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SEC Filings

FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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Acceptable Confidentiality Agreement need not prohibit the making, or amendment, of an Acquisition Proposal; and 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.

(b) No Change of Recommendation or Alternative Acquisition Agreement. Except as expressly provided in this Section 7.2(b), the Company Board and each committee thereof will 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 Company Recommendation (it being understood that the Company Board may take no position with respect to an Acquisition Proposal that is structured as a tender offer or exchange offer until the close of business on the tenth Business Day after the commencement of such Acquisition Proposal pursuant to Rule 14d-2 under the Exchange Act without such action being considered an adverse modification);

(ii) adopt, approve, or recommend (or publicly propose or resolve to adopt, approve or recommend) any Acquisition Proposal;

(iii) fail to include the Company Recommendation in the 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 of the type contemplated by Rule 14d-9(f)); provided, that, if any disclosure or other action taken pursuant to this clause (iv) includes a Change of Recommendation, such action or disclosure shall be deemed to be a Change of Recommendation (it being understood that any public statement that includes only factual statements shall not be a statement inconsistent with the Company Recommendation); or

(v) in the event an Acquisition Proposal has been publicly announced or publicly disclosed, fail to reaffirm the Company Recommendation following a written request by Parent to do so (provided that the Company Board shall only be required to make such reaffirmation two times for any specific Acquisition Proposal (but if such Acquisition Proposal is materially amended, modified or supplemented, any reaffirmation by the Company Board prior to such material amendment, modification or supplement shall be disregarded for purposes of this proviso)), on or prior to the later of the fifth Business Day after the delivery of such request by Parent and ten Business Days following public announcement or disclosure of such Acquisition Proposal, but in any event, at least two Business Days prior to the Company Stockholders Meeting (or any adjournment or postponement thereof) (any action in the foregoing clauses (i)-(v) a “Change of Recommendation”.

Parent and Merger Sub acknowledge that (a) the resolution of the Company Board adopting the Company Recommendation was not unanimous, (b) the Proxy Statement will contain the reasons that directors did not vote in favor of said resolution as of the date of its adoption and (c) the foregoing in and of themselves shall not constitute a breach of Section 7.2 of this Agreement.

Notwithstanding anything to the contrary set forth in this Agreement, prior to the time, but not after, the Requisite Stockholder Vote is obtained, the Company 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 this Agreement pursuant to Section 9.3(b) if (but only if) (v) a bona fide Acquisition Proposal is received by the Company or its Representatives after the execution and delivery of this Agreement which did not result from a breach of this Section 7.2 in any material respect and such Acquisition Proposal is not withdrawn and is reflected in a written definitive agreement that would be binding, subject to the terms and conditions of such written definitive agreement, on the applicable party if executed and delivered by the Company following termination of this Agreement, (w) the Company Board, or a duly authorized committee thereof, determines in good faith, after consultation with its financial advisors and outside legal counsel, that such Acquisition Proposal constitutes a Superior Proposal and the Company Board, or committee thereof, after consultation with outside legal counsel, determines that the failure to effect a Change of Recommendation or