Designated Employees. The Purchaser will offer employment to each of the employees of the Seller named on the Schedule of Designated Employees which has been provided by the Purchaser to the Seller (the "Designated Employees"). The Seller will provide to the Purchaser the respective periodic wages, salary and commission rates for the Designated Employees. It is understood and agreed that the employment offered by the Purchaser to each Designated Employee will be "at will" and may be terminated by the Purchaser or the Designated Employee at any time for any reason (subject to any written commitments to the contrary made between the Purchaser and a Designated Employee); provided, however, that if any Designated Employee is terminated without cause by the Purchaser within the number of days of his or her hire date set forth on the Schedule of Designated Employees under the column headed "Applicable Employment Period," Purchaser agrees to pay such Designated Employee, as severance, the amount set forth on the Schedule of Designated Employees under the column headed "Applicable Severance Amount." With respect to Designated Employees for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, for purposes of determining such Designated Employees' severance benefits under such plan, such Designated Employee shall receive credit for all service with the Seller as if such Designated Employee was employed by the Purchaser for such period of service. Nothing in this Agreement shall be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any of the Designated Employees employed by the Purchaser or to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment of such Designated Employees.
Appears in 1 contract
Designated Employees. The Purchaser will (a) Upon the Closing Date, or such later date as is provided in the Employee Leasing Agreement (the "Employee Transfer Date"), CPP US shall offer employment to each of the employees of the Seller named employee listed on the Schedule of Designated Employees which has been provided by the Purchaser to the Seller 5.10 hereto (the "Designated Employees"). The Seller will provide to ) who is actively employed by any of the Purchaser Sellers or any of their respective Affiliates as of the respective periodic wagesEmployee Transfer Date, salary and commission rates for the Designated Employees. It is understood and agreed that the employment offered by the Purchaser to each including any such Designated Employee on short-term disability or other approved leave of absence, but not including long-term disability (with respect to those individuals on short-term disability or other approved leave of absence, not including long-term disability, such offers will be "at will" and may be terminated by conditional on their commencement of active employment with CPP US within 60 days following the Purchaser or Employee Transfer Date or, if later, the Designated Employee at end of any time for any reason (subject to any written commitments to the contrary made between the Purchaser and a Designated Employeeapplicable maternity leave); , on such terms as CPP US sees fit, in its sole discretion, provided, however, that if CPP US shall offer all such Designated Employees who accept such employment and who participated in Sellers' medical plan immediately prior to the date they become Transferred Employees group health insurance coverage immediately upon such employment. All Designated Employees to whom CPP US offers employment and who accept such employment and become employed by CPP US are herein referred to as the "Transferred Employees," and each Transferred Employee shall cease to be an employee of Sellers as of the date the Transferred Employee becomes an employee of CPP US.
(b) Except as provided in Section 5.13(b), Sellers shall be solely responsible for and shall indemnify and hold Purchasers harmless from any Designated liability or expense (including reasonable attorney's fees), whether accruing before, on or after the Closing Date, incurred by Purchasers as a result of any claims of any nature (including without limitation claims related to severance pay, severance benefits, termination-related benefits, or other compensation or benefits) against Purchasers or their affiliates that are made by or on behalf of any employees or former employees, directors or consultants of Sellers or any of their respective Affiliates (or a beneficiary or dependent thereof) who do not become Transferred Employees, including, without limitation, claims asserted against Purchasers as a result of their termination by Sellers or any of their respective Affiliates, whether or not in accordance with the terms of this Agreement. Except as provided in Section 5.13(b), Sellers shall be solely responsible for and shall indemnify and hold Purchasers harmless from any liability or expense (including reasonable attorneys' fees) for severance pay, severance benefits or other termination-related benefits arising out of Sellers' termination or constructive termination of any Transferred Employee is terminated without cause or for any payments pursuant to any agreement entered into by Sellers or any of their respective Affiliates for the purpose of facilitating the transactions contemplated by the Purchaser within Agreement or of otherwise selling, transferring or disposing of all or part of the number Business.
(c) Except as otherwise provided in the Employee Leasing Agreement, with respect to any Transferred Employees, (i) Sellers shall, and shall cause their Affiliates to, retain all liability under each of days of his their applicable group life, accident, worker's compensation, medical, hospitalization, prescription drug, dental or her hire short-term or long-term disability plans, whether or not insured, for any claims arising prior to the date set forth they become Transferred Employees, and (ii) Purchasers shall be responsible for all liability for claims arising on or after the Schedule of Designated date they become Transferred Employees under the column headed any group life, accident, worker's compensation, medical, hospitalization, prescription drug, dental, or short-term or long term disability plans of that Purchasers may provide ("Applicable Employment Period," Purchaser agrees to pay such Designated Employee, as severance, the amount set forth on the Schedule of Designated Employees under the column headed Purchasers' Welfare Plans"Applicable Severance Amount." With respect to Designated Employees for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, for ). For purposes of determining such Designated Employees' severance benefits under such planthis Section 5.10(c), such Designated Employee shall receive credit for all service with the Seller as if such Designated Employee was employed by the Purchaser for such period of service. Nothing in this Agreement claims shall be deemed to prevent have arisen:
(i) with respect to all death or restrict in any way dismemberment claims, on the right actual date of death or dismemberment;
(ii) with respect to disability or salary continuance claims, on the date the claimant becomes disabled;
(iii) with respect to all hospital, medical, drug or dental claims, on the date the service or supply was purchased or received by the claimant; and
(iv) with respect to worker's compensation claims which are single-accident specific, on the date of the Purchaser occurrence, and with respect to terminateall other worker's compensation claims, reassignon the last day worked before the occurrence giving rise to such claims.
(d) Except as otherwise provided in the Employee Leasing Agreement, promote Sellers and their Affiliates shall be responsible and retain liability for any legally mandated continuation of health care coverage for all employees or demote former employees and/or their covered spouses and dependents who have a loss of health care coverage under Sellers' or their Affiliates' health plans, due to a qualifying event (as defined in Section 4980B of the Code) that occurs on or prior to the Employee Transfer Date, and for any legally mandated continuation of health care coverage under Sellers' or their Affiliates' health plans for Transferred Employees and/or their covered, spouses and dependents who (i) have a loss of health care coverage under Sellers' or their Affiliates' health plans due to a qualifying event (as defined in Section 4980B of the Code) that occurs on or after the Employee Transfer Date and (ii) are entitled to, and do, elect such continuation coverage under Sellers' or their Affiliates' health plans.
(e) Sellers and their Affiliates will take all such action as may be necessary to ensure that each Transferred Employee is 100% vested as of the Employee Transfer Date in that Transferred Employee's accounts under any qualified defined contribution plan maintained by Sellers or any of their Affiliates and in the Metris Companies, Inc. Employee Stock Purchase Plan.
(f) Sellers shall be solely responsible for and shall indemnify and hold Purchasers harmless from any liability, claim or expense (whether accruing before, on or after the Closing Date) with respect to the Retention Bonus Program (the "Retention Bonus Plan"). Effective as of the Closing Date, Sellers shall cause the Retention Bonus Plan to be amended to provide that any Designated Employee covered under the Retention Bonus Plan immediately prior to the date hereof shall be entitled, at the sole expense of Sellers and their Affiliates notwithstanding any terms of the Employee Leasing Agreement to the contrary, to the cash payment under the Retention Bonus Plan such Designated Employee would have been entitled under the terms thereof as in effect as of the date hereof, during the month of July 2003 had the Designated Employee remained employed by any of the Sellers on the payment due date and been compensated by Sellers at the Designated Employee's rate of pay as in effect immediately prior to the Closing Date, provided, however, that on such payment due date the Designated Employee is either employed by Purchasers or any of their affiliates or remains employed by any of Sellers or their Affiliates. After such payment is made in July 2003, Purchasers shall reimburse Sellers and their Affiliates for cash payments owed or paid to the Transferred Employees under the Retention Bonus Plan and described on Schedule 5.10(f) (including a description of amounts payable) until such time as the Designated Employees employed by become Transferred Employees, at which time there shall be no further liability or cost to Sellers or Purchasers thereunder with respect to Transferred Employees. Sellers and their Affiliates shall be solely responsible for liabilities associated with any restricted stock award granted under the Purchaser or to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment of such Designated EmployeesRetention Bonus Plan.
Appears in 1 contract
Designated Employees. The Purchaser From the date of this Agreement through the Closing Date, each Seller will not, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth on Schedule 4.5(d), as of the date hereof:
(i) terminate the employment of any Designated Employee other than for cause;
(ii) reassign any Designated Employee located in the United States to a non-U.S. facility of such Seller;
(iii) encourage, facilitate or cooperate with any other Person to offer employment to each a Designated Employee;
(iv) except as required by applicable Law or written individual compensatory agreements in effect as of the employees date hereof, change, increase or amend the rate of the Seller named on the Schedule remuneration (cash, equity or otherwise) or any other terms of Designated Employees which has been provided by the Purchaser to the Seller (the "Designated Employees"). The Seller will provide to the Purchaser the respective periodic wages, salary and commission rates for the Designated Employees. It is understood and agreed that the employment offered by the Purchaser to each of any Designated Employee will be "at will" and may be terminated by or adopt, grant, extend, increase or otherwise change the Purchaser rate or terms of any bonus, insurance, pension or other Employee Benefit Plan, payment or arrangement made to, for or with any Designated Employee; provided, that this clause (iv) does not prevent Sellers from reasonably changing, on an individual basis, the rate of remuneration or other terms of employment of any Designated Employee (a) in response to an offer from a competitor (other than Buyer), (b) to reflect a change in responsibility, (c) if required to retain the services of the Designated Employee at or (d) in response to demands from a client under a Customer Contract that necessitate an increase in the level of, or change in, services from the Designated Employee;
(v) except as required by applicable Law or written individual compensatory agreements in effect as of the date hereof, grant or increase any time for any reason severance or termination pay (subject whether payable in cash, stock or other equity instruments) to any written commitments Designated Employee or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Designated Employee on the contrary made between the Purchaser and a Designated Employee)date hereof; provided, howeverthat this clause (v) does not prevent Sellers from making payments under written individual agreements in effect on the date hereof; provided further, that if this clause (v) does not prevent Sellers from reasonably changing, on an individual basis, the rate of remuneration or other terms of employment of any Designated Employee is terminated without cause by (a) in response to an offer from a competitor (other than Buyer), (b) to reflect a change in responsibility, (c) if required to retain the Purchaser within the number of days of his or her hire date set forth on the Schedule of Designated Employees under the column headed "Applicable Employment Period," Purchaser agrees to pay such Designated Employee, as severance, the amount set forth on the Schedule of Designated Employees under the column headed "Applicable Severance Amount." With respect to Designated Employees for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, for purposes of determining such Designated Employees' severance benefits under such plan, such Designated Employee shall receive credit for all service with the Seller as if such Designated Employee was employed by the Purchaser for such period of service. Nothing in this Agreement shall be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any services of the Designated Employees employed by Employee or (d) in response to demands from a client under a Customer Contract that necessitate an increase in the Purchaser level of, or to change adversely in, services from the Designated Employee; or
(vi) enter into or favorably amend any individual compensatory or other agreement with any Designated Employee; provided, that this clause (vi) does not prevent Sellers from reasonably changing, on an individual basis, the title, powers, duties, responsibilities, functions, locations, salaries, rate of remuneration or other compensation or terms or conditions of employment of such any Designated EmployeesEmployee (a) in response to an offer from a competitor (other than Buyer), (b) to reflect a change in responsibility, (c) if required to retain the services of the Designated Employee or (d) in response to demands from a client under a Customer Contract that necessitate an increase in the level of, or change in, services from the Designated Employee.
Appears in 1 contract
Designated Employees. The Purchaser will (a) On or before the Closing Date, Buyer shall offer employment to each employ, effective as of the employees of the Seller named on the Schedule of Designated Employees which has been provided Closing Date, 120 Business Employees, to be identified by the Purchaser to the Seller Buyer in its sole discretion (collectively, the "Designated Employees"), from the 143 Business Employees Buyer and Seller have separately identified. The Seller will provide to For any Designated Employee, such employment shall be offered on terms which include (i) the Purchaser the respective periodic wages, rate of wages or salary and commission rates for the Designated Employees. It is understood and agreed that the employment offered by the Purchaser to each Designated Employee will be "at will" and may be terminated by the Purchaser or which the Designated Employee at any time for any reason (subject enjoyed with Seller immediately prior to any written commitments to the contrary made between the Purchaser and a Designated Employee); provided, however, that if any Designated Employee is terminated without cause by the Purchaser within the number of days of his or her hire date set forth on the Schedule termination, (ii) eligibility for all employee benefit plans of Designated Employees Buyer (under the column headed "Applicable Employment Period," Purchaser agrees terms of those plans) to pay such Designated Employee, the same extent as severance, the amount set forth on the Schedule any similarly situated and geographically located employee of Designated Employees under the column headed "Applicable Severance Amount." With respect to Designated Employees Buyer or its Affiliates and (iii) credit for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, service with Seller for purposes of determining such Designated Employees' (1) accruals under Buyer's Paid Personal Leave policy, (2) severance benefits under such plan, such Designated Employee shall receive credit Buyer's written severance policies and (3) waiting periods for all service with the enrollment in Buyer's standard benefit plans.
(b) Seller as if such Designated Employee was employed by the Purchaser for such period of service. Nothing in this Agreement shall be deemed and its Affiliates will use their best efforts to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any of cause the Designated Employees employed by so offered employment to accept Buyer's offers of employment. Between the Purchaser Agreement Date and the Closing Date, (i) Seller shall not decrease the rate of compensation, work schedule, benefits or to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or and conditions of employment of any Designated Employee and (ii) Seller will give notice to Buyer promptly after receiving any notice any Designated Employee of any such Designated EmployeesEmployee's intention to resign his or her employment with Seller or any Affiliate.
(c) Buyer and Seller shall offer Designated Employees the following options with respect to vacation leave accrued with Seller as of the date such Designated Employee's employment with Seller terminates: (i) be paid directly by Seller an amount equal to the value of all such accrued vacation time; (ii) have such accrued vacation time transferred to Buyer for an equivalent amount of time under Buyer's Paid Personal Leave policy (provided that such transferred vacation time shall not exceed 280 hours); or (iii) have an amount equal to the value of some portion of such accrued vacation time paid directly by Seller and have the remaining accrued vacation time transferred to Buyer for an equivalent amount of time under Buyer's Paid Personal Leave policy (provided that such amount of time shall not exceed 280 hours). Within 90 days after Buyer hires any Designated Employee, Seller shall pay to Buyer an amount equal to the value of any accrued vacation time such Designated Employee elects to transfer to Buyer pursuant to the option given under this subsection.
Appears in 1 contract
Samples: Asset Purchase Agreement (Genus Inc)
Designated Employees. The Purchaser will (a) As promptly as practicable (and in any event within six (6) Business Days) after the date hereof, Buyer shall, or shall cause one of its Subsidiaries to, offer employment to those Designated Employees that Buyer may in its sole discretion determine, in each case, effective as of the employees Closing, pursuant to a written employment offer letter (each, an “Offer Letter” and, collectively, the “Offer Letters”). Effective as of the Seller named on the Schedule of Designated Employees which has been provided Closing (or such later date specified by the Purchaser Buyer with respect to the Seller (the "Designated Leave Employees"). The Seller will provide to the Purchaser the respective periodic wages, salary Buyer, or one of its Subsidiaries, shall hire and commission rates for the Designated Employees. It is understood and agreed that the employment offered by the Purchaser to employ each Designated Employee will who accepts and does not revoke his or her Offer Letter prior to the Closing Date. Buyer and its Subsidiaries shall comply with all Laws in connection with the commencement of employment of each Transferred Employee, and Seller and its Subsidiaries shall comply with all Laws in connection with the termination of employment of each Transferred Employee. The Designated Employees who (i) receive and accept Offer Letters, and (ii) commence employment with Buyer, or one of its Subsidiaries, as of the Closing (or such later date specified by Buyer with respect to the Leave Employees) shall be "referred to herein collectively as “Transferred Employees”. Notwithstanding the foregoing, except as required by applicable Law, no Transferred Employee shall have any continuing rights to employment, and each such Transferred Employee shall be considered an “at will" and may be terminated ” employee.
(b) Except as required by the Purchaser applicable Law or the Designated terms of the Transition Services Agreement, from and after the Closing, Seller and its Subsidiaries shall terminate the employment of all Transferred Employees and the Transferred Employees shall cease to participate in and/or accrue further rights or benefits under any Employee Benefit Plan and/or International Employee Plan (collectively, the “Seller Benefit Plans”).
(c) With respect to the coverage of the Transferred Employees under Buyer’s employee welfare benefits plans (including, but not limited to, medical, dental, vision, prescription drug and employee assistance plans) (“Buyer Welfare Plans”), (i) each such Transferred Employee’s credited service with Seller and its Subsidiaries shall be credited against any waiting period applicable to eligibility for enrollment of new employees under the Buyer Welfare Plans; (ii) limitations on benefits due to pre-existing conditions under any type of welfare benefit shall be waived for any Transferred Employee enrolled in a similar type of welfare benefit under the welfare benefit plans of Seller and its Subsidiaries immediately before the Closing Date; and (iii) any out-of-pocket annual maximums and Thresholds taken into account under the welfare benefit plans of Seller and its Subsidiaries for any Transferred Employee in the calendar year which contains the Closing Date shall be credited under Buyer Welfare Plans to the same extent satisfied under any Seller welfare benefit plan, provided, that Seller has provided Buyer with all appropriate data necessary to reflect such credit under the Buyer Welfare Plans for the same calendar year.
(d) Seller and Buyer agree that, pursuant to the “Alternative Procedures” provided in Section 5 of Revenue Procedure 2004-53, with respect to the filing and furnishing of Internal Revenue Service Forms W-2, W-3 and 941 for the full calendar year in which the Closing Date occurs, (i) Seller and Buyer shall report on a “predecessor-successor” basis, as set forth therein, (ii) Seller shall be relieved from furnishing Forms W-2 to any Transferred Employees, and (iii) Buyer shall assume the obligations of Seller to furnish Forms W-2 to such Transferred Employees and Forms W-2 and W-3 with respect to Transferred Employees to the Social Security Administration; provided, Seller shall transfer to Buyer all Forms W-4 and W-5 with respect to the Transferred Employees, and such other data relating to Transferred Employees (including records of all (1) wages and bonuses paid and (2) Taxes withheld and paid) as shall be necessary for the Buyer to assume and satisfy such obligations accurately and in accordance with the Law.
(e) As of the Closing Date: (i) Buyer shall be responsible for providing the notices and making available the health care continuation coverage, all as required by law under the COBRA Continuation Coverage regulations, for all the Transferred Employees and former Transferred Employees (and their respective covered dependents), whose qualifying events (as defined in Code Section 4980B) occur on or after the Closing Date; and (ii) Seller shall be responsible for providing the notices and making available the health care continuation coverage, all as required by law under the COBRA Continuation Coverage regulations, for all Employees who are not Transferred Employees and former Transferred Employees (and their respective covered dependents), and with respect to whom the Seller has any current notice or COBRA Continuation Coverage responsibilities. Seller agrees and acknowledges that the selling group (as defined in Treasury Regulation Section 54.4980B-9, Q&A-3(a)) of which it is a part (the “Selling Group”) will continue to offer a group health plan to employees after the Closing Date through the expiration of the COBRA Continuation Coverage period for all those individuals who are M&A qualified beneficiaries (as defined in Treasury Regulation Section 54.4980B-9, Q&A-4(a)) (“M&A Qualified Beneficiaries”) with respect to the transactions contemplated by this Agreement who are not Transferred Employees or former Transferred Employees (or their respective dependents). Seller further agrees and acknowledges that in the event that the Selling Group ceases to provide a group health plan to any employee prior to the expiration of the COBRA Continuation Coverage period for all such M&A Qualified Beneficiaries (pursuant to Treasury Regulation Section 54.4980B-9, Q&A-8(c)), then Seller shall provide Buyer with (i) written notice of such cessation as far in advance of such cessation as is reasonably practicable (and, in any event, at least thirty (30) days prior to such cessation), and (ii) all information necessary or appropriate for Buyer timely to arrange to offer any legally required continuation coverage to such M&A Qualified Beneficiaries. Buyer agrees and acknowledges that Buyer and its ERISA Affiliates (the “Buying Group”) will continue to offer a group medical, health, dental, vision, and prescription drug plan to employees as of and after the Closing Date through the expiration of the COBRA Continuation Coverage period for all those individuals who are M&A Qualified Beneficiaries with respect to the transactions contemplated by this Agreement and also are Transferred Employees or former Transferred Employees (and their respective dependents). Buyer further agrees and acknowledges that in the event that the Buying Group ceases to provide any such group health plan to any employee prior to the expiration of the COBRA Continuation Coverage period for all such M&A Qualified Beneficiaries (pursuant to Treasury Regulation Section 54.4980B-9, Q&A-8(c)), then Buyer shall provide Seller with (i) written notice of such cessation as far in advance of such cessation as is reasonably practicable (and, in any event, at least thirty (30) days prior to such cessation), and (ii) all information necessary or appropriate for Seller timely to arrange to offer any legally required continuation coverage to such M&A Qualified Beneficiaries.
(f) From and after the Closing Date, each Transferred Employee shall be eligible to participate in any vacation pay policy, sick leave policy and/or paid time off policy made generally available by Buyer (or, if the Transferred Employee is employed by a Subsidiary of Buyer, by such Subsidiary) to its employees, and any service based provisions of such policies will take into account such Transferred Employee’s service with the Seller.
(g) Buyer shall take all actions necessary or appropriate so that, effective as of the Closing Date (i) the account balances (whether positive or negative) (the “Transferred Account Balances”) under the Seller’s health and dependent care flexible spending account plans (the “FSAs”) of the Transferred Employees who are participants in Seller’s FSAs (the “Covered Employees”) shall be transferred to one or more comparable plans of Buyer; (ii) the elections, contribution levels and coverage levels of the Covered Employees shall apply under Buyer’s FSAs in the same manner as under Seller’s FSAs; provided that Seller has provided all data necessary to Buyer to reflect such application; and (iii) the Covered Employees shall be reimbursed from Buyer’s FSAs for claims (A) incurred at any time for any reason during the plan year of Seller’s FSAs in which the Closing Date occurs, and (subject B) submitted to Buyer’s FSAs from and after the Closing Date, substantially on the same basis, terms and conditions as under Seller’s FSAs.
(h) As soon as practicable following the Closing Date, Seller shall cause the vested account balances of all Transferred Employees in Seller’s 401(k) plan to be distributed in accordance with terms of said plan (treating the Transferred Employees as having severed from employment within the meaning of said plan), and Buyer shall permit Transferred Employees who are participants in said plan and who are employed by Buyer or its Subsidiaries following the Closing Date to rollover such distributions including outstanding participant loan balances into Buyer’s 401(k) plan, if any.
(i) For purposes of eligibility and vesting under the employee benefit plans, employment practices and similar arrangements of Buyer and its Subsidiaries providing compensation and/or benefits to any written commitments to Transferred Employees after the contrary made between the Purchaser and a Designated EmployeeClosing Date (other than any equity compensation program or any accrual formula under any “defined benefit” pension plan of Buyer); provided, however, that if any Designated Employee is terminated without cause by the Purchaser within the number of days of his or her hire date set forth on the Schedule of Designated Employees under the column headed "Applicable Employment Period," Purchaser agrees to pay such Designated Employee, as severance, the amount set forth on the Schedule of Designated Employees under the column headed "Applicable Severance Amount." With respect to Designated Employees for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, for purposes of determining such Designated Employees' severance benefits under such plan, such Designated each Transferred Employee shall receive credit be credited with all years of service for all service with the Seller as if which such Designated Transferred Employee was employed by the Purchaser for such period of service. Nothing in this Agreement shall be deemed to prevent or restrict in any way the right credited as of the Purchaser to terminateClosing Date under any similar benefit plans, reassign, promote practices or demote any arrangements of the Designated Employees employed by the Purchaser or to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment of such Designated EmployeesSeller and its Subsidiaries.
Appears in 1 contract
Designated Employees. The Purchaser From the date of this Agreement through the Closing Date, each Seller will not, without the prior written consent of Buyer (which consent shall not be unreasonably withheld, conditioned or delayed) or as set forth on Schedule 4.5(d) as of the date hereof:
(i) terminate the employment of any Designated Employee other than for cause;
(ii) reassign any Designated Employee located in the United States to a non-U.S. facility of such Seller;
(iii) encourage, facilitate or cooperate with any other Person to offer employment to each a Designated Employee;
(iv) except as required by applicable Law or written individual compensatory agreements in effect as of the employees date hereof, change, increase or amend the rate of the Seller named on the Schedule remuneration (cash, equity or otherwise) or any other terms of Designated Employees which has been provided by the Purchaser to the Seller (the "Designated Employees"). The Seller will provide to the Purchaser the respective periodic wages, salary and commission rates for the Designated Employees. It is understood and agreed that the employment offered by the Purchaser to each of any Designated Employee will be "at will" and may be terminated by or adopt, grant, extend or increase the Purchaser rate or terms of any bonus, insurance, pension or other employee benefit plan, payment or arrangement made to, for or with any Designated Employee; provided, that this clause (iv) does not prevent Sellers from changing, on an individual basis, the rate of remuneration or other terms of employment of any Designated Employee (a) in response to an offer from a competitor (other than Buyer), (b) to reflect a change in responsibility, (c) if required to retain the services of the Designated Employee at or (d) in response to demands from a client under a Customer Contract that necessitate an increase in the level of, or change in, services from the Designated Employee;
(v) except as required by applicable Law or written individual compensatory agreements in effect as of the date hereof, grant any time for any reason severance or termination pay (subject whether payable in cash, stock or other equity instruments) to any written commitments Designated Employee or adopt any new severance plan, or amend or modify or alter in any manner any severance plan, agreement or arrangement relating to any Designated Employee on the contrary made between the Purchaser and a Designated Employee)date hereof; provided, howeverthat this clause (v) does not prevent Sellers from making payments under written individual agreements in effect on the date hereof; provided further, that if this clause (v) does not prevent Sellers from changing, on an individual basis, the rate of remuneration or other terms of employment of any Designated Employee is terminated without cause by (a) in response to an offer from a competitor (other than Buyer), (b) to reflect a change in responsibility, (c) if required to retain the Purchaser within the number of days of his or her hire date set forth on the Schedule of Designated Employees under the column headed "Applicable Employment Period," Purchaser agrees to pay such Designated Employee, as severance, the amount set forth on the Schedule of Designated Employees under the column headed "Applicable Severance Amount." With respect to Designated Employees for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, for purposes of determining such Designated Employees' severance benefits under such plan, such Designated Employee shall receive credit for all service with the Seller as if such Designated Employee was employed by the Purchaser for such period of service. Nothing in this Agreement shall be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any services of the Designated Employees employed by Employee or (d) in response to demands from a client under a Customer Contract that necessitate an increase in the Purchaser level of, or to change adversely in, services from the Designated Employee; or
(vi) enter into or favorably amend any individual compensatory agreement with any Designated Employee; provided, that this clause (vi) does not prevent Sellers from changing, on an individual basis, the title, powers, duties, responsibilities, functions, locations, salaries, rate of remuneration or other compensation or terms or conditions of employment of such any Designated EmployeesEmployee (a) in response to an offer from a competitor (other than Buyer), (b) to reflect a change in responsibility, (c) if required to retain the services of the Designated Employee or (d) in response to demands from a client under a Customer Contract that necessitate an increase in the level of, or change in, services from the Designated Employee.
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Designated Employees. The Purchaser will offer employment to each of the employees of the Seller named on the Schedule of Designated Employees which has been provided by the Purchaser to the Seller (the "Designated Employees"). The Seller will provide to the Purchaser the respective periodic wages, salary and commission rates for the Designated Employees. It is understood and agreed that the employment offered by the Purchaser to each Designated Employee will be "at will" and may be terminated by the Purchaser or the Designated Employee at any time for any reason (subject to any written commitments Notwithstanding anything to the contrary made between set forth in Section 4.9, and without prejudice to any local legal requirements concerning transfer of employment-related rights by operation of Law, during the Purchaser and Permitted Solicitation Period, any Centocor Party or its Affiliates may directly solicit for employment any of the Restricted Employees of Schering-Plough or its Affiliates employed in the Relinquished Territories whose employment is scheduled to be involuntarily terminated by Schering-Plough or its Affiliates following the Termination Time, or following any applicable period of Elected Transition Services in connection with the transactions contemplated by this Agreement (each such Restricted Employee, a “Designated Employee”), and may subsequently employ such Designated Employee; provided, however, however that if such employment shall not commence until the later of the Termination Time or the end of any Designated Employee is terminated without cause by the Purchaser within the number of days of his or her hire date set forth on the Schedule of Designated Employees under the column headed "Applicable Employment Period," Purchaser agrees to pay such Designated Employee, as severance, the amount set forth on the Schedule of Designated Employees under the column headed "Applicable Severance Amount." With respect to Designated Employees for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, for purposes of determining such Designated Employees' severance benefits under such plan, such Designated Employee shall receive credit for all service with the Seller as if such Designated Employee was employed by the Purchaser for such applicable period of serviceElected Transition Services. Nothing in For this Agreement purpose, Schering-Plough shall, or shall be deemed cause one of its Affiliates to, (i) provide to prevent Centocor, on or restrict in any way the right of the Purchaser before May 15, 2011 (or as soon as reasonably practicable thereafter if required by local Laws or practice) and subject to terminateSection 4.16(d), reassign, promote or demote any a list of the Designated Employees employed by in each Relinquished Territory, and (ii) provide representatives of the Purchaser Centocor Parties reasonable access to the Designated Employees to interview or otherwise consider for employment. Centocor and its Affiliates shall conduct such interviewing process and utilize such hiring practices and procedures in accordance with applicable local Law with respect to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions each Relinquished Territory and may make offers of employment of to any such Designated EmployeesEmployee based on such terms and conditions as it may determine in its sole discretion consistent with local Laws and the restrictions of this Section 4.16(a). The term “Permitted Solicitation Period” shall mean both (A) the period beginning on the date of this Agreement and ending on August 1, 2011, or at the end of any applicable period for providing Elected Transition Services; and (B) the period beginning on August 1, 2011, or at the end of any applicable period of providing Elected Transition Services, and ending on the first anniversary of this Agreement, but only if such Designated Employee’s employment has actually been voluntarily or involuntarily terminated.
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Designated Employees. The Purchaser will offer employment to each of the employees of the Seller named on the Schedule of Designated Employees which has been provided by the Purchaser on terms with respect to the Seller (the "Designated Employees"). The Seller will provide to the Purchaser the respective periodic wages, salary and commission rates which are not less favorable to such Designated Employees than those in effect on the date of this Agreement with the Seller. The Designated Employees and their respective periodic wages, salary, and commission rates, are set forth on the schedule of designated employees previously agreed to by the Parties (the "Schedule of Designated Employees"). The Purchaser shall not be required to offer any Designated Employee employment in the same location in which such Designated Employee is currently located. Subject to Legal Requirements, the Purchaser will have reasonable access to the facilities of the Seller and the personnel records (including performance appraisals, disciplinary actions and grievances) of the Seller related to the Designated Employees for the Designated Employeespurpose of preparing for and conducting employment interviews. It is understood and agreed that the employment offered by the Purchaser to each the Designated Employee Employees will be "at will" and may be terminated by the Purchaser or the Designated Employee at any time for any reason (subject to any written commitments to the contrary made between the Purchaser and a Designated Employee); provided, however, that if any Designated Employee is terminated without cause by the Purchaser within the number of days of his or her hire date set forth on the Schedule of Designated Employees under the column headed "Applicable Employment Period," Purchaser agrees to pay such Designated Employee, as severance, the amount set forth on the Schedule of Designated Employees under the column headed "Applicable Severance Amount." With respect to Designated Employees for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, for purposes of determining such Designated Employees' severance benefits under such plan, such Designated Employee shall receive credit for all service with the Seller as if such Designated Employee was employed by the Purchaser for such period of service. Nothing in this Agreement shall be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any of the Designated Employees employed by after the Purchaser Closing or to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment of such Designated Employees. The Seller acknowledges that the Sales Employees, in seeking to obtain new clients, will be selling service offerings of the Purchaser on terms that the Purchaser offers to its new clients, which will differ from the terms of the service offerings previously offered to clients of the Seller. The Purchaser acknowledges that its normal training procedures for new sales employees will be delayed to allow the Sales Employees to be able to pursue obtaining New Clients during the period from the Closing Date through the Determination Date. The Purchaser agrees to maintain until the Determination Date the commission structure which is currently applicable to the Sales Employees and which is described on the Schedule of Designated Employees for the Sales Employees employed by the Purchaser. Anything herein to the contrary notwithstanding, the Parties agree that the Purchaser has not assumed, and shall have no liability or obligation to any Designated Employee for, any accrued paid time off or any other obligation of the Seller or any Subsidiary to any Designated Employee, all of which obligations shall remain obligations of the Seller and the Subsidiaries.
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Designated Employees. The Purchaser (a) Prior to the Closing, Buyer will, or will cause one of its Subsidiaries to, offer employment to each Designated Employee other than any Leave Employee, in each case effective as of the employees Closing, pursuant to a written employment offer letter (each, an “Offer Letter”). Each Offer Letter will provide that the applicable Designated Employee will receive full credit for their prior service with Seller or any of its Subsidiaries for all purposes, and will receive salary and benefits (including long-term incentive compensation) comparable to those received on the date of this Agreement. The Parties will reasonably cooperate to determine the appropriate treatment of any Leave Employees.
(b) Effective as of the Seller named on the Schedule Closing, Buyer, or one of Designated Employees which has been provided by the Purchaser to the Seller (the "Designated Employees"). The Seller will provide to the Purchaser the respective periodic wages, salary its Subsidiaries must hire and commission rates for the Designated Employees. It is understood and agreed that the employment offered by the Purchaser to employ each Designated Employee who accepts and does not repudiate his or her Offer Letter prior to the Closing Date. Those Designated Employees who accept employment from Buyer pursuant to the offers of employment made pursuant to Section 8.2(a) and commence employment with Buyer as of the Closing (or such later date with respect to the Leave Employees), together with all Automatic Transfer Employees, are referred to herein collectively as “Transferred Employees.” Notwithstanding the foregoing, except as required by applicable Law, no Transferred Employee has any continuing rights to employment, and each such Transferred Employee will be "considered an “at will" and may be terminated ” employee, unless he or she has or enters into a written employment agreement guaranteeing employment that is binding on Buyer.
(c) Except as required by the Purchaser applicable Law or the Designated terms of the Transition Services Agreement, from and after the Closing, Seller and its Subsidiaries will terminate the employment of all Transferred Employees and the Transferred Employees will cease to participate in or accrue further rights or benefits under any Employee at Benefit Plan or International Employee Plan.
(d) With respect to the coverage of the Transferred Employees under Buyer’s employee welfare benefits plans (including medical, dental, vision, prescription drug and employee assistance plans) (“Buyer Welfare Plans”), (i) each such Transferred Employee’s credited service with Seller and its Subsidiaries will be credited against any time waiting period applicable to eligibility for enrollment of new employees under the Buyer Welfare Plans; (ii) limitations on benefits due to pre-existing conditions under any type of welfare benefit will be waived for any reason Transferred Employee enrolled in a similar type of welfare benefit under the welfare benefit plans of Seller and its Subsidiaries immediately before the Closing Date; and (subject to iii) any written commitments out-of-pocket annual maximums and deductibles taken into account under the welfare benefit plans of Seller and its Subsidiaries for any Transferred Employee in the calendar year that contains the Closing Date will be credited under Buyer Welfare Plans to the contrary made between the Purchaser and a Designated Employee)same extent satisfied under any Seller welfare benefit plan; provided, however, that if Seller has provided Buyer with all appropriate data necessary to reflect such credit under the Buyer Welfare Plans for the same calendar year.
(e) Seller and Buyer agree that, pursuant to the “Alternative Procedures” provided in Section 5 of Revenue Procedure 2004-53, with respect to the filing and furnishing of Internal Revenue Service Forms W-2, W-3 and 941 for the full calendar year in which the Closing Date occurs, (i) Seller and Buyer will report on a “predecessor-successor” basis, as set forth therein; (ii) Seller will be relieved from furnishing Forms W-2 to any Designated Transferred Employees; and (iii) Buyer will assume the obligations of Seller to furnish Forms W-2 to such Transferred Employees and Forms W-2 and W-3 with respect to Transferred Employees to the Social Security Administration; provided, however, that Seller will transfer to Buyer all Forms W-4 and W-5 with respect to the Transferred Employees, and such other data relating to Transferred Employees (including records of all (A) wages and bonuses paid and (B) Taxes withheld and paid) as are necessary for Buyer to assume and satisfy such obligations accurately and in accordance with applicable Law.
(f) Beginning as of the Closing Date, Buyer is responsible for providing the notices and making available the health care continuation coverage as required by COBRA for all of the Transferred Employees and their respective covered dependents whose qualifying events (as defined in Code Section 4980B) occur on or after the Closing Date.
(g) From and after the Closing Date (i) Buyer will assume all duties and Liabilities in connection with, and will honor, all vacation days, sick leave days, and paid time off days of the Transferred Employees that accrued prior to the Closing Date and will not take any action that results in a forfeiture of any such time off in violation of any applicable state law; and (ii) Buyer’s vacation pay policy, sick leave policy and paid time off policy will apply to each Transferred Employee is terminated without and will take into account service with Seller as provided in Section 8.2(a).
(h) Buyer must take all actions necessary or appropriate so that, effective as of the Closing Date, (i) the actual account balances (whether positive or negative) under Seller’s health and dependent care flexible spending account plans (the “FSAs”) of the Transferred Employees who are participants in Seller’s FSAs (the “Covered Employees”) will be transferred to one or more comparable plans of Buyer; (ii) the elections, contribution levels and coverage levels of the Covered Employees will apply under Buyer’s FSAs in the same manner as under Seller’s FSAs; provided, however, that Seller has provided all data necessary to Buyer to reflect such application; and (iii) the Covered Employees will be reimbursed from Buyer’s FSAs for claims (A) incurred at any time during the plan year of Seller’s FSAs in which the Closing Date occurs, and (B) submitted to Buyer’s FSAs from and after the Closing Date, substantially on the same basis, terms and conditions as under Seller’s FSAs.
(i) As soon as practicable following the Closing Date, Seller must cause by the Purchaser vested account balances of all Transferred Employees in Seller’s applicable 401(k) plan to be distributed in accordance with terms of such 401(k) plan (treating the Transferred Employees as having severed from employment within the number meaning of days of his or her hire date set forth on such 401(k) plan), and Buyer will permit Transferred Employees who are participants in said plan and who are employed by Buyer following the Schedule of Designated Employees Closing Date to rollover such distributions (including outstanding participant loans balances) into Buyer’s 401(k) plan, if any.
(j) For all purposes under the column headed "Applicable Employment Period," Purchaser agrees employee benefit plans, employment practices and similar arrangements of Buyer providing compensation or benefits to pay any Transferred Employees after the Closing Date (other than any equity compensation program or any accrual formula under any “defined benefit” pension plan of Buyer), each Transferred Employee must be credited with all years of service for which such Designated Employee, as severance, the amount set forth on the Schedule of Designated Employees under the column headed "Applicable Severance Amount." With respect to Designated Employees for whom the Applicable Employment Period is listed as "Indefinite" and for whom the "Applicable Severance Amount" is listed as "Gevity Plan," the Purchaser agrees that, for purposes of determining such Designated Employees' severance benefits under such plan, such Designated Employee shall receive credit for all service with the Seller as if such Designated Transferred Employee was employed by the Purchaser for such period of service. Nothing in this Agreement shall be deemed to prevent or restrict in any way the right credited as of the Purchaser to terminateClosing Date under any similar employee benefit plans, reassign, promote practices or demote any arrangements of the Designated Employees employed by the Purchaser or to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment of such Designated EmployeesSeller and its Subsidiaries.
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