Certain Employee Matters. (a) Seller and the Acquired Companies shall take such action as is necessary such that the Acquired Companies shall, as of the Closing Date, cease being “participating employers” and shall cease any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Date. (b) For a period of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing. (c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan. (d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”). (e) For purposes of determining eligibility to participate and vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; provided, however, that such service need not be credited to the extent that it would result in a duplication of benefits. (f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date, and (ii) provide each Acquired Company Employee with credit for any co-payments and deductibles paid prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that such employees are eligible to participate in after the Closing Date. (g) No provision of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees. (h) At least thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability therefor.
Appears in 1 contract
Certain Employee Matters. (a) Seller The Company covenants and agrees ------------------------ that it will maintain adequate staffing levels to effectively manage and operate the Acquired Companies shall take such action as is necessary such that the Acquired Companies shall, as of Business until the Closing Date, cease Date (it being “participating employers” and shall cease understood that so long as the Company fulfills this covenant the failure of any co-sponsorship and participation employees offered employment by the Buyer in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in accordance with the provisions of this Section 4.6, the Acquired Companies 1.5 to accept such offer of employment shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan not constitute a Business Material Adverse Effect (as defined below)). On or prior to the Closing Date, the Buyer shall offer employment to a minimum of 90% of the individuals listed on Schedule 2.16 attached hereto (the ------------- "ERP List") who are still employees of the Company at such time on terms and conditions which, taken as a whole, are substantially similar to the economic terms and conditions of such individuals' employment arrangements as of the date hereof. In the event that any individual on the ERP List is offered employment by the Buyer and declines such offer of employment, the Company shall not create or maintain any position (whether as an employee or consultant) for such claims are made prior to, on or individual in the Company's remaining operations for 12 months from and after the Closing Date. For this purpose claims under To the extent that any medicalobligations arise as a result of the termination of any individual's employment with the Company, dentalincluding severance payments, visionstay bonuses and accrued vacation and sick time, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan obligations shall be incurred on and remain the date the employee or former employee is first absent from work because liability of the condition giving rise to such disability Company and not when the employee or former employee is determined to shall be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided satisfied in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs full on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Date.
(b) For a period of one (1) year following From and after the date hereof through the Closing Date, the Buyer shall provide or cause be entitled to be provided contact the individuals listed on Schedule 1.5(b) --------------- attached hereto to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees discuss possible employment with the Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For purposes of determining eligibility to participate and vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; provided, however, that such service need not be credited to the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date, and (ii) provide each Acquired Company Employee with credit for any co-payments and deductibles paid prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that such employees are eligible to participate in after the Closing Date.
(gc) No provision On or prior to the Closing Date, the Company shall pay a pro rata portion of this Section 4.6 the bonuses payable under its current employee bonus program up to the Closing Date to all eligible employees on the ERP List who are still employees of the Company at the Closing Date (the "Employee Bonuses").
(d) Nothing expressed or implied herein shall create confer upon any third party beneficiary past or other present employee of the Company, their representatives, beneficiaries, successors and assigns, nor upon any collective bargaining agent, any rights in or remedies of any Acquired Company Employee nature, including, without limitation, any rights to employment or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with the Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, BuyerCompany, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to successor or affiliate; nor shall the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment Company or the termination of the employment with their affiliates be precluded or prevented from terminating or amending any such person of any Bank Channel Employee Plan (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability therefordefined below).
Appears in 1 contract
Certain Employee Matters. (a) During the period (the "Transition Period") commencing at the Effective Time and ending immediately prior to the Transition Time, each Hospital Employee shall remain an employee of its employer as of the Effective Time (whether such employer is Seller or an affiliate of Seller), subject to normal personnel actions occurring in the ordinary course of business. During the Transition Period, or until such earlier time as any such Hospital Employee ceases to be an employee of such employer, each such Hospital Employee (other than the CEO) shall be leased to Purchaser from Seller or the employing affiliate on substantially the terms and conditions as are set forth in the Acquired Companies Employee Leasing Agreement. During the Transition Period, each leased Hospital Employee shall take continue to participate in all Seller Plans on the same basis as in effect immediately prior to the Effective Time, subject to the terms of the Employee Leasing Agreement.
(b) Purchaser covenants and agrees that it shall make offers of employment effective as of the Transition Time (in substantially equivalent positions) to all of the persons who are employees of (i) Seller with respect to the operation of the Hospital or (ii) any affiliate of Seller which employs individuals at the Hospital, (whether such action employees are full time employees, part-time employees, on short-term or long-term disability or on leave of absence pursuant to Seller's policies, or the Family and Medical Leave Act of 1993 or other similar local law (such laws being collectively referred to herein as the "FMLA")) immediately prior to the Transition Time (the "Hospital Employees"), provided, however, (A) that no Hospital Employee who is necessary on any disability or leave of absence at the Transition Time other than Hospital Employees on leave of absence to the extent required pursuant to the FMLA shall become a Hired Employee unless and until such Hospital Employee reports back to work in accordance with Seller's and its affiliates' practices at such time and (B) Purchaser shall not be required to make an offer of employment to the CEO. Notwithstanding the foregoing, Purchaser acknowledges that Seller has the right, but is not required, to retain any management-level Hospital Employee who does not accept Purchaser's employment offer made under this Section 5.3(b), which individuals will remain employed by Seller or its applicable affiliate as of the Transition Time (the "Retained Management Employees"); provided, however, that beginning on the Effective Date, Seller shall not solicit management level Hospital Employees (other than the CEO) or otherwise interfere with Purchaser's attempt to employ same until the fifteenth (15th) day following the Transition Time. Any of the Hospital Employees who accept an offer of employment with Purchaser as of or after the Transition Time shall be referred to in this Agreement as the "Hired Employees". Purchaser shall ensure that the Acquired Companies shallterms and conditions of employment (including initial position, cash compensation, shifts, benefits, including without limitation health, dental, disability, life insurance and retirement plans) of each of the Hired Employees on and after the Transition Time are no less favorable in the aggregate than those provided the Hospital Employees immediately prior to the Transition Time.
(c) Purchaser shall give all Hired Employees full credit for accumulated sick pay and extended sick pay as reflected by the Sick Pay Amount as of the Closing Date, cease being “participating employers” and shall cease all other paid time off pay, including CashPlus obligations of Seller and/or Seller's affiliates to such employees, either by (i) crediting such employees the time off reflected in the employment records of Seller and/or any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan of its affiliates immediately prior to the Closing Date, whether such claims are made prior to, on Effective Time or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise (ii) by making full payments to such claim is performed and not when employees of the amounts which such claim is madeemployees would have received had they taken such paid time off; provided, however, that with respect to claims relating to hospitalization the claim will this Section 5.3(c)(ii) shall not be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation Sick Pay Amount as of the Closing Date.
(bd) For a period of one (1) year following On and after the Closing DateTransition Time, Buyer shall provide or cause to be provided to Acquired Company Hired Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company eligible for a medical and hospital plan sponsored by Purchaser. Hired Employees shall not be less than that in effect immediately given credit for periods of employment with Seller and Seller's affiliates, as applicable, prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible Transition Time for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For purposes of determining eligibility to participate and amount of benefits (including without limitation vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate thereinbenefits), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; provided, however, that such service need not preexisting condition limitations will be credited to the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive waived with respect to self-insured benefits, all Hired Employees and their covered dependents unless such preexisting condition limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements were applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing DateTransition Time. In addition, and (ii) provide each Acquired Company Employee with credit for any co-payments and deductibles paid if prior to the Closing Date in respect of the year in which the Closing occurs in satisfying Transition Time a Hired Employee or his covered dependents paid any applicable amounts towards a deductible or out-of-pocket requirements under any welfare plans for maximum in Seller's or its affiliate's medical and health plan's current fiscal year, such amounts shall be applied toward satisfaction of the deductible or out-of-pocket maximum in the current fiscal year of Purchaser's medical and health plan that such employees are eligible to participate in covers Hired Employees on and after the Closing DateTransition Time.
(ge) No provision of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least Within thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment Hospital Employees (other than the Retained Management Employees) cease to all be employees of Seller and Seller's affiliates (as described in Section 4.9), such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject persons will be entitled to Buyer’s obligations a distribution of their accounts under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability therefor.Xxxxx Healthcare Corporation 401(k)
Appears in 1 contract
Certain Employee Matters. (a) Seller and the Acquired Companies shall take such action as is necessary such that the Acquired Companies shall, as of the Closing Date, cease being “"participating employers” " and shall cease any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“"COBRA”") to each “"qualified beneficiary” " as that term is defined in COBRA whose first “"qualifying event” " (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Date.
(b) For a period of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx XxxxxxRandall Talbot, Xxxxx Xxxxxx and their respective management Roger Harbix xxx xxxxx xxspexxxxx xxxxxement direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“"Buyer’s 's Retirement Plan”"). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“"Seller’s 's Retirement Plan”") shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s 's Retirement Plans and Buyer’s 's Retirement Plans, any notes representing participant loans, from Seller’s 's Retirement Plans into Buyer’s 's Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health and life benefits under any Seller Plan that is a group health and life plan (“"Seller’s 's Retiree Plans”") whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“"Buyer’s 's Group Welfare Plans”").
(e) For purposes of determining eligibility to participate and vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; provided, however, that such service need not be credited to the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date, and (ii) provide each Acquired Company Employee with credit for any co-payments and deductibles paid prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that such employees are eligible to participate in after the Closing Date.
(g) No provision of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s 's obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s 's offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability therefor.
Appears in 1 contract
Certain Employee Matters. (a) Seller and the Acquired Companies shall take such action as is necessary such that the Acquired Companies shall, as of the Closing Date, cease being “"participating employers” " and shall cease any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; providedPROVIDED, howeverHOWEVER, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“"COBRA”") to each “"qualified beneficiary” " as that term is defined in COBRA whose first “"qualifying event” " (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Date.
(b) For a period of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing Closing, provided PROVIDED that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; providedPROVIDED, furtherFURTHER, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); providedPROVIDED, furtherFURTHER, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”"BUYER'S RETIREMENT PLAN"). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”"SELLER'S RETIREMENT PLAN") shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s 's Retirement Plans and Buyer’s 's Retirement Plans, any notes representing participant loans, from Seller’s 's Retirement Plans into Buyer’s 's Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”"SELLER'S RETIREE PLANS") whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”"BUYER'S GROUP WELFARE PLANS").
(e) For purposes of determining eligibility to participate and vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; providedPROVIDED, howeverHOWEVER, that such service need not be credited to the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date, and (ii) provide each Acquired Company Employee with credit for any co-payments and deductibles paid prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that such employees are eligible to participate in after the Closing Date.
(g) No provision of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s 's obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s 's offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability therefor.
Appears in 1 contract
Samples: Stock Purchase Agreement (White Mountains Insurance Group LTD)
Certain Employee Matters. (a) Seller and the Acquired Companies shall take such action as is necessary such that the Acquired Companies shall, Effective as of the Closing Date, cease being “participating employers” Effective Date and shall cease any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Date.
(b) For a period of one (1) year following thereafter, the Closing Date, Buyer Surviving Corporation and its Subsidiaries shall provide or cause benefit plans to be the Continuing Employees that are no less favorable in the aggregate with respect to the Continuing Employees in the aggregate than the benefit plans provided to Acquired them on the Agreement Date and which are listed on Schedule 2.13(a) to the Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, Disclosure Schedule; provided that (i) compensation that is comparable in the aggregate (without regard to for this purpose, benefit plans do not include any equity plans or equity-based compensation) to that provided to them immediately prior to Closing grants made after the Effective Date, provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are any substitution of a benefit plan maintained for other, substantially comparable employees of the Acquiror or its affiliates in the aggregate to that provided to them immediately prior to Closing.
(c) Effective same country in lieu of a plan providing the same or similar type of benefits maintained for the Continuing Employees as of the Closing Agreement Date shall be deemed not to be a breach of this provision. With respect to all benefits provided to Company Continuing Employees following the Effective Date, Buyer or Surviving Corporation and its Subsidiaries shall provide credit to such employees for prior service with the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible its Subsidiaries for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For purposes of determining eligibility to participate and vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to benefits. To the extent an Acquired any Company Employee Plan shall become eligible be substituted, replaced or terminated by Acquiror or the Surviving Corporation following the Effective Time, then Acquiror shall use its reasonable commercial efforts to participate therein)cause Acquiror, Acquired Company Employees shall receive service credit for service with Seller the Surviving Corporation and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; provided, however, that such service need not be credited to the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company the Continuing Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired in which such employees are eligible to participate after the Effective Time, to the extent that such conditions, exclusions and waiting periods would not apply under a similar Company Employees immediately Employee Plan in which such employees participated prior to the Closing DateEffective Time, and (ii) provide each Acquired Company Continuing Employee with credit for any amounts paid under a corresponding Company Employee Plan during the same plan year for purposes of applying deductibles, co-payments and deductibles out-of-pocket maximums as though such amounts had been paid prior in accordance with the terms and conditions of the comparable employee benefit plan in which such Continuing Employees participate but solely with respect to the Closing Date in respect of the plan year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that such employees are eligible to participate in after Date occurs
(b) Within three (3) business days from the Closing Date.
, Acquiror shall provide each Retention and Incentive Plan Participant with a letter (gthe "RETENTION AND INCENTIVE PLAN LETTER") No provision notifying such Retention and Incentive Plan Participant of this Section 4.6 his or her interest in the Retention and Incentive Plan and the amounts payable under such Retention and Incentive Plan (which amounts shall create any third party beneficiary or other rights equal the amounts previously agreed by the Company and Acquiror). Each Retention and Incentive Plan Letter for each Retention and Incentive Plan Participant shall be in any Acquired the amount agreed by Acquiror and the Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s obligations under For the other provisions purpose of this Section 4.6) and Seller section "business day" shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible mean a day on which commercial banks are open for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth business in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, applicable jurisdiction where the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller relevant Retention and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability thereforIncentive Plan Participants are employed.
Appears in 1 contract
Samples: Merger Agreement (Amdocs LTD)
Certain Employee Matters. Subject to the execution of a general release of claims in form and substance reasonably satisfactory to Parent within 21 days after presentation thereof (aor such longer period as may be required by law), Parent shall offer each Employee (other than an Employee who is party to an Employee Agreement that provides for severance) Seller and the Acquired Companies shall take such action as is necessary such that the Acquired Companies shallterminated by Parent on, as of or within sixty (60) days following, the Closing Date, cease being “participating employers” and shall cease any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Date.
(b) For a period of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in does not receive a transaction completion bonus granted by the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately Company prior to Closing , provided that equity or equity-based compensation provided to (those persons who are receiving such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that transaction completion bonuses are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under set forth on Section 401(a5.08(i) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants Disclosure Schedule) in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of connection with the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For purposes of determining eligibility to participate and vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; provided, however, that such service need not be credited to the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date, and (ii) provide each Acquired Company Employee with credit for any co-payments and deductibles paid prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that such employees are eligible to participate in after the Closing Date.
(g) No provision of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this AgreementAgreement two (2) shall be months of severance payments at the responsibility rate such Employee is being paid on the date hereof as set forth on Section 2.13(a)(i) of the Seller or such Subsidiary Company Disclosure Schedules (including any accrued but unused vacationpayable in accordance with Parent’s customary payroll practices commencing on the next regular payroll date following the effectiveness of the release), severance or similar benefits that may be payable, if any, to Bank Channel Employees (ii) reimbursement for continuation of medical coverage in respect accordance with the provisions of their COBRA at active employee rates under the applicable plan for two (2) months following the termination of employment the medical coverage in accordance with Seller the terms of the applicable medical plan, subject to the applicable Employee’s timely election of continuation coverage and its Affiliates continued eligibility to receive COBRA coverage, and the terms and conditions of the Parent’s medical plan (the “Health Benefits”); provided, that such Health Benefits shall immediately cease as of the Closingdate the applicable Employee becomes eligible for coverage under the group medical plan of a new employer and (iii) a cash payout equal to such Employee’s accrued but unpaid vacation time at such Employee’s salary rate on the date hereof as set forth on Section 2.13(a)(i) of the Company Disclosure Schedules (payable in a lump sum on the next regular payroll date following the termination of employment, unless sooner required by law and, for the avoidance of doubt, the receipt of the amounts under this clause (iii) are not subject to execution of the release). Parent may modify its obligation to provide the Health Benefits if required by applicable law and/or to avoid any penalty or excise taxes imposed on it (or the Employee) in connection with the continued payment of premiums by the Company under the Code or the Patient Protection and none Affordable Care Act of Parent2010, Buyer or any Acquired Company shall have any liability thereforas amended, each as determined by Parent in its good faith reasonable discretion; provided that Parent will use reasonable commercial efforts to cause such modifications not to result in an increase in cost to the affected employee to acquire equivalent Health Benefits.
Appears in 1 contract
Certain Employee Matters. (a) Seller and the Acquired Companies shall take such action as is necessary such that the Acquired Companies shall, as The merger agreement contains certain agreements of the Closing Date, cease being “participating employers” and shall cease any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities parties with respect to claims incurred under any such Seller Plan prior to the Closing Datevarious employee matters, whether such claims which are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees)described below. As soon as practicable, but in any event within five (5) Business Days following administratively practicable after the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as effective time of the Closing Date.
(b) For a period merger, TriCo will take all reasonable action so that employees of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer FNBB and its Subsidiaries, (i) compensation that is comparable subsidiaries will be entitled to participate in the aggregate (without regard TriCo and Tri Counties Bank employee benefit plans of general applicability to any equity or equitythe same extent as similarly-based compensation) to that provided to them immediately prior to Closing situated employees of TriCo and its subsidiaries, provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing coverage shall be disregarded in determining whether compensation is comparable continued under the corresponding benefit plans of FNBB and its subsidiaries until such employees are permitted to participate in the aggregate; providedTriCo benefit plans. TriCo and Tri Counties Bank, furtherhowever, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior under any obligation to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate make any grants to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health FNBB and life benefits its subsidiaries under any Seller Plan that is a group health and life discretionary equity compensation plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing DateTriCo. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For purposes of determining eligibility to participate and in, the vesting (of benefits and for all other purposes, other than for accrual of pension benefits under, the TriCo employee benefit accrual purposes in the case of vacation and severance plans) where length , TriCo will recognize years of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent with FNBB and its subsidiaries, to the same extent an Acquired Company Employee as such service was credited for such purpose by FNBB and its subsidiaries, except where such recognition would result in duplication of benefits. Nothing contained in the merger agreement shall limit the ability of TriCo to amend or terminate any TriCo or FNBB benefit plan in accordance with their terms at any time. At the time the employees of FNBB and its subsidiaries become eligible to participate therein)in a medical, Acquired Company Employees shall receive service credit for service with Seller and any dental, health, life or disability plan of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller TriCo and its Subsidiaries; providedsubsidiaries, however, that TriCo will cause each such service need not be credited plan to: • waive any preexisting condition limitations to the extent that it would result in a duplication such conditions are covered under the applicable medical, health or dental plans of benefits.
(f) ParentTriCo; • provide full credit under such medical, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit health or dental plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date, and (ii) provide each Acquired Company Employee with credit for any deductibles, co-payments payment and deductibles paid prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under expenses incurred by the employees and their beneficiaries during the portion of the calendar year prior to such participation; and • waive any welfare plans for waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such year that such employees are eligible to participate in employee on or after the Closing Date.
(g) No provision effective time of this Section 4.6 shall create the merger to the extent such employee had satisfied any third party beneficiary similar limitation or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, requirement under any Plans or any such similar a corresponding FNBB plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to the anticipated Closing Dateeffective time of the merger. At and following the effective time of the merger, Buyer TriCo shall identify honor and shall continue to be obligated to perform, in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to accordance with their terms, all such identified Bank Channel Employees upon such terms benefit obligations to, and conditions as it determines in contractual rights of, current and former employees of FNBB and its sole discretion (subject to Buyer’s obligations under the other provisions subsidiaries and current and former directors of this Section 4.6) FNBB and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees its subsidiaries existing as of the Closing Dateeffective date of the merger, as well as all bonus, deferred compensation, supplemental retirement plan, salary continuation, severance, termination, change in control or other existing plans and policies of FNBB and its subsidiaries that were disclosed to TriCo. Each identified Bank Channel Employee TriCo has agreed that those employees of FNBB and its subsidiaries (i) who accepts Buyer’s offer are not offered employment by TriCo following the effective date of the merger, who are not a party to an employment shall agreement or otherwise entitled to an existing severance package, change in control benefit or payments under any salary continuation plan, and who sign and deliver (and do not revoke) a termination and release agreement or (ii) who are terminated by TriCo without cause prior to the first anniversary of the effective date of the merger and deliver (and do not revoke) a termination and release agreement, will be treated as entitled to receive a single lump sum payment of severance in an Acquired Company Employeeamount and in accordance with the terms of a severance policy agreed to by the parties. With respect Pursuant to each Bank Channel Employee who becomes an Acquired Company Employeethe merger agreement, Buyer shall be solely responsible for any severance or similar benefits that may be payableFNBB is required, if anyprior to the closing of the merger, to have made all discretionary employee contributions to the First National Bank retirement plan, to provide for full vesting of all non-elective contributions under such Acquired Company Employee in respect of his or her termination of employment following retirement plan for all participants, and to take all actions necessary to terminate such retirement plan effective no later than the Closing with Buyer and its Affiliates. Except as set forth in business day preceding the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination closing date of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability thereformerger.
Appears in 1 contract
Samples: Merger Agreement
Certain Employee Matters. (a) Seller and the Acquired Companies shall take such action as is necessary such that the Acquired Companies shall, as of the Closing Date, cease being “participating employers” and shall cease any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other No later than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Date.
(b) For a period of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For purposes of determining eligibility to participate and vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; provided, however, that such service need not be credited to the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date, and (ii) provide each Acquired Company Employee with credit for any co-payments and deductibles paid prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that such employees are eligible to participate in after the Closing Date.
(g) No provision of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to the anticipated Closing Transition Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer or one or more of its Affiliates shall offer employment commencing effective as of the Transition Date, to all each Business Employee who remains a Business Employee immediately prior to the Transition Date. With respect to each Business Employee who is not an Excluded Employee or a Union Employee, such identified Bank Channel Employees upon offer of employment shall be (i) at a base salary or base hourly wage that is not less than the base salary or base hourly wage that such Business Employee was receiving immediately prior to the Transition Date and (ii) on other terms and conditions (including participation in retirement and welfare plans and programs) that are at least as it determines substantially comparable, in the aggregate, to those provided by RNR and its sole discretion Affiliates to such Business Employee immediately prior to the Transition Date (subject to Buyer’s obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date“Employment Offers”). Each identified Bank Channel Business Employee who accepts Buyer’s offer of employment and becomes employed by Buyer or one of its Affiliates on the Transition Date is herein referred to as a “Transferred Employee.” Until the first anniversary of the Transition Date, each Transferred Employee who is not an Excluded Employee or Union Employee shall, while employed by Buyer and/or its Affiliates, be employed on terms and conditions not less favorable, in the aggregate, to those set forth in such Transferred Employee’s Employment Offer. Without limiting the immediately preceding sentence, Buyer shall provide (or cause one or more of its Affiliates to provide) each Transferred Employee (other than an Excluded Employee or Union Employee) whose employment is terminated by Buyer or any of its Affiliates without “cause” during the period commencing on the Transition Date and ending on the first anniversary of the Transition Date with severance benefits that are not less favorable than those set forth in Section 9.04(a) of the Disclosure Schedule.
(b) No later than thirty (30) days prior to the Transition Date, Buyer or one or more of its Affiliates shall offer employment commencing effective as of the Transition Date, to each Union Employee who remains a Business Employee immediately prior to the Transition Date. Such offer of employment shall be treated at a base salary or base hourly wage that is not less than the base salary or base hourly wage that such Union Employee was receiving immediately prior to the Transition Date and on other terms and conditions in compliance with the USW CBA and in no event, no less favorable, in the aggregate, to those provided by RNR and its Affiliates to such Business Employee immediately prior to the Transition Date except as an Acquired Company Employeesuch terms and conditions are modified or amended pursuant to any modification or amendment of the USW CBA negotiated between Buyer and the Union following Closing. With Each Union Employee who accepts Buyer’s offer of employment and becomes employed by Buyer or one of its Affiliates on the Transition Date shall be considered a Transferred Employee for all purposes of this Agreement with the sole exception of Section 9.04(a).
(c) Each of the Sellers shall permit, and cause their Affiliates to permit, Buyer to contact and make arrangements with the Business Employees regarding employment or prospective employment by Buyer after the Closing and for the purpose of ensuring the continuity of the Business, and each Seller agrees not to discourage, and to cause their Affiliates not to discourage, any Business Employees from consulting with Buyer.
(d) The Sellers shall retain responsibility for the payment of any employee benefits or entitlement, including severance pay, deferred compensation, equity-based or cash incentive compensation, accrued vacation, sick or holiday pay to any Transferred Employee or any other Business Employee pursuant to any Business Employee Benefit Plan as a result of or in connection with the consummation of the transactions contemplated hereby. Without limiting the foregoing, with respect to each Bank Channel any annual cash bonuses that may be payable to the Transferred Employees under any short-term incentive plan of RNR or any of its Affiliates in respect of 2017 performance: (i) the Transferred Employees shall be deemed to have satisfied all applicable employment conditions notwithstanding their termination of employment with RNR immediately prior to the Transition Date; and (ii) subject to the allocation of costs in the Transition Services Agreement and Section 12.02, RNR or one of its Affiliates shall pay such bonuses in the ordinary course during 2018, subject to any applicable performance requirements and the other terms and conditions (other than employment or service conditions) of the short-term incentive plan.
(e) The Parties acknowledge that the transactions provided for in this Agreement may result in obligations on the part of the Sellers or their Affiliates and one or more of the Business Employee Benefit Plans that is an employee welfare benefit plan (within the meaning of Section 3(1) of ERISA) to comply with the health care continuation requirements of COBRA or state law, as applicable. The Parties expressly agree that Buyer and Buyer’s Employee Benefit Plans shall have no responsibility for the compliance with such health care continuation requirements (i) for qualified beneficiaries who becomes an Acquired Company Employeepreviously elected to receive continuation coverage under the Business Employee Benefit Plans or who between the date of this Agreement and the Transition Date elect to receive continuation coverage, or (ii) with respect to those employees and former employees of the Sellers and their Affiliates who may become eligible to receive such continuation coverage on or prior to the Transition Date or in connection with the transactions provided for in this Agreement.
(f) For the applicable plan year that includes the Transition Date, the Transferred Employees shall not be required to satisfy any deductible or out-of-pocket maximum requirements under the benefit plans, programs and policies maintained by Buyer or its Affiliates (the “Buyer Plans”) that provide medical (including prescription drug), dental and vision benefits (collectively, the “Buyer Health Plans”) to the extent such requirements were satisfied for the portion of the current plan year under the Business Employee Benefit Plans that provide medical, dental and vision benefits (the “Business Employee Health Plans”). Any waiting periods, pre-existing condition exclusions and requirements to show evidence of good health contained in Buyer Health Plans shall be waived with respect to the Transferred Employees (except to the extent that any such waiting period, pre-existing condition exclusion, or requirement of showing evidence of good health applied under the applicable the Business Employee Health Plans in which the Business Employee participates or is otherwise eligible to participate as of immediately prior to the Transition Date).
(g) Buyer shall cause the Buyer Plans that cover the Transferred Employees after the Transition Date to credit service with Sellers and their Affiliates and any formerly affiliated predecessor employers to the extent credited by Sellers and their Affiliates as service with Buyer under the corresponding or comparable Business Employee Benefit Plans prior to the Transition Date for purposes of (i) accruing annual vacation time and paid time off, (ii) calculating severance benefits under Buyer’s severance plan(s), and (iii) eligibility and vesting (but not for benefit accrual purposes under any defined benefit pension plan) under the Buyer Plans.
(h) From and after the Transition Date, Buyer or one of its Affiliates shall assume and honor the USW CBA. RNR and Buyer shall cooperate in connection with any engagement in any type of bargaining required in connection with the transactions contemplated by this Agreement (including, for avoidance of doubt, the Transition Services Agreement) or under applicable Law (including “effects” bargaining) with the collective bargaining representative of the Union between the date of this Agreement and the Transition Date.
(i) Subject to the terms of the Transition Services Agreement, Buyer and its Affiliates shall have sole responsibility for all Liabilities relating to or arising from Buyer’s and its Affiliates’ employment of the Transferred Employees on and following the Transition Date. Buyer and its Affiliates shall be solely responsible for any severance obligations or similar liabilities arising under the WARN Act with respect to or as a result, in whole or in part, of the actions or omissions of Buyer or any of its Affiliates on or after the Transition Date. Prior to the Transition Date, Sellers will provide to Buyer a list of employees and former employees of Sellers and their Affiliates who were employed in the Business who have incurred an “employment loss” (within the meaning of the WARN Act) (by date and location) during the ninety (90) day period preceding the Closing Date. Buyer releases, and shall defend, indemnify and hold harmless, Sellers’ Indemnitees from and against all Losses (REGARDLESS OF WHETHER CAUSED OR CONTRIBUTED TO BY THE SOLE, JOINT, COMPARATIVE OR CONCURRENT NEGLIGENCE OR STRICT LIABILITY OF SELLERS INDEMNITEES) arising out of, related to, or caused by Buyer’s and its Affiliates’ employment of the Transferred Employees following the Transition Date or the terms and conditions of any Transferred Employee’s employment following the Transition Date.
(j) From and after the date hereof until the earlier of the termination of this Agreement in accordance with its terms or the Transition Date, except in the ordinary course of business or as required under applicable Law or the terms of any Business Employee Benefit Plan as of the date hereof, Sellers shall not, except with Buyer’s prior written consent (which consent shall not be unreasonably withheld), (i) increase the compensation or benefits that payable to any Business Employee, (ii) terminate the employment of any Business Employee whose annual base compensation is greater than $150,000, other than for cause, or (iii) hire any Business Employee whose annual base compensation is greater than $150,000.
(k) No provision of this Section 9.04 shall create any Third-Party beneficiary rights under this Agreement in any Business Employee (including any beneficiary or dependent thereof).
(l) From and after the date hereof until the earlier of the termination of this Agreement in accordance with its terms or the one-year anniversary of the Closing Date, Buyer may be payablenot (i) employ, if anyhire or otherwise retain any employee (or person who was previously an employee in the 180-day period prior to such employment, hiring or retention) of RNR or any of its Affiliates or (ii) solicit, raid, entice or induce, directly or indirectly, any employee (or person who was previously an employee in the 180-day period prior to such solicitation, raid, enticement, or inducement) of RNR or any of its Affiliates or any other person who is under contract with or rendering services to RNR or any of its Affiliates in an employee-like capacity in the day-to-day business operations of RNR or any of its Affiliates, to such Acquired Company Employee in respect of (A) terminate his or her termination employment by, or contractual relationship with, RNR or its Affiliates, (B) refrain from extending or renewing the same (upon the same or new terms), (C) refrain from rendering services to or for RNR or its Affiliates, or (D) become employed by or to enter into contractual relations with any persons other than RNR or its Affiliates; provided, however, that the foregoing restrictions shall not apply to Business Employees and any other employees for which Sellers have given their specific written consent for Buyer to employ or solicit. Notwithstanding the foregoing, the publication of employment following classified advertisements in newspapers, periodicals, internet bulletin boards or websites, or other publications of general availability or circulation not directly or indirectly targeted at any employees of RNR or its Affiliates and the Closing with hiring of any employees of RNR or its Affiliates who were not previously an employee in the 180-day period prior to the date of such hiring who respond to such advertisements in his or her own volition shall not be deemed a breach of this provision unless the advertisement is undertaken as a means to circumvent or conceal a violation of this provision.
(m) As of and effective upon the Transition Date, Sellers shall or shall cause their Affiliates to (i) assign to Buyer and its Affiliates. Except as set forth in , to the preceding sentenceextent permitted by applicable Law and the applicable agreement, any liabilityand all nondisclosure agreements or covenants, obligation noncompetition agreements or commitment of Sellercovenants, GAC non-solicitation agreements or covenants or other restrictive covenants (the “Restrictive Covenants”) between Sellers or their Affiliates, as applicable, on the one hand, and any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Transferred Employee (including as a result of other than any Excluded Employees), on the transactions contemplated by this Agreementother hand, and (ii) shall be the responsibility of the Seller or waive such Subsidiary (including Restrictive Covenants, and any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller related claims against Buyer and its Affiliates as and the Transferred Employees, with respect to the Transferred Employees’ employment by Sellers or their Affiliates and activities for or on behalf of Buyer or its Affiliates following the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability therefor.
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Resolute Energy Corp)
Certain Employee Matters. (a) During the period (the "Transition Period") commencing at the Effective Time and ending immediately prior to 12:01 a.m. on the calendar day immediately following the last day of the term of the Employee Leasing Agreement as to each Hospital (as to each such Hospital, the "Transition Time"), each Hospital Employee shall remain an employee of its employer as of the Effective Time (whether such employer is Seller or an affiliate of Seller), subject to normal personnel actions occurring in the ordinary course of business and the Acquired Companies terms of any applicable collective bargaining agreements. During the Transition Period, or until such earlier time as any such Hospital Employee ceases to be an employee of such employer, each such Hospital Employee shall take be leased to Purchaser from Seller or the employing affiliate on substantially the terms and conditions as are set forth in the Employee Leasing Agreement. During the Transition Period, each leased Hospital Employee shall continue to participate in all Seller Plans on the same basis as in effect immediately prior to the Effective Time, subject to the terms of the Employee Leasing Agreement.
(b) Purchaser covenants and agrees that it shall make offers of employment (in substantially equivalent positions), subject to the terms of the labor union agreements described on Schedule 2.13(b) and Section 5.15, to all of the persons who are employees of (i) Seller with respect to the operation of the Hospitals or (ii) any affiliate of Seller which employs individuals at any of the Hospitals (whether such action employees are full time employees, part-time employees or on leave of absence) as of the Transition Time (the "Hospitals' Employees"); provided, however, that no Hospitals' Employee who is necessary on any disability or leave of absence at the Transition Time, other than leave of absence pursuant to the Family and Medical Leave Act of 1993 or other similar local law (such laws being collectively referred to herein as the "FMLA") ("Employee on Disability"), shall become a Hired Employee and, Purchaser shall have no liability or obligation with respect to any Employee on Disability after the Transition Time. Notwithstanding the foregoing, Purchaser acknowledges that Seller has the right, but is not required, to retain any management-level Hospitals' Employee who does not accept Purchaser's employment offer made under this Section 5.3(b), which individuals will remain employed by Seller or its applicable affiliate as of the Transition Time (the "Retained Management Employees"). Any of the Hospitals' Employees who accept an offer of employment with Purchaser as of or after the Transition Time shall be referred to in this Agreement as the "Hired Employees". Purchaser shall ensure that the Acquired Companies shallterms and conditions of employment (including initial position, cash compensation, shifts, benefits, including without limitation health, dental, disability, life insurance) of each of the Hired Employees on and after the Transition Time are substantially equivalent to that provided the Hospitals' Employees as of the Effective Date; Purchaser shall also ensure that a 401(k) retirement plan option is made available to the Hired Employees.
(c) Purchaser shall give all Hired Employees full credit for extended sick pay (Reserve Sick) as reflected by the Sick Pay Amount as of the Closing Date, cease being “participating employers” and shall cease all other paid time off pay, including CashPlus obligations of Seller and/or Seller's affiliates to such employees, either by (i) crediting such employees the time off reflected in the employment records of Seller and/or any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan of its affiliates immediately prior to the Closing Date, whether such claims are made prior to, on Effective Time or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise (ii) by making full payments to such claim is performed and not when employees of the amounts which such claim is madeemployees would have received had they taken such paid time off; provided, however, that with respect to claims relating to hospitalization the claim will this Section 5.3(c)(ii) shall not be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation Sick Pay Amount as of the Closing Date.
(bd) For a period of one (1) year following On and after the Closing DateTransition Time, Buyer shall provide or cause to be provided to Acquired Company Hired Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company eligible for a medical and hospital plan sponsored by Purchaser. Hired Employees shall not be less than that in effect immediately given credit for periods of employment with Seller and Seller's affiliates, as applicable, prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible Transition Time for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For purposes of determining eligibility to participate and amount of benefits (including without limitation vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiaries; provided, however, that such service need not be credited to the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to selfpaid time off plans and retirement plans of Purchaser, and pre-insured benefits, all existing condition limitations as to preexisting conditions, exclusions and waiting periods will be waived with respect to participation Hired Employees and coverage requirements their covered dependents under medical and hospital plans sponsored by Purchaser unless such pre-existing condition limitations were applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing DateTransition Time. In addition, and (ii) provide each Acquired Company Employee with credit for any co-payments and deductibles paid if prior to the Closing Date in respect of the year in which the Closing occurs in satisfying Transition Time a Hired Employee or his covered dependents paid any applicable amounts towards a deductible or out-of-pocket requirements under any welfare plans for maximum in Seller's or its affiliate's medical and health plan's current fiscal year, such amounts shall be applied toward satisfaction of the deductible or out-of-pocket maximum in the current fiscal year of Purchaser's medical and health plan that such employees are eligible to participate in covers Hired Employees on and after the Closing DateTransition Time. Purchaser agrees that, for any employee subject to any collective bargaining agreement, if any eligibility described in this section differs from eligibility described by the collective bargaining agreement, the eligibility descriptions of the collective bargaining agreement shall prevail.
(ge) No provision of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least Within thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment Hospitals' Employees (other than the Retained Management Employees) cease to all be employees of Seller and Seller's affiliates (as described in Section 4.9), such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject persons will be entitled to Buyer’s obligations a distribution of their accounts under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability therefor.Tenet Healthcare Corporation 400(x)
Appears in 1 contract
Samples: Asset Sale Agreement (Integrated Healthcare Holdings)
Certain Employee Matters. (a) Seller and On or before the Acquired Companies shall take such action as is necessary such that the Acquired Companies shall, as of the Closing Date, cease being “participating employers” and shall cease any co-sponsorship and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan fifth day prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, visionPurchaser shall offer, or prescription drug planshall cause one or more of the Insurance Subsidiaries to offer, generally will be deemed employment to any one or more of the individuals identified on Schedule 3.10(a) (the "Employees"), each such offer to be incurred on contingent upon the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because consummation of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plantransactions contemplated by this Agreement. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance (Each Employee who accepts Purchaser's offer of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs employment on or prior to the Closing Date. The Acquired Companies Date shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company hereinafter be referred to as a "Transferred Employee" and collectively as "Transferred Employees"). As soon as practicable, but in Purchaser or the 50 applicable Insurance Subsidiary shall be free to terminate the employment of any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Transferred Employee (other than so employed thereby at any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of time after the Closing Date.
(b) For a period of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer the Purchaser shall assume the sponsorship (or liabilities, as the Acquired Companies case may be) of, or shall adopt cause one or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) more of the Code pursuant Insurance Subsidiaries to which assume the Acquired Company Employees sponsorship (or liabilities, as the case may participate be) of, (“Buyer’s Retirement i) the Arm Severance Plan”, in the form set forth on Annex A to Schedule 3.10(a). Acquired Company Employees who are participants , (ii) the Stay-Pay Incentive Arrangement in any Plan which is a retirement plan qualified under Section 401(athe form set forth on Annex B to Schedule 3.10(a) of (iii) the Code Nonqualified Deferred Compensation Plan, in the form set forth on Annex C to Schedule 3.10(a), and (“Seller’s Retirement Plan”iv) shall accrued and earned, but unused, vacation time (such plans to be allowed referred to rollover their distributable benefits, including, to herein as the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement "Assumed Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”").
(ec) For Without limiting the foregoing, Purchaser shall credit each Transferred Employee with all of his or her service for Seller or either of the Insurance Subsidiaries under Purchaser's employee benefit plans, arrangements and policies for purposes of determining eligibility to participate and vesting only (and not for purposes of benefit accrual, except for the purposes of benefit accrual purposes in under the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiariesAssumed Plans), but solely to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent that such service was credited thereto under similar employee benefit plans plans, arrangements and arrangements policies of Seller and its Subsidiaries; provided, however, that such service need not be credited to or the extent that it would result in a duplication of benefits.
(f) Parent, Buyer, the Acquired Companies and their respective Insurance Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date.
(d) Purchaser and its respective Subsidiaries will, and (ii) or will cause the Insurance Subsidiaries to provide each Acquired Company Transferred Employee with credit for any co-payments and deductibles paid thereby in the year 2000 under Seller's respective plans prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that in which such employees are eligible to participate in after the Closing Date.
(g) No provision of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability therefor.
Appears in 1 contract
Certain Employee Matters. (a) Purchaser covenants and agrees that it shall make offers of employment (in substantially equivalent positions) to substantially all Deaconess Employees (whether such employees are full-time employees, part-time employees, on short-term or long- term disability or on leave of absence pursuant to Seller's policies, the Family and Medical Leave Act of 1993 or other similar local law) as of the Closing Date. Notwithstanding the foregoing, Purchaser acknowledges that Seller and has the Acquired Companies right, but is not required, to retain any management-level Deaconess Employee who does not accept Purchaser's employment offer made under this Section 10.1(a), which individuals will remain employed by Seller as of the Closing Date (the "Retained Management Employees"). Any of the Deaconess Employees who accept an offer of employment with Purchaser as of or after the Closing Date shall take such action be referred to in this Agreement as is necessary such the "Hired Employees." Purchaser agrees that it shall continue to employ in comparable positions the Hired Employees for a period of no less than ninety (90) calendar days following the Closing Date, unless Purchaser sooner terminates the employment of any Hired Employee for cause or any Hired Employee voluntarily resigns or retires. For a period of one year from the Closing Date, Purchaser shall ensure that the Acquired Companies shallterms and conditions of employment (including initial position, cash compensation, shifts, benefits, including without limitation health, dental, disability, life insurance and retirement plans) of each of the Hired Employees on and after the Closing Date are, in the aggregate, substantially equivalent to that provided the Deaconess Employees as of the Closing Date, cease being “participating employers” provided, however, that the entitlement of any of the Deaconess Employees to retention bonuses as of the Closing Date shall not constitute a term and condition of employment of any Hired Employee as to which Purchaser must provide a substantially equivalent benefit.
(b) Purchaser shall cease any co-sponsorship give all Hired Employees full credit for extended sick pay (Reserve Sick) as of the Closing Date, and participation all other paid time off pay, either by (i) crediting such employees the time off reflected in each the employment records of Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan immediately prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For this purpose claims under any medical, dental, vision, or prescription drug plan, generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6. For the avoidance of doubt, Seller shall retain all liabilities with respect to equity or equity-based awards under any Plan. Seller shall provide any continuation coverage required under Section 4980B of the Code, Part 6 of Title I of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for each of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Date.
(b) For a period of one (1) year following the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) by making full payments to such employees of the amounts that are comparable in the aggregate to that provided to them immediately prior to Closingsuch employees would have received had they taken such paid time off.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Hired Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible for retiree health a medical and life benefits under any Seller Plan that is a group health and life hospital plan (“Seller’s Retiree Plans”) whose termination sponsored by Purchaser. Hired Employees shall be given credit for periods of employment occurs on or with Seller, as applicable, prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For Date for purposes of determining eligibility to participate and vesting (and for benefit accrual purposes of benefits in the case of vacation and severance plans) where length of service is relevant under any Purchaser's employee benefit plan or arrangement of Buyer plans, and its subsidiaries (or of Parent preexisting condition limitations will be waived with respect to Hired Employees and its subsidiariestheir covered dependents unless such preexisting conditions, to the extent an Acquired Company Employee shall become eligible to participate therein)required by law, Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries were applicable prior to the same extent Closing Date.
(d) Seller shall be responsible to provide continuation coverage pursuant to the requirements of Code section 4980B and Part 6 of Title I of ERISA ("COBRA Coverage") with respect to the Deaconess Employees (and their dependents) whose qualifying event occurred prior to the date on which the Deaconess Employees become Hired Employees. Purchaser shall be responsible to provide COBRA Coverage with respect to each of the Hired Employees (and their dependents) whose qualifying event occurs on or after the date on which such service was credited under similar Deaconess Employees become Hired Employees.
(e) After the Closing Date, Purchaser's human resources department will give reasonable assistance to Seller's human resources department with respect to Seller's post-Closing administration of Seller's pre-Closing employee pension benefit plans and arrangements employee health or welfare benefit plans for the Deaconess Employees (other than the Retained Management Employees). Within ten (10) days after the Closing Date, Purchaser shall provide to Seller a list of Seller and its Subsidiaries; provided, however, that all of the Deaconess Employees who were offered employment by Purchaser but refused such service need not be credited to the extent that it would result in a duplication of benefitsemployment.
(f) Parent, Buyer, the Acquired Companies and their respective Subsidiaries will (i) use their commercially reasonable efforts to cause any third party insurers to waive, and will waive with With respect to self-insured benefitsall Deaconess Employees (including Hired Employees), all limitations as to preexisting conditionsSeller shall be responsible for and shall pay, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be eligible to participate in after the Closing Date, other than limitations on or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing Date under any welfare plan maintained for Acquired Company Employees immediately prior to the Closing Date, all wages, bonuses, vacation pay, pay for other compensated absences and other remuneration (iiincluding mandatory or discretionary benefits) provide each Acquired Company Employee with credit for any co-payments and deductibles paid prior to earned or accrued by such employees as of the close of business on the Closing Date in Date, including any related payroll deductions (such as FICA and any pension or other employee benefit plan contributions and employment Taxes) with respect thereto, regardless of whether such amounts have been accrued on the year in which books of Seller at the Closing occurs in satisfying any applicable deductible or out-of-pocket requirements under any welfare plans for such year that such employees are eligible to participate in after close of business on the Closing Date.
(g) No provision Seller shall have liability for and shall pay all severance payments (if any) due to any of this Section 4.6 shall create any third party beneficiary or other rights in any Acquired Company Employee or former employee the Deaconess Employees (including any beneficiary or dependent thereofHired Employee) of Seller in respect of continued employment (or resumed employment) with Buyer, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyer, or any of their respective subsidiaries for Acquired Company Employees.
(h) At least thirty (30) days prior to the anticipated Closing Date, Buyer shall identify in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment shall be treated as an Acquired Company Employee. With respect to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentence, any liability, obligation or commitment of Seller, GAC or any other Subsidiary of Seller or GAC that relates to, or that arises out of, the employment or the termination of the employment with any such person of any Bank Channel Employee (including as a result of the transactions contemplated by this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect termination of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer or any Acquired Company shall have any liability thereforSeller.
Appears in 1 contract
Samples: Asset Purchase Agreement (Devry Inc)
Certain Employee Matters. (a) Set forth on Section 1.01(f) of the Sellers Disclosure Schedule is a list of all Business Employees. No later than five (5) Business Days prior to the anticipated Closing Date, Sellers shall provide Purchasers (1) an updated list of Business Employees reflecting any changes from the date hereof and (2) with respect to any Business Employees who are on short-term or long-term disability leave (including any Business Employee who (x) has notified his or her manager, supervisor, or human resources in writing that he or she will be applying for short-term or long-term disability or (y) has a pending application for short-term or long-term disability) (each such individual, a “Business Employee on Leave”), the estimated monthly Employee Costs for each such Business Employee (the “Estimated Employee Costs”). No later than forty-five (45) Business Days prior to an anticipated Closing Date that has been established in good faith by the Parties (but in no event shall any Employment Offer be issued earlier than sixty (60) days following the date hereof without the mutual consent of the Parties), Purchasers or one of their subsidiaries shall make an offer of employment (an “Employment Offer”) to all Business Employees with such employment to commence as of the Closing Date; provided, and except as required under the terms of any Collective Bargaining Agreement or Applicable Law, that Purchasers’ offer of employment to any Business Employee on Leave shall be effective upon such employee properly presenting himself or herself to South Central Seller or an Acquired Company for active employment and such employee’s subsequent return from approved leave; provided, further, that (except as otherwise provided pursuant to a Collective Bargaining Agreement or Applicable Law) such leave does not extend for a period greater than one hundred eighty (180) days (counting periods both before and after the Closing Date) or such later time as may be required by applicable Law or the terms of any Collective Bargaining Agreement. Sellers and Purchasers shall work reasonably and in good faith to enter into a services agreement (the “Designated Services Agreement”) which would be effective as of the Closing, with respect to any such Business Employee on Leave as of the Closing Date that will, among other terms include the following terms:
(i) Purchasers shall pre-fund all Estimated Employee Costs (as such amounts may be increased or decreased by South Central Seller during the Employee Payment Period by providing at least ten (10) days’ prior notice to Purchasers) at least five (5) Business Days prior to the first calendar day of each month (or any applicable portion thereof) with the payment for the first month (or applicable portion thereof) being due on the Closing Date until the earlier of (x) one hundred and eighty (180) days (counting periods both before and after the Closing Date) following the commencement of such Business Employee’s leave (or any later date as required by the applicable Collective Bargaining Agreement), (y) the date on which such Business Employee commences employment with the Purchasers or one of the Acquired Companies, as applicable, and (z) the date such Business Employee has indicated that he/she will not accept an offer of employment from Purchasers (with respect to each such Business Employee, the “Employee Payment Period”).
(ii) At the end of each month during the Employee Payment Period, Sellers shall calculate a rolling true-up of any adjustments to Estimated Employee Costs attributable to non-fixed variable compensation (e.g., overtime, bonus payments, reimbursable expenses, etc.). Within fifteen (15) Business Days after the end of the applicable Employee Payment Period, South Central Seller shall notify the Purchasers of the amount of the difference between the Estimated Employee Costs and actual Employee Costs. If the foregoing reconciliation notice shows either an underpayment or an overpayment between the Parties, the Party owing the payment to the other Party shall pay (or, with respect to South Central Seller in regards to any period prior to the conclusion of the Employee Payment Period, credit as an offset against the next payment owed to South Central Seller, in each case, in respect of any prior overpayment to South Central Seller) the amount of the difference to the other Party within ten (10) Business Days after the date of delivery of such notice. Purchasers agree that, effective as of the Closing Date (or with respect to Business Employees on Leave, immediately when such Business Employee returns from such leave and commences employment with the Purchaser or an Acquired Company) and continuing for one-year following the Closing Date (or the termination of the relevant Continuing Employee if sooner), Purchasers or one of their respective subsidiaries shall provide, or shall cause the Acquired Companies to provide, to each Business Employee who accepts an Employment Offer (each, a “Continuing Employee”): (i) an annual base salary or base wage rate, as applicable, that is no less than the annual base salary or base wage rate, as applicable, provided to the Continuing Employee immediately prior to the Closing, (ii) annual cash incentive target bonus opportunities (excluding equity-based compensation) that are, in each case, no less favorable in the aggregate than those provided to the Continuing Employee immediately prior to the Closing, and (iii) other employee benefits (including severance but excluding defined benefit pension, non-qualified deferred compensation, transaction bonus, retention bonus, retiree medical, welfare, or other post-termination health or welfare benefits, and any other special or non-recurring payments) that are substantially comparable in the aggregate to those provided to such Continuing Employee under the Company Benefit Plans immediately prior to the Closing. From and after the Closing Date, Purchasers or one of their respective subsidiaries shall, or shall take such action as is necessary such that cause the Acquired Companies shallto, honor the obligations set forth in the retention agreements identified on Section 7.05(a)(iii) of the Sellers Disclosure Schedule in respect of the applicable Continuing Employees, each in accordance with their terms as in effect immediately prior to the Closing Date, in each case, to the extent such obligations are consistent with the obligations contained in the Form of Retention Agreement set forth on Exhibit H attached hereto, and with respect to monetary obligations, to the extent such obligations are included in the calculation of Net Working Capital Amount, Company Transaction Expenses or Indebtedness Amount. Nothing in this Section 7.05 shall be considered or deemed to establish, amend or modify any Benefit Plan or to confer any rights or benefits (including any third-party beneficiary rights) on any Person other than the Parties to this Agreement. Notwithstanding anything to the contrary contained in this Section 7.05, with respect to any Business Employee covered by a Collective Bargaining Agreement (A) who is on short-term or long-term disability leave as of the Closing Date, cease being “participating employers” but who is expected to return to work within one hundred and shall cease any co-sponsorship eighty (180) days (counting periods before and participation in each Seller Plan that is jointly adopted, sponsored or maintained by Seller and an Acquired Company. Except as otherwise expressly provided in this Section 4.6, the Acquired Companies shall have no further liability and Seller shall retain all liabilities with respect to claims incurred under any such Seller Plan prior to the Closing Date, whether such claims are made prior to, on or after the Closing Date. For ), Sellers and Purchasers shall, following mutual agreement as between Sellers and the applicable union counterparties under the Collective Bargaining Agreements, work together, reasonably and in good faith following the date of this purpose claims under Agreement until Closing to obtain consent from the applicable labor union, trade union or labor organization for such Business Employee to remain employed by South Central Seller or its applicable W-2 employing Affiliate after Closing until such time as such Business Employee is hired by Purchaser or an Acquired Company in accordance with this Section 7.05(a); and (B) who has qualified for long-term disability as of the Closing Date (or any medicaltime after the Closing Date if such Business Employee was on short-term or long-term disability leave as of the Closing Date), dentalSellers and Purchasers shall work together, visionreasonably and in good faith following the date of this Agreement until Closing to obtain consent from the applicable labor union, trade union or prescription drug planlabor organization for such Business Employee to remain employed by South Central Seller or its applicable W-2 employing Affiliate after Closing, generally will but to have Purchasers be deemed responsible for, and pre-fund all Employee Costs (including, without limitation long term disability insurance) at least five (5) Business Days prior to be incurred the first calendar day of each month (or any applicable portion thereof) with the payment for the first month (or applicable portion thereof) being due on the Closing Date (or such date that the service giving rise to such claim is performed and not when such claim is made; providedemployee qualifies for long term disability), however, that with respect in each case subject to claims relating to hospitalization the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan shall be incurred on the date the employee or former employee is first absent from work because of the condition giving rise to such disability and not when the employee or former employee is determined to be eligible for benefits under the applicable Seller Plan. Notwithstanding anything to the contrary herein, Seller shall retain all liabilities under all Seller Plans, except as otherwise expressly provided in Section 4.6a Designated Services Agreement. For the avoidance of doubt, following the Closing, South Central Seller’s obligations to Purchasers in respect of Business Employees on Leave shall be solely as set forth in the Designated Services Agreement. No Seller shall retain all liabilities be required to take any action to the extent not permissible by the Collective Bargaining Agreements and/or to the extent not consented to by the applicable union counterparties to the Collective Bargaining Agreements. Each Purchaser acknowledges that, subject to Sellers’ compliance with respect the express terms of this Section 7.05, no representation, warranty or covenant of any Seller contained herein shall be breached or deemed inaccurate, and no condition hereunder shall be deemed not satisfied, as a result of (x) the failure to equity or equity-based awards under consummate any Plan. Seller shall provide any continuation coverage required under Section 4980B of the CodeDesignated Employment Matters or (y) any lawsuit, Part 6 Actions or Proceedings, or termination or investigation commenced or threatened by or on behalf of Title I any Person arising out of ERISA or applicable state Law (“COBRA”) to each “qualified beneficiary” as that term is defined in COBRA whose first “qualifying event” (as defined in COBRA) occurs on or prior relating to the Closing Date. The Acquired Companies shall retain responsibility for all accrued but unused vacation pay for Designated Employment Matters, in each case, in and of their respective Acquired Company Employees (other than any Bank Channel Employees who become Acquired Company Employees). As soon as practicable, but in any event within five (5) Business Days following the Closing Date, Seller shall provide Buyer with a list setting forth, with respect to each Acquired Company Employee (other than any Bank Channel Employee who becomes an Acquired Company Employee) the number of days of accrued but unused vacation as of the Closing Dateitself.
(b) For a period Purchasers shall recognize the years of one (1) year following service for each Continuing Employee with the Closing Date, Buyer shall provide or cause to be provided to Acquired Company Employees (other than Xxxxxxx Xxxxxx, Xxxxx Xxxxxx Companies and their respective management direct reports) who remain employees with Buyer and its Subsidiaries, (i) compensation that is comparable in the aggregate (without regard to any equity or equity-based compensation) to that provided to them immediately prior to Closing , provided that equity or equity-based compensation provided to such Acquired Company Employees prior to Closing shall be disregarded in determining whether compensation is comparable in the aggregate; provided, further, that Buyer in its sole discretion shall determine the portion of compensation to be provided to such Acquired Company Employees that is in the form of equity or equity-based compensation (it being understood that Buyer is under no obligation to provide any equity or equity-based compensation); provided, further, that during such one (1) year period the base salary of such Acquired Company Employees shall not be less than that in effect immediately prior to predecessors before the Closing and (ii) employee benefits (including severance benefits but excluding retiree health and life benefits) that are comparable in the aggregate to that provided to them immediately prior to Closing.
(c) Effective as of the Closing Date, Buyer or the Acquired Companies shall adopt or otherwise provide a savings plan or plans with a cash or deferred arrangement that is qualified under Section 401(a) of the Code pursuant to which the Acquired Company Employees may participate (“Buyer’s Retirement Plan”). Acquired Company Employees who are participants in any Plan which is a retirement plan qualified under Section 401(a) of the Code (“Seller’s Retirement Plan”) shall be allowed to rollover their distributable benefits, including, to the extent permitted by Seller’s Retirement Plans and Buyer’s Retirement Plans, any notes representing participant loans, from Seller’s Retirement Plans into Buyer’s Retirement Plan. Seller shall fully vest (to the extent not already fully vested) as of the Closing each Acquired Company Employee in his or her accrued benefits under each Seller Retirement Plan.
(d) Seller shall continue to provide retiree health and life benefits to each former employee of an Acquired Company who is eligible Date for retiree health and life benefits under any Seller Plan that is a group health and life plan (“Seller’s Retiree Plans”) whose termination of employment occurs on or prior to the Closing Date. Following the Closing Date, Buyer or the Acquired Companies shall adopt a group health plan and group term life plan in which the Acquired Company Employees and their dependents may participate (“Buyer’s Group Welfare Plans”).
(e) For purposes of determining eligibility to participate and vesting (and for benefit accrual purposes in the case of vacation and severance plans) where length of service is relevant under any employee benefit plan or arrangement of Buyer and its subsidiaries (or of Parent and its subsidiaries, to the extent an Acquired Company Employee shall become eligible to participate therein), Acquired Company Employees shall receive service credit for service with Seller and any of its Subsidiaries to the same extent such service was credited under similar employee benefit plans and arrangements of Seller and its Subsidiariesall purposes; provided, however, that such service need will not be credited recognized to the extent (x) that it such recognition would result in a duplication of benefits.
benefits or (fy) Parentsuch service was not recognized under the corresponding Company Benefit Plan immediately prior to the Closing Date. In addition, Buyerand without limiting the generality of the foregoing, the Acquired Companies and their respective Subsidiaries will (i) use their Purchasers shall use, or shall direct any of its applicable subsidiaries to use, commercially reasonable efforts to cause any third party insurers (i) each Continuing Employee to waive, and will waive with respect to self-insured benefits, all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to Acquired Company Employees under any new welfare benefit plans that such employees may be immediately eligible to participate participate, without any waiting time, in after the Benefit Plans of Purchasers to the same extent no waiting period was applicable under the corresponding Company Benefit Plan immediately prior to the Closing Date, other than limitations (ii) all pre-existing condition exclusions and actively-at-work requirements of such Benefit Plan of Purchasers to be waived for such employee and his or waiting periods that are already in effect with respect her covered dependents to such employees and that have not been satisfied as of the Closing Date same extent waived under any welfare plan maintained for Acquired the corresponding Company Employees Benefit Plan immediately prior to the Closing Date, and (iiiii) provide each Acquired Company Employee with credit any eligible expenses incurred by such employee and his or her covered dependents to be taken into account under any Benefit Plans of Purchaser for any co-payments purposes of satisfying all deductible, coinsurance and deductibles paid prior to the Closing Date in respect of the year in which the Closing occurs in satisfying any applicable deductible or maximum out-of-pocket requirements applicable to such employee and his or her covered dependents for the plan year which includes the Closing Date to the same extent as under any welfare plans for such year that such employees are eligible the corresponding Company Benefit Plan immediately prior to participate in after the Closing Date.
(gc) No provision of this Section 4.6 shall create any third party beneficiary or other rights Promptly following the date hereof and in any Acquired Company Employee or former employee (including any beneficiary or dependent thereof) of Seller in respect of continued employment (or resumed employment) with Buyerevent prior to the Closing Date, Parent or their respective subsidiaries including the Acquired Companies and no provision of this Section 4.6 Purchasers shall create any such rights in any such persons in respect of any benefits that may be provided, directly or indirectly, under any Plans or any such similar plan or arrangement which may be established by Parent, Buyertake, or cause to be taken, any actions required under or with respect to any Collective Bargaining Agreement covering any Continuing Employee (collectively, the “Continuing Union Employees”) to (i) recognize each applicable labor union as the representative for the applicable Continuing Union Employees, and (ii) assume such Collective Bargaining Agreements and abide by the terms and conditions of their respective subsidiaries for Acquired Company such Collective Bargaining Agreements while they remain in effect with respect to such Continuing Union Employees.
(hd) At least thirty (30) days prior to the anticipated Closing Date, Buyer shall identify Nothing in writing those Bank Channel Employees that it desires to employ after the Closing Date. Buyer shall offer employment to all such identified Bank Channel Employees upon such terms and conditions as it determines in its sole discretion (subject to Buyer’s obligations under the other provisions of this Section 4.6) and Seller shall cause Talbot Financial, Inc. to terminate the employment of such identified Bank Channel Employees as of the Closing Date. Each identified Bank Channel Employee who accepts Buyer’s offer of employment Agreement shall be treated as an Acquired Company Employee. With respect amendment of, or undertaking to each Bank Channel Employee who becomes an Acquired Company Employee, Buyer shall be solely responsible for any severance or similar benefits that may be payable, if any, to such Acquired Company Employee in respect of his or her termination of employment following the Closing with Buyer and its Affiliates. Except as set forth in the preceding sentenceamend, any liability, obligation or commitment of Seller, GAC Benefit Plan or any other Subsidiary benefit plan, program, agreement or arrangement. The provisions of Seller this Section 7.05 are solely for the benefit of the Parties, and nothing in this Section 7.05, express or GAC that relates toimplied, shall confer upon any current or former director, officer, employee or natural person service provider of the Acquired Companies or legal representative or beneficiary thereof, or that arises out ofany other Person, the any rights or remedies, including any right to employment or the termination of the continued employment with for any such person specified period, or compensation or benefits of any Bank Channel Employee (including as a result of the transactions contemplated by nature or kind whatsoever, under this Agreement) shall be the responsibility of the Seller or such Subsidiary (including any accrued but unused vacation, severance or similar benefits that may be payable, if any, to Bank Channel Employees in respect of their termination of employment with Seller and its Affiliates as of the Closing) and none of Parent, Buyer Agreement or any Acquired Company shall rights or remedies under any Benefit Plan that such employee, representative, beneficiary or other Person would not otherwise have any liability thereforunder the terms of that Benefit Plan.
Appears in 1 contract
