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all of the contractual terms other than the labels assigned. As
we indicated in our discussion of the dispute over valuation of
the common stock, we agree that it is unrealistic to separate the
common stock in MB Parent from the authority to manage
$1.375 billion in cash held by Times Mirror through the
management agreement. Thus, we are simply looking at the
operative terms of the Bender transaction by analyzing the
respective rights of the parties to it as interpreted by them
before, on, and after July 31, 1998.
The evidence compels the conclusion that Times Mirror
intended a sale, assured that it would receive the proceeds of
sale for use in its strategic plans, used the proceeds of sale in
its strategic plans without limitation attributable to any
continuing rights of Reed, and represented to shareholders and to
the SEC that it had full rights to the proceeds of sale. None of
these actions were inconsistent with the contractual terms.
Thus, we need not “substitute respondent’s version” for “what
actually transpired.” We deal only with what actually transpired
and give effect to the legal documentation of the Bender
transaction, with key points emphasized by the terms of the
documents and the statements made by Times Mirror representatives
about what was accomplished in the Bender transaction.
In a different but analogous context, the Court of Appeals
for the Seventh Circuit has stated:
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