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SEC Filings

PREM14A
FOREST CITY REALTY TRUST, INC. filed this Form PREM14A on 09/21/2018
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duty by our Board) or alleging that the disclosure contained in this proxy statement (whether filed in preliminary or definitive form) violates the federal securities laws (other than any such action that has resulted in a non-appealable judicial determination definitively finding such a violation);

 

   

any failure by the Company or any of its subsidiaries to meet any internal or published projections, budgets, plans, forecasts, estimates or predictions of revenues, earnings, cash flow or cash position or other financial, accounting or operating measures or metrics for any period; provided that this exception does not prevent the underlying facts giving rise or contributing to such failure, if not otherwise excluded, from being taken into account in determining whether a material adverse effect has occurred or is reasonably expected to occur; and

 

   

a decline in the market price or trading volume of the shares of common stock on the NYSE or any other securities market or in the trading price of any other securities of the Company or any of its subsidiaries or in the ratings or ratings outlook for the Company or any of its subsidiaries; provided that this exception does not prevent the underlying facts giving rise or contributing to such failure, if not otherwise excluded, from being taken into account in determining whether a material adverse effect has occurred or is reasonably expected to occur;

provided that any change, effect, event, circumstance, occurrence or development described in the seven bullets marked with an asterisk above will not be excluded if (and only to the extent that) it disproportionately affects the Company and its subsidiaries taken as a whole when compared to other participants in any of the U.S. real estate industry segments in which the Company or any of its subsidiaries operate.

Special REIT Taxable Income Distribution

Pursuant to the merger agreement, as of the closing date, we will have distributed 100% of our REIT taxable income in cash, as reasonably estimated by the Company, taking into consideration available taxable attributes, such as net operating losses, prior to the closing date, in accordance with certain distribution requirements set forth in Section 857(a) of the Code.

Effect of Dividends on Merger Consideration; No Further Quarterly Dividends Expected

Under the terms of the merger agreement, between the date of the merger agreement and the earlier of the effective time and the termination of the merger agreement in accordance with its terms (the “interim period”), the Company may not declare, set aside or pay any dividend on, or make any other distributions (whether in cash, stock, property or otherwise) in respect of, any capital stock or beneficial interest other than, among other exceptions, (1) regular quarterly cash dividends not in excess of $0.18 per share and (2) the special REIT taxable income distribution. However, the authorization, declaration and payment of dividends and distributions in the foregoing (1) (other than any dividends declared and publicly announced on or prior to May 15, 2018) and (2) will, without duplication, reduce the $25.35 per share in cash that a holder of common stock is entitled to receive in the merger on a dollar-for-dollar basis.

We do not anticipate paying a quarterly dividend prior to the completion of the merger. The amount of the Special REIT taxable income distribution, if any, cannot be calculated by the Company as of the date hereof with reasonable accuracy, and the Company intends to perform such calculation closer to the closing date when it can be performed with reasonable accuracy.

Conduct of Business Pending the Merger

We have agreed that, during the interim period, unless otherwise contemplated, required or permitted by the merger agreement or the confidential disclosure schedule, required by any applicable law or approved by Parent in writing, the Company will and will cause each subsidiary to use its reasonable best efforts to conduct its business in all material respects in the ordinary course and in a manner consistent with past practice and, to the

 

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