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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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(G) the announcement on September 11, 2017 of the Company’s review of strategic alternatives (but not including any change, effect, event, circumstance, occurrence or development relating thereto after the date of this Agreement), the announcement on March 22, 2018 of the conclusion of such review of strategic alternatives, or the negotiation, execution, announcement, pendency, performance or consummation of this Agreement or the Merger and the other Transactions, including the impact thereof on relationships, contractual or otherwise, of the Company or any of its Subsidiaries with customers, suppliers, lenders, partners, employees, labor unions or regulators;

(H) the identity of Parent or any of its Affiliates or any communication by Parent or any of its Affiliates regarding plans, proposals, intentions or projections with respect to the Company, any of its Subsidiaries, or their employees or business;

(I) changes or proposed changes in Laws, authoritative interpretations thereof, enforcement thereof or in applicable accounting regulations or principles or interpretations thereof;

(J) acts required to be taken or not taken by the Company or any of its Subsidiaries under the terms of this Agreement or taken or not taken at the written request of Parent;

(K) any Action brought or threatened to be brought alleging breach of duty by the Company Board (other than any such Action that has resulted in a non-appealable judicial determination definitively finding a breach of duty by the Company Board) or alleging that the disclosure contained in the Proxy Statement (whether filed in preliminary or definitive form) violates the federal securities Laws (other than any such Action that has resulted in a non-appealable judicial determination definitively finding such a violation);

(L) any failure by the Company or any of its Subsidiaries to meet any internal or published projections, budgets, plans, forecasts, estimates or predictions of revenues, earnings, cash flow or cash position or other financial, accounting or operating measures or metrics for any period; provided that the exception in this clause will not prevent the underlying facts giving rise or contributing to such failure, if not otherwise excluded hereby, from being taken into account in determining whether a Material Adverse Effect has occurred or is reasonably expected to occur; and

(M) a decline in the market price or trading volume of the Shares on the NYSE or any other securities market or in the trading price of any other securities of the Company or any of its Subsidiaries or in the ratings or ratings outlook for the Company or any of its Subsidiaries; provided that the exception in this clause will not prevent the underlying facts giving rise or contributing to such failure, if not otherwise excluded hereby, from being taken into account in determining whether a Material Adverse Effect has occurred or is reasonably expected to occur;

provided, however, change, effect, event, circumstance, occurrence or development described in clauses (A), (B), (C), (D), (E), (F), or (I) shall not be excluded if (only to the extent that) it disproportionately effects the Company and its Subsidiaries taken as a whole, as compared to participants in any of the U.S. real estate industry segments in which the Company or any of its Subsidiaries operate; provided, further, that clause (G) shall not diminish the effect of, and shall be disregarded for purposes of, any representations and warranties set forth in Section 5.4.

Material Property Adverse Effect” means any event, circumstance, change or effect that is material and adverse to any one or more of the Company Properties listed on Section 10.14 of the Disclosure Schedule.

Nonqualifying Income” means any amount that is treated as gross income for purposes of Section 856 of the Code and which is not Qualifying Income.

Organizational Documents” means any corporate, partnership or limited liability organizational documents, including certificates or articles of incorporation or formation, bylaws, operating agreements (including limited liability company agreements and agreements of limited partnership), certificates of limited partnership, partnership agreements and certificates of existence, as applicable.

 

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