|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
distribution requirements set forth in Section 857(a) of the Code (for purposes of this clause, such distributions to be calculated as if the Companys taxable year beginning on January 1, 2018 ends as of the Closing Date), provided that such distributions shall be made in cash.
(g) As used in this Section 7.1 in any reference to a Material Contract, the phrase that is material to the Company in Section 5.11(a)(xiii) shall be disregarded.
(a) No Solicitation or Negotiation. Except as expressly permitted by this Section 7.2, neither the Company nor any of its Subsidiaries nor any of the officers and directors of it or its Subsidiaries will, and the Company will instruct and use its reasonable best efforts to cause its and its Subsidiaries employees, investment bankers, attorneys, accountants, and other advisors or representatives (a Persons directors, officers, employees, investment bankers, attorneys, accountants, and other advisors or representatives, collectively, Representatives) not to, directly or indirectly:
(i) initiate, solicit or knowingly encourage any inquiries or the making of any proposal or offer that constitutes, or would reasonably be expected to lead to, any Acquisition Proposal;
(ii) engage in, continue or otherwise participate in or knowingly facilitate any discussions or negotiations regarding, or provide any non-public information or data, or afford access to the properties and other assets of the Company and its Subsidiaries, to any Person relating to, in connection with, or would reasonably be expected to lead to, any Acquisition Proposal;
(iii) otherwise facilitate knowingly any effort or attempt to make an Acquisition Proposal; or
(iv) adopt or approve, or enter into any letter of intent, agreement in principle, memorandum of understanding, term sheet, merger agreement, acquisition agreement, option agreement or any other agreement (other than an Acceptable Confidentiality Agreement) or instrument providing for or relating to any Acquisition Proposal or enter into any agreement (or amend or modify any existing agreement) that would prevent the Company or any Subsidiary or their respective representatives from complying with this Section 7.2 or amend or grant any waiver or release under any standstill or similar agreement with respect to the Company (an Alternative Acquisition Agreement); provided, however, that the Company may amend or grant any waiver or release under any provision contained in any standstill or similar agreement that would prohibit the other party thereto from communicating with the Company with respect to an Acquisition Proposal or submitting an Acquisition Proposal to the Company if, and only if, the Company Board, or any duly authorized committee thereof, determines in good faith after consultation with its outside legal counsel that the failure to amend or grant any waiver or release under any such standstill or similar agreement would be inconsistent with the directors duties under applicable Law.
Notwithstanding anything in the foregoing to the contrary, prior to the time, but not after, the Requisite Stockholder Vote is obtained, the Company and its Representatives may, in response to the receipt of a written Acquisition Proposal that did not result from a breach of this Section 7.2 in any material respect, take the actions described in clause (ii) above (and, for the avoidance of doubt, such actions shall not be a breach of clauses (i) and (iii) above) in response to a bona fide written Acquisition Proposal received by the Company or its Representatives after the date of this Agreement that is not withdrawn if (but only if): (A) the Company 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 or may reasonably be expected to result in a Superior Proposal, (B) the Company gives Parent written notice that the Company Board or any duly authorized committee thereof has made the determination contemplated by clause (A) above, such notice to include the information set forth in Section 7.2(e) and (C) 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 (an Acceptable Confidentiality Agreement); it being understood that such