Continuing Employee Matters. (a) For the period from the Effective Time through the first anniversary of the Effective Time each employee of the Company or a Subsidiary of the Company who remains in the employment of the Surviving Corporation and its Subsidiaries (each, a “Continuing Employee”) shall receive (i) a base salary or wage rate, as applicable, and incentive compensation opportunities (other than equity incentive compensation opportunities, which instead will be consistent with the opportunities applicable to similarly situated employees of Parent and Subsidiaries of Parent) that, in each case, are not less favorable than as provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time and (ii) severance (based on severance arrangements as in effect on the date of this Agreement and listed on Section 3.10(a) of the Company Disclosure Letter) and employee benefits (excluding defined benefit pension, post-employment health and welfare benefits, equity-based compensation and change of control, retention or other one-off awards) that are not less favorable in the aggregate to those that were provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time; provided, that, with respect to any Continuing Employee who is primarily based outside of the United States, the requirements of this Section 6.04(a) shall be subject to any requirements under applicable Law. (b) Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, cause any plans, programs, agreements or arrangements established or maintained by Parent or any of its affiliates (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) (the “New Plans”) to recognize each Continuing Employee’s service with the Company or any Subsidiary of the Company and any predecessor of the Company or any Subsidiary of the Company (to the extent such service is recognized by the Company or such Subsidiary), for purposes of eligibility, participation, vesting and levels of benefits; provided, however, that such service need not be recognized (i) for any purpose under any defined benefit pension plan or retiree welfare plan, (ii) to the extent that such recognition would result in any duplication of benefits, (iii) for purposes of any New Plan under which similarly situated employees of Parent and its Subsidiaries do not receive credit for prior service or (iv) for purposes of any New Plan that is grandfathered or frozen, either with respect to level of benefits or participation. (c) With respect to any New Plan that is a welfare plan, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, (i) waive all limitations as to preexisting conditions and exclusions with respect to participation and coverage requirements applicable to Continuing Employees to the extent such conditions and exclusions were satisfied or did not apply to such employees under the welfare plans of the Company and its Subsidiaries prior to the Effective Time and (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid prior to the Effective Time in satisfying any analogous deductible or out-of-pocket requirements to the extent applicable under any such plan. (d) If requested by Parent not less than ten Business Days prior to the Closing Date, the Company shall adopt resolutions and take such corporate action as necessary to terminate the Company Benefit Plans that are United States Tax-qualified defined contribution plans (the “Company DC Plans”), effective as of the day prior to the Closing Date and contingent upon the occurrence of the Effective Time. The form and substance of such resolutions and other actions taken in connection with the foregoing termination shall be subject to reasonable review and comment of Parent. If Parent requests that any Company DC Plan be terminated, the applicable Continuing Employees shall be eligible to participate, effective as of the Effective Time, in a Tax-qualified defined contribution plan of Parent or its Subsidiaries (each such plan, a “Parent DC Plan”), it being agreed that there shall be no gap in participation in a Tax-qualified defined contribution plan for such Continuing Employees. Upon the distribution of the assets in the accounts under the Company DC Plans to the participants, Parent shall take any action necessary to permit the Continuing Employees to make rollover contributions of “eligible rollover distributions” from the applicable Company DC Plan to the applicable Parent DC Plan (including in cash or notes (in the case of loans)). (e) Without limiting the generality of Section 6.04(a), from and after the Effective Time, Parent shall, or shall cause its Subsidiaries (including the Surviving Corporation) to, assume and honor in accordance with their terms all of the Company Benefit Plans (including any change in control severance agreement or other arrangement that is a Company Benefit Plan), in each case, as in effect at the Effective Time, including with respect to any payments, benefits or rights arising as a result of the transactions contemplated by this Agreement (either alone or in combination with any other event), it being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, including the Surviving Corporation, to amend any Company Benefit Plan in accordance with its terms. For the avoidance of doubt, for purposes of any Company Benefit Plan containing a definition of “change in control” or “change of control” (or similar term), the Closing shall be deemed to constitute a “change in control” or “change of control” (or applicable term). (f) If Closing occurs prior to December 31, 2021, with respect to each cash incentive bonus program of the Company and its Subsidiaries with a performance period that is in-cycle as of the Closing (each, a “Company Bonus Program”), following the Closing, (i) payments pursuant such Company Bonus Program with respect to such performance period shall be paid in the ordinary course of business consistent with past practice, and calculated excluding any merger-related transaction costs, and (ii) Parent shall not make any modification to such Company Bonus Program with respect to such performance period in a manner that is detrimental to any participant therein. (g) Parent and the Company agree to the additional items set forth on Section 6.04(g) of the Company Disclosure Letter. (h) Without limiting the generality of Section 9.07, this Section 6.04 shall be binding upon and shall inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.04, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever (including any right to continued employment by or services with Parent, the Company, the Surviving Corporation, or any of their respective Subsidiaries) under or by reason of this Section 6.04. Nothing contained herein shall be construed as requiring, and the Company shall take no action that would have the effect of requiring, Parent or the Surviving Corporation to continue any specific plans, programs, policies, arrangements, agreements or understandings or to continue the employment of any specific person. Furthermore, no provision of this Agreement shall be construed as prohibiting or limiting the ability of Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation to amend, modify or terminate any plans, programs, policies, arrangements, agreements or understandings of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent, the Company or the Surviving Corporation and nothing herein shall be construed as an amendment to any such plan, program, policy, arrangement, agreement or understanding for any purpose.
Appears in 2 contracts
Samples: Merger Agreement (Thermo Fisher Scientific Inc.), Merger Agreement (PPD, Inc.)
Continuing Employee Matters. (a) For Until January 1, 2007, Parent shall arrange for each participant in the period from Plans (the “Company Participants”) (including all eligible dependents) who becomes a Parent employee (or an employee of any Parent subsidiary) at the Effective Time through to be eligible for benefits that, in the first anniversary aggregate, are not materially less favorable than those benefits provided by the Company or its Subsidiaries, as applicable, as of the date hereof (but specifically excluding any benefits under any Plan that is a stock option or other equity-based award plan). Each Company Participant shall, to the extent permitted by Law and applicable Tax qualification requirements, and subject to any applicable break in service or similar rule, receive credit (for eligibility to participate and vesting but not for benefit accrual) under Parent employee benefit plans for years of service with the Company (and its subsidiaries and predecessors) prior to the Effective Time each (except where doing so would cause a duplication of benefits). If applicable, Parent shall, to the extent reasonably feasible, (x) cause any and all pre-existing condition (or actively at work or similar) limitations, eligibility waiting periods and evidence of insurability requirements under any group health plans to be waived with respect to such Company Participants and their eligible dependents in accordance with applicable Laws and (y) provide them with credit for any co-payments, deductibles, and offsets (or similar payments) made during the plan year including the Effective Time for the purposes of satisfying any applicable deductible, out-of-pocket, or similar requirements under any Parent employee benefit plans or programs in which they are eligible to participate after the Effective Time.
(b) The Company shall provide to the Parent forms of any option award, restricted stock or bonus agreement to be used in connection with the grants of any award under any of the Plans to be executed any time after the date hereof. Parent shall have the opportunity to review and comment on such forms before any such forms are executed.
(c) Parent shall make available 86,806 shares of Parent Company or a Subsidiary Stock for the purpose of the Company who remains in the employment granting options to employees of the Surviving Corporation and its Subsidiaries (each, a “Continuing Employee”) shall receive (i) a base salary who are hired or wage rate, as applicable, and incentive compensation opportunities (other than equity incentive compensation opportunities, which instead will be consistent with promoted during the opportunities applicable to similarly situated employees of Parent and Subsidiaries of Parent) that, in each case, are not less favorable than as provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time and (ii) severance (based on severance arrangements as in effect on the date of this Agreement and listed on Section 3.10(a) of the Company Disclosure Letter) and employee benefits (excluding defined benefit pension, post-employment health and welfare benefits, equity-based compensation and change of control, retention or other one-off awards) that are not less favorable in the aggregate to those that were provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time; provided, that, with respect to any Continuing Employee who is primarily based outside of the United States, the requirements of this Section 6.04(a) shall be subject to any requirements under applicable Law.
(b) Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, cause any plans, programs, agreements or arrangements established or maintained by Parent or any of its affiliates (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) (the “New Plans”) to recognize each Continuing Employee’s service with the Company or any Subsidiary of the Company and any predecessor of the Company or any Subsidiary of the Company (to the extent such service is recognized by the Company or such Subsidiary), for purposes of eligibility, participation, vesting and levels of benefits; provided, however, that such service need not be recognized (i) for any purpose under any defined benefit pension plan or retiree welfare plan, (ii) to the extent that such recognition would result in any duplication of benefits, (iii) for purposes of any New Plan under which similarly situated employees of Parent and its Subsidiaries do not receive credit for prior service or (iv) for purposes of any New Plan that is grandfathered or frozen, either with respect to level of benefits or participation.
(c) With respect to any New Plan that is a welfare plan, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, (i) waive all limitations as to preexisting conditions and exclusions with respect to participation and coverage requirements applicable to Continuing Employees to the extent such conditions and exclusions were satisfied or did not apply to such employees under the welfare plans of the Company and its Subsidiaries prior to the Effective Time and (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid prior to the Effective Time in satisfying any analogous deductible or out-of-pocket requirements to the extent applicable under any such plan.
(d) If requested by Parent not less than ten Business Days prior to the Closing Date, the Company shall adopt resolutions and take such corporate action as necessary to terminate the Company Benefit Plans that are United States Tax-qualified defined contribution plans (the “Company DC Plans”), effective as of the day prior to the Closing Date and contingent upon the occurrence of three years next following the Effective Time. The form and substance President of the Surviving Corporation shall make recommendations to the Board of Directors of the Parent from time to time respecting the granting of such resolutions options and other actions taken in connection with the foregoing termination granting thereof shall be subject to reasonable review and comment the approval of Parentsuch Board of Directors. If Parent requests It is the non-binding intention of the parties that any Company DC Plan be terminated, the applicable Continuing Employees such grants shall be eligible to participate, effective as made approximately ratably over the three-year period and that approximately half of the Effective Time, in a Tax-qualified defined contribution plan of Parent or its Subsidiaries (each such plan, a “Parent DC Plan”), it being agreed that there grants shall be no gap in participation in a Tax-qualified defined contribution plan for such Continuing Employees. Upon made over the distribution first year of the assets in the accounts under the Company DC Plans to the participants, Parent shall take any action necessary to permit the Continuing Employees to make rollover contributions of “eligible rollover distributions” from the applicable Company DC Plan to the applicable Parent DC Plan (including in cash or notes (in the case of loans)).
(e) Without limiting the generality of Section 6.04(a), from and after the Effective Time, Parent shall, or shall cause its Subsidiaries (including the Surviving Corporation) to, assume and honor in accordance with their terms all of the Company Benefit Plans (including any change in control severance agreement or other arrangement that is a Company Benefit Plan), in each case, as in effect at the Effective Time, including with respect to any payments, benefits or rights arising as a result of the transactions contemplated by this Agreement (either alone or in combination with any other event), it being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, including the Surviving Corporation, to amend any Company Benefit Plan in accordance with its termsthree-year period. For the avoidance of doubt, for purposes of any Company Benefit Plan containing a definition of “change in control” or “change of control” (or similar term), doubt the Closing shall be deemed to constitute a “change in control” or “change of control” (or applicable term).
(f) If Closing occurs prior to December 31, 2021, with respect to each cash incentive bonus program Managing Principal of the Company and its Subsidiaries with a performance period that is in-cycle as Surviving Corporation shall not be eligible to receive any of the Closing (each, a “Company Bonus Program”), following the Closing, (i) payments pursuant such Company Bonus Program with respect options referred to such performance period shall be paid in the ordinary course of business consistent with past practice, and calculated excluding any merger-related transaction costs, and (ii) Parent shall not make any modification to such Company Bonus Program with respect to such performance period in a manner that is detrimental to any participant therein.
(g) Parent and the Company agree to the additional items set forth on Section 6.04(g) of the Company Disclosure Letter.
(h) Without limiting the generality of Section 9.07, this Section 6.04 shall be binding upon and shall inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.04, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever (including any right to continued employment by or services with Parent, the Company, the Surviving Corporation, or any of their respective Subsidiaries) under or by reason of this Section 6.04. Nothing contained herein shall be construed as requiring, and the Company shall take no action that would have the effect of requiring, Parent or the Surviving Corporation to continue any specific plans, programs, policies, arrangements, agreements or understandings or to continue the employment of any specific person. Furthermore, no provision of this Agreement shall be construed as prohibiting or limiting the ability of Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation to amend, modify or terminate any plans, programs, policies, arrangements, agreements or understandings of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent, the Company or the Surviving Corporation and nothing herein shall be construed as an amendment to any such plan, program, policy, arrangement, agreement or understanding for any purpose5.13(c).
Appears in 2 contracts
Samples: Merger Agreement (ExlService Holdings, Inc.), Merger Agreement (ExlService Holdings, Inc.)
Continuing Employee Matters. (a) For the a period from the Effective Time through the first anniversary of the Effective Time each employee of Time, the Company or a Subsidiary employees of the Company who remains remain in the employment of the Surviving Corporation and its Subsidiaries subsidiaries (each, a the “Continuing EmployeeEmployees”) shall receive (i) a base salaries or wage rates no less than each such employee’s base salary or wage rate, rate as applicable, and incentive compensation opportunities (other than equity incentive compensation opportunities, which instead will be consistent with the opportunities applicable to similarly situated employees of Parent and Subsidiaries of Parent) that, in each case, are not less favorable than as provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time and Time, (ii) severance (based on pay and benefits no less favorable than severance arrangements pay and benefits as set forth in effect on the date of this Agreement and listed on Section 3.10(a6.06(a) of the Company Disclosure LetterLetter and (iii) and other employee benefits (excluding defined benefit pension, post-employment health and welfare benefits, equity-based compensation and change of control, retention or other one-off awards) that are not less favorable substantially comparable in the aggregate to those that were provided by the Company or the Subsidiaries to such employees of the Company to such Continuing Employee immediately prior to the Effective Time; provided that neither Parent nor the Surviving Corporation nor any of Parent’s subsidiaries shall have any obligation to issue, or adopt any plans or arrangements providing for the issuance of, Equity Interests pursuant to any such plans or arrangements; provided, thatfurther, with respect to that no plans or arrangements of the Company providing for such issuance shall be taken into account in determining whether employee benefits are substantially comparable in the aggregate. Nothing in this Agreement shall confer upon any Continuing Employee who is primarily based outside any right to continue in the employ or service of the United StatesParent, the requirements Surviving Corporation or any affiliate of this Section 6.04(a) Parent, or shall be subject interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any requirements under applicable LawContinuing Employee at any time for any reason whatsoever, with or without cause.
(b) Parent shall, and shall cause the Surviving Corporation and its Subsidiaries toto recognize the service of each Continuing Employee as if such service had been performed with Parent (i) for purposes of benefits under Parent’s vacation program, cause (ii) for purposes of eligibility to participate in any plans, programs, agreements health or arrangements established or welfare plan maintained by Parent (other than any post-employment health or any post-employment welfare plan) and Parent’s 401(k) plan and (iii) unless covered under another arrangement with or of its affiliates the Company, for benefit accrual purposes under Parent’s severance plan (includingin the case of each of clauses (i), after (ii) and (iii), solely to the Effective Time, extent that Parent makes such plan or program available to employees of the Surviving Corporation and its Subsidiaries) (the “New Plans”) to recognize each Continuing Employee’s service with the Company or not in any Subsidiary of the Company and any predecessor of the Company or any Subsidiary of the Company (to the extent such service is recognized by the Company or such Subsidiary), for purposes of eligibility, participation, vesting and levels of benefits; provided, however, that such service need not be recognized (i) for any purpose under any defined benefit pension plan or retiree welfare plan, (ii) to the extent that such recognition case where credit would result in any duplication of benefits), (iii) but not for purposes of any New Plan under which similarly situated employees other employee benefit plan of Parent and its Subsidiaries do not receive credit for prior service or (iv) for purposes of any New Plan that is grandfathered or frozen, either with respect to level of benefits or participationParent.
(c) With respect to any New Plan that is a welfare planplan maintained by Parent in which Continuing Employees are eligible to participate after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, (i) waive all limitations as to preexisting conditions and exclusions with respect to participation and coverage requirements applicable to Continuing Employees such employees to the extent such conditions and exclusions were satisfied or did not apply to such employees under the welfare plans of the Company and its Subsidiaries prior to the Effective Time and (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid prior to the Effective Time in satisfying any analogous deductible or out-of-pocket requirements to the extent applicable under any such plan.
(d) If requested by Parent not less than ten Business Days prior to the Closing Date, the Company shall adopt resolutions and take such corporate action as necessary to terminate the Company Benefit Plans that are United States Tax-qualified defined contribution plans (the “Company DC Plans”), effective as of the day prior to the Closing Date and contingent upon the occurrence of the Effective Time. The form and substance of such resolutions and other actions taken in connection with the foregoing termination shall be subject to reasonable review and comment of Parent. If Parent requests that any Company DC Plan be terminated, the applicable Continuing Employees shall be eligible to participate, effective as of the Effective Time, in a Tax-qualified defined contribution plan of Parent or its Subsidiaries (each such plan, a “Parent DC Plan”), it being agreed that there shall be no gap in participation in a Tax-qualified defined contribution plan for such Continuing Employees. Upon the distribution of the assets in the accounts under the Company DC Plans to the participants, Parent shall take any action necessary to permit the Continuing Employees to make rollover contributions of “eligible rollover distributions” from the applicable Company DC Plan to the applicable Parent DC Plan (including in cash or notes (in the case of loans)).
(e) Without limiting the generality scope of this Section 6.04(a), from and after the Effective Time, Parent shall, or shall cause its Subsidiaries (including the Surviving Corporation) to, assume and honor in accordance with their terms all of the Company Benefit Plans (including any change in control severance agreement or other arrangement that is a Company Benefit Plan), in each case, as in effect at the Effective Time, including with respect to any payments, benefits or rights arising as a result of the transactions contemplated by this Agreement (either alone or in combination with any other event), it being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, including the Surviving Corporation, to amend any Company Benefit Plan in accordance with its terms. For the avoidance of doubt, for purposes of any Company Benefit Plan containing a definition of “change in control” or “change of control” (or similar term), the Closing shall be deemed to constitute a “change in control” or “change of control” (or applicable term).
(f) If Closing occurs prior to December 31, 2021, with respect to each cash incentive bonus program of the Company and its Subsidiaries with a performance period that is in-cycle as of the Closing (each, a “Company Bonus Program”), following the Closing, (i) payments pursuant such Company Bonus Program with respect to such performance period shall be paid in the ordinary course of business consistent with past practice, and calculated excluding any merger-related transaction costs, and (ii) Parent shall not make any modification to such Company Bonus Program with respect to such performance period in a manner that is detrimental to any participant therein.
(g) Parent and the Company agree to the additional items set forth on Section 6.04(g) of the Company Disclosure Letter.
(h) Without limiting the generality of Section 9.076.06, this Section 6.04 6.06 shall be binding upon and shall inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.046.06, express or implied, is intended to confer upon any other Person person any rights or remedies of any nature whatsoever (including any right to continued employment by or services with Parent, the Company, the Surviving Corporation, or any of their respective Subsidiaries) under or by reason of this Section 6.046.06. Nothing contained herein shall be construed as requiring, and the Company shall take no action that would have the effect of requiring, Parent or the Surviving Corporation to continue any specific plans, programs, policies, arrangements, agreements or understandings or to continue the employment of any specific person. Furthermore, no provision of this Agreement shall be construed as prohibiting or limiting the ability of Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation to amend, modify or terminate any plans, programs, policies, arrangements, agreements or understandings of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent, the Company or the Surviving Corporation and nothing herein therein shall be construed as an amendment to any such plan, program, policy, arrangement, agreement or understanding for any purpose.
Appears in 1 contract
Samples: Merger Agreement (Endocyte Inc)
Continuing Employee Matters. (a) For a period of twelve (12) months immediately after the period from the Effective Time through the first anniversary of the Effective Time each employee of the Company Closing Date, Acquirer shall, or a Subsidiary shall cause its Affiliates with which any employees of the Company who remains in the employment of continue to be employed by the Surviving Corporation and its Subsidiaries (eachcollectively, a the “Continuing EmployeeEmployees”) shall receive to, provide to such each such Continuing Employee (i) a base salary or wage rate, as applicable, and incentive compensation opportunities (other than equity incentive compensation opportunities, which instead will be consistent with the opportunities applicable to similarly situated employees of Parent and Subsidiaries of Parent) that, in each case, are not rate no less favorable than as the base salary or wage rate provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time and (ii) severance (based on severance arrangements as in effect on the date of this Agreement and listed on Section 3.10(a) of the Company Disclosure Letter) and employee benefits (excluding defined benefit pension, post-employment health and welfare benefits, equity-based compensation and change of control, retention or other one-off awards) that are not less favorable in the aggregate to those that were provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time; provided, that, with respect and (ii) employee welfare benefits (excluding any equity-based or equity-related compensation and any benefits provided pursuant to any Continuing Employee who is primarily based outside defined benefit plan (if any)) that are, taken as a whole, no less favorable in the aggregate to those generally made available to similarly situated employees of the United States, the requirements of this Section 6.04(a) shall be subject to any requirements Acquirer under applicable Lawits welfare benefit plans and programs.
(b) Parent With respect to any employee benefit plan maintained by Acquirer or its Affiliates in which any Continuing Employees participate after the Closing Date, Acquirer shall, and shall cause the Surviving Corporation and its Subsidiaries Affiliates to, cause any plans, programs, agreements make commercially reasonable efforts to credit all service of the Continuing Employees with the Company or arrangements established or maintained by Parent or any of its affiliates (including, after Subsidiary prior to the Effective Time, including for purposes of eligibility to participate, vesting, and determining seniority or the Surviving Corporation and its Subsidiaries) level of benefit in any such plan (the “New Plans”) to recognize each Continuing Employee’s service with the Company or other than any Subsidiary of the Company defined benefit plan, bonus plans, retiree medical plans and any predecessor of the Company grandfathered or any Subsidiary of the Company (frozen plans), to the extent that such service is recognized by the Company or such Subsidiary), for purposes of eligibility, participation, vesting and levels of benefitsunder a similar Employee Plan; provided, however, that no such service need not shall be recognized (i) credited to the extent such service crediting would result in a duplication of benefits with respect to the same period of service. Acquirer shall, and shall cause its Affiliates to, make commercially reasonable efforts to waive participation waiting periods, and limitations on benefits related to any pre-existing conditions of the Continuing Employees and their eligible spouses and dependents for purposes of participation in any purpose health plans sponsored by Acquirer or its Affiliates in which such Continuing Employees become eligible to participate following the Closing Date. Acquirer shall, and shall cause its Affiliates to, make commercially reasonable efforts to recognize for purposes of annual deductible and out-of-pocket limits under any defined benefit pension plan or retiree welfare plantheir health plans applicable to Continuing Employees following the Closing Date, (ii) deductible and out-of-pocket expenses paid by Continuing Employees and their respective spouses and dependents under Employee Plans that are health plans in the calendar year in which the Closing Date occurs, to the extent that such recognition would result expense was recognized under the Employee Plan in any duplication of benefits, (iii) for purposes of any New Plan under which similarly situated employees of Parent and its Subsidiaries do not receive credit for the Continuing Employee participated immediately prior service or (iv) for purposes of any New Plan that is grandfathered or frozen, either with respect to level of benefits or participationthe Effective Time.
(c) With respect to any New Plan that is a welfare plan, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, (i) waive all limitations as to preexisting conditions and exclusions with respect to participation and coverage requirements applicable to Continuing Employees to the extent such conditions and exclusions were satisfied or did not apply to such employees under the welfare plans of the Company and its Subsidiaries prior to the Effective Time and (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid prior to the Effective Time in satisfying any analogous deductible or out-of-pocket requirements to the extent applicable under any such plan.
(d) If requested by Parent not less than ten Business Days prior to the Closing Date, the Company shall adopt resolutions and take such corporate action as necessary to terminate the Company Benefit Plans that are United States Tax-qualified defined contribution plans (the “Company DC Plans”), effective as of the day prior to the Closing Date and contingent upon the occurrence of the Effective Time. The form and substance of such resolutions and other actions taken in connection with the foregoing termination shall be subject to reasonable review and comment of Parent. If Parent requests that any Company DC Plan be terminated, the applicable Continuing Employees shall be eligible to participate, effective as of the Effective Time, in a Tax-qualified defined contribution plan of Parent or its Subsidiaries (each such plan, a “Parent DC Plan”), it being agreed that there shall be no gap in participation in a Tax-qualified defined contribution plan for such Continuing Employees. Upon the distribution of the assets in the accounts under the Company DC Plans to the participants, Parent shall take any action necessary to permit the Continuing Employees to make rollover contributions of “eligible rollover distributions” from the applicable Company DC Plan to the applicable Parent DC Plan (including in cash or notes (in the case of loans)).
(e) Without limiting the generality of Section 6.04(a), from and after the Effective Time, Parent shall, or shall cause its Subsidiaries (including the Surviving Corporation) to, assume and honor in accordance with their terms all of the Company Benefit Plans (including any change in control severance agreement or other arrangement that is a Company Benefit Plan), in each case, as in effect at the Effective Time, including with respect to any payments, benefits or rights arising as a result of the transactions contemplated by this Agreement (either alone or in combination with any other event), it being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, including the Surviving Corporation, to amend any Company Benefit Plan in accordance with its terms. For the avoidance of doubt, for purposes of any Company Benefit Plan containing a definition of “change in control” or “change of control” (or similar term), the Closing shall be deemed to constitute a “change in control” or “change of control” (or applicable term).
(f) If Closing occurs prior to December 31, 2021, with respect to each cash incentive bonus program of the Company and its Subsidiaries with a performance period that is in-cycle as of the Closing (each, a “Company Bonus Program”), following the Closing, (i) payments pursuant such Company Bonus Program with respect to such performance period shall be paid in the ordinary course of business consistent with past practice, and calculated excluding any merger-related transaction costs, and (ii) Parent shall not make any modification to such Company Bonus Program with respect to such performance period in a manner that is detrimental to any participant therein.
(g) Parent and the Company agree to the additional items set forth on Section 6.04(g) of the Company Disclosure Letter.
(h) Without limiting the generality of Section 9.07, this Section 6.04 shall be binding upon and shall inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.04Nothing contained herein, express or implied, : (i) is intended to confer upon any other Person any rights or remedies of any nature whatsoever (including Continuing Employee any right to continued employment by for any period or services with Parent, the Companymodify such Continuing Employee’s at-will employment status; (ii) shall guarantee receipt of any specific employee benefit or constitute an amendment to or any other modification of any benefit plan; (iii) shall alter or limit Acquirer, the Surviving Corporation, or any of their respective Subsidiaries) under or by reason of this Section 6.04. Nothing contained herein shall be construed as requiring, and the Company shall take no action that would have the effect of requiring, Parent or the Surviving Corporation to continue any specific plans, programs, policies, arrangements, agreements or understandings or to continue the employment of any specific person. Furthermore, no provision of this Agreement shall be construed as prohibiting or limiting the Affiliates’ ability of Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation to amend, modify or terminate any plans, programs, policies, arrangements, agreements or understandings of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent, the Company or the Surviving Corporation and nothing herein shall be construed as an amendment to any such particular benefit plan, program, policy, arrangement, agreement or understanding for arrangement or (iv) is intended to confer upon any purposeindividual (including employees, retirees or dependents or beneficiaries of employees or retirees) any right as a third party beneficiary of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (MongoDB, Inc.)
Continuing Employee Matters. (a) For the period from the Effective Time through the first anniversary of the Effective Time (or such shorter period during which the Continuing Employee remains in continued employment with the Surviving Corporation or an Affiliate thereof), each employee of the Company or a Subsidiary of the Company who remains in the employment of the Surviving Corporation and its Subsidiaries or an Affiliate thereof (each, a “Continuing Employee”) shall receive receive: (i) unless otherwise agreed to in writing between Parent or its Affiliates and a Continuing Employee, a base salary or wage rate, as applicable, and target short-term cash incentive compensation opportunities (other than equity incentive compensation opportunities, which instead will be consistent with the opportunities applicable to similarly situated employees of Parent and Subsidiaries of Parent) that, in each casethe aggregate, are not no less favorable than as provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time and (ii) severance (based on severance arrangements as in effect on the date of this Agreement and listed on Section 3.10(a) of the Company Disclosure Letter) and employee benefits (excluding defined benefit pension, post-employment health and welfare benefits, equity-based compensation and change of control, retention or other one-off awards) that are not less favorable in the aggregate to those that were provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time; provided, that, with the base salary or wage rate, as applicable, of any Continuing Employee during such period shall not be reduced, (ii) for any such Continuing Employee located in the United States, severance benefits that are no less favorable than as provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the date hereof pursuant to the terms of a Company Benefit Plan set forth on Section 6.05(a) of the Company Disclosure Letter (collectively, the “Severance Arrangements”), and (iii) employee benefits (other than any equity or equity-based arrangements, long-term incentive programs, nonqualified deferred compensation arrangements, post-termination or retiree health and welfare benefits, defined benefit pension plans, and change-in-control payments, retention payments, or other similar nonrecurring compensation) that are substantially comparable in the aggregate to either (as determined by Parent) (x) those that were provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the date hereof, or (y) those provided by Parent or its Affiliates to similarly situated employees of Parent or its Affiliates. With respect to any Continuing Employee who is primarily based outside of the United States, the requirements of this Section 6.04(a6.05(a) shall be subject to any discretionary modifications or adjustments permitted in accordance with local Company Benefit Plans (or related policies) as well as any requirements under applicable Law.
(b) Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, cause any plans, programsprogram, agreements agreements, or arrangements established or maintained by Parent or any of its affiliates Affiliates (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) (the “New Plans”) to recognize each Continuing Employee’s service prior to the Effective Time with the Company or any Subsidiary of the Company and any predecessor of the Company or any Subsidiary of the Company (to the extent such service is recognized by the Company or such SubsidiarySubsidiary under a corresponding Company Benefit Plan), for purposes of eligibility, participation, vesting and levels of benefits; provided, however, that such service need not be recognized (i) for any purpose under any defined benefit pension plan or retiree welfare plan, (ii) to the extent that such recognition would result in any duplication of benefits, (ii) for purposes of eligibility, benefit accruals or vesting under any defined benefit pension plan, nonqualified deferred compensation arrangements, or retiree health or welfare plans or arrangements (except as may be required under applicable Law with respect to Continuing Employees located outside of the United States), (iii) for purposes of vesting of any incentive, equity, or equity-based compensation, or (iv) with respect to any New Plan to the extent that, under which such New Plan, Parent or the relevant Affiliate does not provide for the crediting of any prior service for any other similarly situated employees employee of Parent and its Subsidiaries do not receive credit for prior service or Affiliates (iv) for purposes of any New Plan that is grandfathered or frozen, either with respect to level of benefits or participationother than the Company and its Subsidiaries).
(c) With respect to any New Plan that is a welfare plan, Parent shall, and shall use commercially reasonable efforts to cause the Surviving Corporation and its Subsidiaries to, (i) waive all limitations as to preexisting conditions and exclusions with respect to participation and coverage requirements applicable to Continuing Employees to the extent such conditions and exclusions were satisfied or did not apply to such employees under the welfare plans of the Company and its Subsidiaries prior to the Effective Time and (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid prior in respect of claims eligible and covered under the applicable Company Benefit Plan, to the extent that such claims are incurred during the plan year in which the Effective Time occurs in satisfying any analogous deductible or out-of-pocket requirements to the extent applicable under any such planNew Plan.
(d) If requested by Parent not less than ten Business Days prior to the Closing Date, the Company shall adopt resolutions and take such corporate action as necessary to terminate the Company Benefit Plans that are United States Tax-qualified defined contribution plans (the “Company DC Plans”), effective as of the day prior to the Closing Date and contingent upon the occurrence of the Effective Time. The form and substance of such resolutions and other actions taken in connection with the foregoing termination shall be subject to reasonable review and comment of Parent. If Parent requests that any Company DC Plan be terminated, the applicable Continuing Employees shall be eligible to participate, effective as of the Effective Time, in a Tax-qualified defined contribution plan of Parent or its Subsidiaries (each such plan, a “Parent DC Plan”), it being agreed that there shall be no gap in participation in a Tax-qualified defined contribution plan for such Continuing Employees. Upon the distribution of the assets in the accounts under the Company DC Plans to the participants, Parent shall take any action necessary to permit the Continuing Employees to make rollover contributions of “eligible rollover distributions” from the applicable Company DC Plan to the applicable Parent DC Plan (including in cash or notes (in the case of loans)).
(e) Without limiting the generality of Section 6.04(a), from and after the Effective Time, Parent shall, or shall cause its Subsidiaries (including the Surviving Corporation) to, assume and honor in accordance with their terms all of the Company Benefit Plans (including any change in control severance agreement or other arrangement that is a Company Benefit Plan), in each case, as in effect at the Effective Time, including with respect to any payments, benefits or rights arising as a result of the transactions contemplated by this Agreement (either alone or in combination with any other event), it being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, including the Surviving Corporation, to amend any Company Benefit Plan in accordance with its terms. For the avoidance of doubt, for purposes of any Company Benefit Plan containing a definition of “change in control” or “change of control” (or similar term), the Closing shall be deemed to constitute a “change in control” or “change of control” (or applicable term).
(f) If Closing occurs prior to December 31, 2021, with With respect to each cash short term incentive bonus program of the Company and its Subsidiaries with a performance period that is in-cycle as of the Closing (each, a “Company Bonus Program”), following the Closing, (i) payments pursuant to such Company Bonus Program with respect to such the performance period commencing on January 1 of the year in which the Closing occurs and ending on the Closing Date (the “Pre-Closing Bonus Period”) shall be determined and paid by Parent or its Affiliates in the ordinary course of business consistent with past practice, and calculated excluding any merger-related transaction costsbusiness, and (ii) Parent shall not make any modification to such Company Bonus Program with respect to such performance period the Pre-Closing Bonus Period in a manner that is detrimental to any participant therein.
(g) Parent and the Company agree to the additional items set forth on Section 6.04(g) of the Company Disclosure Letter.
(he) Without limiting the generality of Section 9.079.08, this Section 6.04 6.05 shall be binding upon and shall inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.046.05, express or implied, is intended to confer upon any other Person any legal or equitable or other rights or remedies of any nature whatsoever (including including, without limitation, any right to employment or engagement (or continued employment or engagement) by or services with Parent, the Company, the Surviving Corporation, or any of their respective SubsidiariesSubsidiaries or any right to a specific benefit or term or condition of employment or service) under or by reason of this Section 6.046.05. Nothing contained herein shall be construed as requiring, and the Company shall take no action that would have the effect of requiring, Parent or the Surviving Corporation to continue any specific plans, programs, policies, arrangements, agreements or understandings or to continue the employment of any specific person. Furthermore, no provision of this Agreement shall be construed as prohibiting or limiting the ability of Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation to amend, modify or terminate any plans, programs, policies, arrangements, agreements or understandings of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent, the Company or the Surviving Corporation and nothing herein shall be construed as an amendment to any such plan, program, policy, arrangement, agreement or understanding for any purpose.
Appears in 1 contract
Continuing Employee Matters. (a) For the a period from the Effective Time through the first anniversary of the Effective Time Time, each employee of the Company or a Company Subsidiary of the Company who remains in the employment of the Surviving Corporation and its Subsidiaries subsidiaries (each, a the “Continuing EmployeeEmployees”) shall receive from the Surviving Corporation or a subsidiary (i) a base salary salary, wage or commission rate at least equal to the base salary, wage rate, as applicable, and incentive compensation opportunities (other than equity incentive compensation opportunities, which instead will be consistent with the opportunities applicable or commission rate provided to similarly situated employees of Parent and Subsidiaries of Parent) that, in each case, are not less favorable than as provided such Continuing Employee by the Company or such Company Subsidiary immediately prior to the Subsidiaries of Effective Time, (ii) incentive compensation opportunities no less favorable than the Company incentive compensation opportunities provided to such Continuing Employee by the Company or such Company Subsidiary immediately prior to the Effective Time and (ii) severance (based on severance arrangements as in effect on including the date target value of this Agreement and listed on Section 3.10(a) of the Company Disclosure Letter) and employee benefits (excluding defined benefit pension, post-employment health and welfare benefits, annual equity-based compensation and change of controlawards historically granted to such Continuing Employee prior to the Effective Time, retention or other but excluding any one-off awardstime, special or transaction-related incentive compensation opportunities), which incentive compensation opportunities will be subject to the terms and conditions of Parent’s incentive compensation programs and (iii) other employee benefits that are not no less favorable in the aggregate to those that were the benefits provided by the Company or the Subsidiaries of the any Company Subsidiary to such Continuing Employee immediately prior to the Effective Time; provided, provided that, with respect for the avoidance of doubt, neither Parent nor the Surviving Corporation nor any of Parent’s subsidiaries shall have any obligation to issue, or adopt any plans or arrangements providing for the issuance of, Equity Interests to any Continuing Employee. Unless as otherwise provided herein, nothing in this Agreement shall confer upon any Continuing Employee who is primarily based outside any right to continue in the employ or service of the United StatesParent, the requirements Surviving Corporation or any affiliate of this Section 6.04(a) Parent, or shall be subject interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any requirements under applicable LawContinuing Employee, at any time, for any reason whatsoever, with or without cause.
(b) With respect to any “employee benefit plan,” as defined in Section 3(3) of ERISA, or other benefit plan or arrangement maintained by Parent shallor its affiliates in which any Continuing Employee is eligible to participate on or after the Effective Time, and as of the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to, cause any plans, programs, agreements or arrangements established or maintained by Parent or any of its affiliates (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) (the “New Plans”) to recognize the service of each Continuing Employee’s service Employee with the Company or any Company Subsidiary (as well as service with any predecessor employer) as if such service had been performed with Parent as of the Company and Effective Time for all purposes under any predecessor of the Company or any Subsidiary of the Company benefit plan maintained by Parent (to the extent such service is recognized by the Company or such Subsidiary), for purposes of eligibility, participation, vesting and levels of benefits; provided, however, that such service need not be recognized other than (i) for any purpose under any post-employment health or post-employment welfare plan or defined benefit pension plan or retiree welfare plan, (ii) any severance plan to the extent a Continuing Employee is covered under another severance arrangement with the Company (excluding any severance payable pursuant to applicable Law)) (in each case, solely to the extent that Parent makes such recognition plan or program available to employees of the Surviving Corporation and not in any case where such credit would result in any duplication of benefitsbenefits for the same period of service), (iii) but not for purposes of any New Plan under which similarly situated employees other employee benefit plan of Parent and its Subsidiaries do not receive credit for prior service or (iv) for purposes of any New Plan that is grandfathered or frozen, either with respect to level of benefits or participationParent.
(c) With respect to any New Plan that is a health and welfare planplan maintained by Parent or its affiliates in which Continuing Employees are eligible to participate after the Effective Time, Parent shall, and shall cause its affiliates, including the Surviving Corporation and its Subsidiaries Corporation, to, use reasonable best efforts to (i) waive waive, or cause to be waived, all limitations as to preexisting conditions or exclusions, actively-at-work requirements and exclusions waiting periods with respect to participation and coverage requirements applicable to each Continuing Employees Employee (and his or her eligible dependents) to the extent such conditions and exclusions were satisfied or did not apply to such employees under the welfare plans of the Company and its Subsidiaries prior to the Effective Time and (ii) provide each Continuing Employee with credit for any co-payments payments, deductibles and deductibles paid prior to similar expenses incurred by each Continuing Employee (and his or her eligible dependents) during the calendar year in which the Effective Time occurs in satisfying any analogous deductible or out-of-pocket requirements to the extent applicable under any such plan.
the relevant benefit plan in which each Continuing Employee (dand his or her eligible dependents) If requested by Parent not less than ten Business Days prior to the Closing Date, the Company shall adopt resolutions and take such corporate action as necessary to terminate the Company Benefit Plans that are United States Tax-qualified defined contribution plans (the “Company DC Plans”), effective as of the day prior to the Closing Date and contingent upon the occurrence of the Effective Time. The form and substance of such resolutions and other actions taken in connection with the foregoing termination shall be subject to reasonable review and comment of Parent. If Parent requests that any Company DC Plan be terminated, the applicable Continuing Employees shall will be eligible to participate, effective as of the Effective Time, in a Tax-qualified defined contribution plan of Parent or its Subsidiaries (each such plan, a “Parent DC Plan”), it being agreed that there shall be no gap in participation in a Tax-qualified defined contribution plan for such Continuing Employees. Upon the distribution of the assets in the accounts under the Company DC Plans to the participants, Parent shall take any action necessary to permit the Continuing Employees to make rollover contributions of “eligible rollover distributions” from the applicable Company DC Plan to the applicable Parent DC Plan (including in cash or notes (in the case of loans)).
(e) Without limiting the generality of Section 6.04(a), participate from and after the Effective Time, Parent shall, or shall cause its Subsidiaries (including the Surviving Corporation) to, assume and honor in accordance with their terms all of the Company Benefit Plans (including any change in control severance agreement or other arrangement that is a Company Benefit Plan), in each case, as in effect at the Effective Time, including with respect to any payments, benefits or rights arising as a result of the transactions contemplated by this Agreement (either alone or in combination with any other event), it being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, including the Surviving Corporation, to amend any Company Benefit Plan in accordance with its terms. For the avoidance of doubt, for purposes of any Company Benefit Plan containing a definition of “change in control” or “change of control” (or similar term), the Closing shall be deemed to constitute a “change in control” or “change of control” (or applicable term).
(f) If Closing occurs prior to December 31, 2021, with respect to each cash incentive bonus program of the Company and its Subsidiaries with a performance period that is in-cycle as of the Closing (each, a “Company Bonus Program”), following the Closing, (i) payments pursuant such Company Bonus Program with respect to such performance period shall be paid in the ordinary course of business consistent with past practice, and calculated excluding any merger-related transaction costs, and (ii) Parent shall not make any modification to such Company Bonus Program with respect to such performance period in a manner that is detrimental to any participant therein.
(g) Parent and the Company agree to the additional items set forth on Section 6.04(g) of the Company Disclosure Letter.
(hd) Without limiting the generality of Section 9.07, this Section 6.04 6.05 shall be binding upon upon, and shall inure solely to the benefit of each of the parties to this AgreementAgreement and their respective successors and assigns, and nothing in this Section 6.046.05, express or implied, is intended to or shall confer upon any other Person any rights rights, benefits or remedies of any nature whatsoever (including any right to continued employment by or services with Parent, the Company, the Surviving Corporation, or any of their respective Subsidiariessubsidiaries) under or by reason of this Section 6.046.05. Nothing contained herein shall be construed as requiring, and the Company shall take no action that would have the effect of requiring, Parent or the Surviving Corporation to continue any specific plans, programs, policies, arrangements, agreements or understandings or to continue the employment of any specific person. Furthermore, no provision of this Agreement shall be construed as prohibiting or limiting the ability of Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation to amend, modify or terminate any plans, programs, policies, arrangements, agreements or understandings of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent, the Company or the Surviving Corporation and nothing herein therein shall be construed as an amendment to any such plan, program, policy, arrangement, agreement or understanding for any purpose.
Appears in 1 contract
Continuing Employee Matters. (a) For the period from the Effective Time through the first anniversary of the Effective Time (or such shorter period during which the Continuing Employee remains in continued employment with the Surviving Corporation or an Affiliate thereof), each employee of the Company or a Subsidiary of the Company who remains in the employment of the Surviving Corporation and its Subsidiaries or an Affiliate thereof (each, a “Continuing Employee”) shall receive receive: (i) unless otherwise agreed to in writing between Parent or its Affiliates and a Continuing Employee, a base salary or wage rate, as applicable, and target short-term cash incentive compensation opportunities (other than equity incentive compensation opportunities, which instead will be consistent with the opportunities applicable to similarly situated employees of Parent and Subsidiaries of Parent) that, in each casethe aggregate, are not no less favorable than as provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time and (ii) severance (based on severance arrangements as in effect on the date of this Agreement and listed on Section 3.10(a) of the Company Disclosure Letter) and employee benefits (excluding defined benefit pension, post-employment health and welfare benefits, equity-based compensation and change of control, retention or other one-off awards) that are not less favorable in the aggregate to those that were provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the Effective Time; provided, that, with the base salary or wage rate, as applicable, of any Continuing Employee during such period shall not be reduced, (ii) for any such Continuing Employee located in the United States, severance benefits that are no less favorable than as provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the date hereof pursuant to the terms of a Company Benefit Plan set forth on Section 6.05(a) of the Company Disclosure Letter (collectively, the “Severance Arrangements”), and (iii) employee benefits (other than any equity or equity-based arrangements, long-term incentive programs, nonqualified deferred compensation arrangements, post-termination or retiree health and welfare benefits, defined benefit pension plans, and change-in-control payments, retention payments, or other similar nonrecurring compensation) that are substantially comparable in the aggregate to either (as determined by Parent) (x) those that were provided by the Company or the Subsidiaries of the Company to such Continuing Employee immediately prior to the date hereof, or (y) those provided by Parent or its Affiliates to similarly situated employees of Parent or its Affiliates. With respect to any Continuing Employee who is primarily based outside of the United States, the requirements of this Section 6.04(a6.05(a) shall be subject to any discretionary modifications or adjustments permitted in accordance with local Company Benefit Plans (or related policies) as well as any requirements under applicable Law.
(b) Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, cause any plans, programsprogram, agreements agreements, or arrangements established or maintained by Parent or any of its affiliates Affiliates (including, after the Effective Time, the Surviving Corporation and its Subsidiaries) (the “New Plans”) to recognize each Continuing Employee’s service prior to the Effective Time with the Company or any Subsidiary of the Company and any predecessor of the Company or any Subsidiary of the Company (to the extent such service is recognized by the Company or such SubsidiarySubsidiary under a corresponding Company Benefit Plan), for purposes of eligibility, participation, vesting and levels of benefits; provided, however, that such service need not be recognized (i) for any purpose under any defined benefit pension plan or retiree welfare plan, (ii) to the extent that such recognition would result in any duplication of benefits, (iii) for purposes of any New Plan under which similarly situated employees of Parent and its Subsidiaries do not receive credit for prior service or (iv) for purposes of any New Plan that is grandfathered or frozen, either with respect to level of benefits or participation.
(c) With respect to any New Plan that is a welfare plan, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, (i) waive all limitations as to preexisting conditions and exclusions with respect to participation and coverage requirements applicable to Continuing Employees to the extent such conditions and exclusions were satisfied or did not apply to such employees under the welfare plans of the Company and its Subsidiaries prior to the Effective Time and (ii) provide each Continuing Employee with credit for any co-payments and deductibles paid prior to the Effective Time in satisfying any analogous deductible or out-of-pocket requirements to the extent applicable under any such plan.
(d) If requested by Parent not less than ten Business Days prior to the Closing Date, the Company shall adopt resolutions and take such corporate action as necessary to terminate the Company Benefit Plans that are United States Tax-qualified defined contribution plans (the “Company DC Plans”), effective as of the day prior to the Closing Date and contingent upon the occurrence of the Effective Time. The form and substance of such resolutions and other actions taken in connection with the foregoing termination shall be subject to reasonable review and comment of Parent. If Parent requests that any Company DC Plan be terminated, the applicable Continuing Employees shall be eligible to participate, effective as of the Effective Time, in a Tax-qualified defined contribution plan of Parent or its Subsidiaries (each such plan, a “Parent DC Plan”), it being agreed that there shall be no gap in participation in a Tax-qualified defined contribution plan for such Continuing Employees. Upon the distribution of the assets in the accounts under the Company DC Plans to the participants, Parent shall take any action necessary to permit the Continuing Employees to make rollover contributions of “eligible rollover distributions” from the applicable Company DC Plan to the applicable Parent DC Plan (including in cash or notes (in the case of loans)).
(e) Without limiting the generality of Section 6.04(a), from and after the Effective Time, Parent shall, or shall cause its Subsidiaries (including the Surviving Corporation) to, assume and honor in accordance with their terms all of the Company Benefit Plans (including any change in control severance agreement or other arrangement that is a Company Benefit Plan), in each case, as in effect at the Effective Time, including with respect to any payments, benefits or rights arising as a result of the transactions contemplated by this Agreement (either alone or in combination with any other event), it being understood that the foregoing shall not limit the right of Parent and its Subsidiaries, including the Surviving Corporation, to amend any Company Benefit Plan in accordance with its terms. For the avoidance of doubt, for purposes of any Company Benefit Plan containing a definition of “change in control” or “change of control” (or similar term), the Closing shall be deemed to constitute a “change in control” or “change of control” (or applicable term).
(f) If Closing occurs prior to December 31, 2021, with respect to each cash incentive bonus program of the Company and its Subsidiaries with a performance period that is in-cycle as of the Closing (each, a “Company Bonus Program”), following the Closing, (i) payments pursuant such Company Bonus Program with respect to such performance period shall be paid in the ordinary course of business consistent with past practice, and calculated excluding any merger-related transaction costs, and (ii) Parent shall not make any modification to such Company Bonus Program with respect to such performance period in a manner that is detrimental to any participant therein.
(g) Parent and the Company agree to the additional items set forth on Section 6.04(g) of the Company Disclosure Letter.
(h) Without limiting the generality of Section 9.07, this Section 6.04 shall be binding upon and shall inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.04, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever (including any right to continued employment by or services with Parent, the Company, the Surviving Corporation, or any of their respective Subsidiaries) under or by reason of this Section 6.04. Nothing contained herein shall be construed as requiring, and the Company shall take no action that would have the effect of requiring, Parent or the Surviving Corporation to continue any specific plans, programs, policies, arrangements, agreements or understandings or to continue the employment of any specific person. Furthermore, no provision of this Agreement shall be construed as prohibiting or limiting the ability of Parent, the Surviving Corporation or any Subsidiary of Parent or the Surviving Corporation to amend, modify or terminate any plans, programs, policies, arrangements, agreements or understandings of Parent, the Company, the Surviving Corporation or any Subsidiary of Parent, the Company or the Surviving Corporation and nothing herein shall be construed as an amendment to any such plan, program, policy, arrangement, agreement or understanding for any purpose.,
Appears in 1 contract
