0001193125-12-478944.txt : 20121121 0001193125-12-478944.hdr.sgml : 20121121 20121121163213 ACCESSION NUMBER: 0001193125-12-478944 CONFORMED SUBMISSION TYPE: SC 13D/A PUBLIC DOCUMENT COUNT: 3 FILED AS OF DATE: 20121121 DATE AS OF CHANGE: 20121121 GROUP MEMBERS: DR. MICHAEL OTTO GROUP MEMBERS: JANINA OTTO GROUP MEMBERS: KATHARINA OTTO-BERNSTEIN FILED BY: COMPANY DATA: COMPANY CONFORMED NAME: Otto Alexander CENTRAL INDEX KEY: 0001462468 FILING VALUES: FORM TYPE: SC 13D/A MAIL ADDRESS: STREET 1: C/O KG CURA VERMOGENSVERWALTUNG G.M.B.H. STREET 2: WANDSBEKER STR. 3-7 CITY: HAMBURG STATE: 2M ZIP: 22179 SUBJECT COMPANY: COMPANY DATA: COMPANY CONFORMED NAME: DDR CORP CENTRAL INDEX KEY: 0000894315 STANDARD INDUSTRIAL CLASSIFICATION: REAL ESTATE INVESTMENT TRUSTS [6798] IRS NUMBER: 341723097 STATE OF INCORPORATION: OH FISCAL YEAR END: 1231 FILING VALUES: FORM TYPE: SC 13D/A SEC ACT: 1934 Act SEC FILE NUMBER: 005-43125 FILM NUMBER: 121221529 BUSINESS ADDRESS: STREET 1: 3300 ENTERPRISE PARKWAY CITY: BEACHWOOD STATE: OH ZIP: 44122 BUSINESS PHONE: 2167555500 MAIL ADDRESS: STREET 1: 3300 ENTERPRISE PARKWAY CITY: BEACHWOOD STATE: OH ZIP: 44122 FORMER COMPANY: FORMER CONFORMED NAME: DEVELOPERS DIVERSIFIED REALTY CORP DATE OF NAME CHANGE: 19940218 SC 13D/A 1 d443154dsc13da.htm AMENDMENT NO. 9 TO SCHEUDLE 13D Amendment No. 9 to Scheudle 13D

 

 

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. Otto’s right to nominate two directors to the Issuer’s 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 Issuer’s 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
EX-99.1 2 d443154dex991.htm EX-1 EX-1

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
EX-99.2 3 d443154dex992.htm EX-2 EX-2

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

 

3