|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
actions, suits, claims, hearings, arbitrations, mediations, inquiries, investigations, or other proceedings (each, an Action) before any Governmental Authority pending or, to the Knowledge of the Company, threatened in writing against the Company or any of its Subsidiaries or any director, trustee or officer thereof in his capacity as such or any Company Properties or other assets owned thereby, and (ii) neither the Company nor any of its Subsidiaries is subject to any outstanding judgment, decision, ruling, order, writ, injunction, decree, assessment or award of any Governmental Authority.
(b) There are no liabilities of the Company or any of its Subsidiaries (whether accrued, absolute, contingent or otherwise) of the type that would be required to be disclosed in a consolidated balance sheet of the Company and its consolidated Subsidiaries (including the notes thereto) prepared in accordance with GAAP, other than liabilities:
(i) reflected or reserved against in the most recent consolidated balance sheet (and the notes thereto) in the Company Financial Statements included in the Company Reports filed prior to the date of this Agreement;
(ii) incurred in connection with the Merger and the other Transactions;
(iii) incurred in the ordinary course of business consistent with past practice since December 31, 2017; or
(iv) that would not reasonably be expected to have, individually or in the aggregate, a Material Adverse Effect.
(a) Section 5.8(a) of the Disclosure Schedule sets forth an accurate and complete list of each material Company Plan as of the date of this Agreement. For purposes of this Agreement, Company Plan means (1) each employee benefit plan (within the meaning of Section 3(3) of ERISA), and (2) each other employment agreement, bonus, stock option, stock purchase or other equity-based, benefit, incentive compensation, profit sharing, savings, retirement (including early retirement and supplemental retirement), disability, insurance, vacation, incentive, deferred compensation, supplemental retirement (including termination indemnities and seniority payments), severance, termination, retention, change of control and other similar fringe, welfare or other employee benefit plans, programs, agreements, contracts, policies or arrangements (whether or not in writing and whether or not funded), in each case, which is or is required to be sponsored, maintained, or contributed to by the Company or any of its Subsidiaries or with respect to which the Company or any of its Subsidiaries has or would reasonably be expected to have any actual or contingent liability.
(b) With respect to each material Company Plan (including each ERISA Plan), the Company has made available to Parent, to the extent applicable, accurate and complete copies of (1) the Company Plan document, including any amendments thereto, (2) a written description of such Company Plan if such plan is not set forth in a written document, (3) the most recently prepared actuarial report, and (4) the trust or other funding agreement and amendments thereto. Except as would not, individually or in the aggregate, reasonably be expected to result in a material liability to the Company, each Company Plan (other than multiemployer plans within the meaning of Section 3(37) of ERISA (each, a Multiemployer Plan)) is in compliance with its terms and applicable Laws, including, without limitation, ERISA and the Code. There are no actions, suits or claims pending or, to the Knowledge of the Company, threatened or reasonably anticipated (other than routine claims for benefits) against any Company Plan or against the assets of any Company Plan.
(c) With respect to each Company Plan that is an employee benefit plan within the meaning of Section 3(3) of ERISA (an ERISA Plan), the Company has made available to Parent, to the extent applicable, accurate and complete copies of (1) the most recent summary plan description together with any summaries of all material modifications thereto, (2) the most recent Internal Revenue Service (IRS) determination or opinion letter and (3) the most recent (A) Form 5500 and attached schedules, (B) audited financial statements and (C) actuarial valuation reports, if any. Each ERISA Plan that is intended to be qualified under Section 401(a) of the Code has been determined by the IRS to be qualified under Section 401(a) of the Code, and to the Knowledge