|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
response to a bona fide written acquisition proposal received by the Company or its representatives after July 30, 2018 that is not withdrawn if and only if: (i) our Board or any duly authorized committee thereof has determined in good faith based on the information then available and after consultation with its financial advisors and outside legal counsel that such acquisition proposal either constitutes a superior proposal (as defined below) or may reasonably be expected to result in a superior proposal, (ii) the Company gives Parent written notice that our Board or any duly authorized committee thereof has made the determination contemplated above and (iii) the Company furnishes non-public information or provides access to such person or its representatives only after such person has executed a confidentiality agreement on terms relating to confidentiality that, taken as a whole, are not less restrictive to the other party than those contained in the confidentiality agreement entered into by the Company and an affiliate of Parent, and the Company contemporaneously discloses (and, if applicable, provides copies of) any such non-public information to Parent to the extent not previously disclosed or provided to Parent.
The Company has agreed to promptly (and, in any event, within 24 hours) notify Parent orally and in writing if any proposals or offers with respect to an acquisition proposal are received by, or a request to the Company or any of its subsidiaries for any non-public information regarding, the Company or its subsidiaries that is reasonably likely to lead to or that contemplates an acquisition proposal, or any discussions or negotiations are sought to be initiated or continued with the Company or any of its representatives indicating the material terms and conditions of any acquisition proposal or such other proposal or offer, including the identity of the person making the acquisition proposal. The Company has agreed to keep Parent reasonably informed, on a reasonably current basis, of the material status and terms of any such acquisition proposal, offer or proposal and any material changes to the status of any such discussions or negotiations or material decisions related thereto, including, in each case, by promptly providing Parent copies of any material correspondence, proposals, indications of interest and draft agreements relating to such acquisition proposal, offer or proposal.
Change of Recommendation
Except as set forth in the merger agreement, our Board may not: (i) withhold, withdraw, qualify or modify (or publicly propose or resolve to withhold, withdraw, qualify or modify), in a manner adverse to Parent, the recommendation of our Board that the Companys stockholders vote in favor of the Merger Proposal, (ii) adopt, approve or recommend (or publicly propose or resolve to adopt, approve or recommend) an acquisition proposal, (iii) fail to include the recommendation that the Companys stockholders vote in favor of the Merger Proposal in this proxy statement, (iv) make any recommendation or public statement in connection with an acquisition proposal that is structured as a tender offer or exchange offer (except for a recommendation against any such offer or a customary stop-look-and-listen communication) or (v) in the event an acquisition proposal has been publicly announced or publicly disclosed, fail to reaffirm the recommendation that the Companys stockholders vote in favor of the Merger Proposal following a written request by Parent to do so within the timeframe specified in the merger agreement (any action in the foregoing clauses (i)-(v), a change of recommendation).
Notwithstanding the restrictions on our Boards ability to effect a change of recommendation, prior to the time, but not after, the requisite stockholder vote is obtained, upon receipt by the Company of an acquisition proposal, our Board or any duly authorized committee thereof may effect a change of recommendation in connection with or relating to a superior proposal or authorize the Company to terminate the merger agreement, if but only if: