AMENDED AND RESTATED CHANGE IN
CONTROL AGREEMENT
THIS AMENDED AND
RESTATED CHANGE IN CONTROL AGREEMENT (this
“Agreement”), is entered into as of the 29
th day of December, 2008, between Developers
Diversified Realty Corporation, an Ohio corporation (the
“Employer”), and David M. Jacobstein
(“Executive”).
WHEREAS, Executive
is presently employed by Employer;
WHEREAS, Employer
wishes to induce Executive to continue as its employee and,
accordingly, to provide certain security to Executive in the event
of a “Change in Control” (as hereinafter
defined);
WHEREAS, Employer
believes that it is in the best interest of its shareholders for
Executive to continue on and after the date of this Agreement in
his position on an objective and impartial basis and without
distraction or conflict of interest as a result of a possible or
actual Change in Control;
WHEREAS, in
consideration of this Agreement Executive is willing to continue as
Employer’s employee; and
WHEREAS, Employer
and Executive desire for this Amended and Restated Change in
Control Agreement to amend and supersede any and all Change in
Control Agreements between Employer and Executive that were entered
into prior to the date hereof (the “Prior Change in Control
Agreements”).
NOW THEREFORE, IN
CONSIDERATION OF EXECUTIVE CONTINUING AS THE EMPLOYEE OF EMPLOYER
AND OF THE MUTUAL PROMISES HEREIN CONTAINED, EXECUTIVE AND
EMPLOYER, INTENDING TO BE LEGALLY BOUND, HEREBY AGREE AS
FOLLOWS;
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1.
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A
“Change in Control” for the purpose of this Agreement
means the occurrence of any of the following:
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(a)
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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;
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(b)
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any
person or other entity (other than the Employer or a Subsidiary or
any Employer employee benefit plan (including any trustee of any
such plan acting in its capacity as trustee» purchases any
Shares (or securities convertible into Shares) pursuant to a tender
or exchange offer without the prior consent of the Board of
Directors, or becomes the beneficial owner of securities of the
Employer representing 20% or more of the voting power of the
Employer’s outstanding securities;
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(c)
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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
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(d)
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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.
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2.
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“Code” means the
Internal Revenue Code of 1986, as amended.
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3.
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“Shares” means the
Common Shares, without par value, of the Employer.
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4.
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“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.
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1.
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Upon the occurrence of a Change in
Control on or after the date of this Agreement, Employer shall pay
to Executive a lump sum severance benefit which will be in addition
to any other compensation or remuneration to which Executive is, or
becomes, entitled to receive from Employer in an amount equal to
the total amount of base salary payable during the term remaining
after the date of the Change in Control, if any, of the Amended and
Restated Employment Agreement of even date herewith between
Employer and Employee. In addition, Employer shall, at its expense,
provide Executive, and his family, with life, health,
hospitalization, vision, dental, disability and accidental death
and dismemberment insurance in an amount not less than that
provided at the time of the Change in Control, until the earlier of
(i) in the event that Executive shall become employed by
another employer after a Change in Control, the date on which
Executive shall be eligible to receive benefits from such employer
which are substantially equivalent to or greater than the benefits
Executive and his family received from Employer or (ii) the
second anniversary of the date of the Change in Control.
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2.
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Employer will pay the lump sum
amount pursuant to Article II, Paragraph 1 to Executive
in immediately available funds within the seven-day period
following the occurrence of the Change in Control. To assure
compliance with Section 409A of the Code, the timing of the
provision of the insurance benefits described in Article II,
Paragraph 1 will be subject to Sections B.1 and B.3 of
the Tax Provision Exhibit if and to the extent either of those
sections is applicable according to its terms.
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All of the terms
of the Tax Provision Exhibit attached to this Agreement as
Exhibit A are hereby incorporated in this Agreement as fully
as if those terms were included in the main text of this
Agreement.
No amounts
otherwise due or payable under this Agreement will be subject to
setoff or counterclaim by either party hereto.
All
attorney’s fees and related expenses incurred by Executive at
any time from the date of this Agreement through the fifth
anniversary of Executive’s death in connection with or
relating to the enforcement by him of his rights under this
Agreement will be paid for by Employer. To assure compliance with
Section 409A of the Code, the timing of the provision of
payment of fees and expenses described in this Article V will
be subject to Sections B.1 and B.3 of the Tax Provision
Exhibit if and to the extent either of those sections is applicable
according to its terms.
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.
Neither this
Agreement nor any benefits payable hereunder will be subject to
anticipation, alienation, sale, transfer, assignment, pledge,
encumbrance or charge or to execution, attachment, levy or similar
process at law, whether voluntary or involuntary.
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This Agreement
will not in any way constitute an employment agreement between
Employer and Executive and it will not oblige Executive to continue
in the employ of Employer, nor will it oblige Employer to continue
to employ Executive, but it will merely require Employer to pay
severance benefits to Executive under certain circumstances, as
aforesaid. In addition, this Agreement will be considered
terminated, and of no further force and effect, if Executive ceases
to be an employee of Employer prior to a Change in Control of
Employer.
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.
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
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
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