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SEC Filings

DEFM14A
FOREST CITY REALTY TRUST, INC. filed this Form DEFM14A on 10/12/2018
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(c) Prior to the Effective Time, the Company will and, if the Company is unable to, Parent will cause the Surviving Corporation as of the Effective Time to, obtain and fully pay the premium for “tail” insurance policies for the extension of (i) the directors’ and officers’ liability coverage of the Company’s existing directors’ and officers’ insurance policies and (ii) the Company’s existing fiduciary liability insurance policies, in each case for a claims reporting or discovery period of at least six years from and after the Effective Time (the “Tail Period”) from one or more insurance carriers with the same or better credit rating as the Company’s insurance carrier as of the date of this Agreement with respect to directors’ and officers’ liability insurance and fiduciary liability insurance (collectively, “D&O Insurance”) with terms, conditions, retentions, and limits of liability that are at least as favorable to the insureds as the Company’s existing policies with respect to matters existing or occurring at or prior to the Effective Time (including in connection with this Agreement or the Merger and the other Transactions or actions contemplated hereby). If the Company and the Surviving Corporation for any reason fail to obtain such “tail” insurance policies as of the Effective Time, Parent will cause the Surviving Corporation to continue to maintain in effect for the Tail Period the D&O Insurance in place as of the date of this Agreement with terms, conditions, retentions, and limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date of this Agreement, or Parent will cause the Surviving Corporation to purchase comparable D&O Insurance for the Tail Period with terms, conditions, retentions, and limits of liability that are at least as favorable to the insureds as provided in the Company’s existing policies as of the date of this Agreement and from an insurance carrier with an AM Best rating that is the same or better than the AM Best rating of the Company’s existing insurance carrier for D&O Insurance; provided that in no event will the premium of such insurance coverage exceed 300% of the current annual premium paid by the Company for such purpose; and provided, further, that if the premium of such insurance coverage exceeds such amount, Parent will cause the Surviving Corporation to obtain a policy with the greatest coverage available for a premium not exceeding such amount.

(d) The provisions of this Section 7.11 will survive the Closing and are intended to be for the benefit of, and will be enforceable by, each Indemnified Party, and nothing in this Agreement will affect any indemnification rights that any such Indemnified Party may have under the Organizational Documents of the Company or any of its Subsidiaries or any contract or any applicable Law. Notwithstanding anything in this Agreement to the contrary, the obligations under this Section 7.11 will not be terminated or modified in such a manner as to adversely affect any Indemnified Party without the consent of such Indemnified Party.

(e) In the event that Parent, the Surviving Corporation, or any of their respective Subsidiaries (or any of their respective successors or assigns) consolidates or merges with any other Person and is not the continuing or surviving corporation or entity in such consolidation or merger, or transfers all or substantially all of its properties and assets to any other Person, then in each case proper provision will be made so that the continuing or surviving corporation or entity (or its successors or assigns, if applicable), or transferee of such assets, as the case may be, will also assume the obligations set forth in this Section 7.11.

7.12. Other Actions by the Company.

(a) Takeover Statutes. If any “business combination,” “control share acquisition,” “fair price,” “moratorium” or other takeover or anti-takeover statute is or may become applicable to the Merger or the other Transactions (other than arising out of or resulting from a breach by Parent or Merger Sub of Section 7.13(b)), the Company and the Company Board will, to the extent permitted by applicable Laws, grant such approvals and take such actions as are necessary so that such transactions may be consummated as promptly as practicable on the terms contemplated by this Agreement and otherwise act to eliminate or minimize the effects of such statute on such transactions.

(b) Rule 16b-3. Prior to the Effective Time, the Company and the Company Board (or a duly formed committee thereof consisting of non-employee directors (as such term is defined for the purposes of Rule 16b-3 promulgated under the Exchange Act)) will, prior to the Effective Time, take such actions as may be reasonably necessary or appropriate to cause any dispositions of Company equity securities (including derivative securities) pursuant to the Merger and the other Transactions by each director or officer who is subject to the

 

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