
offered (if the total dollar value of securities
offered would not exceed that which was registered)
and any deviation from the low or high end of the
estimated maximum offering range may be reflected in
the form of prospectus filed with the Commission
pursuant to Rule 424(b) if, in the aggregate, the
changes in volume and price represent no more than a
20% change in the maximum aggregate offering price
set forth in the "Calculation of Registration Fee"
table in the effective Registration Statement; (iii)
to include any material information with respect to
the plan of distribution not previously disclosed in
the Registration Statement or any material change to
such information in the Registration Statement;
provided, however, that clauses (i) and (ii) do not
apply if the information required to be included in a
post-effective amendment by those clauses is
contained in periodic reports filed by the Registrant
pursuant to Section 13 or Section 15(d) of the
Exchange Act that are incorporated by reference in
the Registration Statement.
(2) That, for the purpose of determining any liability
under the Securities Act, each such post-effective
amendment shall be deemed to be a new registration
statement relating to the securities offered herein,
and the offering of such securities at that time
shall be deemed to be the initial bona fide offering
thereof.
(3) To remove from registration by means of a
post-effective amendment any of the securities being
registered which remain unsold at the termination of
the offering.
The undersigned Registrant further undertakes that, for the purposes of
determining any liability under the Securities Act, each filing of the
Registrant's annual report pursuant to Section 13(a) or Section 15(d) of the
Exchange Act that is incorporated by reference in the Registration Statement
shall be deemed to be a new registration statement relating to the securities
offered herein, and the offering of such securities at that time shall be deemed
to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities
Act may be permitted to directors, officers and controlling persons of the
Registrant pursuant to the provisions described under Item 6 above or otherwise,
the Registrant has been advised that in the opinion of the Securities and
Exchange Commission such indemnification is against public policy as expressed
in the Securities Act and is, therefore, unenforceable. In the event that a
claim for indemnification against such liabilities (other than the payment by
the Registrant of expenses incurred or paid by a director, officer or
controlling person of the Registrant in the successful defense of any action,
suit or proceeding) is asserted by such director, officer or controlling person
in connection with the securities being registered, the Registrant will, unless
in the opinion of its counsel the matter has been settled by controlling
precedent, submit to a court of appropriate jurisdiction the question whether
such indemnification by it is against public policy as expressed in the
Securities Act and will be governed by the final adjudication of such issue.
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SIGNATURES
Pursuant to the requirements of the Securities Act of 1933, the
Registrant certifies that it has reasonable grounds to believe that it meets all
of the requirements for filing on Form S-8 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 this 19th day of August,
1999.
DEVELOPERS DIVERSIFIED REALTY CORPORATION
By: /s/ Scott A. Wolstein
Scott A. Wolstein, Chairman of the Board and
Chief Executive Officer
POWER OF ATTORNEY
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
capacities, to sign any and all pre- and post-effective amendments to this
Registration Statement and to sign any Registration Statements and amendments
thereto for the same offering pursuant to Rule 462(b) under the Securities Act
of 1933, and to file the same, with all exhibits hereto, and other documents in
connection herewith, 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 or 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 REQUIREMENTS OF THE SECURITIES ACT OF 1933,
THIS REGISTRATION STATEMENT HAS BEEN SIGNED BELOW BY THE FOLLOWING PERSONS IN
THE CAPACITIES ON THIS 19TH DAY OF AUGUST, 1999.
<TABLE>
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<S> <C>
/s/ Scott A. Wolstein Chairman of the Board, Chief Executive
- -------------------------------- Officer and Director (Principal Executive Officer)
Scott A. Wolstein
/s/ James A. Schoff Vice Chairman of the Board, Chief Investment Officer
- -------------------------------- and Director
James A. Schoff
/s/ William H. Schafer Vice President and Chief Financial Officer (Principal
- -------------------------------- Financial Officer and Principal Accounting Officer)
William H. Schafer
/s/ William N. Hulett III Director
- --------------------------------
William N. Hulett III
/s/ Ethan Penner Director
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Ethan Penner
</TABLE>
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/s/ Albert T. Adams Director
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Albert T. Adams
/s/ Barry A. Sholem Director
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Barry A. Sholem
/s/ Dean S. Adler Director
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Dean S. Adler
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EXHIBIT INDEX
Exhibit Number Description of Exhibit
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4.02 Amended and Restated Articles of Incorporation of
Developers Diversified Realty Corporation, as amended(1)
4.02 Code of Regulations of Developers Diversified Realty
Corporation, as amended(1)
5.01 Opinion of Baker & Hostetler LLP
23.01 Consent of PricewaterhouseCoopers LLP
23.02 Consent of Baker & Hostetler LLP (included in Exhibit 5.01
hereto)
24.01 Powers of Attorney (included at page II-4)
99.01 Developers Diversified Realty Corporation Profit Sharing
Plan and Trust(2)
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(1) Incorporated by reference from the Registrant's Quarterly Report on
Form 10-Q for the fiscal quarter ended June 30, 1999.
(2) Incorporated by reference from the Registrant's Registration Statement
on Form S-8 (No. 33-84606) filed on September 30, 1994.
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EXHIBIT 5.01
[LETTERHEAD OF BAKER & HOSTETLER LLP]
August 20, 1999
Developers Diversified Realty Corporation
3300 Enterprise Parkway
Beachwood, Ohio 44122
Re: Developers Diversified Realty Corporation
Profit Sharing Plan and Trust
Ladies and Gentlemen:
We have acted as counsel to Developers Diversified Realty
Corporation, an Ohio corporation (the "Company"), in connection with the
Company's Registration Statement on Form S-8 (the "Registration Statement")
being filed under the Securities Act of 1933, as amended (the "Act"), relating
to the offering of up to 50,000 Common Shares, without par value (the "Common
Shares"), of the Company pursuant to the Developers Diversified Realty
Corporation Profit Sharing Plan and Trust (the "Plan").
We have examined the Plan and such documents, records and
matters of law as we have deemed necessary for purposes of this opinion and,
based solely thereon, we are of the opinion that the Common Shares available for
issuance under the Plan, when issued, delivered and paid for pursuant to the
Plan, will be duly authorized, validly issued, fully paid and nonassessable.
We hereby consent to the filing of this opinion as Exhibit 5
to the Registration Statement and to the reference to our firm in Item 5 of Part
II to 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 Act or the rules and regulations of the Securities and Exchange
Commission.
Very truly yours,
/s/ Baker & Hostetler LLP
Baker & Hostetler LLP
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Exhibit 23.01
CONSENT OF INDEPENDENT ACCOUNTANTS
We hereby consent to the incorporation by reference in this Registration
Statement on Form S-8 of our report dated March 4, 1999 relating to the
financial statements and financial statement schedules of Developers Diversified
Realty Corporation, which appears in Developers Diversified Realty Corporation's
Annual Report on Form 10-K for the year ended December 31, 1998.
We also consent to the incorporation by reference in this Registration Statement
of our report dated June 7, 1999 relating to the financial statements, which
appears in the Annual Report of the Developers Diversified Realty Corporation
Profit Sharing Plan and Trust on Form 11-K for the year ended December 31, 1998.
PricewaterhouseCoopers LLP
Cleveland, Ohio
August 20, 1999
