|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
In order to transact business at the special meeting, we must have a quorum. This means that the presence, in person or by proxy, of stockholders entitled to cast a majority of all the votes entitled to be cast on any matter at the special meeting is required in order to transact business at the special meeting. Abstentions will be counted for purposes of determining whether a quorum is present. In accordance with the rules of the NYSE, banks, brokers and other nominees who hold shares of common stock in street name for their customers do not have discretionary authority to vote the shares with respect to any of the proposals at the special meeting. Accordingly, if banks, brokers or other nominees do not receive specific voting instructions from the beneficial owner of such shares with respect to the proposals to be voted on at the special meeting, they may not vote such shares with respect to such proposals. Under such a circumstance, a broker non-vote would arise. Broker non-votes, if any, will not be counted for purposes of determining whether a quorum is present at the special meeting.
If a quorum is not established at the special meeting or additional votes must be solicited to approve the Merger Proposal, the chairman of the special meeting may adjourn the special meeting from time to time to a later date not more than 120 days after the record date without notice other than by announcement at the special meeting to solicit additional proxies. However, pursuant to the merger agreement, we will first consult with Parent and will not delay convening, postpone or adjourn the special meeting more than 10 business days in the aggregate to solicit additional proxies without Parents prior written consent. Pursuant to our Bylaws, the chairman of the special meeting has the power to adjourn the special meeting without any action by the stockholders.
Why am I being asked to consider and vote on a proposal to approve, by a non-binding, advisory vote, certain compensation arrangements for the Companys named executive officers in connection with the merger?
Under the Securities and Exchange Commission (the SEC) rules, we are required to seek a non-binding, advisory vote with respect to the compensation that may be paid or become payable to our named executive officers that is based on or otherwise relates to the merger.
The vote on the Merger-Related Executive Compensation Proposal is a vote separate and apart from the vote to approve the Merger Proposal. Accordingly, a stockholder may vote to approve the Merger-Related Executive Compensation Proposal and vote not to approve the Merger Proposal, and vice versa. Because the vote on the Merger-Related Executive Compensation Proposal is only advisory in nature, it will not be binding on the Company or the surviving corporation in the merger. Accordingly, if the Merger Proposal is approved by the Companys stockholders and the merger is completed, merger-related compensation may be paid to the Companys named executive officers to the extent payable in accordance with the terms of their compensation agreements and arrangements, even if the stockholders do not approve the Merger-Related Executive Compensation Proposal.
Pursuant to the terms of the respective merger support agreement to which it is party, each of the Starboard parties, which beneficially owned approximately 5.63% of the outstanding shares of common stock as of September 12, 2018, and the Scopia parties, which beneficially owned approximately 8.15% of the outstanding shares of common stock as of September 12, 2018, have agreed to vote or cause to be voted the shares of common stock beneficially owned by them to approve the Merger Proposal.
None of our directors or executive officers has indicated how he or she intends to vote shares of common stock that he or she beneficially owns in respect of the Merger Proposal except for James Ratner, our non-executive