|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
with respect to the continuing employees and their eligible dependents, (ii) give each continuing employee credit for the plan year in which the effective time occurs towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred prior to the effective time for which payment has been made and (iii) give each continuing employee service credit for his or her employment with the Company and its subsidiaries for purposes of vesting, benefit accrual and eligibility to participate in the employee benefit plans of Parent and its subsidiaries as if such service had been performed with Parent (except for benefit accrual under defined benefit pension plans or to the extent it would result in a duplication of benefits).
In the event that the effective time occurs on or before December 31, 2018, Parent will approve payments in respect of the Companys 2018 annual bonuses in accordance with the Companys applicable bonus plans and based on actual achievement of performance criteria (using target for individual criteria) and bonus opportunities established by the Company for the 2018 annual bonuses. If the effective time has not occurred by December 31, 2018, the Company may make such payments with respect to 2018 annual bonuses. The Company may also adjust the performance criteria to exclude reasonable expenses or costs incurred in connection with the merger.
In addition, the Company may grant cash retention awards to certain employees that will vest and become payable (i) 50% upon the closing and (ii) 50% on the 180th day following the closing, in each case subject to the employees continued employment through such dates or, if earlier, upon the employees qualifying termination, subject to the employees timely execution and non-revocation of a release of claims against the Company. A qualifying termination for purposes of the cash retention awards will have the same meaning as a termination that entitles the employee to severance benefits under the severance plan or, if applicable, the employees change of control agreement with the Company.
During the interim period, the Company has agreed to use commercially reasonable best efforts to prepare for such internal restructuring steps requested by Parent prior to the closing and provide Parent any access or information reasonably requested by Parent to identify what restructuring steps are appropriate. However, the Company and its subsidiaries are not required to: (1) take any action that would impair, prevent or delay consummation of the merger and the other transactions contemplated by the merger agreement or that would contravene any organizational document of the Company or any of the subsidiaries, any contract or applicable law; (2) take or effect any restructuring steps or incur any liabilities in respect thereto before the Company deems all of the conditions to closing under the merger agreement have been satisfied and receives (x) evidence satisfactory to it that any material adverse effect or similar condition has been irrevocably waived by the Lenders and any other parties with respect to the debt financing and (y) irrevocable written notice that each of Parent and Merger Sub irrevocably deems all conditions set forth in the merger agreement satisfied and that Parent and Merger Sub and their financing sources are prepared to proceed immediately with the closing and (3) take any action that could adversely affect the classification of the Company as a REIT or could subject the Company to any prohibited transactions taxes or other material taxes under the Code.
The Company has agreed to reasonably cooperate with Parent and use reasonable best efforts to (a) obtain all consents, approvals or waivers (including waivers of any fees, rights of first offer or refusal, buy/sell rights and profit sharing) reasonably requested by Parent, including those set forth in the confidential disclosure schedules and (b) assist Parent with the preparation and negotiation of any required notices or similar documents reasonably requested by Parent.