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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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immediately prior to the Effective Time, cash in U.S. dollars sufficient to provide all funds necessary for the Paying Agent to pay the aggregate Merger Consideration under Section 4.1(a) (all cash deposited with the Paying Agent being hereinafter referred to as the “Payment Fund”). The Payment Fund will not be used for any purpose other than a purpose expressly provided for in this Agreement. Pending its disbursement in accordance with this Section 4.2, the Payment Fund will be invested by the Paying Agent, if so directed by Parent or Merger Sub. Any such investment, if made, must be made in (i) short-term direct obligations of the U.S., (ii) short-term obligations for which the full faith and credit of the U.S. is pledged to provide for the payment of principal and interest, (iii) short-term commercial paper rated the highest quality by either Moody’s Investors Service, Inc. or Standard & Poor’s Financial Services LLC or (iv) certificates of deposit, bank repurchase agreements or banker’s acceptances of commercial banks with capital exceeding $1 billion (a “Permitted Investment”). Any interest and other income resulting from investment of the Payment Fund will be a part of the Payment Fund. Subject to Section 4.2(e) (Termination of Payment Fund), Parent or Merger Sub will or will cause the Surviving Corporation to promptly replace or restore the cash in the Payment Fund so as to ensure that the Payment Fund is at all times maintained at a level sufficient for the Paying Agent to make all payments of Merger Consideration under Section 4.1(a). No investment losses resulting from investment of the Payment Fund will diminish the rights of any holder of Shares immediately prior to the Effective Time to receive the Merger Consideration as provided herein.

(c) Procedures for Surrender.

(i) Promptly after the Effective Time, and in any event within two Business Days thereafter, the Surviving Corporation will cause the Paying Agent to mail to each holder of record of Shares (or, in the case of “street-holders,” deliver to The Depository Trust Company) (other than holders of Excluded Shares) immediately prior to the Effective Time: (A) a notice advising such holders of the effectiveness of the Merger, (B) a letter of transmittal, in customary form, specifying that delivery will be effected, and risk of loss and title will pass, only upon delivery of the Stock Certificates (or affidavits of loss in lieu of the Stock Certificates as provided in Section 4.2(f)) or transfer of the Book Entry Shares to the Paying Agent (including customary provisions with respect to delivery of an “agent’s message” with respect to Book Entry Shares), such materials to be in such form and have such other provisions as Parent and the Company may reasonably agree (the “Letter of Transmittal”), and (C) instructions for effecting the surrender of the Stock Certificates (or affidavits of loss in lieu of the Stock Certificates as provided in Section 4.2(f)) or the Book Entry Shares to the Paying Agent in exchange for payment of the aggregate Merger Consideration that such holders are entitled to pursuant to the terms of this Agreement.

(ii) Upon surrender to the Paying Agent of a Stock Certificate (or affidavits of loss in lieu of the Stock Certificates as provided in Section 4.2(f)) or Book Entry Shares, together with, in the case of Stock Certificates, the Letter of Transmittal, duly executed, or, in the case of Book Entry Shares held through The Depository Trust Company, receipt of an “agent’s message” by the Paying Agent, and such other documents as may be reasonably required, the holder of such Stock Certificates or Book Entry Shares will solely be entitled to receive in exchange therefor, and Parent will cause the Paying Agent to pay and deliver to each such holder as promptly as practicable, a check in the amount of cash that such holder has the right to receive pursuant to Section 4.1(a).

(iii) No interest will be paid or accrued on any amount payable upon surrender of the Shares.

(iv) In the event of a transfer of ownership of certificated Shares (other than Excluded Shares) that is not registered in the stock transfer books of the Company, a check for any cash to be paid upon due surrender of the Stock Certificate may be issued to such transferee if the Stock Certificate formerly representing such Shares is presented to the Paying Agent, accompanied by all documents reasonably required to evidence and effect such transfer and to evidence that any applicable stock transfer Taxes have been paid or are not applicable. Payment of the Merger Consideration with respect to Book Entry Shares will only be made to the Person in whose name such Book Entry Shares are registered in the stock transfer books of the Company immediately prior to the Effective Time.

 

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