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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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of this Agreement), and (iii), subject to this Section 9.5, Section 10.5(g) and Section 10.12, nothing shall relieve any party to this Agreement from any liability for any willful or intentional breach by such party.

(b) In the event:

(i) this Agreement is terminated by (A) either the Company or Parent pursuant to Section 9.2(a) (Outside Date) or Section 9.2(b) (Requisite Stockholder Vote Not Obtained), or Parent pursuant to Section 9.4(a) (Company Breach) or Section 9.4(c) and, in either case, prior to the date of termination the Company has received a bona fide Acquisition Proposal or a bona fide Acquisition Proposal has been publicly disclosed and not withdrawn and (B) within twelve (12) months of the date of any termination referred to in clause (A) the Company enters into a definitive agreement with respect to, or consummates, any Acquisition Proposal; provided that for purposes of this Section 9.5(b)(i), the references to “15%” in the definition of “Acquisition Proposal” will be deemed to be references to “50%”;

(ii) this Agreement is terminated by Parent pursuant to Section 9.4(b) (Change of Recommendation); or

(iii) this Agreement is terminated by the Company pursuant to Section 9.3(b) (Superior Proposal);

then, in each case, the Company will pay Parent as consideration for the disposition of rights acquired under this Agreement an aggregate amount equal to $261,000,000 (the “Company Termination Payment”) by wire transfer of immediately available funds to an account designated in writing by Parent (1) in the case of a payment required by Section 9.5(b)(i), within two Business Days after consummation of such Acquisition Proposal, (2) in the case of a payment required by Section 9.5(b)(ii), within two Business Days after termination of this Agreement, or (3) in the case of a payment required by Section 9.5(b)(iii), concurrently with or prior to termination of this Agreement, subject to Section 9.7. The parties acknowledge and agree that in no event will the Company be required to pay the Company Termination Payment on more than one occasion.

(c) In the event this Agreement is terminated by Parent or the Company pursuant to Section 9.2(b) (Requisite Stockholder Vote Not Obtained) (other than a deemed termination pursuant to Section 9.4(b)) or by Parent pursuant to Section 9.4(c), then the Company will reimburse Parent for Parent’s reasonable and documented out of pocket expenses incurred in connection with the preparation, negotiation, execution, and performance of this Agreement, the Merger and the other Transactions up to an amount equal to $70,000,000 (the “Expense Reimbursement Payment”) within two Business Days after termination of this Agreement pursuant to Section 9.2(b), and in no event shall the Company be required to pay the Expense Reimbursement Payment if it has paid the Company Termination Payment in full. For the avoidance of doubt, subject to Section 9.5(a), the Expense Reimbursement Payment shall not be the sole remedy of Parent against the Company. The Expense Reimbursement Payment paid by the Company to Parent in accordance with this Section 9.5(c) shall be credited against any Company Termination Payment obligation that becomes due pursuant to Section 9.5(b).

(d) In the event this Agreement is terminated (i) by Parent pursuant to Section 9.2(a) (Outside Date) and, at the time of such termination, the Company would have been entitled to terminate this Agreement pursuant to Section 9.3(a) or Section 9.3(c) or (ii) by the Company pursuant to Section 9.3(a) or Section 9.3(c), Parent shall pay or cause to be paid to the Company or, if directed by the Company, to Forest City TRS, LLC an aggregate amount equal to $488,000,000 (the “Parent Termination Payment” and, together with the Company Termination Payment and the Expense Reimbursement Payment, the “Termination Payments”) by wire transfer of immediately available funds, subject to Section 9.6, within two Business Days after termination of this Agreement to an account designated in writing by the Company. The parties acknowledge and agree that in no event will Parent be required to pay the Parent Termination Payment on more than one occasion.

(e) Each party acknowledges that the agreements contained in this Section 9.5 are an integral part of the Merger and the other Transactions, and that, without these agreements, no party would have entered into this Agreement; accordingly, in the event any Termination Payment is required to be paid pursuant to Section 9.5(b), Section 9.5(c) or Section 9.5(d) and the Company or Parent, as applicable fails to timely pay to

 

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