|FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018|
publicly disclosed or made in accordance with this Agreement) with respect to this Agreement or the Merger or the other Transactions without consulting with each other and providing a reasonable opportunity for review and giving due consideration to reasonable comment by the other party, except (a) as may be required by any applicable Law or by obligations pursuant to any listing agreement with or rules of any national securities exchange or interdealer quotation service or by the request of any Governmental Authority, in which case the party required to issue the press release or make the public announcement or public statement will use commercially reasonable efforts to provide the other party with a reasonable opportunity to review and comment thereon in advance of its issuance or being made and will give reasonable and good faith consideration to any such comments or (b) in connection with a Change of Recommendation, actual or potential Acquisition Proposal or dispute regarding this Agreement, the Merger or the other Transactions. Notwithstanding anything to the contrary in this Section 7.8, each of the parties may make public statements in response to questions by the press, analysts, investors, business partners or those attending industry conferences or financial analyst conference calls, so long as any such statements are not inconsistent with previous press releases, public disclosures or public statements made jointly by Parent and the Company.
(a) Parent agrees that each employee of the Company and its Subsidiaries at the Effective Time who continues to remain employed with the Company or its Subsidiaries (a Continuing Employee) will, during the period commencing at the Effective Time and ending on the first anniversary of the Effective Time, be provided with (1) base salary or base wage that is no less favorable than the base salary or base wage provided by the Company and its Subsidiaries to each such Continuing Employee immediately prior to the Effective Time, (2) target annual cash bonus opportunity and target long-term incentive compensation opportunity that are no less favorable than the target annual cash bonus opportunity and target long-term incentive compensation opportunity provided by the Company and its Subsidiaries to each such Continuing Employee immediately prior to the Effective Time, and (3) health and welfare benefits (other than severance benefits) that are substantially similar to those health and welfare benefits that are (x) provided to each such Continuing Employee immediately prior to the Effective Time or (y) provided to similarly situated employees of Parent or its Subsidiaries; provided, however, the requirements of this sentence will not apply to Continuing Employees who are covered by a collective bargaining agreement.
(b) Solely to the extent employee benefit plans of Parent and its Subsidiaries (exclusive of the Company and its Subsidiaries) provide benefits to any Continuing Employee on or following the Effective Time (each, a Parent Benefit Plan), Parent will use commercially reasonable efforts to (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Parent or its Affiliates to be waived 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 such Continuing Employees employment with the Company and its Subsidiaries for purposes of vesting, benefit accrual and eligibility to participate under each applicable Parent Benefit Plan, 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.
(c) Parent will cause the Surviving Corporation to honor all employee benefit obligations to current and former employees under the Company Plans set forth on Section 7.9(c) of the Disclosure Schedule in accordance with the terms of such plans.
(d) Prior to making any written or oral communications to the directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the Merger and the other Transactions, each party will provide the other party with a copy of the intended communication, the other party will have a reasonable period of time to review and comment on the communication, and the relevant party will consider any such comments in good faith.
(e) The Parties agree to take the actions set forth on Section 7.9(e) of the Disclosure Schedule.