Common use of Business Employees Clause in Contracts

Business Employees. (a) Prior to the Closing Date, Buyer will make offers of employment or provide welcome letters, contingent upon the Closing, to the Business Employees that Buyer, in its sole discretion, desires to hire or retain. Effective as of the day after the Closing Date, Buyer shall hire and employ each Business Employee who accepts the offer of employment or welcome letter extended to such Business Employee pursuant to this Section 4.6. To the extent required under applicable Laws or Contract, Seller shall (i) give all notices, effect all consultations and provide such other information required to be given to, and (ii) seek such approvals or consents from, any Employees, collective bargaining unit, works council or other representative body representing any group of Employees in accordance with applicable Laws in connection with the transactions contemplated by this Agreement. (b) Except as required by applicable Law or the terms of the applicable Seller Benefit Plan, from and after the Closing Date, the Business Employees shall cease to participate in and/or accrue further rights or benefits under any Seller Benefit Plans. (c) Seller and Buyer intend that the Transactions will not constitute a severance of employment of any Business Employee prior to the Closing Date, and that such employees will have continuous and uninterrupted employment immediately before and immediately after the Closing Date. The Parties agree to cooperate in good faith to determine whether any notification may be required under the WARN Act as a result of the Transactions. (d) If applicable, Seller shall submit to Seller’s stockholders for approval (in a manner reasonably satisfactory to Buyer), by such number of holders of Seller stock as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that may separately or in the aggregate, constitute “parachute payments” pursuant to Section 280G of the Code (“Section 280G Payments”) (which determination shall be made by the Seller and shall be subject to review and approval by Buyer), such that such payments and benefits shall not be deemed to be Section 280G Payments, and prior to the Closing, the Seller shall deliver to Buyer notification and documentation reasonably satisfactory to Buyer that (i) a vote of the holders of Seller was solicited in conformance with Section 280G of the Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any Section 280G Payments (the “280G Stockholder Approval”) or (ii) that the 280G Stockholder Approval was not obtained and as a consequence, that such payments and/or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the Parachute Payment Waivers that were executed by the affected individuals prior to the solicitation of the vote of the holders of Seller stock pursuant to this Section 4.6(d). (e) Nothing contained in this Section 4.6, whether express or implied, will be construed to (i) confer upon any Person any rights to employment or continued employment or any term or condition of employment for any period with Seller or Buyer, (ii) establish, amend or modify Seller Benefit Plan, (iii) limit the ability of Seller, Buyer or any of their respective Affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement, contract or arrangement at any time assumed, sponsored, maintained or contributed to by any of them, or (iv) confer upon any Person who is not a Party, including any Business Employee, any rights or remedies of any nature whatsoever (including any third-party beneficiary rights under this Agreement) under or by reason of this Section 4.6.

Business Employees. (a) Prior to As of the Closing Date, notwithstanding the terms of the Confidentiality Agreement, Buyer will intends to make offers of employment or provide welcome letters, contingent upon the Closing, to the Business Employees that listed on Schedule 5.4(a) (including those absent due to vacation, holiday, illness, leave of absence or short-term disability, but excluding any Business Employee on long-term disability). Seller and any applicable Subsidiary shall cooperate and assist in facilitating Buyer’s or a Buyer Designee’s offers and will not take any action, in its sole discretionor cause any of the Subsidiaries to take any action, desires which would impede, hinder, interfere or otherwise compete with Buyer’s or a Buyer Designee’s effort to hire or retainany Business Employees. Effective as of the day Promptly after the Closing Date, Buyer shall hire and employ each Business Employee who accepts the offer of employment or welcome letter extended to such Business Employee pursuant to this Section 4.6. To the extent required under applicable Laws or Contractdate hereof, Seller shall (iwill provide to Buyer all information not provided in Schedule 5.4(a) give all notices, effect all consultations and provide such other information required to be given todisclosed by applicable Law of the jurisdiction in which the Business Employee is located in connection with the sale of the Purchased Business. Without limiting the foregoing, and (ii) seek such approvals or consents from, any Employees, collective bargaining unit, works council or other representative body representing any group of Employees in accordance each Party shall comply with all applicable Laws in connection with the transactions contemplated transfer of the Business Employees to Buyer or a Buyer Designee, including with respect to notice, consultation and other procedural requirements. Business Employees who accept Buyer’s offer of employment, as of the effective date of their employment with Buyer, shall be referred to as “Transferred Employees.” Employment with Buyer or a Buyer Designee of Transferred Employees shall be effective as of the day following the close of business on the Closing Date, except that the employment of individuals receiving short-term disability benefits or on approved leave of absence on the Closing Date will become effective as of the date they present themselves for work with Buyer or a Buyer Designee or such other date as is prescribed by this Agreementapplicable Law. (b) Except Buyer or the applicable Buyer Designee will comply with applicable Law regarding terms of employment of Transferred Employees. Buyer or a Buyer Designee shall provide, or shall cause to be provided, to Transferred Employees employee benefits that, in the aggregate, are no less favorable than those provided to similarly situated employees of Buyer or the applicable Buyer Designee, provided, that Buyer shall have no obligation to provide compensation in the form of equity incentives to the Transferred Employees and provided further that prior service with NMS shall be included as service with Buyer or Buyer Designee for such employee benefits. For sake of clarification, except where required by applicable Law and subject to appropriate arrangements between Buyer and Seller with respect to the liabilities associated with respect to such plans, including the transfer of any funds associated therewith, Buyer is not assuming any Pension Plan liabilities or the terms of the applicable Seller Benefit Plan, from and after the Closing Date, the Business Employees shall cease to participate in and/or accrue further rights or benefits under offering any Seller Benefit PlansPension Plan benefits. (c) Seller shall terminate the Transferred Employees immediately before and Buyer intend that the Transactions will not constitute a severance as of employment of any Business Employee prior to the Closing Date; provided, however, that the employment of the Transferred Employees listed on Schedule 5.4 (a) who reside in Canada shall not be terminated by Seller but shall be transferred to Buyer effective as of the Closing. (d) Buyer agrees that its and that its Affiliate’s health and Welfare Plans shall waive, to the extent permitted by such employees will have continuous plans, any pre-existing condition exclusion (to the extent such exclusion was waived under applicable health and uninterrupted employment immediately before Welfare Plans offered to the Transferred Employees by Seller or a Subsidiary) and immediately after any proof of insurability. Seller or the applicable Subsidiary shall remain responsible for any benefits payable under a Benefit Plan with respect to claims incurred by Business Employees prior to or on the Closing Date. . (e) The Parties parties agree to cooperate in good faith to determine whether any notification may be required under the Worker Adjustment and Retraining Notification Act (the “WARN Act”) as a result of the transactions contemplated by this Agreement. Seller will be responsible for providing any notification that may be required under the WARN Act with respect to any of its employees and for satisfying any liability arising under the WARN Act as a result of the Transactions. (d) If applicable, Seller shall submit to Seller’s stockholders for approval (in a manner reasonably satisfactory to Buyer), by such number of holders of Seller stock as is required by the terms of Section 280G(b)(5)(B) consummation of the Code, transactions contemplated hereby. Buyer will be responsible for providing any payments and/or benefits notification that may separately or in be required under the aggregate, constitute “parachute payments” pursuant to Section 280G of the Code (“Section 280G Payments”) (which determination shall be made by the Seller and shall be subject to review and approval by Buyer), such that such payments and benefits shall not be deemed to be Section 280G Payments, and prior to the Closing, the Seller shall deliver to Buyer notification and documentation reasonably satisfactory to Buyer that (i) a vote of the holders of Seller was solicited in conformance with Section 280G of the Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained WARN Act with respect to any Section 280G Payments (Transferred Employees terminated after the “280G Stockholder Approval”) or (ii) that the 280G Stockholder Approval was not obtained and as a consequence, that such payments and/or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the Parachute Payment Waivers that were executed by the affected individuals prior to the solicitation of the vote of the holders of Seller stock pursuant to this Section 4.6(d)Closing Date. (ef) Nothing contained in this Section 4.6, whether express or implied, will be construed to (i) confer upon any Person any rights to employment or continued employment or any term or condition of employment for any period with Seller or Buyer, (ii) establish, amend or modify Seller Benefit Plan, (iii) limit the ability of Seller, Agreement shall require Buyer or a Buyer Designee to employ any of their respective Affiliates Business Employees, to amendemploy any Transferred Employee on anything other than an at-will basis, modify or terminate any benefit or compensation plan, program, agreement, contract or arrangement terminable at any time assumed, sponsored, maintained with or contributed to by any of themwithout cause, or (iv) confer upon to assume any Person who is not a Party, including any Business Employee, any rights or remedies of any nature whatsoever (including any third-party beneficiary rights collective bargaining agreements under this Agreement. (g) under or This Section 5.4 specifies the full extent of Buyer’s obligation with respect to the Transferred Employees after the Closing Date, except as may be required by reason of this Section 4.6applicable Law.

Business Employees. Buyer shall (aor shall cause the Sold Companies to) Prior to (i) continue the employment on the Closing Date, Buyer will make offers Date of employment or provide welcome letters, contingent upon the Closing, to the Business Employees that Buyer, in its sole discretion, desires to hire or retain. Effective as of the day after the Closing Date, Buyer shall hire and employ each Business Employee who accepts is employed by a Sold Company as of the offer of employment or welcome letter extended to such Business Employee pursuant to this Section 4.6. To the extent required under applicable Laws or Contract, Seller shall (i) give all notices, effect all consultations and provide such other information required to be given to, Closing and (ii) seek such approvals or consents from, any Employees, collective bargaining unit, works council or other representative body representing any group of Employees in accordance with applicable Laws in connection with the transactions contemplated by this Agreement. (b) Except as required by applicable Law or the terms of the applicable Seller Benefit Plan, from and after the Closing Date, the Business Employees shall cease to participate in and/or accrue further rights or benefits under any Seller Benefit Plans. (c) Seller and Buyer intend that the Transactions will not constitute a severance where an offer of employment of is necessary for Buyer (or a Sold Company) to employ any other Business Employee Employee, within twenty-five (25) days prior to the Closing Date, make an offer of employment to each other Business Employee, in both cases on the terms set forth in this Section 5.9. Notwithstanding the generality of the preceding sentence, to the extent any Business Employee who is an Employee of Seller or any of its Affiliates (other than the Sold Companies) has entered into a written agreement or contractual undertaking with Seller or an Affiliate of Seller which governs the compensation terms of such Business Employee’s employment (an “Employment Agreement”), or is the subject of any agreement of Seller or an Affiliate of Seller (other than the Sold Companies) regarding the terms and that conditions of employment of such employees will have continuous Business Employee (collectively with any Employment Agreements “Compensation Agreements”), Seller and uninterrupted employment immediately before Buyer shall take all actions necessary to assign, or cause the applicable Affiliate of Seller to assign, such Compensation Agreements and immediately after all such obligations under any Compensation Agreements to one of the Sold Companies or an Affiliate of Buyer effective as of the Closing Date. The Parties , and Buyer and its Affiliates expressly assume and agree to cooperate perform under the Compensation Agreements in good faith substantially the same manner and to determine whether any notification may the same extent that the Seller and its applicable Affiliates would be required under to perform. Notwithstanding the WARN Act foregoing, nothing herein shall prevent Buyer or its Affiliates from amending any such Compensation Agreements, provided that the Business Employees party thereto agree to such amendments. Buyer shall, or shall cause its applicable Affiliates to, indemnify and hold harmless Seller from any Liabilities incurred or arising as a result of such Compensation Agreements following the Transactions. Closing. Further, Buyer shall, or cause its applicable Affiliates to, indemnify Seller and hold Seller harmless against any Liabilities or costs (dincluding severance costs) If applicable, Seller shall submit arising from or connected to Seller’s stockholders for approval (in the employment or termination of a manner reasonably satisfactory to Buyer), Transferred Employee by such number Buyer or one of holders its Affiliates after Closing. Unless a written acceptance of Seller stock as an offer of employment is required by the terms applicable Law, a Business Employee who continues employment or who has received an offer of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that may separately or in the aggregate, constitute “parachute payments” pursuant to Section 280G of the Code (“Section 280G Payments”) (which determination employment shall be made by the Seller and shall be subject to review and approval by Buyer), such that such payments and benefits shall not be deemed to be have accepted such continuance or offer, unless such Business Employee specifically declines the continuance or offer. Business Employees described in this Section 280G Payments5.9(a) who, and prior to by operation of Law or as set out in this Section 5.9(a), or by acceptance of an offer of employment by Buyer or one if its Affiliates, become employees of Buyer or one of its Affiliates (including, as of the Closing, the Seller shall deliver to Buyer notification and documentation reasonably satisfactory to Buyer that (i) a vote any of the holders of Seller was solicited in conformance with Section 280G of the Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any Section 280G Payments (Sold Companies), shall collectively be the “280G Stockholder ApprovalTransferred Employees”) or (ii) that . Transferred Employees who are based primarily within the 280G Stockholder Approval was not obtained United States shall collectively be the “Transferred US Employees”, and as a consequence, that such payments and/or benefits all other Transferred Employees shall not collectively be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the Parachute Payment Waivers that were executed by the affected individuals prior to the solicitation of the vote of the holders of Seller stock pursuant to this Section 4.6(d)“International Transferred Employees”. (e) Nothing contained in this Section 4.6, whether express or implied, will be construed to (i) confer upon any Person any rights to employment or continued employment or any term or condition of employment for any period with Seller or Buyer, (ii) establish, amend or modify Seller Benefit Plan, (iii) limit the ability of Seller, Buyer or any of their respective Affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement, contract or arrangement at any time assumed, sponsored, maintained or contributed to by any of them, or (iv) confer upon any Person who is not a Party, including any Business Employee, any rights or remedies of any nature whatsoever (including any third-party beneficiary rights under this Agreement) under or by reason of this Section 4.6.

Business Employees. (a) Prior to the Closing Date, Buyer will make offers of employment or provide welcome letters, contingent upon the Closing, to the Business Employees that Buyer, in its sole discretion, desires to hire or retain. Effective as of Prior to the day after the Closing DateClosing, Buyer shall hire and employ each its Subsidiaries will be permitted to approach any Business Employee who accepts about the terms and conditions of such offer or letter, upon advance notification to Seller, however in the case of employment or welcome letter extended Automatic Transfer Employees, subject to such Business Employee pursuant to this Section 4.6prior completion of information and consultation obligations with the relevant employee representatives as required by applicable Laws of each relevant jurisdiction. To the extent required under applicable Laws or Contract, Seller shall (i) give all notices, effect all consultations and provide such other information required to be given to, and (ii) seek such approvals or consents from, any Employees, collective bargaining unit, works council or other representative body representing any group of Employees in accordance with applicable Laws in connection with the transactions contemplated by this Agreement. All offers of employment and welcome letters to each Business Employee shall comply with applicable Law. Effective as of the day after the Closing Date, Buyer or one of its Subsidiaries shall hire and employ each Business Employee who accepts the offer of employment or welcome letter extended to such Business Employee pursuant to this Section 4.6 (or in the case of the Automatic Transfer Employees, each Business Employee who is eligible to receive a notice of transfer under the Transfer Regulations or a new contract of employment from the Buyer or its Subsidiaries). Seller and its Affiliates shall not take any action that would reasonably be expected to cause any Business Employee to fail to, (i) accept employment with Buyer or its Affiliates, or (ii) continue his or her employment with the Buyer or its Affiliates. (b) Except as required by applicable Law or the terms of the applicable Seller Benefit Plan, from and after the Closing Date, the Business Employees shall cease to participate in and/or accrue further rights or benefits under any Seller Benefit Plans. All Business Employees will be given credit by Buyer under Buyer’s employee benefits plans for prior service with the Seller or its Subsidiaries for purposes of eligibility, participation, and benefit accrual, in each case, to the extent permitted by applicable Law and the terms of Buyer’s employee benefit plans (but in no case for purposes of accrual of benefits under any defined benefit pension plan or for any purpose under any equity based plan or where duplication of benefits or compensation would result). (c) Seller and Buyer intend that the Transactions will not constitute a severance of employment of any Business Employee prior to the Closing Date, and that such employees will have continuous and uninterrupted employment immediately before and immediately after the Closing Date. The Parties agree to cooperate in good faith to determine whether any notification may be required under the WARN Act as a result of the TransactionsTransactions and to ensure that all prior information and consultation requirements under the Transfer Regulations are completed prior to the Business Employees being hired by the Buyer. (d) If applicable, Seller shall submit to Seller’s stockholders for approval (in a manner reasonably satisfactory to Buyer), by such number of holders of Seller stock as is required by the terms of Section 280G(b)(5)(B) of the Code, any payments and/or benefits that may separately or in the aggregate, constitute “parachute payments” pursuant to Section 280G of the Code (“Section 280G Payments”) (which determination shall be made by the Seller and shall be subject to review and reasonable approval by Buyer), such that such payments and benefits shall not be deemed to be Section 280G Payments, and prior to the Closing, the Seller shall deliver to Buyer notification and documentation reasonably satisfactory to Buyer that (i) a vote of the holders of Seller was solicited in conformance with Section 280G of the Code and the regulations promulgated thereunder and the requisite stockholder approval was obtained with respect to any Section 280G Payments (the “280G Stockholder Approval”) or (ii) that the 280G Stockholder Approval was not obtained and as a consequence, that such payments and/or benefits shall not be made or provided to the extent they would cause any amounts to constitute Section 280G Payments, pursuant to the Parachute Payment Waivers that were executed by the affected individuals prior to the solicitation of the vote of the holders of Seller stock pursuant to this Section 4.6(d). (e) Nothing Subject to applicable Laws and with the exception of the requirements under the Transfer Regulations, nothing contained in this Section 4.6, whether express or implied, will be construed to (i) confer upon any Person any rights to employment or continued employment or any term or condition of employment for any period with Seller or Buyer, (ii) establish, amend or modify Seller Benefit Plan, (iii) limit the ability of Seller, Buyer or any of their respective Affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement, contract or arrangement at any time assumed, sponsored, maintained or contributed to by any of them, or (iv) confer upon any Person who is not a Party, including any Business Employee, any rights or remedies of any nature whatsoever (including any third-party beneficiary rights under this Agreement) under or by reason of this Section 4.6.