SEPARATION AGREEMENT AND RELEASE
Exhibit 10.34
SEPARATION AGREEMENT AND RELEASE
This Separation Agreement and Release (“Agreement”) is made and entered into this 20th day of
December, 2010, by and between XXXX X. XXXXXXX, your heirs, executors, successors and
administrators (“YOU” or “YOUR” or “YOURSELF”) and DEVELOPERS DIVERSIFIED REALTY CORPORATION, its
predecessors, current and former subsidiaries, divisions, related entities and affiliates and all
of their current and former Boards, owners, officers, trustees, directors, members, shareholders,
agents, representatives, employees, employee benefit plans, insurers, attorneys and their
successors and assigns(collectively referred to hereafter as “DDR”). (YOU and DDR are each
sometimes referred to herein as a “Party” or the “Parties”).
DDR and YOU have agreed that YOUR employment with DDR will terminate on the Separation Date
(as defined below). Pursuant to the terms of the Amended and Restated Employment Agreement, dated
as of December 29, 2008, between YOU and DDR (the “Employment Agreement”), the termination of YOUR
employment with DDR will be designated a termination without cause (in accordance with Section
5(a)(iii) of the Employment Agreement) and YOU acknowledge that DDR has provided YOU with
ninety-days’ notice or YOU have hereby waived any applicable ninety-days’ notice requirement under
the Employment Agreement. YOU will be deemed to have resigned from all offices and directorships
with DDR as of the Separation Date, except that, upon DDR’s request and YOUR agreement, YOU may
serve after the Separation Date as a Responsible Manager of EDT Australian Services Pty. Limited
for such period of time as may be requested by DDR.
Under the terms of this Agreement, DDR and YOU further agree as follows:
1. Separation. YOUR employment with DDR will terminate on January 31, 2011 (the
“Separation Date”). YOUR final day of employment is the Separation Date, and any benefits provided
to YOU pursuant to YOUR employment with DDR shall cease as of the Separation Date unless otherwise
specifically provided at law or under this Agreement, or under any other DDR agreement that
provides for benefits to be provided to YOU following termination of YOUR employment.
2. Terms.
A. As consideration for this Agreement, YOU shall receive severance pay in the total
gross amount of $1,800,000, assuming the Revocation Period (as defined in Section 16) has
lapsed without YOU revoking this Agreement. Of this amount, $1,251,000 shall be paid in a
single lump-sum cash payment, less applicable withholding, within three (3) business days
following the expiration of the Revocation Period. The remaining $549,000 shall be paid in
a single lump-sum cash payment, less applicable withholding, on the first business day of
the seventh month after the Separation Date, provided that if YOU die before such date, such
amount shall be paid as soon as administratively possible to your estate.
B. YOU shall be entitled to receive a payment of $122,000, which represents YOUR bonus
compensation actually earned by YOU for the 2010 fiscal year in a lump sum payment, less all
applicable deductions, on the same date as it would have been paid if the Separation Date
had not occurred, but in any event not later than March 15, 2011.
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C. The Separation Date shall be considered a “qualifying event” for purposes of
triggering YOUR right to continue YOUR group health and dental benefits pursuant to federal
law (commonly referred to as “COBRA”). As such, YOUR enrollment in DDR’s group health
insurance will cease as of January 31, 2011. If YOU properly make your election and timely
provide a copy of YOUR election form to DDR, DDR shall pay for YOUR COBRA benefits for YOU
and YOUR eligible dependents from February 1, 2011 through the earlier of (i) July 31, 2012,
or (ii) the day YOU become eligible for substantially equivalent health insurance benefits
through another employer.
Notwithstanding the immediately preceding paragraph, DDR shall consider, but not be
obligated, to amend its group health insurance plan before August 1, 2012 in a manner to
provide coverage for certain former DDR employees for a period of time beyond July 31,
2012(“Former Employee Coverage”). If DDR elects to make such an amendment to its group
health insurance plan, then DDR shall include YOU and your spouse as a member of this class
being offered Former Employee Coverage, which you may elect at YOUR option until the earlier
of (i) YOU are employed by another employer, or (ii) such coverage terminates per its terms.
However, DDR makes no representation as to scope or terms of such coverage, if any,
including but not limited to terms, conditions and exclusions, period of coverage, cost,
etc. YOU acknowledge that any such coverage will be at YOUR sole cost and expense from and
after January 31, 2013 and will be available only until YOU are employed by another
employer.
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If as of August 1, 2012, YOU do not have Former Employee Coverage and YOU have not
become eligible for substantially equivalent health insurance benefits from another
employer, DDR will provide YOU with a monthly cash payment equal to the monthly amount
being contributed by DDR as of July 31, 2012 for the continuation of benefits for YOU and
YOUR spouse under COBRA through the earlier of (i) January 31, 2013; or (ii) the first day
of the month on which YOU become eligible for substantially equivalent health insurance
benefits through another employer.
The reimbursements of health and dental expenses under this Section shall be subject to
the provisions that: (i) any reimbursement of eligible health and/or dental expenses under
DDR health and dental benefits coverages will be paid within 30 days following YOUR written
request for such reimbursement, provided that YOU provide such written notice no later than
60 days before the last day of the calendar year following the calendar year in which said
expenses were incurred so that DDR can make the reimbursement within the time periods
required by Section 409A of the Internal Revenue Code of 1986, as amended; (ii) the amount
of health and/or dental expenses eligible for reimbursement during any calendar year will
not affect the amount of health and/or dental expenses eligible for reimbursement during any
other calendar year; and (iii) the right to reimbursement will not be subject to liquidation
or exchange for any other benefit. The health and dental benefits coverage that YOU and
YOUR family will receive through July 31, 2012 will be the same coverage YOU would have
received if you had remained as an active employee on or after the Separation Date and will
be
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provided under the same terms as those applicable to DDR’s active employees, and
thereafter, such coverage will bet as set forth in this Agreement.
D. The Separation Date shall not be extended as a result of any short- or long-term
disability, and YOU shall not be eligible for any disability benefits after the Separation
Date.
E. YOU will receive payment for any accrued but unused Paid Time Off (PTO) days for
calendar year 2011 through the Separation Date as soon as administratively possible
following the Separation Date, but in no event more than 30 days following the Separation
Date.
F. YOU shall have available to you 12 months of outplacement services (or similar
services, e.g. board placement services), which shall be paid directly by DDR to an
executive outplacement firm agreed to by both parties. In order to participate in this
benefit, you must engage the selected outplacement firm within thirty [30] days following
the Separation Date. These services will not be subject to liquidation or exchange for any
other benefit.
G. DDR will pay the reasonable fees and expenses of counsel, accountants, or
consultants engaged by YOU in an amount not to exceed $15,000 to review this Agreement
and/or to provide advice to YOU in connection with the execution of and receipt by YOU of
payments under this Agreement; provided, however, that: (i) any
reimbursement of eligible expenses will be paid within 30 days following YOUR written
request for such reimbursement, provided that YOU provide such written notice no later than
60 days before the last day of the calendar year following the calendar year in which said
expenses were
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incurred so that DDR can make the reimbursement within the time periods required by
Section 409A of the Internal Revenue Code of 1986, as amended; (ii) the amount of expenses
eligible for reimbursement during any calendar year will not affect the amount of expenses
eligible for reimbursement during any other calendar year; and (iii) the right to
reimbursement will not be subject to liquidation or exchange for any other benefit.
H. YOU acknowledge the sufficiency of the consideration described above for YOUR
promises set forth herein including without limitation the Release detailed in Section 5 of
this Agreement. You further acknowledge that the payments, benefits and services described
in this Section 2 include (i) all amounts to which YOU would be entitled under the
Employment Agreement, subject to YOUR execution and non-revocation of this Agreement, and
(ii) additional payments, benefits or services substantially in excess of the amounts to
which YOU would be entitled under the Employment Agreement.
3. Benefit Plans. YOU understand and agree that the applicable provisions of DDR
benefit plans to which YOU are a participant, including but not limited to DDR’s 401k Plan and
Nonqualified Deferred Comp Plan (as defined below), shall govern all benefits thereunder to which
you are entitled. YOU further understand and agree that the applicable provisions of the DDR plans
covering equity and incentive awards shall govern any equity and incentive awards previously
granted to YOU or to which YOU are entitled. In particular, YOU and DDR acknowledge that:
A. YOU were granted 40,000 restricted DDR Common Shares under a 2009 Retention Award
Agreement with DDR and applicable DDR benefit plan
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(the “Retention Restricted Shares”), that 10,000 of the Retention Restricted Shares
fully vested on December 31, 2009, that 10,000 of the Retention Restricted Shares will
become fully vested on December 31, 2010, and that 20,000 of the Retention Restricted Shares
will be unvested as of the Separation Date. All unvested Retention Restricted Shares will
not be forfeited by YOU as a result of the Separation Date, but instead all unvested
Retention Restricted Shares will remain outstanding and will continue to vest without any
risk of forfeiture according to the vesting schedule described in the 2009 Retention Award
Agreement and applicable DDR benefit plan, and as set forth on Exhibit E to this Agreement,
which is hereby incorporated into and made part of this Agreement;
B. Pursuant to the terms of DDR’s Value Sharing Equity Program (“VSEP”), YOU may earn
and receive, on the date or dates provided for in the VSEP, Award Shares (as defined in the
VSEP, the “VSEP Award Shares”), in accordance with the provisions of the VSEP through the
Separation Date. Under the VSEP, all unvested VSEP Award Shares earned, held by YOU or that
YOU are entitled to receive under the VSEP through the Separation Date will not be forfeited
as a result of the Separation Date, but instead all unvested VSEP Award Shares will be
issued as provided in the VSEP and/or will remain outstanding and will continue to vest
without risk of forfeiture according to the vesting schedule described in the VSEP. YOU
received 24,375 VSEP Award Shares on July 31, 2010, of which 19,500 remain unvested, and YOU
will receive an additional award of VSEP Award Shares on January 31, 2011, one-fifth of
which
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will vest immediately and four-fifths of which will be unvested. YOUR unvested VSEP
Award Shares shall vest as set forth on Exhibit E;
C. YOU have previously been granted options with respect to DDR Common Shares as set
forth on Exhibit D pursuant to DDR’s equity-based award plans (the “Stock Options”). YOU
shall have 90 days from the Separation Date to exercise the Stock Options;
D. YOU have previously been granted restricted DDR Common Shares as set forth on
Exhibit D pursuant to DDR’s equity-based award plans (the “Restricted Shares”). YOU shall
be entitled to receive all Restricted Shares which vest on or prior to the Separation Date
in accordance with the applicable equity-based award plans and award agreements, as
communicated to YOU by DDR;
E. YOU are entitled to all rights to any amounts deferred pursuant to the DDR Elective
Deferred Compensation Plan (Amended and Restated as of January 1, 2004) (the “Nonqualified
Deferred Comp Plan”), including YOUR elective deferrals and all DDR matching amounts and the
right to take distributions in accordance with the provisions of the Nonqualified Deferred
Comp Plan; and
F. YOU are entitled to all rights to any amounts deferred pursuant to the DDR 2005
Equity Deferred Compensation Plan (Amended and Restated as of January 1, 2009) (the
“Nonqualified Deferred Equity Plan”), including the right to take distributions in
accordance with the provisions of the Nonqualified
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Deferred Equity Plan. YOU and DDR acknowledge that YOU have no current balance under
the Nonqualified Deferred Equity Plan.
4. Application of Section 409A. Benefits provided under this Agreement are intended to
be exempt from, or comply with, Section 409A of the Internal Revenue Code, which is the law that
regulates severance pay. This Agreement shall be construed, administered, and governed in a manner
that effects such intent, and DDR shall not take any action that would be inconsistent with such
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 additional tax under Code Section 409A. Without intending to limit the
generality of the preceding provisions, YOU and DDR further acknowledge that the payment of
$1,251,000 described in Section 2.A. of this Agreement is intended to be exempt from Section 409A
as a short-term deferral and, to that end, have provided for payment to be made before March 15,
2011. Furthermore, the amount of $549,000 that is scheduled under Section 2.A above for payment in
2011 following the Separation Date (if YOU timely sign the Release and the Revocation Period
expires without YOU revoking the Release) will be paid as scheduled in 2011 notwithstanding the
fact that the Revocation Period will expire in 2010. Although DDR shall use its best efforts to
avoid the imposition of taxation, interest and penalties under Code Section 409A, the treatment of
the benefits provided under this Agreement under Code Section 409A is not warranted or guaranteed.
DDR shall not be held liable for any taxes, interest, penalties or other monetary amounts owed by
YOU or any other taxpayer under Code Section 409A as a result of this Agreement.
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5. Release. In consideration of the payments and benefits set forth above, to which
YOU are not otherwise entitled and the sufficiency of which YOU acknowledge, YOU agree to release
DDR (as defined above)from any and all claims that have arisen or may arise out of YOUR employment
with or separation from DDR, up to the date of this Agreement, whether now known or unknown,
including, but not limited to, all claims for compensation and fringe benefits; all claims of
wrongful discharge or constructive discharge; all claims of breach of express or implied contract
or promissory estoppel; all claims of breach of public policy or tort; all claims of defamation or
emotional distress; and all other claims under Ohio or federal law, including without limitation
any and all claims of discrimination, harassment or retaliation arising under the Age
Discrimination in Employment Act of 1967, as amended, or any other law, statute, code or ordinance
or under the common law (“Release”).
Subject to applicable law, YOU also warrant that YOU have not filed or sued and will not xxx
or file any actions against DDR with respect to claims covered by this Agreement.
YOU recognize and understand that YOU are giving up the opportunity to obtain compensation,
damages, and other forms of relief for YOURSELF. This Agreement, however, is not intended to and
does not interfere with the right of any governmental agency to enforce laws or to seek relief that
may benefit the general public, or YOUR right to assist with or participate in that process. By
signing this Agreement, however, YOU waive any right to personally recover against DDR, and YOU
give up the opportunity to obtain compensation, damages or other forms of relief for YOURSELF other
than that provided in this Agreement. YOU are not, by this Release, waiving any
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rights:(a) to continuing coverage as an insured under DDR’s directors and officers liability
insurance for acts or omissions during the period YOU were employed by DDR; (b) to indemnification
to the extent provided under YOUR Officer Indemnification Agreement, dated April 3, 2009; (c) to
all applicable insurance and indemnification available to YOU by EDT Retail Management Limited for
acts or omissions during any period that YOU serve as a Responsible Manager of EDT Australian
Services Pty. Ltd., if and to the extent you serve in such capacity pursuant to the second
paragraph of this Agreement; or (d) to the payments and benefits expressly set forth or referenced
in this Agreement; and this Release does not prohibit YOU and shall not be interpreted as
prohibiting YOU from taking any action to enforce such rights.
6. Non-Disparagement; Reference. YOU agree that YOU will not, directly or indirectly,
defame, disparage or otherwise attempt to damage, or encourage any third party to defame, disparage
or otherwise attempt to damage, the name or reputation of DDR, its directors and executive officers
(as defined below). YOU further agree that you will not provide assistance to or consult with,
directly or indirectly, any former, current or future employee of DDR in connection with any claims
or disputes alleged by such employee against DDR, unless otherwise required by law. DDR agrees
that its directors and executive officers (i.e. Executive Chairman, Chief Executive Officer, all
Senior Executive Vice Presidents, all Executive Vice Presidents, and all Senior Vice Presidents)
will not defame, disparage or otherwise attempt to damage, YOUR name or reputation, and DDR will
not encourage any third party to defame, disparage or otherwise attempt to damage, YOUR name or
reputation. If contacted by a prospective employer of YOURS, DDR will confirm YOUR dates of
employment and YOUR
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positions at DDR. DDR will not disclose compensation information without YOUR prior written
authorization. Upon YOUR request, a positive reference regarding YOUR service to DDR and YOUR
character will be provided in a form mutually satisfactory to YOU and DDR. All reference requests
shall be directed to Human Resources.
7. Non-Disclosure. YOU agree that YOU will not, nor will YOU cause any third party to,
divulge the terms of this Agreement (other than the fact that YOUR employment with DDR has been
terminated) to anyone, including, but not limited to, any present or former employee of DDR, the
news media, friends or acquaintances. Notwithstanding the foregoing, YOU and DDR agree that YOU
may disclose the terms of this Agreement to any governmental taxing authority, YOUR attorney, YOUR
healthcare providers (solely with respect to healthcare coverage issues) or YOUR accountant (solely
for the purposes of tax consultation and/or preparing an income tax return), YOUR immediate family
(defined as current spouse or significant other, parents, siblings and children), or in response to
any court order. With the exception of any disclosure made by YOU in response to any court order,
YOU shall be responsible for any disclosure forbidden under this Section which is made by a person
or entity to whom YOU are permitted to make such disclosure under the terms of this Section.
8. Confidential Information/Trade Secrets. YOU acknowledge that YOU have had
knowledge of and access to information of a confidential or proprietary nature concerning the
business and affairs of DDR, including without limitation, information relating to DDR’s processes,
pricing, plans, financial information, leasing and development information, or DDR’s agreements
with tenants or suppliers, or listing of names, addresses, or telephone numbers, and other trade
secrets as defined under
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Ohio law, all of which are hereinafter collectively referred to as “Trade Secrets.” YOU
acknowledge the competitive value and confidential nature of the Trade Secrets, and YOU recognize
and agree that the disclosure and/or improper use of such Trade Secrets will cause serious and
irreparable injury to DDR. Accordingly, YOU hereby further covenant and agree that YOU will not,
directly or indirectly, communicate, disclose or divulge to any person, firm or other party, or
use, for YOUR own benefit or the benefit of others, any Trade Secrets which YOU may know now or
hereafter come to know. Upon execution hereof, YOU shall deliver to DDR all Trade Secrets and
other confidential information, including any copies, in any format or media, then in YOUR
possession or under YOUR control.
YOU further acknowledge that the remedy at law for any breach of the provisions of this
Section 8 of the Agreement will be inadequate, that such breach will cause immediate, irreparable
harm to DDR, and therefore, DDR shall be entitled to immediate injunctive and other equitable
relief in addition to any other remedy it may have hereunder or otherwise.
9. Application of Employment Agreement. This Agreement, including without limitation
the Release provisions, is being presented in accordance with and shall be deemed to fully satisfy
DDR’s obligations under the Employment Agreement, including Sections 5 and 6 of the Employment
Agreement. YOUR failure to execute and return this Agreement by December 20, 2010 relieves DDR of
any obligation to make any payments to YOU hereunder or otherwise comply with the terms of this
Agreement, including but not limited to, DDR’s offer to waive YOUR covenant not to compete in
Section 10 below.
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10. Continuation of Non-Solicitation and Confidentiality Obligations; Waiver of Covenant
not to Compete. YOUR covenants and obligations, as more fully described in Section 7 of the
Employment Agreement, including without limitation YOUR non-solicitation covenant as provided for
in Section 7(b) of the Employment Agreement, remain in full force and effect; provided,
however, that, notwithstanding anything in this Agreement to the contrary, YOUR compliance
with YOUR covenant not to compete, as provided for in Section 7(a) (i) of the Employment Agreement,
is hereby waived by DDR. Additionally, YOUR obligations detailed in Section 9(b) of the Employment
Agreement remain in full force and effect, subject to Section 15 below. These obligations shall
survive, regardless of any other breach of this Agreement.
11. Additional Acknowledgements. YOU acknowledge that the promises referred to in
Section 2 of this Agreement and the waiver by DDR of YOUR covenant not to compete referred to in
Section 10 of this Agreement are solely in exchange for the promises in this Agreement and are not
normally available to DDR’s employees. YOU further acknowledge that DDR’s agreement to pay and
provide the amounts described in Section 2 of this Agreement and the waiver by DDR of YOUR covenant
not to compete referred to in Section 10 of this Agreement do not constitute an admission by the
DDR Released Parties of liability or of violation of any applicable law or regulation. DDR states
that payment and its waiver of YOUR covenant not to compete has been provided solely for the
purpose of compromising any and all claims without the cost and burden of litigation and in light
of YOUR service as an employee and the parties’ desire to accomplish a mutually amicable
separation.
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12. Future Employment. YOU understand and agree that this Agreement contemplates and
memorializes an unequivocal, complete and final dissolution of YOUR employment relationship with
DDR, and that, therefore, YOU have no right to be reinstated to employment with or rehired by DDR,
and that in the future, DDR shall have no obligation to consider YOU for employment.
13. Unemployment Compensation. DDR agrees that it will not contest any claim for
unemployment compensation made by YOU. However, DDR will truthfully respond to any inquiry from
the Ohio Unemployment Compensation Review Commission.
14. DDR Property. You may retain YOUR current office laptop with individually
licensed copies of Windows 7 and Office 2010, monitor, keyboard, mouse, dock, power adaptors and
printer. YOU may also retain YOUR Blackberry and cell phone issued to you by DDR, with current
numbers (service charges to be at YOUR expense following the Separation Date). Within five (5) days
after the Separation Date, YOU shall deliver to Human Resources all other property of DDR in YOUR
control or possession, including without limitation, keys, documents, computer software and
hardware, manuals, office equipment, phones and PDAs, credit cards and files.
15. Cooperation. YOU agree, upon reasonable notice, to advise and assist DDR and its
counsel in preparing such operational, financial and other reports, or other filings and documents,
as DDR may request, and otherwise cooperate with DDR and its affiliates with any request for
information. YOU also agree to assist DDR and its counsel in prosecuting or defending against any
litigation, complaints or claims against or involving DDR or its affiliates. Except as otherwise
provided by law, DDR shall pay
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YOUR necessary travel costs and other permitted expenses in the event it requires YOU to
assist it under this Section.
16. Representations. YOU further represent, warrant and agree that (a) YOU are
legally competent to enter into this Agreement and that YOU do so voluntarily; (b) YOU have been
and are hereby advised by DDR that YOU should have an attorney of YOUR choice review this
Agreement; (c) YOU have been advised by DDR, and YOU acknowledge that YOU have had at least
forty-five (45) days from receipt of this Agreement to determine whether to sign it and to return
it; (d) YOU have received and reviewed Exhibits A, B, C, D and E to this Agreement; and (e) YOU
have been advised by DDR that this Agreement may be revoked by YOU within seven (7) days following
YOUR signing it (the “Revocation Period”), which would render it null and void. In order to
revoke, YOU understand that YOU must provide written notice of revocation to DDR. YOUR written
notice of the revocation of this Release shall be delivered by certified or registered mail (first
class postage pre-paid), guaranteed overnight delivery or personal delivery to the following
address: Senior Vice President of Human Resources, Developers Diversified Realty Corporation, 0000
Xxxxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxx 00000. This Agreement shall not become enforceable or
effective until the Revocation Period has expired.
17. Entire Agreement. YOU also acknowledge that YOU have carefully read and fully
understand the terms, considerations, and consequences of this Agreement, including the Release of
any of YOUR potential claims set forth in Section 5 of this Agreement. YOU further acknowledge
that YOU have not relied upon any other representations or statements, whether written or oral, and
that this Agreement contains
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the entire agreement between YOU and DDR, except as otherwise expressly provided herein. YOU
further acknowledge that the covenants and promises made by YOU in this Agreement are in
consideration of the payment and other promises made hereunder by DDR, which YOU acknowledge to be
sufficient, just and adequate consideration for YOUR covenants and promises. YOU acknowledge that
but for YOUR execution of this Agreement, YOU would not be entitled to the amounts being paid to
YOU, or on YOUR behalf, hereunder, except for any amounts legally owed under a DDR benefit plan or
as otherwise provided in YOUR Employment Agreement.
18. Enforceability and Successors. In the event that any provision of this Agreement
is found, by any court or governmental agency, to be unlawful or unenforceable, YOU and DDR have
the right to require both Parties to continue complying with the remaining provisions of this
Agreement or the Agreement as a whole as may be modified by the court. In the event of a breach of
this Agreement by YOU or DDR, either party may seek equitable or other relief and/or enforcement in
a court of competent jurisdiction in accordance with Section 20 hereof. The provisions of this
Agreement shall be binding upon and inure to the benefit of the parties hereto and their respective
heirs, executors, legal representatives, successors and permitted assigns.
19. Disclaimer. YOU acknowledge that (a) neither this Agreement nor compliance with
its terms shall be construed as an admission by DDR of a violation of any statutory, contractual,
quasi-contractual, common law or other right of YOURS; and (b) neither this Agreement nor the fact
of its delivery to YOU shall be admissible in any proceeding as evidence of unlawful or improper
conduct by DDR. DDR expressly disclaims any liability to YOU arising out of YOUR employment,
separation of
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employment and otherwise, except for DDR’s obligations (i) as provided in YOUR Employment
Agreement and pursuant to any applicable DDR benefit plan if this Agreement is not executed or is
revoked during the Revocation Period as expressly permitted herein, or (ii) as provided for herein
and pursuant to any applicable DDR benefit plan if this Agreement is executed and not revoked
during the Revocation Period as expressly permitted herein.
20. Governing Law. The Parties agree that this Agreement shall be construed in
accordance with Ohio law, that any action brought by any Party hereunder may be instituted and
maintained only in the appropriate court having jurisdiction over Cuyahoga County, Ohio, and that
this Agreement shall be interpreted in accordance with the plain meaning of its terms and not
strictly for or against any Party.
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| DEVELOPERS DIVERSIFIED REALTY | ||||||||
| CORPORATION | ||||||||
/s/ Xxxx X. Xxxxxxx
|
By: Name: |
/s/ Xxxxxx X. Xxxxxxx
|
||||||
| Title: | Chief Executive Officer | |||||||
Date: December 20, 2010
|
||||||||
| Date: | December 20, 2010 | |||||||
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EXHIBIT A
Developers Diversified Realty Corporation (“DDR”) has determined to reduce its workforce due
to economic conditions. The decisional unit is comprised of all employees in the Corporate
Transactions and Governance division. In selecting those individuals in the decisional unit whose
employment will be terminated, DDR utilized the following criteria: DDR would not terminate those
employees it believes are best suited to perform the anticipated work of DDR in light of the
reduced workforce.
All individuals who are being terminated have been selected for participation in the
separation program. All individuals who are being offered consideration must sign the Separation
Agreement to receive the consideration. Individuals over 40 years of age may take up to 45 days to
decide whether to sign the Separation Agreement, and may revoke within seven (7) days of signing
it.
The job titles and dates of birth of all individuals in the decisional unit selected for
termination and participation in the program are set forth in Exhibit B. The job titles and dates
of birth of all individuals in the decisional unit who were not selected for termination and
participation in the program are set forth in Exhibit C.
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EXHIBIT B
| Job Title | Age | |||
Executive Assistant |
62 | |||
Executive Vice President of Corporate Transactions and Governance |
58 | |||
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EXHIBIT C
| Job Title | Age | |||
None |
||||
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EXHIBIT D
(See attached Optionee Statement)
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EXHIBIT D to XXXX XXXXXXX SEPARATION AGREEMENT
Optionee Statement — Xxxx Xxxxxxx
Exercisable as of 1/31/2011
| Grant | Expiration | Grant | Options | Option | Options | Options | Unvested | |||||||||||||||||||||||
| Date | Date | Plan ID | Type | Granted | Price | Outstanding | Exercisable | Options | ||||||||||||||||||||||
2/1/1993 |
2/1/2003 | 1992 | NQ | 50,000 | $ | 11.00 | 0 | 0 | ||||||||||||||||||||||
1/17/1994 |
1/17/2004 | 1992 | NQ | 20,000 | $ | 14.06 | 0 | 0 | ||||||||||||||||||||||
3/23/1995 |
3/23/2005 | 1992 | NQ | 20,000 | $ | 14.06 | 0 | 0 | ||||||||||||||||||||||
7/17/1996 |
7/17/2006 | 1992 | NQ | 110,000 | $ | 15.38 | 0 | 0 | ||||||||||||||||||||||
11/29/1999 |
11/29/2009 | 1998 | ISO | 17,857 | $ | 13.81 | 0 | 0 | ||||||||||||||||||||||
11/29/1999 |
11/29/2004 | 0000 | XXX | 3,410 | $ | 13.81 | 0 | 0 | ||||||||||||||||||||||
3/1/2000 |
3/1/2005 | 0000 | XXX | 4,865 | $ | 11.56 | 0 | 0 | ||||||||||||||||||||||
3/1/2000 |
3/1/2010 | 1998 | ISO | 9,028 | $ | 11.56 | 0 | 0 | ||||||||||||||||||||||
3/1/2000 |
3/1/2010 | 1998 | NQ | 8,829 | $ | 11.56 | 0 | 0 | ||||||||||||||||||||||
2/27/2001 |
2/27/2011 | 1998 | NQ | 7,200 | $ | 13.33 | 0 | 0 | ||||||||||||||||||||||
2/27/2001 |
2/27/2011 | 1998 | ISO | 7,106 | $ | 13.33 | 0 | 0 | ||||||||||||||||||||||
2/27/2001 |
2/27/2006 | 0000 | XXX | 3,961 | $ | 13.33 | 0 | 0 | ||||||||||||||||||||||
2/28/2002 |
2/28/2007 | 0000 | XXX | 5,674 | $ | 19.90 | 0 | 0 | ||||||||||||||||||||||
2/28/2002 |
2/29/2012 | 2002 | NQ | 15,012 | $ | 19.90 | 0 | 0 | ||||||||||||||||||||||
2/28/2002 |
2/29/2012 | 2002 | ISO | 6,854 | $ | 19.90 | 0 | 0 | ||||||||||||||||||||||
2/25/2003 |
2/25/2013 | 2002 | NQ | 14,762 | $ | 23.00 | 2,023 | 2,023 | ||||||||||||||||||||||
2/25/2003 |
2/25/2013 | 2002 | ISO | 4,347 | $ | 23.00 | 0 | 0 | ||||||||||||||||||||||
2/25/2003 |
2/25/2013 | 0000 | XXX | 4,993 | $ | 23.00 | 4,993 | 4,993 | ||||||||||||||||||||||
2/24/2004 |
2/24/2014 | 0000 | XXX | 4,130 | $ | 36.32 | 4,130 | 4,130 | ||||||||||||||||||||||
2/24/2004 |
2/24/2014 | 2002 | NQ | 14,488 | $ | 36.32 | 14,488 | 14,488 | ||||||||||||||||||||||
2/24/2004 |
2/24/2014 | 2002 | ISO | 2,753 | $ | 36.32 | 0 | 0 | ||||||||||||||||||||||
2/24/2005 |
2/24/2015 | 0000 | XXX | 3,700 | $ | 41.37 | 3,700 | 3,700 | ||||||||||||||||||||||
2/24/2005 |
2/24/2015 | 2002 | NQ | 11,332 | $ | 41.37 | 11,332 | 11,332 | ||||||||||||||||||||||
2/24/2005 |
2/24/2015 | 2002 | ISO | 2,417 | $ | 41.37 | 2,417 | 2,417 | ||||||||||||||||||||||
2/23/2006 |
2/23/2016 | 0000 | XXX | 2,400 | $ | 50.81 | 2,400 | 2,400 | ||||||||||||||||||||||
2/23/2006 |
2/23/2016 | 2004 | NQ | 4,167 | $ | 50.81 | 4,167 | 4,167 | ||||||||||||||||||||||
2/23/2006 |
2/23/2016 | 2004 | ISO | 1,971 | $ | 50.81 | 1,971 | 1,971 | ||||||||||||||||||||||
2/23/2007 |
2/23/2017 | 2004 | NQ | 5,757 | $ | 66.75 | 5,757 | 5,757 | ||||||||||||||||||||||
2/23/2007 |
2/23/2017 | 0000 | XXX | 2,430 | $ | 66.75 | 2,430 | 2,430 | ||||||||||||||||||||||
2/21/2008 |
2/21/2018 | 0000 | XXX | 3,510 | $ | 37.69 | 3,510 | 3,510 | ||||||||||||||||||||||
2/21/2008 |
2/21/2018 | 2004 | NQ | 13,074 | $ | 37.69 | 13,074 | 13,074 | ||||||||||||||||||||||
1/12/2009 |
1/12/2019 | 0000 | XXX | 13,300 | $ | 6.02 | 13,300 | 13,300 | ||||||||||||||||||||||
1/12/2009 |
1/12/2019 | 2008 | NQ | 40,437 | $ | 6.02 | 40,437 | 40,437 | ||||||||||||||||||||||
7/29/2009 |
7/29/2019 | 0000 | XXX | 40,000 | $ | 5.08 | 40,000 | 20,000 | ||||||||||||||||||||||
| 10,000 | ||||||||||||||||||||||||||||||
| 10,000 | ||||||||||||||||||||||||||||||
2/22/2010 |
2/22/2020 | 0000 | XXX | 13,580 | $ | 10.11 | 13,580 | 2,716 | ||||||||||||||||||||||
2/22/2010 |
2/22/2020 | 2008 | ISO | 8,886 | $ | 10.11 | 8,886 | 0 | ||||||||||||||||||||||
24
| Grant | Expiration | Grant | Options | Option | Options | Options | Unvested | |||||||||||||||||||||||
| Date | Date | Plan ID | Type | Granted | Price | Outstanding | Exercisable | Options | ||||||||||||||||||||||
7/31/2010 |
7/31/2020 | 0000 | XXX | 24,375 | $ | 11.35 | 24,375 | 4,875 | ||||||||||||||||||||||
| 4,875 | ||||||||||||||||||||||||||||||
| 4,875 | ||||||||||||||||||||||||||||||
| 4,875 | ||||||||||||||||||||||||||||||
| 4,875 | ||||||||||||||||||||||||||||||
Optionee Totals |
526,605 | 216,970 | 157,720 | 59,250 | ||||||||||||||||||||||||||
| NOTE: | In addition to the foregoing, Optionee shall be entitled to the VSEP shares granted on January 31, 2011 which will vest in 20% increments on 1/31/11, 1/31/12, 1/31/13, 1/31/14 and 1/31/15. The number of shares remains subject to calculation on or about 1/31/11. |
25
EXHIBIT E
(See attached Schedule of VSEP and Retention Grant Vesting)
26
Exhibit E to Xxxx Xxxxxxx Separation Agreement
Summary of Shares — Xxxx Xxxxxxx
2010 Summary
Plan |
Shares | |||
Retention (Vested Not Deferred) (2) |
10,000 | |||
Total |
10,000 | |||
2011 Summary
Plan |
Shares | |||
Retention (Unvested Not Deferred) (2) |
20,000 | |||
VSEP July 31, 2010 (Unvested Not Deferred) (3) |
19,500 | |||
VSEP January 31, 2011 (est) (Vested Not Deferred) (1) (4) |
3,317 | |||
VSEP January 31, 2011 (est) (Unvested Not Deferred) (1) (4) |
13,268 | |||
Total |
56,085 | |||
Notes:
1) VSEP January 31, 2011 — based upon an estimated share price of $12.50,
estimated shares outstanding and estimated value created.
2) Retention — 30,000 share balance of Retention Grant will vest as follows:
10,000 on each of 12/31/10, 12/31/11, and 12/31/12
3) VSEP July 31, 2010 — 4,875 Shares will vest annually on each of 7/31/11,
7/31/12, 7/31/13, and 7/31/14
4) VSEP January 31, 2011 — 1/5th of the shares will vest annually on 1/31/12,
1/31/13, 1/31/14, and 1/31/15
27
