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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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Fargo Bank, National Association, as agent for the Company ESPP to provide, notice to each participant at least thirty calendar days prior to the Effective Time that the Company ESPP will terminate effective immediately prior to the Effective Time and (C) cause, no later than five Business Days prior to the date on which the Effective Time occurs, the exercise of each outstanding purchase right and apply the funds credited as of such date within each participant’s payroll account to the purchase of whole Shares, and such Shares will be entitled to the Merger Consideration in accordance with Section 4.1(a).

(f) Payment of Company Equity Awards. Payments to holders in respect of Company Options, Company Restricted Shares, and Company Performance Shares will be paid through the Company’s or the Surviving Corporation’s payroll system (to the extent applicable) following the Effective Time at such time as such awards are payable. Parent and Merger Sub will ensure that the Company or the Surviving Corporation has an amount in cash sufficient to pay all amounts required by the foregoing sentence.

(g) Corporate Actions. At or prior to the Effective Time, the Company will take any actions that are necessary to (x) effectuate the treatment of the Company Equity Awards pursuant to Section 4.3(a) through Section 4.3(f) above and (y) cause the Stock Plan to terminate at or prior to the Effective Time.

4.4. Adjustments to Prevent Dilution. Notwithstanding anything in this Agreement to the contrary, in the event that, from the date of this Agreement to the earlier of the Effective Time and the termination of this Agreement in accordance with Article IX, the number of Shares or securities convertible or exchangeable into or exercisable for Shares will have been changed into a different number of Shares or securities, or a different class, by reason of any reclassification, stock split (including a reverse stock split), stock dividend or distribution, recapitalization, or other similar transaction, the Merger Consideration will be ratably adjusted to reflect fully the effect of any such change; provided, however, nothing in this Section 4.4 will be construed to permit the Company to take any action with respect to its securities that is prohibited by the terms of this Agreement.

4.5. No Dissenters or Appraisal Rights. No dissenters’ or appraisal rights will be available with respect to the Merger and the other Transactions, including any remedy under Sections 3-201 et seq. of the MGCL.

4.6. Withholding. Each of Parent, Merger Sub, and the Company shall be entitled to deduct and withhold, or cause the Paying Agent to deduct and withhold, from any amounts payable or otherwise deliverable pursuant to this Agreement to any holder or former holder of Shares (including any Company Restricted Shares, Company Performance Shares, or Company Other Awards) such amounts as are required to be deducted or withheld therefrom under the Code or any provision of any applicable Law. To the extent any amounts are deducted or withheld and paid over to the relevant Governmental Authority, such amounts shall be treated for all purposes under this Agreement, except for Section 10.10, as having been paid to the person to whom such amounts would otherwise have been paid.

ARTICLE V

REPRESENTATIONS AND WARRANTIES OF THE COMPANY

Except as disclosed (a) in the Company Reports filed or furnished with the SEC since December 31, 2015 (the “Applicable Date”) and publicly available one Business Day prior to the date of this Agreement (excluding, in each case, any disclosures set forth in any risk factor or forward-looking statements section or other statements that are cautionary, non-specific, predictive or forward-looking in nature) (provided that this exception shall not apply to the Company’s representations and warranties in Section 5.2(a)) where the relevance of the information to a particular representation or warranty is reasonably apparent on the face of such disclosure or (b) in the Disclosure Schedule (it being agreed that disclosure of any item in any section or subsection of the Disclosure Schedule will be deemed disclosure with respect to any other section or subsection to which the relevance of such item is reasonably apparent on the face of such disclosure), the Company hereby represents and warrants to Parent and Merger Sub as follows (provided, however, with respect to the JVs, such representations and warranties are made solely to the Knowledge of the Company):

5.1. Organization, Good Standing, and Qualification. Each of the Company and each of its Subsidiaries is a legal entity duly organized, validly existing, and in good standing (with respect to jurisdictions that recognize

 

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