|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
such concept) under the Laws of its respective jurisdiction of organization, other than, with respect to only the Subsidiaries, as would not reasonably be expected to have, individually, or in the aggregate, a Material Adverse Effect. Each of the Company and each of its Subsidiaries has all requisite corporate or similar power and authority to own, lease, and operate its properties and assets and to carry on its business as presently conducted and is qualified to do business and is in good standing (with respect to jurisdictions that recognize such concept) as a foreign corporation or other legal entity in each jurisdiction where the ownership, leasing or operation of its assets or properties or conduct of its business requires such qualification, other than any failure to be in good standing or qualified or to have such power or authority, as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect. The Company has made available to Parent correct and complete copies of the Companys and its Significant Subsidiaries Organizational Documents, each as amended to the date of this Agreement, and each as so delivered is in full force and effect. The Company is not in default or violation in any material respect of any term, condition or provision of the Companys Organizational Documents. Except as would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect, to the Knowledge of the Company, none of the Subsidiaries of the Company is in default or violation of any term, condition or provision of the Organizational Documents of any of the Subsidiaries.
(a) The authorized capital stock of the Company consists of 371,000,000 Shares and 20,000,000 shares of Preferred Stock, par value $0.01 per share (the Preferred Shares). At the close of business on July 27, 2018, (i) 267,881,900 Shares were issued and outstanding (of which 1,241,005 were Company Restricted Shares and 652,369 were Company Performance Shares (assuming settlement at the achievement of the target level of performance)), (ii) Company Options to acquire 1,438,231 shares were outstanding, and (iii) no Preferred Shares were outstanding. At the close of business on July 27, 2018 no Shares or Preferred Shares were reserved by the Company for issuance other than: (i) such number of Shares reserved for issuance as were issuable upon the conversion of the 2018 Convertible Notes, (ii) such number of Shares reserved for issuance as were issuable upon the conversion of the 2020 Convertible Notes, (iii) such number of Shares reserved for issuance as were issuable upon the exchange of Class A Common Units in Forest City Master Associates III, LLC (Class A Common Units), and (iv) 3,150,166 Shares reserved for issuance under the Companys 1994 Stock Plan, as amended (the Stock Plan). All of the issued and outstanding Shares have been duly authorized and are validly issued, fully paid, and nonassessable. All Shares reserved for issuance shall be, when issued in accordance with the terms and conditions of the applicable instrument pursuant to which they are issuable, duly authorized, validly issued, fully paid, and nonassessable. At the close of business on July 27, 2018, there were 1,111,044 Class A Common Units outstanding.
(b) All of the outstanding shares of capital stock of each of the Subsidiaries that is a corporation are duly authorized, validly issued, fully paid and nonassessable. All equity interests in each of the Subsidiaries that is a partnership or limited liability company are duly authorized and validly issued. All of the outstanding shares of capital stock or other voting securities of each of the Companys Subsidiaries that are owned by the Company or by a wholly owned Subsidiary of the Company are owned free and clear of any Lien (other than any transfer restrictions imposed by any applicable Law or the Organizational Documents of any JV).
(c) Except (A) as set forth in this Section 5.2, (B) for securities issued on or after the date of this Agreement in compliance with Section 7.1 (Interim Operations), and (C) in the case of any JV, solely with respect to such JV, as set forth in its Organizational Documents as the same may be amended in accordance with this Agreement, there are no other outstanding shares of capital stock of, or other equity or voting interests in, the Company, and there are no preemptive or similar rights, options, warrants, conversion rights, stock appreciation rights, redemption rights, repurchase rights, agreements, arrangements, calls, commitments, or rights of any kind that obligate, or with the passage of time may obligate, the Company or any of its Subsidiaries to issue or sell to any Person any shares of capital stock or other securities of the Company or any of its Subsidiaries or any securities or obligations convertible or exchangeable into or exercisable for, or giving any Person (other than the Company or any of its wholly owned Subsidiaries) a right to subscribe for or acquire, any securities of the Company or any of its Subsidiaries.