To: Developers Diversified Realty Corporation Beachwood, Ohio 44122 From: Deutsche Bank AG London Winchester house
Exhibit 10.1
December 4, 2006
To:
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Developers Diversified Realty Corporation | |
0000 Xxxxxxxxxx Xxxxxxx | ||
Xxxxxxxxx, Xxxx 00000 | ||
From:
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Deutsche Bank AG London | |
Winchester house | ||
0 Xxxxx Xxxxxxxxxx Xx, Xxxxxx | ||
XX0X 0XX | ||
Telephone: 00 00 0000 0000 | ||
c/o Deutsche Bank Securities Inc. | ||
00 Xxxx Xxxxxx | ||
Xxx Xxxx, XX 00000 | ||
Telephone: 000-000-0000 | ||
Facsimile: 000-000-0000 |
Dear Sirs,
The purpose of this letter agreement (this “Confirmation”) is to confirm the terms and conditions
of the transaction entered into between us on the Trade Date specified below (the “Transaction”).
This Confirmation constitutes a “Confirmation” as referred to in the ISDA Master Agreement
specified below.
1. | The definitions and provisions contained in the 2000 ISDA Definitions (the “2000 Definitions”) and the 2002 ISDA Equity Derivatives Definitions (the “2002 Definitions” and, together with the 2000 Definitions, the “Definitions”), each as published by the International Swaps and Derivatives Association, Inc., are incorporated into this Confirmation. In the event of any inconsistency between the 2002 Definitions and the 2000 Definitions, the 2002 Definitions will govern. In the event of any inconsistency between the Definitions and this Confirmation, this Confirmation will govern. |
DEUTSCHE BANK AG IS NOT REGISTERED AS A BROKER DEALER UNDER THE U.S. SECURITIES EXCHANGE ACT
OF 1934. DEUTSCHE BANK SECURITIES INC. (“DBSI”) HAS ACTED SOLELY AS AGENT IN CONNECTION
WITH THIS TRANSACTION AND HAS NO OBLIGATION, BY WAY OF ISSUANCE, ENDORSEMENT, GUARANTEE OR
OTHERWISE WITH RESPECT TO THE PERFORMANCE OF EITHER PARTY UNDER THE TRANSACTION. DEUTSCHE
BANK AG, LONDON BRANCH IS NOT A MEMBER OF THE SECURITIES INVESTOR PROTECTION CORPORATION
(SIPC).
This Confirmation evidences a complete and binding agreement between Party A and Party B as
to the terms of the Transaction to which this Confirmation relates. This Confirmation shall
supplement, form a part of, and be subject to an agreement in the form of the 2002 ISDA
Master Agreement (the “Agreement”) as if Party A and Party B had executed an agreement in
such form on the Trade Date (but without any Schedule except for the election of the laws of
the State of New York as the governing law). In the event of
Chairman
of the Supervisory Board: Clemens Börsig Board of Managing Directors: Xxxxxxx-Xxxxx Xxxxxxxx, Xxxxx Xxxxxxxxx, Xxxxxx von Heydebreck, Xx. Xxxx Xxxxxxxx, Xxxxxxx Xx Xxxxx |
Deutsche Bank AG is regulated by the FSA for the conduct of designated investment business in the UK, is a member of the London Stock Exchange and is a limited liability company incorporated in the Federal Republic of Germany HRB Xx. 00 000 Xxxxxxxx Xxxxx xx Xxxxxxxxx xx Xxxx; Branch Registration No. in England and Wales BR000005, Registered address: | |
Xxxxxxxxxx Xxxxx, 0 Xxxxx Xxxxxxxxxx Xxxxxx, Xxxxxx XX0X 0XX. |
any inconsistency between
provisions of that Agreement and this Confirmation, this Confirmation will prevail for the
purpose of the Transaction to which this Confirmation relates. The parties hereby agree that
no Transaction other than the Transaction to which this Confirmation relates shall be
governed by the Agreement. For purposes of the 2002 Definitions, the Transaction is a Share
Forward Transaction.
Party A and Party B each represents to the other that it has entered into this
Transaction in reliance upon such tax, accounting, regulatory, legal, and financial advice
as it deems necessary and not upon any view expressed by the other.
2. | The terms of the particular Transaction to which this Confirmation relates are as follows: |
General Terms: | ||||
Party A: | Deutsche Bank AG, acting through its London branch |
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Party B: | ||||
Trade Date: | December 4, 2006 |
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Effective Date: | December 8, 2006 |
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Base Amount: | Initially, 5,799,568 Shares. On each Settlement Date, the Base
Amount shall be reduced by the number of Settlement Shares for such Settlement
Date. |
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Maturity Date: | September 8, 2007 (or, if such date is not a Scheduled Trading Day, the
next following Scheduled Trading Day). |
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Forward Price: On the Effective Date, the Initial
Forward Price, and on any other day, the Forward
Price as of the immediately preceding calendar day
multiplied by the sum of (i) 1 and (ii) the Daily
Rate for such day; provided that on each Forward
Price Reduction Date, the Forward Price in effect on
such date shall be the Forward Price otherwise in
effect on such date minus the Forward Price Reduction
Amount for such Forward Price Reduction Date. |
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Initial Forward Price: | USD $64.66 per Share. |
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Daily Rate: | For any day, (i)(A) USD-Federal Funds Rate for such day minus
(B) the Spread divided by (ii) 360. |
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USD-Federal Funds Rate | For any day, the rate set forth for such day opposite the caption
“Federal funds”, as such rate is displayed on the page “FedsOpen <Index>
<GO>” on the BLOOMBERG Professional Service, or any successor page; provided
that if no rate appears for any day on such page, the rate for the immediately
preceding day for which a rate appears shall be used for such day. |
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Spread: | 0.60% |
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Forward Price Reduction Date: | December 20, 2006, March 21, 2007 and June 18, 2007. |
Forward Price Reduction Amount: | For each Forward Price Reduction Date, the Forward Price Reduction Amount set
forth opposite such date on Schedule I. |
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Shares: | Common shares, without par value, of Party B (also referred to herein as the
“Issuer”) (Exchange identifier: “DDR”). |
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Exchange: | The New York Stock Exchange. |
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Related Exchange(s): | All Exchanges. |
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Clearance System: | DTC. |
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Calculation Agent: | Party A |
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Settlement Terms: | ||||
Settlement Date: | Any Scheduled Trading Day following the Effective Date and up to and
including the Maturity Date, as designated by (a) Party A pursuant to “Termination
Settlement” below or (b) Party B in a written notice (a “Settlement Notice”) that
satisfies the Settlement Notice Requirements and is delivered to Party A at least
(i) three Scheduled Trading Days prior to such Settlement Date, which may be the
Maturity Date, if Physical Settlement applies, and (ii) five Scheduled Trading Days
prior to such Settlement Date, which may be the Maturity Date, if Cash Settlement
applies; provided that (i) the Maturity Date shall be a Settlement Date if on such
date the Base Amount is greater than zero and (ii) if Cash Settlement applies and
Party A shall have fully unwound its hedge during an Unwind Period by a date that
is more than three Scheduled Trading Days prior to a Settlement Date specified
above, Party A may, by written notice to Party B, specify any Scheduled Trading Day
prior to such originally specified Settlement Date as the Settlement Date. |
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Settlement Shares: | With respect to any Settlement Date, a number of Shares, not to
exceed the Base Amount, designated as such by Party B in the related Settlement
Notice or by Party A pursuant to “Termination Settlement” below; provided that on
the Maturity Date the number of Settlement Shares shall be equal to the Base Amount
on such date. |
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Settlement: | Physical Settlement or Cash Settlement, at the election of Party B as set
forth in a Settlement Notice that satisfies the Settlement Notice Requirements;
provided that Physical Settlement shall apply (i) if no Settlement Method is
validly selected, (ii) with respect to any Settlement Shares in respect of which
Party A is unable, in its judgment, to unwind its hedge by the end of the Unwind
Period in a manner that, in the judgment of Party A, is consistent with the
requirements for qualifying for the safe harbor provided by Rule 10b-18 under the
Exchange Act or due to the lack of sufficient liquidity in the Shares on any
Exchange Business Day during the Unwind
Period or (iii) to any Termination Settlement Date
(as defined below under “Termination Settlement”). |
Settlement Notice Requirements: | Notwithstanding any other provision hereof, a Settlement Notice delivered
by Party B that specifies Cash Settlement will not be effective to establish a
Settlement Date or require Cash Settlement unless Party B delivers to Party A with
such Settlement Notice a representation signed by Party B substantially in the
following form: “As of the date of this Settlement Notice, Party B is not aware of
any material nonpublic information concerning itself or the Shares, and is
designating the date contained herein as a Settlement Date in good faith and not as
part of a plan or scheme to evade compliance with the federal securities laws.” |
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Unwind Period: | Each Exchange Business Day that is not a Suspension Day during the period
from and including the first Exchange Business Day following the date Party B
validly elects Cash Settlement in respect of a Settlement Date through the third
Scheduled Trading Day preceding such Settlement Date (or the immediately preceding
Exchange Business Day if such Scheduled Trading Day is not an Exchange Business
Day); subject to “Termination Settlement” below. If any Exchange Business Day
during an Unwind Period is a Disrupted Day, the Calculation Agent shall make
commercially reasonable adjustments to the terms of the Transaction (including,
without limitation, the Cash Settlement Amount and the 10b-18 VWAP) to account for
the occurrence of such Disrupted Day. |
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Suspension Day: | Any Exchange Business Day on which Party A determines based on the
advice of counsel that Cash Settlement may violate applicable securities laws.
Party A shall notify Party B if it receives such advice from its counsel. |
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Exchange Act: | The Securities Exchange Act of 1934, as amended from time to time. |
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Physical Settlement: | On any Settlement Date in respect of which Physical Settlement
applies, Party B shall deliver to Party A through the Clearance System the
Settlement Shares for such Settlement Date, and Party A shall deliver to Party B,
by wire transfer of immediately available funds to an account designated by Party
B, an amount in cash equal to the Physical Settlement Amount for such Settlement
Date, on a delivery versus payment basis. |
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Physical Settlement Amount: | For any Settlement Date in respect of which Physical
Settlement applies, an amount in cash equal to the product of (i) the Forward Price
on such Settlement Date and (ii) the number of Settlement Shares for such
Settlement Date. |
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Cash Settlement: | On any Settlement Date in respect of which Cash Settlement
applies, if the Cash Settlement Amount for such Settlement Date is a positive
number, Party A will pay such Cash Settlement Amount to Party B. If the Cash
Settlement Amount is a negative number, Party B will pay the absolute
value of such Cash Settlement Amount to Party A.
Such amounts shall be paid on the Settlement Date. |
Cash Settlement Amount: | For any Settlement Date in respect of which Cash
Settlement applies, an amount determined by the Calculation Agent equal to the
difference between (1) the product of (i) (A) the Forward Price on the first day of
the applicable Unwind Period minus (B) the average of the 10b-18 VWAP prices per
Share on each Exchange Business Day during such Unwind Period, multiplied by (ii)
the number of Settlement Shares for such Settlement Date, minus (2) the product of
(i) the Forward Price Reduction Amount for any Forward Price Reduction Date that
occurs during such Unwind Period multiplied by (ii) the number of Settlement Shares
with respect to which Party A has not unwound its hedge as of such Forward Price
Reduction Date. |
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10b-18 VWAP: | For any Exchange Business Day during the Unwind Period which is not a
Suspension Day, the volume-weighted average price at which the Shares trade as
reported in the composite transactions for the Exchange on such Exchange Business
Day, excluding (i) trades that do not settle regular way, (ii) opening (regular
way) reported trades on the Exchange on such Exchange Business Day, (iii) trades
that occur in the last ten minutes before the scheduled close of trading on the
Exchange on such Exchange Business Day and ten minutes before the scheduled close
of the primary trading session in the market where the trade is effected, and (iv)
trades on such Exchange Business Day that do not satisfy the requirements of Rule
10b-18(b)(3), as determined in good faith by the Calculation Agent. Party B
acknowledges that Party A may refer to the Bloomberg Page “DDR.N <Equity> AQR
SEC” (or any successor thereto), in its discretion, for such Exchange Business Day
to determine the 10b-18 VWAP. |
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Settlement Currency: | USD. |
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Failure to Deliver: | Inapplicable. |
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Adjustments: | ||||
Method of Adjustment: | Calculation Agent Adjustment; notwithstanding anything in the 2002
Definitions to the contrary, the Calculation Agent may make an adjustment pursuant
to Calculation Agent Adjustment to any one or more of the Base Amount, the Forward
Price and any other variable relevant to the settlement or payment terms of the
Transaction. |
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Additional Adjustment: | If, in Party A’s sole judgment, the actual cost to Party A, over
any one month period, of borrowing a number of Shares equal to the Base Amount to
hedge its exposure to the Transaction exceeds a weighted average rate equal to 60
basis points per annum, the Calculation Agent shall reduce the Forward Price in
order to compensate Party A for the amount by which such cost exceeded a weighted
average rate equal to 60 basis points per annum during such period. The
Calculation Agent shall notify Party B prior to making any such adjustment to the
Forward Price and, upon the request of Party B, Party
A shall provide an itemized list of its stock loan
costs for the applicable one month period. |
Account Details: | ||||
Payments to Party A: | To be advised under separate cover or telephone confirmed prior to
each Settlement Date. |
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Payments to Party B: | To be advised under separate cover or telephone confirmed prior to
each Settlement Date. |
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Delivery of Shares to Party A: | To be advised. |
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Delivery of Shares to Party B: | To be advised. |
3. | Other Provisions: |
Conditions to Effectiveness:
The effectiveness of this Confirmation on the Effective Date shall be subject to (i)
the condition that the representations and warranties of Party B contained in the
Underwriting Agreement dated the date hereof among Party B and Xxxxxxx, Sachs & Co.,
as Underwriter, Deutsche Bank Securities Inc., X.X. Xxxxxx Securities Inc. and
Xxxxxxx Lynch, Pierce, Xxxxxx & Xxxxx Incorporated, as Forward Sellers, and Deutsche
Bank AG London, JPMorgan Chase Bank, National Association and Xxxxxxx Xxxxx
International, as Forward Counterparties (the “Underwriting Agreement”) and any
certificate delivered pursuant thereto by Party B are true and correct on the
Effective Date as if made as of the Effective Date, (ii) the condition that Party B
have performed all of the obligations required to be performed by it under the
Underwriting Agreement on or prior to the Effective Date, (iii) the condition that
Party B have delivered to Party A opinion of counsel dated as of the Trade Date with
respect to matters set forth in Section 3(a) of the Agreement, (iv) the satisfaction
of all of the conditions set forth in Section 7 of the Underwriting Agreement and
(v) the condition that neither of the following has occurred (A) Party A is unable
to borrow and deliver for sale a number of Shares equal to the Base Amount, or (B)
in Party A’s sole judgment either it is impracticable to do so or Party A would
incur a stock loan cost of more than a rate equal to 60 basis points per annum to do
so (in which event this Confirmation shall be effective but the Base Amount for this
Transaction shall be the number of Shares an affiliate of Party A is required to
deliver in accordance with Section 3(a)(i) of the Underwriting Agreement).
Representations and Agreements of Party B:
Party B (i) has such knowledge and experience in financial and business affairs as
to be capable of evaluating the merits and risks of entering into this Transaction;
(ii) has consulted with its own legal, financial, accounting and tax advisors in
connection with this Transaction; and (iii) is entering into this Transaction for a
bona fide business purpose.
Party B is not and has not been the subject of any civil proceeding of a judicial or
administrative body of competent jurisdiction that could reasonably be expected to
impair materially Party B’s ability to perform its obligations hereunder.
Party B will by the next succeeding New York Business Day notify Party A upon
obtaining knowledge of the occurrence of any event that would constitute an Event of
Default, a Potential Event of Default or a Potential Adjustment Event.
Additional Representations, Warranties and Agreements of Party B: Party B
hereby represents and warrants to, and agrees with, Party A as of the date hereof that:
(a) | Any Shares, when issued and delivered in accordance with the terms of the Transaction, will be duly authorized and validly issued, fully paid and nonassessable, and the issuance thereof will not be subject to any preemptive or similar rights. | ||
(b) | Party B has reserved and will keep available at all times, free from preemptive rights, out of its authorized but unissued Shares, solely for the purpose of issuance upon settlement of the Transaction as herein provided, the full number of Shares as shall be issuable at such time upon settlement of the Transaction. All Shares so issuable shall, upon such issuance, be accepted for listing or quotation on the Exchange. | ||
(c) | Party B agrees to provide Party A at least 10 Exchange Business Days’ written notice (an “Issuer Repurchase Notice”) prior to executing any repurchase of Shares by Party B or any of its subsidiaries (or entering into any contract that would require, or give the option to, Party B or any of its subsidiaries, to purchase or repurchase Shares), whether out of profits or capital or whether the consideration for such repurchase is cash, securities or otherwise (an “Issuer Repurchase”), that alone or in the aggregate would result in the Base Amount Percentage (as defined below) being (i) equal to or greater than 6.0% of the outstanding Shares and (ii) greater by 0.5% or more than the Base Amount Percentage at the time of the immediately preceding Issuer Repurchase Notice (or in the case of the first such Issuer Repurchase Notice, greater than the Base Amount Percentage as of the later of the date hereof or the immediately preceding Settlement Date, if any). The “Base Amount Percentage” as of any day is the fraction (1) the numerator of which is the Base Amount and (2) the denominator of which is the number of Shares outstanding on such day. | ||
(d) | No filing with, or approval, authorization, consent, license registration, qualification, order or decree of, any court or governmental authority or agency, domestic or foreign, is necessary or required for the execution, delivery and performance by Party B of this Confirmation and the consummation of the Transaction (including, without limitation, the issuance and delivery of Shares on any Settlement Date) except (i) such as have been obtained under the Securities Act of 1933, as amended (the “Securities Act”), and (ii) as may be required to be obtained under state securities laws. | ||
(e) | Party B agrees not to make any Issuer Repurchase if, immediately following such Issuer Repurchase, the Base Amount Percentage would be equal to or greater than 6.8%. | ||
(f) | Party B is not insolvent, nor will Party B be rendered insolvent as a result of this Transaction. | ||
(g) | Neither Party B nor any of its affiliates shall take or refrain from taking any action (including, without limitation, any direct purchases by Party B or any of its affiliates or any purchases by a party to a derivative transaction with Party B or any of its affiliates), either under this Confirmation, under an agreement with another party or otherwise, that might cause any purchases of Shares by Party A or any of its affiliates in connection with any Cash Settlement of this Transaction not to meet the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act if such purchases were made by Party B. | ||
(h) | Party B will not engage in any “distribution” (as defined in Regulation M under the Exchange Act (“Regulation M”)) that would cause a “restricted period” (as defined in Regulation M) to occur during any Unwind Period. | ||
(i) | Party B is an “eligible contract participant” (as such term is defined in Section 1a(12) of the Commodity Exchange Act, as amended). |
(j) | In addition to any other requirements set forth herein, Party B agrees not to elect Cash Settlement if, in the reasonable judgment of either Party A or Party B, such settlement or Party A’s related market activity would result in a violation of the U.S. federal securities laws or any other federal or state law or regulation applicable to Party B. | ||
(k) | Party B agrees it will not treat ownership positions held by Party A or any of its affiliates solely in its (or their) capacity as a nominee or fiduciary as constituting Beneficial Ownership or Constructive Ownership (as such terms are defined in Party B’s Amended and Restated Articles of Incorporation, as amended from time to time (the “Charter”)) by Party A unless Party B determines it is required by law to do so based upon an opinion of counsel. |
Covenant of Party B:
The parties acknowledge and agree that any Shares delivered by Party B to Party A on
any Settlement Date when delivered by Party A (or an affiliate of Party A) to
securities lenders from whom Party A (or an affiliate of Party A) borrowed Shares in
connection with hedging its exposure to the Transaction will be freely saleable
without further registration or other restrictions under the Securities Act, in the
hands of those securities lenders, irrespective of whether such stock loan is
effected by Party A or an affiliate of Party A. Accordingly, Party B agrees that
the Shares that it delivers to Party A on each Settlement Date will not bear a
restrictive legend and that such Shares will be deposited in, and the delivery
thereof shall be effected through the facilities of, the Clearance System.
Covenants of Party A:
(a) | Unless the provisions set forth below under “Private Placement Procedures” shall be applicable, Party A shall use any Shares delivered by Party B to Party A on any Settlement Date to return to securities lenders to close out open Share loans created by Party A or an affiliate of Party A in the course of Party A’s or such affiliate’s hedging activities related to Party A’s exposure under this Confirmation. | ||
(b) | In connection with bids and purchases of Shares in connection with any Cash Settlement of this Transaction, Party A shall use its commercially reasonable efforts to conduct its activities, or cause its affiliates to conduct their activities, in a manner consistent with the requirements of the safe harbor provided by Rule 10b-18 under the Exchange Act, as if such provisions were applicable to such purchases. |
Insolvency Filing:
Notwithstanding anything to the contrary herein, in the Agreement or in the
Definitions, upon any Insolvency Filing in respect of the Issuer, the Transaction
shall automatically terminate on the date thereof without further liability of
either party to this Confirmation to the other party (except for any liability in
respect of any breach of representation or covenant by a party under this
Confirmation prior to the date of such Insolvency Filing).
Extraordinary Dividends:
If an ex-dividend date for an Extraordinary Dividend occurs on or after the Trade
Date and on or prior to the Maturity Date, Party B shall pay an amount, as
determined by the Calculation Agent, in cash equal to the product of such
Extraordinary Dividend and the Base Amount to Party A on the earlier of (i) the date
on which such Extraordinary Dividend is paid by the Issuer to holders of record of
the Shares or (ii) the Maturity Date. “Extraordinary Dividend” means the per Share
amount of any cash dividend or distribution declared by the Issuer with respect to
the Shares that is specified by the board of directors of the Issuer as an
“extraordinary” dividend.
Acceleration Events:
The following events shall each constitute an “Acceleration Event”:
(a) | Stock Borrow Events. In the judgment of Party A, Party A is unable to hedge Party A’s exposure to the Transaction because (i) of the lack of sufficient Shares being made available for Share borrowing by lenders, or (ii) it is otherwise commercially impracticable (each of (i) and (ii) a “Stock Borrow Event”); provided that (x) prior to the effective of the designation of Stock Borrow Event under this Paragraph (a), Party B may refer Party A to a lending party reasonably acceptable to Party A that will lend Party A Shares within such three Scheduled Trading Days on terms reasonably acceptable to Party A and at a stock loan cost of no more than 60 basis points per annum and (y) the number of Settlement Shares for any Settlement Date so designated by Party A shall not exceed the number of Shares as to which such inability, or cost limitation with respect to, borrow exists; | ||
(b) | Dividends and Other Distributions. On any day occurring after the Trade Date Party B declares a distribution, issue or dividend to existing holders of the Shares of (i) any cash dividend (other than an Extraordinary Dividend) to the extent all cash dividends having an ex-dividend date during the period from and including any Forward Price Reduction Date (with each of the Trade Date and the Maturity Date being a Forward Price Reduction Date for purposes of this clause (b) only) to but excluding the next subsequent Forward Price Reduction Date exceeds, on a per Share basis, the Forward Price Reduction Amount set forth opposite the first date of any such period on Schedule I or (ii) share capital or securities of another issuer acquired or owned (directly or indirectly) by Party B as a result of a spin-off or other similar transaction or (iii) any other type of securities (other than Shares), rights or warrants or other assets, for payment (cash or other consideration) at less than the prevailing market price as determined by Party A; | ||
(c) | ISDA Early Termination Date. Either Party A or Party B has the right to designate an Early Termination Date pursuant to Section 6 of the Agreement; | ||
(d) | Other ISDA Events. The announcement of any event that if consummated, would result in an Extraordinary Event or the occurrence of any Change in Law or a Delisting; provided that in case of a Delisting, in addition to the provisions of Section 12.6(a)(iii) of the 2002 Definitions, it will also constitute a Delisting if the Exchange is located in the United States and the Shares are not immediately re-listed, re-traded or re-quoted on any of the New York Stock Exchange, the American Stock Exchange, the NASDAQ Global Select Market or the NASDAQ Global Market (or their respective successors). |
Termination Settlement:
Upon the occurrence of any Acceleration Event, Party A shall have the right to
designate, upon at least one Scheduled Trading Day’s notice, any Scheduled Trading
Day following such occurrence to be a Settlement Date hereunder (a “Termination
Settlement Date”) to which Physical Settlement shall apply, and to select the number
of Settlement Shares relating to such Termination Settlement Date; provided that in
the case of an Acceleration Event arising out of a Stock Borrow Event the
number of Settlement Shares so designated by Party A shall not exceed the number of
Shares as to which such Stock Borrow Event exists. If, upon designation of a
Termination Settlement Date by Party A pursuant to the preceding sentence, Party B
fails to deliver the Settlement Shares relating to such Termination Settlement Date
when due or otherwise fails to perform obligations within its control in respect of
this Transaction, it shall be an Event of Default with respect to Party B and
Section 6 of the Agreement shall apply. If an Acceleration Event occurs during an
Unwind Period relating to a number of Settlement Shares to which Cash Settlement
applies, then on the Termination Settlement Date relating to such Acceleration
Event, notwithstanding any election to the contrary by Party B, Cash Settlement
shall apply to the portion of the Settlement Shares relating to such Unwind Period
as to which Party A has unwound its hedge and Physical
Settlement shall apply in respect of (x) the remainder (if any) of such Settlement Shares and (y) the
Settlement Shares designated by Party A in respect of such Termination Settlement
Date.
Private Placement Procedures
If Party B is unable to comply with the provisions of “Covenant of Party B” above
because of a change in law or a change in the policy of the Securities and Exchange
Commission or its staff, or Party A otherwise determines that in its reasonable
opinion any Settlement Shares to be delivered to Party A by Party B may not be
freely returned by Party A or its affiliates to securities lenders as described
under “Covenant of Party B” above, then delivery of any such Settlement Shares (the
“Restricted Shares”) shall be effected pursuant to Annex A hereto, unless waived by
Party A.
Rule 10b5-1:
It is the intent of Party A and Party B that following any election of Cash
Settlement by Party B, the purchase of Shares by Party A during any Unwind Period
comply with the requirements of Rule 10b5-1(c)(1)(i)(B) of the Exchange Act and that
this Confirmation shall be interpreted to comply with the requirements of Rule
10b5-1(c).
Party B acknowledges that (i) during any Unwind Period Party B does not have, and
shall not attempt to exercise, any influence over how, when or whether to effect
purchases of Shares by Party A (or its agent or affiliate) in connection with this
Confirmation and (ii) Party B is entering into the Agreement and this Confirmation
in good faith and not as part of a plan or scheme to evade compliance with federal
securities laws including, without limitation, Rule 10b-5 promulgated under the
Exchange Act.
Party B hereby agrees with Party A that during any Unwind Period Party B shall not
communicate, directly or indirectly, any Material Non-Public Information (as defined
herein) to any Trading Personnel (as defined below). For purposes of this
Transaction, “Material Non-Public Information” means information relating to Party B
or the Shares that (a) has not been widely disseminated by wire service, in one or
more newspapers of general circulation, by communication from Party B to its
shareholders or in a press release, or contained in a public filing made by Party B
with the Securities and Exchange Commission and (b) a reasonable investor might
consider to be of importance in making an investment decision to buy, sell or hold
Shares. For the avoidance of doubt and solely by way of illustration, information
should be presumed “material” if it relates to such matters as dividend increases or
decreases, earnings estimates, changes in previously released earnings estimates,
significant expansion or curtailment of operations, a significant increase or
decline of orders, significant merger or acquisition proposals or agreements,
significant new products or discoveries, extraordinary borrowing, major litigation,
liquidity problems, extraordinary management developments, purchase or sale of
substantial assets, or other similar information For purposes of this Transaction,
“Trading Personnel” means any employee on the trading side of the Equity Derivatives
Group at Party A or DBSI and does not include Xxxxx Xxxxxxx or Xxxxxxx Xxxxxxx (or
any other person or persons designated from time to time by the Compliance Group of
Party A).
Maximum Share Delivery:
Notwithstanding any other provision of this Confirmation, in no event will Party B
be required to deliver to Party A on any Settlement Date, whether pursuant to
Physical Settlement, Termination Settlement or any Private Placement Settlement, a
number of Shares greater than ten times the Base Amount as of the Trade Date.
Assignment:
Party A may assign or transfer any of its rights or delegate any of its duties
hereunder to any affiliate of Party A or any entity organized or sponsored by Party
A without the prior written consent of Party B. Notwithstanding any other provision
of this Confirmation to the contrary requiring or allowing Party A to purchase or
receive any Shares from Party B, Party A may designate any of its affiliates to
purchase or receive such Shares or otherwise to perform Party A’s obligations in
respect of this Transaction and any such designee may assume such obligations, and
Party A shall be discharged of its obligations to Party B to the extent of any such
performance.
Indemnity:
Party B agrees to indemnify Party A and its affiliates and their respective
directors, officers, agents and controlling parties (Party A and each such affiliate
or person being an “Indemnified Party”) from and against any and all losses, claims,
damages and liabilities, joint and several, incurred by or asserted against such
Indemnified Party arising out of, in connection with, or relating to, the execution
or delivery of this Confirmation, the performance by the parties hereto of their
respective obligations under the Transaction, any breach of any covenant or
representation made by Party B in this Confirmation or the Agreement or the
consummation of the transactions contemplated hereby and will reimburse any
Indemnified Party for all reasonable expenses (including reasonable legal fees and
expenses) as they are incurred in connection with the investigation of, preparation
for, or defense of any pending or threatened claim or any action or proceeding
arising therefrom, whether or not such Indemnified Party is a party thereto. Party B
will not be liable under this Indemnity paragraph to the extent that any loss,
claim, damage, liability or expense is found in a final and nonappealable judgment
by a court to have resulted from Party A’s gross negligence, bad faith, fraud and/or
willful misconduct or breach of any representation or covenant of Party A contained
herein or violation of the Ownership Limits imposed by the Charter (described
herein), unless such violation is a result of an Issuer Repurchase for which Party B
failed to provide an Issuer Repurchase Notice as required herein or a determination
by Party B that it will treat ownership positions held by Party A or any of its
affiliates solely in its (or their) capacity as a nominee or fiduciary as
constituting Beneficial Ownership or Constructive Ownership (as such terms are
defined in the Charter) by Party A.
Notice:
Non-Reliance: | Applicable | |||
Additional Acknowledgments: | Applicable | |||
Agreements and Acknowledgments Regarding Hedging Activities: |
Applicable |
4. | The Agreement is further supplemented by the following provisions: |
No Collateral or Setoff:
Notwithstanding Section 6(f) or any other provision of the Agreement or any other
agreement between the parties to the contrary, the obligations of Party B hereunder
are not secured by any collateral. Obligations under this Transaction shall not be
set off against any other obligations of the parties, whether arising under the
Agreement, this Confirmation, under any other agreement between the parties hereto,
by operation of law or otherwise, and no other obligations of the parties shall be
set off against obligations under this Transaction, whether arising under the
Agreement, this Confirmation, under any other agreement between the parties hereto,
by operation of law or otherwise, and each party hereby waives any such right of
setoff. In calculating any amounts under Section 6(e) of the Agreement,
notwithstanding anything to the contrary in the Agreement, (a) separate amounts
shall be calculated as set forth in such Section 6(e) with respect to (i) this
Transaction and (ii) all other Transactions, and (b) such separate amounts shall be
payable pursuant to Section 6(d)(ii) of the Agreement.
Status of Claims in Bankruptcy:
Party A acknowledges and agrees that this Confirmation is not intended to convey to
Party A rights with respect to the transactions contemplated hereby that are senior
to the claims of common shareholders in any U.S. bankruptcy proceedings of Party B;
provided, however, that nothing herein shall limit or shall be deemed to limit Party
A’s right to pursue remedies in the event of a breach by Party B of its obligations
and agreements with respect to this Confirmation and the Agreement; and provided
further, that nothing herein shall limit or shall be deemed to limit Party A’s
rights in respect of any transaction other than the Transaction.
Limit on Beneficial Ownership:
Notwithstanding any other provisions hereof, Party A shall not be entitled to
receive Shares hereunder (whether in connection with the purchase of Shares on any
Settlement Date or any Termination Settlement Date, any Private Placement
Settlement, any Acceleration Event, or otherwise) to the extent (but only to the
extent) that after such receipt Party A’s ultimate parent entity would,
directly or indirectly, beneficially own (as such term is defined for purposes of
Section 13(d) of the Exchange Act) in excess of 8.0% of the outstanding Shares. Any
purported delivery of Shares by Party B hereunder shall be void and have no effect
to the extent (but only to the extent) that, after receipt of such Shares by Party
A, Party A’s ultimate parent entity would, directly or indirectly, individually or
in the aggregate, so beneficially own in excess of 8.0% of the outstanding Shares.
If, on any day, any delivery of Shares by Party B is not effected, in whole or in
part, as a result of this provision, Party B’s obligation to make such delivery
shall not be extinguished, and Party B shall make such delivery as promptly as
practicable after, but in no event within one Exchange Business Day after, Party A
gives notice to Party B that after receipt of such delivery, Party A’s ultimate
parent entity would not, directly or indirectly, individually or in the aggregate,
beneficially own in excess of 8.0% of the outstanding Shares.
Ownership Limits Imposed by Charter:
Notwithstanding any other provisions hereof, Party A shall not have the right to
receive Settlement Shares (whether in connection with the purchase of Shares on any
Settlement Date or any Termination Settlement Date, any Private Placement
Settlement, or otherwise) to the extent (but only to the extent) that the number of
Settlement Shares, when aggregated with the total number of Shares otherwise
Beneficially Owned or Constructively Owned by Party A or its Affiliates, would cause
Party A or any Affiliate, directly or indirectly, individually or in the aggregate,
to Beneficially Own in excess of 5% (or such greater percentage up to 9% as
permitted by the Board of Directors of Party B pursuant to Article Fourth, Division
B, Section 4(l) of the Charter) of the outstanding Shares or Constructively Own in
excess of 9.8% of the outstanding Shares
(collectively, the “Ownership Limits”). For purposes of this paragraph, “Affiliate”
shall mean: (i) any person, other than an individual, treated as owning stock of
Party A, and (ii) any person, other than an individual, in which Party A is treated
as owning stock, in either case pursuant to Code Section 544, as modified by Code
Section 856(h)(1)(B). Notwithstanding any other provisions hereof, Party A shall be
subject to the transfer restrictions imposed by Article Fourth, Division B, Section
4 of the Charter, including but not limited to the purchase right in Excess Shares
under Section 4(d) thereof. For purposes of this paragraph, “Person,” “Beneficially
Own,” “Constructively Own,” and “Excess Shares” shall have the meanings ascribed to
them in the Charter.
In the event that Party B elects Physical Settlement, but all or some portion of
Settlement Shares cannot be delivered to Party A because of the of the Ownership
Limitations, Party B may elect to deliver to Party A the maximum number of Shares
allowable for Party A and its Affiliates to be in compliance with the Ownership
Limits and deliver the remaining Shares subject to the Physical Settlement, on one
or more days, as promptly as practicable after, but in no event within one Exchange
Business Day after, Party A gives notice to Party B that with respect to any such
delivery, the number of Shares to be received when aggregated with the total number
of Shares otherwise Beneficially Owned or Constructively Owned by Party A or its
Affiliates, would not cause Party A or any Affiliate, directly or indirectly,
individually or in the aggregate, to violate the Ownership Limitations.
Miscellaneous:
(a) | Addresses for Notices. For the purpose of Section 12(a) of the Agreement: |
Address for notices or communications to Party A:
To: | Deutsche Bank Securities Inc. | |||
Attention: | Xxxxxx Xxxxxx, Xxx Xxxxxxxxxxxx, Xxxxxxxx Xxxxxx and Xxxxxxx Xxxxxxx | |||
Telephone No.: | (000) 000-0000; (000) 000-0000; (000) 000-0000 and (000) 000-0000 | |||
E-mail: | xxxxxx.xxxxxx@xx.xxx; xxx.xxxxxxxxxxxx@xx.xxx; xxxxxxxx- xx.xxxxxx@xx.xxx; and xxxxxxx.xxxxxxx@xx.xxx |
Address for notices or communications to Party B:
Address: | Developers Diversified Realty Corporation 0000 Xxxxxxxxxx Xxxxxxx Xxxxxxxxx, Xxxx 00000 |
|||
Attention: | General Counsel |
(b) | Waiver of Right to Trial by Jury. Each party waives, to the fullest extent permitted by applicable law, any right it may have to a trial by jury in respect of any suit, action or proceeding relating to this Confirmation. Each party (i) certifies that no representative, agent or attorney of the other party has represented, expressly or otherwise, that such other party would not, in the event of such a suit action or proceeding, seek to enforce the foregoing waiver and (ii) acknowledges that it and the other party have been induced to enter into this Confirmation by, among other things, the mutual waivers and certifications herein. |
Acknowledgements:
The parties hereto intend for:
(a) | this Transaction to be a “securities contract” as defined in Section 741(7) of Title 11 of the United States Code (the “Bankruptcy Code”), qualifying for the protections under Section 555 of the Bankruptcy Code; | ||
(b) | a party’s right to liquidate this Transaction and to exercise any other remedies upon the occurrence of any Event of Default under the Agreement with respect to the other party to constitute a “contractual right” as defined in the Bankruptcy Code; | ||
(c) | Party A to be a “financial institution” within the meaning of Section 101(22) of the Bankruptcy Code; and | ||
(d) | all payments for, under or in connection with this Transaction, all payments for the Shares and the transfer of such Shares to constitute “settlement payments” as defined in the Bankruptcy Code. |
Payment of Counsel Fees:
Party A covenants and agrees that it shall pay the fees of Xxxxx Xxxx & Xxxxxxxx,
forward sale agreement counsel to Party A, promptly after the Effective Date. Xxxxx
Xxxx & Xxxxxxxx shall be deemed a third party beneficiary with respect to the
foregoing sentence.
Other Forward:
Party A acknowledges that Party B has entered into substantially identical forward
transactions for its Shares on the date hereof (the “Other Forwards”) with
affiliates of each of X.X. Xxxxxx Securities Inc. and Xxxxxxx Xxxxx, Xxxxxx Xxxxxx &
Xxxxx Incorporated. Party A and Party B agree that if Party B designates a
Settlement Date with respect to one or both of the Other Forwards and for which Cash
Settlement is applicable, and the resulting Unwind Period for such Other Forward (or
Other Forwards, as the case may be) coincides for any period of time with an Unwind
Period for the Transaction (the “Overlap Unwind Period”), Party B shall notify Party
A prior to the commencement of such Overlap Unwind Period, and Party A shall only be
permitted to purchase Shares to unwind its hedge in respect of the Transaction on
every other Exchange Business Day that is not a Suspension Day during such Overlap
Unwind Period (if the Overlap Unwind Period is with respect to one Other Forward) or
on every third Exchange Business Day that is not a Suspension Day during such
Overlap Unwind Period (if the Overlap Unwind Period is with respect to both Other
Forwards). Party B shall specify in any Settlement Notice that triggers an Overlap
Unwind Period with respect to one Other Forward or with respect to both Other
Forwards, as the case may be, which forward counterparty will be permitted to
purchase Shares to unwind its hedge in respect of its Transaction first and second
or first, second and third, as the case may be.
Severability:
If any term, provision, covenant or condition of this Confirmation, or the
application thereof to any party or circumstance, shall be held to be invalid or
unenforceable in whole or in part for any reason, the remaining terms, provisions,
covenants, and conditions hereof shall continue in full force and effect as if this
Confirmation had been executed with the invalid or unenforceable provision
eliminated, so long as this Confirmation as so modified continues to express,
without material change, the original intentions of the parties as to the subject
matter of this Confirmation and the deletion of such portion of this Confirmation
will not substantially impair the respective benefits or expectations of parties to
this Agreement; provided, however, that this severability provision shall not be
applicable if any provision of Section 2, 5, 6 or 13 of the Agreement (or any
definition or provision in Section 14 to the extent that it relates to, or is used
in or in connection with any such Section) shall be so held to be invalid or
unenforceable.
[Remainder of page intentionally left blank]
Please confirm that the foregoing correctly sets forth the terms of our agreement by signing and
returning this Confirmation.
Yours faithfully,
DEUTSCHE BANK AG LONDON | REVIEWED BY: | |||||||||
By: | /s/ Xxxxx Xxxxxxx | By: | /s/ Xxxxxxxx Xxxxxx | |||||||
Name: Xxxxx Xxxxxxx | ||||||||||
Title: Attorney-in-Fact | ||||||||||
By: | /s/ Xxxx Xxxxxxx | By: | /s/ Xxxxx Xxxxxxx | |||||||
Name: Xxxx Xxxxxxx | ||||||||||
Title: Attorney-in-Fact |
DEUTSCHE BANK SECURITIES INC., acting solely as Agent in connection with the Transaction |
||||||
By: | /s/ Xxxxx Xxxxxxx | |||||
Name: Xxxxx Xxxxxxx | ||||||
Title: Attorney-in-Fact | ||||||
By: | /s/ Xxxx Xxxxxxx | |||||
Name: Xxxx Xxxxxxx | ||||||
Title: |
Confirmed as of the date first written above:
DEVELOPERS DIVERSIFIED REALTY CORPORATION | ||||||
By: | /s/ Xxxxxxx X. Xxxxxxx | |||||
Name: Xxxxxxx X. Xxxxxxx | ||||||
Title: Executive Vice President and Chief Financial Officer |
SCHEDULE I
Forward Price Reduction Date | Forward Price Reduction Amount | |||
Trade Date |
$ | 0.00 | ||
December 20, 2006 |
$ | 0.59 | ||
March 21, 2007 |
$ | 0.66 | ||
June 18, 2007 |
$ | 0.66 | ||
Thereafter |
$ | 0.00 |
ANNEX A
PRIVATE PLACEMENT PROCEDURES
(i) | If Party B delivers the Restricted Shares pursuant to this clause (i) (a “Private Placement Settlement”), then delivery of Restricted Shares by Party B shall be effected in customary private placement procedures with respect to such Restricted Shares reasonably acceptable to Party A; provided that if, on or before the date that a Private Placement Settlement would occur, Party B has taken, or caused to be taken, any action that would make unavailable either the exemption pursuant to Section 4(2) of the Securities Act for the sale by Party B to Party A (or any affiliate designated by Party A) of the Restricted Shares or the exemption pursuant to Section 4(1) or Section 4(3) of the Securities Act for resales of the Restricted Shares by Party A (or any such affiliate of Party A) or Party B fails to deliver the Restricted Shares when due or otherwise fails to perform obligations within its control in respect of a Private Placement Settlement, it shall be an Event of Default with respect to Party B and Section 6 of the Agreement shall apply. The Private Placement Settlement of such Restricted Shares shall include customary representations, covenants, blue sky and other governmental filings and/or registrations, indemnities to Party A, due diligence rights (for Party A or any designated buyer of the Restricted Shares by Party A), opinions and certificates, and such other documentation as is customary for private placement agreements, all reasonably acceptable to Party A. In the case of a Private Placement Settlement, Party A shall, in its good faith discretion, adjust the amount of Restricted Shares to be delivered to Party A hereunder in a commercially reasonable manner to reflect the fact that such Restricted Shares may not be freely returned to securities lenders by Party A and may only be saleable by Party A at a discount to reflect the lack of liquidity in Restricted Shares. Notwithstanding the Agreement or this Confirmation, the date of delivery of such Restricted Shares shall be the Clearance System Business Day following notice by Party A to Party B of the number of Restricted Shares to be delivered pursuant to this clause (i). For the avoidance of doubt, delivery of Restricted Shares shall be due as set forth in the previous sentence and not be due on the Settlement Date or Termination Settlement Date that would otherwise be applicable. |
(ii) | If Party B delivers any Restricted Shares in respect of the Transaction, Party B agrees that (i) such Shares may be transferred by and among Party A and its affiliates and (ii) after the minimum “holding period” within the meaning of Rule 144(d) under the Securities Act has elapsed after the applicable Settlement Date, Party B shall promptly remove, or cause the transfer agent for the Shares to remove, any legends referring to any transfer restrictions from such Shares upon delivery by Party A (or such affiliate of Party A) to Party B or such transfer agent of seller’s and broker’s representation letters customarily delivered by Party A or its affiliates in connection with resales of restricted securities pursuant to Rule 144 under the Securities Act, each without any further requirement for the delivery of any certificate, consent, agreement, opinion of counsel, notice or any other document, any transfer tax stamps or payment of any other amount or any other action by Party A (or such affiliate of Party A). |
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