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DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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authorize the Company to terminate this Agreement pursuant to Section 9.3(b) would be inconsistent with the directors’ duties under applicable Law, (x) the Company provides Parent with at least 96 hours written notice stating that the Company will effect a Change of Recommendation pursuant to this Section 7.2(b) or the Company Board will authorize the Company to terminate this Agreement pursuant to Section 9.3(b) at the expiration of such 96 hour period, which notice shall (A) provide the identity of the Person making the Superior Proposal and (B) attach the most current draft of any proposed definitive agreement and any ancillary documents with respect to such Superior Proposal; provided, however, that any change to the financial terms or any other material changes to the terms and conditions of such Superior Proposal shall require a new written notice to be delivered by the Company to Parent and the Company shall be required to comply again with the requirements of this paragraph of Section 7.2(b) (provided that references to the 96 hour period above shall be deemed to refer to a two Business Day period (provided, that, for purposes of this paragraph, if the Company delivers written notice prior to 8:00 a.m. New York City time on a Business Day, such Business Day shall be included as one Business Day in such two Business Day period) in connection with the delivery of any such new notice), (y) during the period described in clause (x), the Company and its Representatives negotiate in good faith (to the extent that Parent desires to negotiate) to make any revisions to the terms of this Agreement as would permit the Company Board or any duly authorized committee thereof not to effect a Change of Recommendation in connection with the Superior Proposal or authorize the Company to terminate this Agreement pursuant to Section 9.3(b), and (z) following the 96 hour period described in clause (x) (or two Business Day period, as applicable), the Company Board, or a 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 this Agreement that Parent has committed in writing prior to the expiration of such 96 hour period (or two Business Day period, as applicable) and that are reflected in a written definitive agreement that would be binding on Parent if executed and delivered by the Company, that the Superior Proposal continues to (A) 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 (B) constitute a Superior Proposal, and that the failure to effect a Change of Recommendation or authorize the Company to terminate this Agreement pursuant to Section 9.3(b) with respect to such Superior Proposal would be inconsistent with the directors’ duties under applicable Law.

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 take the actions described in Section 7.2(b)(i) and Section 7.2(b)(iii), in response to an Intervening Event, if (but only if): (w) the Company Board, or 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, (x) the Company provides Parent with at least 96 hours written notice stating that the Company will effect a Change of Recommendation pursuant to this Section 7.2(b) at the expiration of such 96 hour period, which notice shall describe in reasonable detail such Intervening Event; provided, however, that any subsequent development or change in circumstances shall require a new written notice to be delivered by the Company to Parent and the Company shall be required to comply again with the provisions of this paragraph (provided that references to the 96 hour period above shall be deemed to refer to a two Business Day period in connection with the delivery of any such notice (provided, that, for purposes of this paragraph, if the Company delivers written notice prior to 8:00 a.m. New York City time on a Business Day, such Business Day shall be included as one Business Day in such two Business Day period)), (y) during the period described in clause (x), the Company and its Representatives negotiate in good faith (to the extent that Parent desires to negotiate) any revisions to this Agreement as would permit the Company Board or any duly authorized committee thereof to determinate that the failure to effect a Change of Recommendation with respect to such Intervening Event would not be inconsistent with the directors’ duties under applicable Law, and (z) following the 96 hour period described in clause (x) (or two Business Day period, as applicable), the Company Board, or committee thereof, again determines, after consultation with outside legal counsel, and taking into account any adjustment or modification to the terms and conditions of this Agreement to which Parent has committed in writing prior to the expiration of such 96 hour period (or two Business Day period, as applicable) and that are reflected in a written definitive agreement that

 

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