|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
The merger agreement may be terminated and the merger and other transactions contemplated by the merger agreement may be abandoned at any time prior to the effective time of the merger, under certain specified circumstances.
Upon a termination of the merger agreement, under certain circumstances, we will be required to pay to Parent a termination fee of $261 million, and, under certain other circumstances, an expense reimbursement of up to a maximum amount of $70 million.
Upon a termination of the merger agreement, under certain circumstances, Parent will be required to pay us a termination payment of $488 million.
In connection with the merger agreement, the Investors (as defined in the section entitled The MergerEquity Commitment Letter beginning on page 84) entered into a limited guaranty (the limited guaranty) in our favor to jointly and severally guarantee Parents payment obligations with respect to the termination payment of $488 million and certain expense reimbursement and indemnification obligations of Parent under the merger agreement, subject to the terms and limitations set forth in the limited guaranty.
The maximum aggregate liability of the Investors under the limited guaranty will not exceed $488 million, plus the aggregate amount of any expense reimbursement and indemnification obligations of Parent pursuant to the covenants relating to financing cooperation, restructuring and procurement of third party consents under the merger agreement.
Holders of shares of common stock are not entitled to dissenting stockholders appraisal rights, rights of objecting stockholders or other similar rights in connection with the merger under the Maryland General Corporation Law (the MGCL). Subject to the limited circumstances set forth in Section 3-202(d) of the MGCL, the MGCL does not provide for appraisal rights or other similar rights to stockholders of a corporation in connection with a merger of a corporation if the shares of the corporation are listed on the NYSE on the record date for determining stockholders entitled to vote on the transaction. The circumstances of the merger do not satisfy the conditions set forth in Section 3-202(d) of the MGCL that would trigger such appraisal rights or similar rights. In addition, holders of shares of common stock may not exercise dissenting stockholders appraisal rights, rights of an objecting stockholders or similar rights in connection with the merger because, as permitted by the MGCL, our charter provides that stockholders are not entitled to exercise such rights unless our Board, upon the affirmative vote of a majority of our Board, determines that the rights apply. Our Board has made no such determination and cannot make such determination pursuant to the merger agreement. However, our stockholders may vote against the merger.
For United States (U.S.) federal income tax purposes, the Company intends to treat the special REIT taxable income distribution (if any) as a dividend distribution to holders of shares of our common stock to the extent of the Companys current and accumulated earnings and profits, as discussed further in The MergerMaterial U.S. Federal Income Tax ConsequencesTreatment of the Special REIT Taxable Income Distribution beginning on page 92. Notwithstanding the intended U.S. federal income tax treatment described herein, the U.S.