SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
SCHEDULE 13D
(Rule 13d-101)
Under the Securities Exchange Act of 1934
(Amendment No. 9)*
DDR Corp. |
(Name of Issuer)
Common Stock, par value $0.10 per share |
(Title of Class of Securities)
251591103 |
(CUSIP Number)
Dennis O. Garris Alston & Bird LLP 950 F Street, N.W. Washington, DC 20004-1404 |
(Name, Address and Telephone Number of Person Authorized to Receive Notices and Communications)
November 21, 2012 |
(Date of Event Which Requires Filing of this Statement)
If the filing person has previously filed a statement on Schedule 13G to report the acquisition that is the subject of this Schedule 13D, and is filing this schedule because of §§ 240.13d-1(e), 240.13d-1(f) or 240.13d-1(g), check the following box ¨.
CUSIP No. 251591103 |
SCHEDULE 13D/A |
1 |
NAME OF REPORTING PERSONS
Alexander Otto | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) x (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
WC, PF | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Germany | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
39,674,485 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
39,674,485 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
39,674,485 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
12.8%* | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
* | = Based on 309,765,482 shares reported to be outstanding as of November 1, 2012 by the Issuer on its Form 10-Q filed on November 9, 2012. |
CUSIP No. 251591103 |
SCHEDULE 13D/A |
1 |
NAME OF REPORTING PERSONS
Katharina Otto-Bernstein | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) x (b) ¨
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
WC, PF | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Germany | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
15,755,505 | ||||
8 | SHARED VOTING POWER
0 | |||||
9 | SOLE DISPOSITIVE POWER
15,755,505 | |||||
10 | SHARED DISPOSITIVE POWER
0 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
15,755,505 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
5.1%* | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
* | = Based on 309,765,482 shares reported to be outstanding as of November 1, 2012 by the Issuer on its Form 10-Q filed on November 9, 2012. |
CUSIP No. 251591103 |
SCHEDULE 13D/A |
1 |
NAME OF REPORTING PERSONS
Dr. Michael Otto** | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
WC, PF | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) x
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Germany | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
2,375,916 | ||||
8 | SHARED VOTING POWER
594,965* | |||||
9 | SOLE DISPOSITIVE POWER
2,375,916 | |||||
10 | SHARED DISPOSITIVE POWER
594,965* | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
2,970,881* | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
1.0%*** | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
* | = Includes Common Shares over which Dr. Michael Otto has power of attorney granted by Janina Otto. |
** | = The Joinder Agreement, as defined in the Original Filing, has been amended to terminate the obligations of Dr. Michael Otto and Janina Otto under the Joinder Agreement. See Item 4. |
*** | = Based on 309,765,482 shares reported to be outstanding as of November 1, 2012 by the Issuer on its Form 10-Q filed on November 9, 2012. |
CUSIP No. 251591103 |
SCHEDULE 13D/A |
1 |
NAME OF REPORTING PERSONS
Janina Otto* | |||||
2 | CHECK THE APPROPRIATE BOX IF A MEMBER OF A GROUP (See Instructions) (a) ¨ (b) x
| |||||
3 | SEC USE ONLY
| |||||
4 | SOURCE OF FUNDS (See Instructions)
WC, PF | |||||
5 | CHECK BOX IF DISCLOSURE OF LEGAL PROCEEDINGS IS REQUIRED PURSUANT TO ITEMS 2(d) or 2(e) ¨
| |||||
6 | CITIZENSHIP OR PLACE OF ORGANIZATION
Germany | |||||
NUMBER OF SHARES BENEFICIALLY OWNED BY EACH REPORTING PERSON WITH |
7 | SOLE VOTING POWER
0 | ||||
8 | SHARED VOTING POWER
594,965 | |||||
9 | SOLE DISPOSITIVE POWER
0 | |||||
10 | SHARED DISPOSITIVE POWER
594,965 | |||||
11 |
AGGREGATE AMOUNT BENEFICIALLY OWNED BY EACH REPORTING PERSON
594,965 | |||||
12 |
CHECK BOX IF THE AGGREGATE AMOUNT IN ROW (11) EXCLUDES CERTAIN SHARES (See Instructions) ¨
| |||||
13 |
PERCENT OF CLASS REPRESENTED BY AMOUNT IN ROW (11)
0.2%** | |||||
14 |
TYPE OF REPORTING PERSON (See Instructions)
IN |
* | = The Joinder Agreement, as defined in the Original Filing, has been amended to terminate the obligations of Dr. Michael Otto and Janina Otto under the Joinder Agreement. See Item 4. |
** | = Based on 309,765,482 shares reported to be outstanding as of November 1, 2012 by the Issuer on its Form 10-Q filed on November 9, 2012. |
CUSIP No. 251591103 |
SCHEDULE 13D/A |
This Amendment No. 9 (Amendment No. 9) amends and supplements the statement on Schedule 13D initially filed on May 15, 2009 (the Original Filing), as amended by Amendment No. 1 filed on August 20, 2009, Amendment No. 2 filed on September 14, 2009, Amendment No. 3 filed on September 18, 2009, Amendment No. 4 filed on February 16, 2010, Amendment No. 5 filed on March 21, 2011, Amendment No. 6 filed on April 26, 2011, Amendment No. 7 filed on March 30, 2012, and Amendment No. 8 filed on October 5, 2012. Information reported in the Original Filing, as amended, remains in effect except to the extent that it is amended, restated or superseded by information contained in this Amendment No. 9. Capitalized terms used and not defined in this Amendment No. 9 have the meanings set forth in the Original Filing, as amended.
Item 2. | Identity and Background |
Item 4 is hereby incorporated by reference.
Item 4. | Purpose of the Transaction |
On November 12, 2012, the Joinder Agreement, as defined in the Original Filing, was amended to terminate the obligations of Dr. Michael Otto (Dr. Otto) and Janina Otto under the Joinder Agreement. This amendment was effectuated by the execution of the Termination Agreement, dated November 12, 2012, by and among Mr. Otto, Katharina Otto-Bernstein, Dr. Otto, Janina Otto and KG CURA Vermögensverwaltung G.m.b.H. & Co. (KG CURA). Consequently, Dr. Otto and Janina Otto are no longer parties to the Investors Rights Agreement, as defined in the Original Filing. Additionally, Dr. Otto and Janina Otto do not have any agreement or understanding with other persons to acquire, hold, vote or dispose of Common Shares. Mr. Otto and Katharina Otto-Bernstein are still parties to the Joinder Agreement and the Investors Rights Agreement. For the purposes of determining Mr. Ottos right to nominate two directors to the Issuers board of directors, the Investors Rights Agreement continues to aggregate the collective shares beneficially owned by the descendants of Professor Werner Otto, which includes those owned by Dr. Otto and Janina Otto.
A copy of the Termination Agreement is filed herewith as an exhibit and incorporated herein by reference.
Item 5. | Interest in Securities of the Issuer. |
Item 5 is hereby amended to add the following:
(a) Mr. Otto and Katharina Otto-Bernstein may be deemed to beneficially own, in the aggregate, 55,429,990 Common Shares, representing 17.9% of the Issuers outstanding Common Shares (based on 309,765,482 shares reported to be outstanding as of November 1, 2012 by the Issuer on its Form 10-Q filed on November 9, 2012).
CUSIP No. 251591103 |
SCHEDULE 13D/A |
(b) With respect to any rights or powers to vote, or to direct the vote of, or to dispose of, or direct the disposition of, the Common Shares referenced in paragraph 5(a), Mr. Otto has sole voting power and sole dispositive power with regard to 39,674,485 Common Shares. Katharina Otto-Bernstein has sole voting power and sole dispositive power with regard to 15,755,505 Common Shares. Dr. Otto has sole voting power and sole dispositive power with regard to 2,375,916 Common Shares owned by him, and shared voting power and shared dispositive power with regard to 594,965 Common Shares owned by his daughter Janina Otto pursuant to a power of attorney. Janina Otto has shared voting power and shared dispositive power with regard to 594,965 Common Shares.
(c) The Reporting Persons have not effected any transactions in the Common Shares since the most recent filing on Schedule 13D on October 5, 2012.
(e) On November 12, 2012, upon the execution of the Termination Agreement, Dr. Otto and Janina Otto each ceased to be part of the group formed by the Reporting Persons.
Item 6. | Contracts, Arrangements, Understandings or Relationships with Respect to Securities of the Issuer. |
Item 4 is hereby incorporated by reference.
Item 7. | Material to Be Filed as Exhibits. |
Exhibit 1 | Joint Filing Agreement, dated May 15, 2009, among Mr. Otto, Katharina Otto-Bernstein, Dr. Michael Otto and Janina Vater | |
Exhibit 2 | Termination Agreement, dated November 12, 2012 between Mr. Otto, Katharina Otto-Bernstein, Dr. Otto, Janina Otto and KG CURA |
CUSIP No. 251591103 |
SCHEDULE 13D/A |
SIGNATURE
After reasonable inquiry and to the best of my knowledge and belief, I certify that the information set forth in this statement is true, complete and correct.
Dated: November 21, 2012
/s/ KG CURA Vermögensverwaltung G.m.b.H. & Co., by power of attorney | ||
By: | Dr. Thomas Finne | |
For: | Alexander Otto | |
/s/ KG CURA Vermögensverwaltung G.m.b.H. & Co., by power of attorney | ||
By: | Dr. Thomas Finne | |
For: | Katharina Otto-Bernstein | |
/s/ KG CURA Vermögensverwaltung G.m.b.H. & Co., by power of attorney | ||
By: | Dr. Thomas Finne | |
For: | Dr. Michael Otto | |
/s/ KG CURA Vermögensverwaltung G.m.b.H. & Co., by power of attorney | ||
By: | Dr. Thomas Finne | |
For: | Janina Otto |
CUSIP No. 251591103 |
SCHEDULE 13D/A |
EXHIBIT INDEX
Exhibit No. |
Exhibit Description | |
1 | Joint Filing Agreement, dated May 15, 2009, among Mr. Otto, Katharina Otto-Bernstein, Dr. Michael Otto and Janina Vater | |
2 | Termination Agreement, dated November 12, 2012 between Mr. Otto, Katharina Otto-Bernstein, Dr. Otto, Janina Otto and KG CURA |
Exhibit 1
JOINT FILING AGREEMENT
In accordance with Rule 13d-1(k)(1) under the Securities Exchange Act of 1934, as amended, the persons named below agree to the joint filing on behalf of each of them of a Statement on Schedule 13D and any amendments to it with respect to the Common Shares, par value $0.10 per share, of Developers Diversified Realty Corporation and further agree that this Joint Filing Agreement be included as an Exhibit to those joint filings.
Dated: May 15, 2009
/s/ KG CURA Vermögensverwaltung G.m.b.H. & Co., by power of attorney | ||
By: | Dr. Thomas Finne | |
For: | Alexander Otto | |
/s/ KG CURA Vermögensverwaltung G.m.b.H. & Co., by power of attorney | ||
By: | Dr. Thomas Finne | |
For: | Katharina Otto-Bernstein | |
/s/ KG CURA Vermögensverwaltung G.m.b.H. & Co., by power of attorney | ||
By: | Dr. Thomas Finne | |
For: | Dr. Michael Otto | |
/s/ KG CURA Vermögensverwaltung G.m.b.H. & Co., by power of attorney | ||
By: | Dr. Thomas Finne | |
For: | Janina Vater |
Exhibit 2
TERMINATION AGREEMENT
THIS TERMINATION AGREEMENT to that certain Joinder Agreement (the Joinder Agreement), dated as of May 11, 2009, by and among Mr. Alexander Otto, Ms. Katharina Otto-Bernstein, Dr. Michael Otto, Ms. Janina Otto (f/k/a Ms. Janina Vater) and KG CURA Vermögensverwaltung G.m.b.H. & Co. (KG CURA) (each a Party, and collectively, the Parties), is made and entered into as of November 12, 2012, by and among the Parties. Capitalized Terms not defined herein shall have the meanings ascribed to them in the Joinder Agreement.
RECITALS
WHEREAS, the Parties entered into the Joinder Agreement; and
WHEREAS, the Parties now wish to remove Dr. Michael Otto and Ms. Janina Otto (the Terminating Parties) as parties to the Joinder Agreement;
NOW, THEREFORE, the Parties agree as follows:
1. | Agreement To Be Bound. The Parties hereby agree that upon execution of this Termination Agreement, Mr. Alexander Otto and Ms. Katharina Otto-Bernstein will continue to be bound by, and subject to, all of the covenants, terms and conditions of the Joinder Agreement, the Stock Purchase Agreement, dated as of February 23, 2009 by and between DDR Corp. (f/k/a Developers Diversified Realty Corporation) (DDR) and Mr. Alexander Otto (the Stock Purchase Agreement), and each of the Ancillary Agreements, as applicable. |
2. | Removal of Certain Parties. The Parties hereby agree that upon execution of this Termination Agreement, the Terminating Parties will no longer be bound by, and subject to, any of the covenants, terms and conditions of the Joinder Agreement, the Stock Purchase Agreement, or any Ancillary Agreement; provided, however, that such termination shall not relieve any Party from liability for any breach of the Joinder Agreement prior to the effective time of this Termination Agreement. |
3. | Representative. The Parties agree and acknowledge that KG CURA shall act as their agent and is entitled to act on their behalf with regard to any matters relating to the Stock Purchase Agreement, the Joinder Agreement, this Termination Agreement and the Ancillary Agreements, which shall include the power (i) to give and receive notices and communications on behalf of the Terminating Parties, (ii) to waive provisions of the Stock Purchase Agreement, the Joinder Agreement and the Ancillary Agreements, (iii) to take all actions necessary or appropriate in the judgment of KG CURA for the accomplishment of the foregoing and to otherwise act on behalf of the Terminating Parties with respect to the Stock Purchase Agreement, the Joinder Agreement, this Termination Agreement and the Ancillary Agreements. A decision, act, consent or instruction of KG CURA shall constitute a decision of the Terminating Parties and shall be final, binding and conclusive upon each such Terminating Party, and DDR may rely upon any decision, act, consent or instruction of KG CURA as being the decision, act, consent or instruction of each and every such Terminating Party. KG CURA shall not be liable to the Terminating Parties for any act done or omitted while acting in good faith and in the exercise of reasonable judgment, and any act done or omitted pursuant to the written advice of counsel shall be conclusive evidence of such good faith. |
4. | Governing Law. Regardless of any conflict of law or choice of law principles that might otherwise apply, the Parties agree that this Termination Agreement shall be governed by and construed in all respects in accordance with the laws of the State of New York. The Parties agree and acknowledge that the State of New York has a reasonable relationship to the Parties and/or this Termination Agreement. As to any dispute or litigation arising out of or relating in any way to this Termination Agreement or the transactions at issue in the Stock Purchase Agreement, Joinder Agreement and Ancillary Agreements, the Parties agree and consent to be subject to the jurisdiction of the United States District Court for the Southern District of New York. If jurisdiction is not present in federal court, then the Parties agree and consent to the jurisdiction of the state courts of New York County, New York. Each Party irrevocably waives, to the fullest extent permitted by law, (a) any objection that it may now or hereafter have to laying venue of any litigation brought in such court, (b) any claim that any litigation brought in such court has been brought in an inconvenient forum, and (c) any defense that it may now or hereafter have based on lack of personal jurisdiction in such forum. |
5. | Counterparts. This Termination Agreement may be executed in several counterparts, each of which shall be deemed an original and all of which shall constitute one and the same instrument, and shall become effective when counterparts have been signed by each of the parties and delivered to the other parties; it being understood that all parties need not sign the same counterpart. |
6. | Descriptive Headings. The descriptive headings of this Termination Agreement are inserted for convenience only and do not constitute a part of this Termination Agreement. |
7. | Entire Agreement. This Termination Agreement constitutes the entire agreement among the Parties and supersedes all other prior agreements and understandings, both written and oral, between the parties with respect to the subject matter hereof. |
8. | Third-Party Beneficiary. The Parties acknowledge and agree that DDR shall be deemed a beneficiary of this Termination Agreement, and shall be entitled to enforce it as a third-party beneficiary of this Termination Agreement. |
2
IN WITNESS WHEREOF, the Parties have executed this Termination Agreement as of the date first written above.
MR. ALEXANDER OTTO |
/s/ Alexander Otto |
MS. KATHARINA OTTO-BERNSTEIN |
/s/ Katharina Otto-Bernstein |
DR. MICHAEL OTTO |
/s/ Michael Otto |
MS. JANINA OTTO |
/s/ Michael Otto, by power-of-attorney |
KG CURA VERMÖGENSVERWALTUNG G.M.B.H. & CO. |
/s/ Thomas Armbrust |
Thomas Armbrust |
/s/ Thomas Finne |
Dr. Thomas Finne |
ACKNOWLEDGED AND AGREED TO BY DDR CORP. | ||
By: | /s/ David J. Oakes | |
Name: David J. Oakes, CFA | ||
Title: Senior Executive Vice President & Chief Financial Officer |
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