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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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proposal and our Board or any duly authorized committee thereof, after consultation with outside legal counsel, determines that the failure to effect a change of recommendation or authorize the Company to terminate the merger agreement would be inconsistent with the directors’ duties under applicable law;

 

   

the Company provides Parent with at least 96 hours’ written notice stating that the Company will effect a change of recommendation or our Board will authorize the Company to terminate the merger agreement at the expiration of such 96-hour period, which notice must provide the identity of the person making the superior proposal and attach the most current draft of any proposed definitive agreement and any ancillary documents with respect to such superior proposal; provided that any change to the financial terms or any other material changes to the terms and conditions of such superior proposal requires a new written notice to be delivered by the Company to Parent and the Company is required to comply again with the notice requirements (and the 96-hour period above is deemed to refer to a two-business-day period in connection with the delivery of any such new notice);

 

   

during the period described above, the Company and its representatives negotiate with Parent in good faith (to the extent Parent desires to negotiate) to make any revisions to the terms of the merger agreement as would permit our Board or any duly authorized committee thereof not to effect a change of recommendation in connection with the superior proposal or to authorize the Company to terminate the merger agreement to enter into an alternative acquisition agreement with respect to the superior proposal (the “match right”); and

 

   

following the 96-hour period (or two-business-day period, as applicable), our Board or any duly authorized committee thereof again determines in good faith, after consultation with a financial advisor and outside legal counsel, and taking into account any adjustment or modification to the terms and conditions of the merger agreement that Parent has committed in writing prior to the expiration of such 96-hour period (or two-business-day period, as applicable) that would be binding on Parent, that the superior proposal continues to be reflected in a written definitive agreement that would be binding, subject to the terms and conditions of such written definitive agreement, on the applicable person making the superior proposal, if executed and delivered by the Company and constitutes a superior proposal, and that the failure to effect a change of recommendation or authorize the Company to terminate the merger agreement with respect to such superior proposal would be inconsistent with the directors’ duties under applicable law.

Notwithstanding the restrictions on our Board’s ability to effect a change of recommendation, prior to the time, but not after, the requisite stockholder vote is obtained, in response to an intervening event (as defined below), our Board or any duly authorized committee thereof may (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 Company’s stockholders vote in favor of the Merger Proposal or (ii) fail to include the recommendation that the Company’s stockholders vote in favor of the Merger Proposal in this proxy statement, if but only if:

 

   

our Board or any duly authorized committee thereof determines, after consultation with outside legal counsel, that the failure to effect a change of recommendation with respect to such development or change in circumstances would be inconsistent with the directors’ duties under applicable law;

 

   

the Company provides Parent with at least 96 hours’ written notice stating that the Company will effect a change of recommendation at the expiration of such 96-hour period, which notice must describe in reasonable detail such intervening event; provided, however, that any subsequent development or change in circumstances requires a new written notice to be delivered by the Company to Parent and the Company is required to comply again with the notice requirement (and the 96-hour period above is deemed to refer to a two-business-day period in connection with the delivery of any such new notice);

 

   

during the period described above, the Company negotiates in good faith with Parent pursuant to Parent’s match rights under the merger agreement; and

 

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