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SEC Filings

FOREST CITY REALTY TRUST, INC. filed this Form PREM14A on 09/21/2018
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of the Company, nothing has occurred that would adversely affect the qualification or tax exemption of any such Company Plan. With respect to any ERISA Plan, neither the Company nor a Subsidiary has engaged in a transaction in connection with which the Company or a Subsidiary reasonably could be subject to either a civil penalty assessed pursuant to Section 409 or 502(i) of ERISA or a tax imposed pursuant to Section 4975 or 4976 of the Code in an amount that could be material.

(d) Neither the Company nor any ERISA Affiliate maintains, sponsors, contributes to or participates in (or, since the Applicable Date, has been obligated to maintain, sponsor, contribute to or participate in), (1) a plan that is subject to Section 412 of the Code or Section 302 or Title IV of ERISA, (2) a “multiple employer plan” as defined in Section 413(c) of the Code or Section 210 of ERISA, or (3) a “multiple employer welfare arrangement” as defined in Section 3(40) of ERISA. For purposes of this Agreement, “ERISA Affiliate” means all employers (whether or not incorporated) that would be treated together with the Company or any of its Subsidiaries as a “single employer” within the meaning of Section 414 of the Code.

(e) Each Multiemployer Plan contributed to (or required to be contributed to) by the Company or any ERISA Affiliate, as of the date of this Agreement, is listed on Section 5.8(e) of the Disclosure Schedule. With respect to any Multiemployer Plan, no unsatisfied withdrawal liability within the meaning of Title IV of ERISA (whether or not asserted by such Multiemployer Plan and whether for a partial or complete withdrawal) has been incurred by the Company or any of its Subsidiaries, and neither the Company nor any of its Subsidiaries has received written notice that any Multiemployer Plan has undergone or is expected to undergo a mass withdrawal or termination (or treatment of a plan amendment as termination), and all contributions (including installments) required to be made by the Company or any of its Subsidiaries have been timely made. To the Knowledge of the Company, no Multiemployer Plan has been terminated or has been or is about to be insolvent (within the meaning of Section 4245 of ERISA) or is in “endangered,” “critical,” or “critical and declining status” (within the meaning of Section 432 of the Code or Section 305 of ERISA) so as to result directly or indirectly in any material increase in contributions or other liability to the Company or any of its Subsidiaries. Neither the Company nor any of its Subsidiaries is bound by any contract or has any liability or obligation described in Section 4204 of ERISA.

(f) Neither the execution and delivery of this Agreement, stockholder or other approval of this Agreement nor the consummation of the Merger or the other Transactions could, either alone or in combination with another event, (1) entitle any employee, officer, director or other natural person independent contractor of the Company or any of its Subsidiaries (whether current, former or retired) or their beneficiaries to severance pay or increase in severance pay (other than severance pay required by any Law), (2) accelerate the time of payment or vesting, or trigger any payment or funding (through a grantor trust or otherwise) of compensation or benefits, (3) increase the amount of compensation payable or trigger any other financial obligation pursuant to any Company Plan, (4) limit or restrict the right of the Company or, after the consummation of the transactions contemplated hereby, Parent to merge, amend or terminate any of the Company Plans, or (5) result in the payment of any amount that would not be deductible by reason of Section 280G of the Code. Neither the Company nor any of its Subsidiaries has any obligation to gross-up, indemnify or otherwise reimburse any current or former employee, director or natural person independent contractor of the Company or any of its Subsidiaries for any Tax incurred by such individual under Section 409A or 4999 of the Code.

(g) No Company Plan is maintained outside the jurisdiction of the U.S. or covers any employees or other service providers of the Company or any of its Subsidiaries who reside or work outside of the U.S.

(h) Neither the Company nor its Subsidiaries sponsor, maintain or contribute to any plan, program or arrangement that provides for retiree health or life benefits, except as required by Section 4980B of the Code or Section 601 of ERISA.

(i) Each Company Plan that is a “nonqualified deferred compensation plan” (as defined for purposes of Section 409A(d)(1) of the Code) has been in documentary and operational compliance with Section 409A of the Code and all applicable Internal Revenue Service guidance promulgated thereunder, except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to the Company.