Employee and Employee Benefit Matters. (a) Effective as of the Closing, and except as otherwise provided in this Section 7.1, Buyers and the DMS Entities agree to continue the employment of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing. Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1). (b) As of the date hereof, (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides benefits to certain Business Employees and former employees whose duties related primarily to the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, and (ii) the assets of the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closing, Sellers shall be responsible for the payment of all benefits under the Midstream Plan, including payment of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closing. (c) For a period of one year following the Closing Date, Buyers shall provide or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates immediately prior to the Closing Date. As of the Closing, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs and policies, or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately prior to the Closing. Except as expressly set forth in this Section 7.1, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c). (d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows: (i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment. (e) From and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependent. (f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph. (g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan. (h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing. (i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Samples: Partnership Interest Purchase Agreement (Dynegy Inc /Il/)
Employee and Employee Benefit Matters. (a) Effective as of the ClosingClosing Date, the Acquired Employees will cease to participate in all Seller Benefit Plans, except to the extent required by applicable law or the terms and except as otherwise provided in this Section 7.1, Buyers and the DMS Entities agree to continue the employment conditions of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closingapplicable Seller Benefit Plan. Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities Buyer shall not assume any of the Sellers’ Seller Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1)Plan.
(b) As For a period of at least twelve (12) months after the Closing Date, Buyer will cause each Acquired Employee to be provided with compensation and employee benefits that are substantially similar, in the aggregate, to those employee benefits provided by Seller, McClatchy or the Company to similarly situated Business Employees prior to Closing Date. Buyer will cause each Acquired Employee’s service with the Company prior to the Closing Date to be counted for purposes of eligibility to participate in and vesting under (but not for purposes of benefit accrual under) any employee benefit plans, programs and policies of Buyer extended to Acquired Employees after the Closing (the “Buyer Plans”). In addition, with respect to each Buyer Plan that is a group health plan, Buyer will use commercially reasonable efforts to cause its relevant insurance carriers to waive any and all preexisting condition limitations and exclusions and any and all eligibility waiting periods with respect to each of the date hereofAcquired Employees and their spouses and dependents. In the event that Buyer, after the exercise of good faith efforts, is unable establish medical, dental or vision insurance or to cause its relevant insurance carriers to waive eligibility waiting periods for such benefits so as to afford a transition of benefits coverage from Seller to Buyer, Buyer will reimburse McClatchy within fifteen (15) days after receipt of any invoice from McClatchy for any COBRA premiums for such continuation coverage under the applicable McClatchy medical, dental or vision plans, plus a two percent (2%) administration fee for each Acquired Employee who has affirmatively elected COBRA continuation coverage, until the later of: (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”)date medical, which provides benefits to certain Business Employees dental and former employees whose duties related primarily to the midstream business historically visions plans are established, or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, and (ii) the assets expiration of such waiting period(s). In the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree event that the sponsorship of the Midstream Plan shall Buyer does not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from establish medical, dental and after the Closing. From and vision plans and/or any applicable eligibility waiting period is not expired within ninety (90) days after the Closing, Sellers then Buyer shall thereafter reimburse McClatchy within fifteen (15) days after receipt of any invoice from McClatchy for any COBRA premiums for such continuation coverage under the applicable McClatchy medical, dental or vision plans, plus a fifty percent (50%) administration fee for each Acquired Employee who has affirmatively elected COBRA continuation coverage, until the date Buyer establishes, and eligible Aquired Employees are eligible to participate in, the Buyer’s medical, dental and visions plans. Buyer will not charge any such administration fee to Acquired Employees. Acquired Employees may be required to pay premiums for such continuation coverage to Buyer, provided that Buyer shall be responsible for collecting such employee premiums, and provided further that failure to collect such premiums from Acquired Employees shall not relieve Buyer of its obligation to pay McClatchy the payment of all benefits under the Midstream Plan, including payment of benefits full COBRA premium plus applicable administrative fees pursuant to participants who retired or became entitled to deferred vested benefits on or before the Closingthis Section 6.1(b).
(c) For a period Subject to satisfying the definition of one year “substantially similar” in this Section 6.1(c), nothing in this Agreement shall be deemed (i) to limit or otherwise affect the right of Buyer to modify or terminate any Buyer Plan after twelve (12) months following the Closing DateDate without establishing a replacement plan, Buyers shall provide or cause the DMS Entities in each case as Buyer may determine in its sole discretion, (ii) to require Buyer to provide each Business employee benefits to Acquired Employees after their employment with Buyer has terminated other than as may be required under COBRA, or (iii) to incur additional costs to obtain waivers or recognition from any insurance carrier. Acquired Employees shall not be considered to be third-party beneficiaries (or to have any third party beneficiary or similar rights) with respect to this Section 6.1. For purposes of this Section 6.1, “substantially similar” compensation and benefits for any Acquired Employee with an annual means (i) base salary or hourly wage that is at least equal to pay and bonus potential of not less than eighty percent (80%) of such employeeAcquired Employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates pay and bonus potential immediately prior to the Closing Date. As of the Closing, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs and policies, or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and ; (ii) each Canadian Business Employee with the planssimilar medical benefits; (iii) personal leave, programs that includes sick leave and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary vacation accrual, and appropriate severance comparable to ensure that the aforementioned benefits are those provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates by Company and/or Seller immediately prior to the Closing. Except as expressly set forth in this Section 7.1; and (iv) a 401(k) plan; but specifically excludes retiree medical coverage, effective immediately prior to the Closingemployee assistance plan, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In additionbasic and supplemental life insurance, effective immediately prior to the Closingdefined benefit retirement plan, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after the Closing Datesupplemental executive retirement plan, provided that, benefit restoration plan (excess compensation for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing401(k) plan); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employmentrestricted stock plan.
(e) From and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependent.
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Employee and Employee Benefit Matters. (a) Effective Buyer shall offer employment as of the ClosingClosing Date to all of the employees actively employed by Seller at the Stations, with the same positions and compensation as so employed by Seller. As of the Closing Date, Buyer shall employ each such employee who accepts Buyer's offer of employment (collectively, the "Transferred Employees"). As of the Closing Date, Buyer shall cause all Transferred Employees who are not covered by a collective bargaining agreement (collectively, the "Transferred Non-Union Employees") to be eligible to participate in "employee welfare benefit plans" and "employee pension benefit plans" (as defined in Sections 3(1) and 3(2) of ERISA) of Buyer in which similarly situated employees of Buyer are generally eligible to participate from time to time ("Buyer's Plans"), and except as otherwise provided in this Section 7.1, Buyers all Transferred Non-Union Employees shall be eligible for coverage immediately after the Closing Date (and shall not be excluded from coverage on account of any pre-existing condition) under Buyer's Plans constituting employee welfare benefit plans to the DMS Entities agree to continue the employment of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, extent permitted under such plans with respect to the Business Transferred Non-Union Employees. Following the Closing Date, Buyer shall cause Buyer's Plans to recognize any prior accrued service credit, credit towards satisfying deductible expense requirements and out-of-pocket expense limits of Transferred Non-Union Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out for purposes of or based upon events occurring after the Closing. Notwithstanding anything in this Agreement Buyer's Plans to the contraryextent such prior credits and limits are recognized by Buyer or Buyer's Plans for similarly situated employees of Buyer (including, Buyers and the DMS Entities shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reportedlimited to, eligibility to participate and vesting, but excluding benefit accruals). As soon as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1).
(b) As of the date hereof, (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides benefits to certain Business Employees and former employees whose duties related primarily to the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, and (ii) the assets of the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closing, Sellers shall be responsible for the payment of all benefits under the Midstream Plan, including payment of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closing.
(c) For a period of one year practicable following the Closing Date, Buyers Buyer shall make available to the Transferred Non-Union Employees, Buyer's 401(k) Plan in accordance with the terms and provisions of such plan. Seller shall cause to be transferred to Buyer's 401(k) Plan, in cash, all of the individual account balances of the Transferred Non-Union Employees under the 401(k) plan in which the employees of the Stations now participate, upon receipt from Buyer of evidence satisfactory to Seller that Buyer's 401(k) Plan is tax-qualified. Buyer shall provide or cause employees of the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage Stations who become employed by Buyer and are covered by a collective bargaining agreement listed on Schedule 6.4(d) (the "Transferred Union Employees") benefits in accordance with the DMS Entities or their Affiliates immediately prior terms of such agreement to the Closing Date. As extent such benefits constitute a part of the Closing, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs and policies, or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately prior to the ClosingAssumed Liabilities. Except as expressly set forth for the employment contracts listed in this Section 7.1Schedule 6.4(d) hereto, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing nothing in this Agreement is intended to nor shall be deemed to restrict the ability guaranty employment for any Transferred Employee for any length of Buyers or their Affiliates to terminate the employment of any Business Employee time after the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependent.
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Employee and Employee Benefit Matters. (a) Effective Prior to or on the Closing Date, Buyer shall make offers of employment, effective as of the ClosingClosing Date, and except as otherwise provided in this Section 7.1, Buyers and the DMS Entities agree to continue the all Employees. Each offer of employment of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing. Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed made by Buyers and the DMS Entities Buyer pursuant to this Section 7.1).
(b) As of the date hereof, 9.01 shall be for employment (i) at the Partnership participates same rate of base pay as is applicable at the Closing Date, (ii) with benefits no less favorable in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides aggregate than the benefits applicable in regards to certain Business Employees and former employees whose duties related primarily each respective Employee as of the Closing Date to the midstream business historically extent required to comply with WARN or any similar state or local laws and (iii) with such other terms and conditions of employment as currently operated are determined by Buyer in its sole discretion. Those Employees who are offered employment by Buyer and who accept such offers of employment shall be referred to herein as the DMS Entities “Transferred Employees”, and the parties hereto intend that there shall be continuity of employment following the Closing with respect to all Transferred Employees. Buyer shall, or, as applicable, shall cause its Subsidiaries or their past Affiliates to, pay, and indemnify Seller for (i) any and all termination or current Affiliates and is sponsored by Dynegyseverance Liabilities incurred on or after the Closing Date as a result of the actions of Buyer, and (ii) honor all obligations under any contracts, agreements, Plans and commitments of Seller or any of its Affiliates to any Employee or former employee of Seller or any of its Affiliates which are Assumed Liabilities; provided, however, that this undertaking is not intended to prevent Buyer from amending, modifying, suspending, revoking or terminating any such contract, agreement, collective bargaining agreement or commitment. For the assets of the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and first ninety (90) days after the Closing, Sellers Buyer shall provide, or shall cause to be responsible for the payment of all benefits under the Midstream Planprovided, including payment of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closing.
(c) For a period of one year following the Closing Date, Buyers shall provide or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates immediately prior to the Closing Date. As of the Closing, Buyers shall provide (i) each Business Transferred Employee (other exclusive of any Employees who are subject to a collective bargaining agreement) compensation and benefits from time to time that are no less favorable, in the aggregate, than a Canadian Business Employee) with the employee benefit plans compensation and qualified retirement plans which plans, programs and policies, or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all each such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates Transferred Employee immediately prior to the Closing. Except as expressly set forth Notwithstanding anything to the contrary in this Section 7.19.01, effective immediately prior to Buyer shall have the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates right to terminate the employment of any Business Transferred Employee after the Closing Date; provided, provided thathowever, for the first ninety (90) days after the Closing, Buyer shall retain, at a period minimum, the number of one year following Transferred Employees required to avoid liability arising from WARN or any similar state or local laws.
(b) Subject to its obligations under applicable law and applicable collective bargaining agreements, Buyer and its Affiliates shall give credit under each of their respective employee benefit plans, programs and arrangements (if any) in which Transferred Employees participate to Transferred Employees for all service prior to the Closing with Seller or any of its Affiliates, or any predecessor employer to the extent that such credit was given under similar plans, programs and arrangements by Seller or any of its Affiliates for all purposes for which such service was taken into account or recognized by Seller or any of its Affiliates, but not (i) to the extent crediting such service would result in duplication of benefits, or (ii) for purposes of benefit accrual under any defined benefit pension plan. As of the Closing Date, Buyers Seller shall take all actions necessary to terminate the participation of all Employees in the Plans (except as may be solely responsible for and shall pay severance benefits to such Business Employees that are identical to required by the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result continuation coverage rules of Section 4980B of the ClosingCode and part 6 of Subtitle B of Title I of ERISA (“COBRA”); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (any similar state or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(clocal law).
(dc) Notwithstanding anything in this Agreement Buyer hereby agrees to the contrarypay, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
indemnify Seller from, (i) for Business Employees who remain employed by any and all termination or severance liability relating to any Employee with respect to any such liability incurred on or after the DMS Entities Closing Date, including any liability related to or their Affiliates through the earlier arising out of March 1WARN, 2006COBRA, and any similar state or local laws with respect to the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfiedEmployees, and (ii) for Business Employees who are no longer employed by any Liability incurred on or after the DMS Entities or their Affiliates as Closing Date under any of the 2005 Bonus Payment DateAcquired Plans. Subject to Sections 2.05(d) and 2.07 hereof and except as provided in Sections 2.03 or 2.04 hereof, bonuses Seller hereby agrees to pay, and incentive payments shall be paid to such former Business indemnify Buyer from, (x) any Liabilities relating to Employees as part of the “change in control” severance benefits required with respect to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after any periods prior to the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to excluding any Liability payable after the Closing relating to be fully recognized for purposes or arising out of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities WARN or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is similar state or becomes eligible to participate. As of the Closing, local laws with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1Employees, and (y) any Liability under any of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods the Plans with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting any periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependent.
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue Seller shall not take any action to take appropriate deductions for the remaining calendar year in order for the Business Employees terminate any ERISA Plan intended to satisfy their initial enrollment amount(squalify under Section 4.01(a) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan Code for at least sixty (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (9060) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC PlanClosing Date.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Samples: Asset Purchase Agreement (Golf Trust of America Inc)
Employee and Employee Benefit Matters. (a) Effective as of the ClosingPurchaser shall have no obligation to offer employment to, and or employ, any Employees and, except as otherwise provided expressly set forth in this Section 7.1subsection (a) below, Buyers Purchaser shall have no liability in respect of any such Employees for salary, compensation, severance, stock options or stock option plans, health, welfare, retirement or other benefits arising out of employment with Seller. Purchaser shall have the right, in its sole discretion, to offer employment to any Employee. Parent, Shareholder and the DMS Entities agree to continue the employment of the Business Employees Seller shall jointly and assume severally indemnify and be solely responsible for compliance with all Laws and for hold Purchaser harmless against any and all claims against damages, losses and liabilities (including costs and attorneys’ fees incurred) arising from any Actions or obligations Proceedings commenced by or on behalf of Sellers any Seller’s Employees and their Affiliatesbased upon Purchaser’s decision to not offer employment to, whether contingent or otherwiseemploy, with respect to the Business any of Seller’s Employees (including liabilities or obligations with respect but not limited to their beneficiaries Mxxx XxXxx, Pxxxx Xxxxxx, Jxxx Xxxxxx, Fxxxx (Lxxxx) Mxxxxxx and alternate payees) arising out of or based upon events occurring after the ClosingGxxxx Xxxxxx). Notwithstanding anything the foregoing, Purchaser agrees to reimburse Parent and Seller for $35,134.00 of out-of-pocket severance costs paid to Gxxxx Xxxxxx in this Agreement connection with the termination of his employment; provided, that, the total amount of severance paid to Gxxxx Xxxxxx by Parent and Seller shall be no less than $40,000.00 in the contrary, Buyers and the DMS Entities shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1)aggregate.
(b) As Except as provided in the Services Agreement, Seller shall advise all Employees that their employment with Seller shall terminate effective as of the date hereofclose of business on the Closing Date. Any Employees that accept offers of employment from Purchaser (“New Purchaser Employees”) shall be hired by Purchaser effective May 3, (i) 2008. Except to the Partnership participates extent addressed in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”)Closing Date Statement, which provides benefits to certain Business Purchaser shall reimburse Parent for the out-of-pocket costs associated with Parent employing any New Purchaser Employees and former employees whose duties related primarily to during the midstream business historically or period beginning as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, and (ii) the assets of the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that Effective Time and ending on the sponsorship close of business on the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closing, Sellers shall be responsible for the payment of all benefits under the Midstream Plan, including payment of benefits to participants who retired or became entitled to deferred vested benefits on or before the ClosingClosing Date.
(c) For a period beginning on the Closing Date and ending on May 31, 2008 (the “Benefit Coverage Period”), Parent, Shareholder and Seller shall arrange for Employees of one year Seller (regardless of whether employed by Purchaser) to continue to be covered by and receive benefits under the medical, dental, vision, life, and disability insurance programs covering such employees immediately before the Closing Date. Purchaser shall reimburse Parent for the out-of-pocket costs associated with providing such coverage solely for New Purchaser Employees. Except to the extent that an Employee is participating in a Seller benefit plan during the Benefit Coverage Period in accordance with the preceding sentence, Employees of Seller that are hired by Purchaser shall be eligible to participate in Purchaser’s Benefit Plans.
(d) Except for Employees hired by Purchaser following the Closing Date, Buyers Seller shall provide or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates immediately prior to the Closing Date. As of the Closing, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs and policies, or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided responsible for providing COBRA continuation coverage to all Business Employees so as to ensure of Seller, including their spouses and dependents, who lose coverage for all Business Employees as of under any group health plan maintained, administered or sponsored by the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately prior to the Closing. Except as expressly set forth in this Section 7.1Seller, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employmenttransactions contemplated herein.
(e) From Seller shall be responsible for providing any notice of layoff or plant closings required, and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare any severance pay or other benefit plan, program liabilities or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible obligations to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived Employees under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement Worker Adjustment and Retraining Notification Act of participation in such Partnership Benefit Plan and 1988 (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for “WARN”), any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year thatsuccessor federal law, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket foreign, state or deductible requirements under local plant closing notification statute. Parent, Shareholder and Seller shall jointly and severally indemnify and hold Purchaser harmless against any and all damages, losses and liabilities associated with or related to Seller’s failure to comply with WARN and such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependentother laws.
(f) Buyers shall cause each Business Seller agrees to provide Purchaser with the personnel records (but specifically excluding medical information, results of background investigations and other information which Seller is prohibited by Law from providing to Purchaser (collectively, “Excluded Information”)) of any Employee who participated hired by Purchaser, but only after Purchaser hires that Employee. If any Excluded Information is inadvertently disclosed by Seller to Purchaser, Purchaser agrees not to utilize the information in a flexible spending account plan with Sellers or their Affiliates making any personnel decisions and to have a flexible spending account(s) with an amount payable as promptly return the information upon Purchaser’s discovery of the Closing equal information or upon Seller’s request for its return. Purchaser agrees to the amount payable immediately prior indemnify Parent, Shareholder and Seller against any and all liability, cost, damage and expense, including without limitation, costs and attorney fees, relating to the Closing under flexible spending account plans covering Business Employees immediately prior or resulting from Seller’s provision of these personnel records to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ Purchaser or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount Purchaser’s use or disclosure of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest contained in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Planpersonnel records.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Employee and Employee Benefit Matters. (a) Effective Parent or one or more of its Subsidiaries shall extend: (i) offers of employment to all employees of Seller (other than to Xxxxxxx Xxxxxxxxx who will become engaged as a consultant to Parent or one of its Subsidiaries pursuant to the Consulting Agreement), including the part-time employees of Seller (collectively, the “Active Employees”), which offers of employment shall provide for terms and conditions of employment that are no less favorable in the aggregate than such employees’ terms and conditions of employment as in effect as of the Closing Date; and (ii) offers of engagement as a consultant to all consultants of Seller listed on Section 6.7(a) of the Disclosure Schedule. Those Active Employees who accept such offer of employment are referred to herein as the “Transferred Employees”. The employment of the Transferred Employees with Parent or such Subsidiary shall become effective at 12:01 am local time on the day after the Closing Date; provided, that, for any Transferred Employees whose employment would otherwise automatically transfer by operation of law to Buyer as of the Closing, and except as otherwise provided in this Section 7.1, Buyers and the DMS Entities agree to continue the such employment of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing. Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, become effective immediately as of the Closing; and, provided further, that unless Parent or such Subsidiary determines otherwise, Seller shall take all action necessary to provide that those employees who are not actively at work with respect Seller as of the close of business on the Closing Date shall not become Transferred Employees and shall remain employees of Seller until the applicable employee is ready to return to active employment, as reasonably determined by Parent or such plansSubsidiary. The parties acknowledge that Parent’s offers of employment to Active Employees shall not be required to provide for a benefit similar to the Phantom Stock Plan (as defined below), or any other equity-based compensation plan, so long as such offers of employment provide for compensation and benefits having economic value that is substantially comparable to the economic value of the compensation and benefits provided to the Active Employees as of immediately prior to the Closing Date (including any value attributable to awards under the Phantom Stock Plan), as reasonably acceptable to Parent and Seller. For purposes of this Agreement, an employee is not “actively at work” if the employee is (i) receiving short-term or long-term disability benefits under any plan or program established or maintained by any Interfast Entity or (ii) on any type of leave other than vacation, leave for jury duty, leave for national service/military duty, or any other statutorily protected leave as may be required by Law. Seller shall cooperate with and use its commercially reasonable efforts to assist Parent and its Subsidiaries in their respective efforts to secure satisfactory employment arrangements with Active Employees. Except as provided in Section 6.7(b), neither Parent nor any of its Subsidiaries shall assume any obligation or Liability, and Seller shall remain responsible for, all claims or Liability relating to all Personnel of Seller who are not Transferred Employees or Continuing Employees. Nothing contained herein shall be deemed to be a guarantee of employment for any Active Employee, or to restrict the rights of Parent or any of its Subsidiaries to terminate any Transferred Employee. Following the date hereof and prior to Closing, Seller (i) shall use commercially reasonable efforts to provide to Parent, Buyer and their respective Subsidiaries, as applicable, such payroll transition services as may be requested by Parent or Buyer and shall (and shall cause its employees to) use commercially reasonable efforts to cooperate with and assist Parent, Buyer and their respective Subsidiaries to transition employee payroll processes to Parent, Buyer or their respective Subsidiaries, as applicable, for Transferred Employees in connection with the Closing, and (ii) shall (and shall cause its employees to) use commercially reasonable efforts to cooperate with and assist Parent, Buyer and their respective Subsidiaries to establish employee benefit plans and programs that are consistent with the requirements of this Section 6.7(a), including the payment establishment of all “mirror” benefit plans to provide employee benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers to Transferred Employees following the Closing Date. Such cooperation and assistance shall include assistance in negotiating with third party service providers and the DMS Entities pursuant to this Section 7.1)provision of such information and documents as Parent or Buyer may reasonably request in connection with the foregoing.
(b) As of the date hereofClosing Date, Parent shall cause the Acquired Entities to continue, subject to the Continuing Employees’ right to resign, to employ the Continuing Employees on such terms and conditions as may be required by applicable Law. Nothing contained herein shall be deemed to be a guarantee of employment for any Continuing Employee, or to restrict the rights of Parent, its Subsidiaries or the Acquired Entities to terminate any Continuing Employee after the Closing Date, provided that Seller shall have no Liability or other obligation in either case for notice, severance or accrued vacation payments in connection therewith.
(c) Seller shall be responsible for the employment or termination thereof of all Personnel of Seller who do not become Transferred Employees effective as of the Closing Date and Seller shall be responsible for all Liabilities or obligations related thereto under the Law. Without limiting the foregoing, Seller agrees that it shall, no later than immediately prior to the Closing, terminate the employment of any Active Employee who has not accepted Parent or one of its Subsidiaries’ offer of employment described in Section 6.7(a) and whose employment would otherwise transfer to Buyer or one of its Subsidiaries by operation of Law. At the Closing, Seller shall provide to Parent a true and complete list of all employees of the Interfast Entities, other than the Transferred Employees and Continuing Employees, who are terminated by any Interfast Entity in connection with the Closing and all employees of the Interfast Entities who were terminated by any Interfast Entity for any reason within the six (6) month period prior to the Closing Date.
(d) Seller shall be solely responsible for the Seller Employment Liabilities, including the Employee Plans and all Liabilities thereunder (other than Liabilities with respect to Acquired Plans that relate solely to post-Closing periods). Seller agrees to promptly pay and satisfy in accordance with past practices or reimburse Parent, its Subsidiaries or the Acquired Entities, as applicable, for all Seller Employment Liabilities, including, without limitation, all vacation pay accrued as of the Closing Date and any other termination-related Liabilities to the Transferred Employees relating to their termination of employment with Seller. Without limiting the foregoing, neither Parent nor any of its Subsidiaries shall assume any Liability for any performance or other bonuses for Personnel of Seller or the Acquired Entities for any period on or prior to the Closing Date, and Seller agrees to pay out all such bonuses accrued through the Closing Date in accordance with past practices as if the Closing Date constituted the end of the applicable performance period for such bonuses; provided, that Seller shall pay such bonuses on or prior to the later to occur of (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”)September 30, which provides benefits to certain Business Employees and former employees whose duties related primarily to the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, 2012 and (ii) the assets of date that is 60 days following the Midstream Plan are held in a master trust sponsored by DynegyClosing Date. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the ClosingWithout limiting Seller’s obligations hereunder, Sellers Seller shall be responsible for the payment of all benefits Liabilities for claims incurred under the Midstream PlanEmployee Plans by Transferred Employees or the Continuing Employees on or prior to the Closing Date. For purposes hereof, including payment the date on which a benefit claim is incurred will be: (i) in the case of a death claim, the date of death; (ii) in the case of a short term disability claim, long term disability claim or a life insurance premium waiver claim, the date of the first incidence of disability, illness, injury or disease that first qualifies an individual for benefits or to participants who retired commence a qualifying period for benefits; (iii) in the case of extended health care benefits, including, without limitation, dental and medical treatments, the date of treatment or became entitled to deferred vested benefits the date of purchase of eligible medical or dental supplies; and (iv) in the case of a claim for drug or vision benefits, the date the prescription was filled.
(e) Seller shall be responsible for all worker’s compensation claims (i) asserted or filed by any employees of Seller and the Acquired Entities on or before the Closing, (ii) asserted or filed by former employees or retired employees of Seller and the Acquired Entities, and (iii) asserted or filed by any employees of Seller and the Acquired Entities after the Closing if the claim arises from pre-Closing events or circumstances regardless of whether the events or circumstances are known or unknown as of the Closing.
(cf) For Prior to the Closing, if requested by Parent, Interfast USA shall adopt a period resolution terminating the Interfast USA 401(k) Plan (the “401(k) Plan”) effective as of one year following the Closing Date, Buyers shall provide or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates immediately prior to the Closing Date. As In the event that termination of the 401(k) Plan would reasonably be anticipated to trigger liquidation charges, surrender charges or other fees, then Seller shall take such actions as are necessary to reasonably estimate the amount of such charges or fees and provide such estimate in writing to Parent no later than three (3) business days prior to the Closing Date.
(g) Subject to Section 6.7(a), from and after the Closing, Buyers Parent or its Subsidiaries, as applicable, shall provide (i) each Business Employee be responsible for the employment or termination thereof of all Personnel of Seller who become Transferred Employees, without any Liability to Seller (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs and policies, or copies thereof, have been made available respect to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(cExcluded Liabilities), and (ii) shall give each Canadian Business Transferred Employee full credit for his or her prior years of service with Seller and with any predecessor employer thereof for the plans, programs and policies as referenced purposes of calculating all amounts due on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as termination of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately prior to the Closing. Except as expressly set forth in this Section 7.1, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of the Transferred Employees and determining the Transferred Employee’s entitlements under any Business Employee after employee benefit plan of Parent or its Subsidiaries in which the Closing DateTransferred Employees may participate (including vacation accrual rates), provided thatin each case to the same extent recognized by Seller or the Acquired Entities, as applicable, except to the extent such credit would result in the duplication of benefits for a the same period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c)service.
(dh) Notwithstanding anything in this Agreement to the contrary, Buyers in no event shall Parent or any of its Subsidiaries have any Liability of any kind under, relating to or in connection with the Interfast Inc. Amended and Restated 2011 Long Term Incentive Plan for Designated Employees and Non-Employee Directors or any predecessor plan (the “Phantom Stock Plan”). Such Liabilities shall be solely responsible for the sole responsibility of Seller. Seller shall take all action necessary or advisable to terminate the Phantom Stock Plan, effective as of the Closing Date and to pay out all amounts due thereunder to participants in the Phantom Stock Plan within a reasonable period of time following the Closing Date. Such termination and liquidation of the Phantom Stock Plan shall be conducted in a manner that complies with Treas. Reg. 1.409A-3(j)(4)(ix)(B). In addition, Seller shall take all actions necessary or advisable to cause the Phantom Stock Plan to comply in form and operation with the requirements of Code Section 409A prior to the Closing Date. Following the date of this Agreement, Seller shall provide Parent an opportunity to review and comment on any corporate resolutions, regulatory filings or written notices that may be adopted, filed or provided to any Governmental Authority or any participant in the Phantom Stock Plan in connection with the foregoing and shall pay all bonuses and incentive payments applicable consider in good faith any comments reasonably proposed by Parent. To the extent paid after the Closing Date, the parties shall reasonably cooperate with respect to the Business Employees as follows:procedures for paying out amounts due to participants in connection with the termination of the Phantom Stock Plan.
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior Prior to the Closing Date, Seller shall submit to be fully recognized its shareholders, as applicable, for purposes approval (in a manner satisfactory to Parent), by such number of eligibility, vesting, level shareholders as is required by the terms of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit planSection 280G(b)(5)(B) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the ClosingCode, any payments and/or benefits that may, in connection with respect to each Partnership Benefit Plan that is an the transactions contemplated by this Agreement, separately or in the aggregate, constitute “employee welfare benefit planparachute payments” as defined in (within the meaning of Section 3(1) 280G of ERISA in which any Business Employee is or becomes eligible to participatethe Code and the regulations promulgated thereunder), Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions payments and waiting periods would benefits shall not have applied or would have been waived be deemed “parachute payments” under Section 280G of the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year thatCode, and prior to the date thatClosing Date, such Business Employee commences participation Seller shall deliver to Parent evidence satisfactory to Parent that (i) a shareholder vote was held in such Partnership Benefit Plan in satisfying conformance with Section 280G and the regulations promulgated thereunder and the requisite shareholder approval was obtained with respect to any applicable out-of-pocket payments and/or benefits that were subject to the shareholder vote (the “280G Approval”) or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) that the 280G Approval was not obtained and as a consequence, that such “parachute payments” shall not be made or provided, pursuant to waivers of those payments and/or benefits which were executed by the preceding sentence, affected individuals prior to the Partnership Benefit Plan will accept copies of explanation of benefit forms from date the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependentpayments and/or benefits were submitted to the shareholders for approval.
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(ij) No provision of this Section 7.1 Agreement shall create be construed as a guarantee of continued employment of any third-party beneficiary rights in any Personemployee and this Agreement shall not be construed so as to prohibit Parent, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities its Subsidiaries or any of their Affiliates, unions respective Affiliates from having the right to terminate the employment of any such employee. Nothing contained in this Agreement shall (i) be treated as an amendment or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries modification of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in program, or arrangement, including any such person Employee Plan, (ii) give any employee or organization in respect of former employee or any benefits that may be provided, directly other individual associated therewith or indirectly, under any employee benefit plan or arrangementtrustee thereof or any other third party any right to enforce the provisions of this Section 6.7, including currently existing Sellers’ Benefit Plans or (iii) obligate Parent, its Subsidiaries, any Acquired Entity or any of their respective Affiliates to maintain any particular benefit plan or retain any particular employee following the DMS Entities or their AffiliatesClosing Date.
Appears in 1 contract
Samples: Asset Purchase Agreement (Wesco Aircraft Holdings, Inc)
Employee and Employee Benefit Matters. (a) Effective as of Immediately prior to the Closing, and except as otherwise provided in this Seller transferred those employees of Seller (or any Subsidiary of Seller other than the Acquired Companies) listed on Section 7.1, Buyers and the DMS Entities agree to continue the employment 6.11 of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect Disclosure Schedule (the “Transferred Employees”) to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out Acquired Company designated as the employer of or based upon events occurring after the Closing. Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities shall not assume any such Transferred Employee on Section 6.11 of the Sellers’ Benefit Plans andDisclosure Schedule. Unless required by Law to be paid out at the time such employees ceased to be employed by Seller (or any Subsidiary of Seller other than the Acquired Companies), as a result, Sellers Purchaser shall cause the accrued and their Affiliates shall remain solely responsible for compliance with all Laws relating unused vacation time (PTO) of each Transferred Employee to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect be credited to such plans, including employee by the payment transferee employer of all benefits under such plans employee (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1applicable Acquired Company) (the “Transferee Employer”).
(b) As of the date hereof, (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides benefits to certain Business Employees and former employees whose duties related primarily to the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, and (ii) the assets of the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after Following the Closing, Sellers Purchaser shall be responsible ensure that all employees of any Acquired Company retain credit for any service with the payment of all benefits Acquired Companies and Seller, as applicable, earned prior to the Closing for eligibility, vesting and benefit accrual purposes (other than with respect to benefit accruals under a defined benefit pension plan) under the Midstream PlanTransferee Employer’s employee benefit plans, including payment of benefits programs and arrangements, as applicable, other than any defined benefit pension plan, as to participants who retired or became entitled to deferred vested benefits on or before which the ClosingPurchaser shall have no responsibility.
(c) For a period Employees of one year following the Closing DateAcquired Companies (“Acquired Company Employees”) shall cease active participation in the employee benefit plans, Buyers shall provide or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates immediately prior to the Closing Date. As policies and arrangements of Seller as of the Closing, Buyers shall provide (i) each Business provided that, certain health and welfare Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plansPlans sponsored by Seller, programs and policies, or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately prior to the Closing. Except as expressly set forth in this Section 7.16.11(c) of the Disclosure Schedule, effective immediately prior will continue to provide coverage to the ClosingAcquired Company Employees through the end of the month in which the Closing occurs, in accordance with their terms. Purchaser shall, or shall cause the Acquired Companies to, adopt such employee benefit plans, including medical, health, dental, flexible spending account, accident, life, short-term disability, and long-term disability and other employee welfare benefit plans for the benefit of the Acquired Company Employees as Purchaser shall determine from time to time in its sole discretion (the “Purchaser Welfare Plans”). Any restrictions on coverage for pre-existing conditions or requirements for evidence of insurability under the Purchaser Welfare Plans shall be waived for Acquired Company Employees and Acquired Company Employees shall receive credit under the Purchaser Welfare Plans for co-payments and payments under a deductible limit made by them and for out-of-pocket maximums applicable to them during the plan year of the Seller Welfare Plan in accordance with the corresponding Seller Welfare Plans, all Business Employees shall cease to participate in consistent with the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment terms of any Business Employee applicable contracts providing such benefits. Purchaser shall use its commercially reasonable efforts to achieve the goals of the preceding sentence. Promptly after the Closing Date, provided that, for Seller shall deliver to Purchaser a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result list of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Company Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after the Closing, Buyers shall cause the credited service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severanceSeller Benefit Plan, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the Closing, together with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to preTransferred Employee’s service, co-existing conditions payment amounts and waiting periods with respect to participation deductible and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements limits under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependentplan.
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Employee and Employee Benefit Matters. (a) ASM agrees that those individuals who are employed by NuTool immediately prior to the Effective Time of Merger shall continue to be employees of NuTool as of the ClosingEffective Time of Merger (each such employee, and except as otherwise provided in an “Affected Employee”); provided, however, that this Section 7.1, Buyers and 3.7 shall not be construed to limit the DMS Entities agree ability of the applicable employer to continue terminate the employment of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations Affected Employee at any time; provided, further, that this Section 3.7(a) is not in derogation of Sellers and their Affiliates, whether contingent or otherwise, with respect nor intended to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing. Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated limit or otherwise assumed by Buyers and the DMS Entities pursuant to this affect ASM’s obligations under Section 7.1)3.16 hereof.
(b) As Within thirty (30) days of the date hereofEffective Time of Merger, (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides benefits ASM shall grant options to certain Business Employees and former employees whose duties related primarily purchase an aggregate of 135,000 ordinary shares of ASM to the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates management and is sponsored by Dynegykey employees of NuTool that are listed on, and (ii) in such amounts as set forth on Schedule 3.7 hereto, pursuant to the assets form of the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closing, Sellers shall be responsible for the payment of all benefits under the Midstream Plan, including payment of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closingoption agreement attached as Exhibit 8 hereto.
(c) For a period of one year following Following the Closing Date, Buyers to the extent that current NuTool employee benefit plans are discontinued or unavailable, each Affected Employee shall provide be eligible to participate in those benefit plans maintained for similarly situated employees of ASM (or cause in substantially similar programs), on the DMS Entities same terms applicable to provide each Business similarly situated employees of ASM. Each Affected Employee shall be given credit, for purposes of any service requirements for participation or vesting, for his or her period of service with an annual base salary NuTool, which will be credited under a similar plain prior to the Closing Date, subject to appropriate break in service rules. Each such employee shall, with respect to any ASM plan which has copayment, deductible or hourly wage that is at least equal other co-insurance features, receive credit for any amounts such individual has paid to such employee’s annual base salary date in the plan year of the Closing Date under comparable plans or hourly wage with the DMS Entities or their Affiliates immediately programs maintained by NuTool prior to the Closing Date. As of the ClosingEach Affected Employee and eligible dependent who, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs and policies, or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately prior to the Closing. Except as expressly set forth in this Section 7.1, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after at the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event was participating in an amount less than the target amount that would have been earned employee group health plan maintained by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed NuTool shall not be excluded from ASM’s employee group health plan or limited in coverage thereunder by the DMS Entities reason of any waiting period restriction or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependentcondition limitation.
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Employee and Employee Benefit Matters. (a) Effective as of the ClosingClosing Date, and except as otherwise provided in this Section 7.1, Buyers and Buyer shall offer employment to the DMS Entities agree to continue the employment employees of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect to Company who are actively employed by the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing. Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, Company as of the Closing, with respect to such plans, including Closing Date and other employees of the payment of all benefits under such plans (except for any contracts or other obligations or liabilities Company that are allocated listed on Schedule 4.16(b), except Xxxx Xxxxx and Xxx Xxxxx, (collectively, the “Employees”) on such terms and conditions as are acceptable to Buyer in its sole discretion. All Employees who, on or otherwise assumed by Buyers immediately after the Closing Date, accept any offer of employment from Buyer and become employees of Buyer shall be referred to herein as the DMS Entities pursuant to this Section 7.1)“Transferred Employees”.
(b) As of Buyer agrees that, at the date hereofClosing Date, (i) it shall provide benefits similar to those currently provided by the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides benefits to certain Business Employees and former employees whose duties related primarily Company to the midstream business historically or as currently operated Transferred Employees (including vacation, sick time, health and insurance benefits) and Buyer shall assume, be responsible for, perform and pay for such benefits for the Transferred Employees; provided, however, that such benefits shall not include any retirement benefits, including but not limited to any Simple XXX plans previously maintained by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, and (ii) Company. Buyer reserves the assets of the Midstream Plan are held right to transition Transferred Employees to alternative benefit plans at any time in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closing, Sellers shall be responsible for the payment of all benefits under the Midstream Plan, including payment of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closingits sole discretion.
(c) For a period Buyer shall assume all Liability for providing and administering all required notices and benefits under COBRA to Transferred Employees. The Company shall retain all Liability for providing and administering all required notices and benefits under COBRA to all Employees other than Transferred Employees and to any “M&A qualified beneficiaries” as defined under Treasury Regulation Section 54.4980B-9.
(d) Without limiting the generality of one year following the Excluded Liabilities, the Company agrees that it shall retain, be responsible for, perform and pay:
(i) all Liabilities (including, but not limited to, any claim of any governmental agency, any trustee, any fiduciary, any plan administrator, any person dealing with any Plan, any employee or any beneficiary and without regard to whether such Liability arises prior to or after the Closing Date or results from an event, prior to or after the Closing Date) which relate to (A) any program, Buyers shall provide plan, policy or cause arrangement (whether or not terminated) (w) which is or has been maintained, established, or offered by the DMS Entities Company, (x) to provide each Business Employee with an annual base salary which the Company contributes or hourly wage that is at least equal has contributed, (y) to which the Company has or has had any obligation to contribute, or (z) to which the Company has or has had any Liability or potential Liability including, but not limited to, any Plan; all Liabilities relating to any such employee’s annual base salary program, plan, policy, or hourly wage Plan, which may result as a violation of law or any Liability, including any potential or actual Liability, relating to any failure to comply with the DMS Entities requirements of law;
(ii) duties and Liabilities relating to any claims by current or their Affiliates former employees or independent contractors (including dependents, spouses and other beneficiaries thereof) of the Company or its Subsidiaries (or any predecessors) for: (A) medical costs and expenses incurred as a result of claims, injuries, facts or conditions suffered on or prior to the Closing Date including any claims, costs or expenses relating to or arising under any Plan (including any claims, costs or expenses related to continuation coverage provided to any former employee or dependent thereof as of or prior to the Closing Date), and (B) costs, expenses and other Liabilities under any workers’ compensation laws, regulations, requirements or programs to the extent related to any claim arising from or alleged to arise from or in connection with any fact, event, claim, injury or condition occurring on or prior to the Closing Date;
(iii) duties, contributions and Liabilities relating to any claims for notice, pay in lieu of notice, severance pay, vacation pay, bonus, commissions, overtime pay, death, disability or other health or welfare or fringe benefits, including any benefit offered or available under any Plan, payable as a result of facts, actions or conditions occurring on or prior to the Closing Date or which are provided to any Person who is not an active employee (or a dependent thereof) of the Company on or immediately prior to the Closing Date. As ; and
(iv) contributions, premiums, duties and Liabilities relating to the Company’s obligation to contribute to any Plan with respect to the operation of the Closing, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs and policies, Company’s business on or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately prior to the Closing. Except as expressly set forth in this Section 7.1, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing Date (regardless of when any such contribution is required to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependentmade).
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Employee and Employee Benefit Matters. (a) Schedule 6.5(a) sets forth a list of Project Employees that Seller and such Affiliates will make available to Purchaser at least thirty (30) Business Days before the Closing Date (the "Available Employees") for the purpose of discussing potential employment with Purchaser (which discussions the Parties agree shall not violate Section 12.5), together with each such Available Employee's name, current annual base compensation, job title, work location, hire date, vacation balance and sick leave balance, as of the date hereof. Prior to the Closing Date, Purchaser may make an offer of employment to any Available Employee, and each such offer shall include terms and provisions determined by Purchaser that are consistent with the provisions of this Section 6.5; provided, that subject to the following provisions of this Section 6.5, the foregoing shall not be construed to prevent Purchaser from changing the terms and conditions of employment of any Continued Employee (as hereinafter defined) following the Closing Date. Seller shall be responsible for, and shall indemnify and hold Purchaser harmless from and against, (i) all severance benefits payable under Seller's applicable severance policies to any Available Employees (or any other employee of Seller or its Affiliates) who do not accept or are not provided with an offer of employment with Purchaser or its Affiliates prior to or at Closing, and (ii) any accrued salary or incentive compensation or outstanding vacation or sick pay balance as of the Closing owing to any employee of Seller or its Affiliates, whether or not any such employee is provided with or accepts an offer of employment with Purchaser or its Affiliates. Purchaser shall be responsible for, and shall indemnify and hold Seller harmless from and against, any Losses caused by or resulting from any failure by Purchaser to offer employment to any Available Employee on any basis prohibited by ap plicable Law.
(b) On or before five (5) Business Days prior to the Closing Date, Purchaser shall deliver to Seller a Schedule 6.5(b) that sets forth the names of the Available Employees who have agreed to accept employment with Purchaser effective as of the Closing Date (each, a "Continued Employee"); provided, that to be a Continued Employee, such employee must (i) accept Purchaser's offer to transfer employment to Purchaser under the terms provided in Purchaser's offer, and (ii) on the Closing Date, be actively at work, on wellness or sickness leave, short-term disability or an approved leave of absence.
(c) Effective as of the ClosingClosing Date, and except as otherwise provided the Continued Employees shall cease to participate in this all "employee benefit plans" (within the meaning of Section 7.1, Buyers and 3(3) of ERISA) of Seller or its Affiliates (the DMS Entities agree to continue the employment of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing"Seller Plans"). Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities Purchaser shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1)Seller Plans.
(bd) As From and after the Closing Date, Purchaser shall cause each Continued Employee to be provided with compensation and benefits on a basis substantially similar to those provided to similarly situated employees of Purchaser and its Affiliates. Purchaser shall cause each Continued Employee and his or her "eligible dependents" (as defined by the date hereof, applicable group health plan of Purchaser or its Affiliates) to be covered under a group health plan maintained by Purchaser or an Affiliate of Purchaser that (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides medical benefits to certain Business Employees the Continued Employee and former employees whose duties related primarily to such eligible dependents effective immediately upon the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, Closing Date and (ii) credits such Continued Employee and such eligible dependents, for the assets year during which such coverage under such group health plan begins, with any deductibles and co-payments already incurred during such year under a group health plan maintained by Seller or an Affiliate of Seller (provided, that for purposes of appl ying this clause (ii) with respect to any Continued Employee or eligible dependent, the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to Continued Employee or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closingeligible dependent, Sellers as applicable, shall be responsible for providing the payment necessary information to Purchaser based on explanation of all benefits under benefit forms received by the Midstream Plan, including payment Continued Employee or the eligible dependent from the group health plan maintained by Seller or an Affiliate of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closing.
(c) For a period of one year following the Closing Date, Buyers Seller). Purchaser shall provide or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates immediately prior to the Closing Date. As of the Closing, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs maintained after the Closing by Purchaser and policies, or copies thereof, have been made available the Affiliates of Purchaser to Sellers recognize each Continued Employee's years of service and their Affiliates as level of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately seniority prior to the Closing. Except as expressly set forth in this Section 7.1, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans Closing Date with Seller and the Business Employees shall cease to accrue benefits Affiliates of Seller for purposes of terms of employment and eligibility and vesting under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets other than benefit accruals under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after the Closing, Buyers any defined benefit pension plan). Purchaser shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) plan or program sponsored by Purchaser or an Affiliate of ERISA Purchaser in which any Business Employee is or becomes the Continued Employees may be eligible to participate, Buyers shall cause each such Partnership Benefit Plan participa te on or after the Closing Date to (i) waive all limitations as to pre-existing conditions and waiting periods any preexisting condition exclusion with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions Continued Employees and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependenttheir eligible dependents.
(fe) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers Claims of Continued Employees and their eligible beneficiaries and dependents for medical, dental, prescription drug, life insurance, or their Affiliates to have a flexible spending account(sother welfare benefits ("Welfare Benefits") with an amount payable as of (other than disability benefits) that are incurred before the Closing equal to Date shall be the amount payable immediately prior to responsibility solely of Seller and the Closing under flexible spending account plans covering Business Seller Plans. Claims of Continued Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions and their eligible beneficiaries and dependents for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(sWelfare Benefits (other than disability benefits) under Sellers’ Benefit Plans for such calendar year. All claims submitted that are incurred from and after the Closing for flexible spending account benefits by the Business Employees Date shall be paid by Buyers’, the DMS Entities’ or their ERISA responsibility solely of Purchaser and its Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical/dental claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is shall be considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred date when the medical/dental services are rendered, the rendered or medical/dental supplies are provided or medication is filledprovided, and not when the condition arose, except that claims relating to arose or when the course of treatment began. Claims of individuals receiving long-term disability benefits under a hospital confinement that begins before Seller Plan as of the Closing Date shall be treated as incurred before t he responsibility solely of Seller and the ClosingSeller Plans. Except as set forth provided in this Section 7.1(hthe preceding sentence, claims of Continued Employees and their eligible beneficiaries and dependents for short-term or long-term disability benefits from and after the Closing Date shall be the responsibility solely of Purchaser and its Affiliates (without regard to whether the circumstances giving rise to such claim occurred before, on or after the Closing Date).
(f) All claims for health care and dependent care flexible spending account benefits submitted on or Section 7.1(l), as of after the Closing, the Buyers and the Partnership Benefit Plans applicable Closing Date for expenses incurred prior to the Business Closing Date by Continued Employees shall be responsible for all benefits payable with respect paid by Seller's or its Affiliates' health care and dependent care flexible spending account plan to the Business Employees for claims incurred after extent permitted in accordance with the Closingterms of such plan.
(ig) No provision Claims for workers' compensation benefits arising out of this Section 7.1 occurrences prior to the Closing Date shall create any third-party beneficiary rights in any Person, including employees be the responsibility of Seller. Claims for workers' compensation benefits for Continued Employees arising out of occurrences on or former employees (including any beneficiary or dependent thereof) after the Closing Date shall be the responsibility of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their AffiliatesPurchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (PPL Electric Utilities Corp)
Employee and Employee Benefit Matters. (a) Effective as of the ClosingClosing Date, and except as otherwise provided in this Section 7.1, Buyers and the DMS Entities agree to continue the employment of the Business Employees and Company shall assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers Seller under the collective bargaining agreement with Allied-Industrial, Chemical and their AffiliatesEnergy Workers (PACE) International Union and Local 3-0130 (the "Union"), whether contingent or otherwisewhich covers those Company Employees represented by the Union; provided, with respect to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing. Notwithstanding anything however, that nothing contained in this Agreement Section 6.1(a) shall be deemed to limit the contrary, Buyers representations and the DMS Entities shall not assume any warranties of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1)Seller in Article III hereof.
(b) As Effective as of the date hereof, (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides benefits to certain Business Employees and former employees whose duties related primarily to the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, and (ii) the assets of the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closing, Sellers shall be responsible for the payment of all benefits under the Midstream Plan, including payment of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closing.
(c) For a period of one year following the Closing Date, Buyers the Buyer shall provide establish or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates immediately prior to the Closing Date. As of the Closing, Buyers shall provide make available (i) each Business Employee for those Company Employees who are represented by the Union, a defined benefit pension plan (other than the "Buyer DB Plan") that is substantially similar to the Lafarge North America Inc. Pension Plan for Hourly Compensated Employees (Tampa) (the "Seller DB Plan") and a Canadian Business Employeedefined contribution plan (the "Buyer Union DC Plan") as required pursuant to the collective bargaining agreement with the employee benefit plans and qualified retirement plans which plans, programs and policies, or copies thereof, have been made available to Sellers and their Affiliates as of Union (the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c"Seller DC Plan"), and (ii) each Canadian Business Employee with for those Company Employees who are not represented by the plansUnion, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate a defined contribution plan that provides benefits that are substantially similar to ensure that the aforementioned those benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as employees of the Closing. Sellers shall take all such action as may be necessary Buyer and appropriate to vest in the Business Employees their accrued benefits its Affiliates under the qualified retirement plans Florida Rock Industries, Inc. Profit Sharing and Deferred Earnings Plan or such other defined contribution plan of the DMS Entities or their Affiliates immediately prior to the Closing. Except as expressly set forth in this Section 7.1, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the ClosingBuyer, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue Company or its Affiliates that provides benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees of the Buyer and its Affiliates (the “2005 Bonus Payment Date”"Buyer DC Plan"), bonuses . The Buyer DB Plan and incentive payments the Buyer Union DC Plan shall be paid provide service credit to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed each Company Employee represented by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid Union equal to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior that was credited to the Closing to be fully recognized Company Employee under the Seller DB Plan or Seller DC Plan, as applicable, for purposes of eligibility, vesting, level of benefits benefits, and benefit accrual (excluding the accrual of accrual; provided, however, that benefits under a defined benefit plan) under accrued for each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Company Employee is or becomes eligible to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers shall cause each such Partnership Benefit Plan to (i) waive all limitations as to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Buyer DB Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependent.
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits be reduced by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan benefits accrued as of the Closing Date written notification of for such Business Employee’s potential ability to roll Company Employee under the loan into Buyers’ DC Seller DB Plan. Sellers Seller shall provide such information to Buyers Buyer within 60 days following the Closing Date a schedule of benefits accrued by the Company Employees as is necessary and cooperate of the Closing Date under the Seller DB Plan, which schedule shall comply with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ terms of the collective bargaining agreement as of the Closing Date. The Buyer DC Plan (other than any default caused by a Business Employee’s refusal shall provide service credit to continue making loan payments)each Company Employee equal to the service that was credited to the Company Employee under the Lafarge North America Inc. Thrift Savings Plan for purposes of eligibility and vesting. Buyers shall use their best efforts Buyer agrees to take provide or cause the DMS Entities Company to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) provide on an annual basis to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Company Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred listed on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect to the Business Employees for claims incurred after the Closing.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.SCHEDULE 6.1
Appears in 1 contract
Samples: Stock Purchase Agreement (Florida Rock Industries Inc)
Employee and Employee Benefit Matters. (a) Effective Buyer shall offer employment as of the ClosingClosing Date to all of the employees actively employed by Seller at the Stations, with the same positions and compensation as so employed by Seller. As of the Closing Date, Buyer shall employ each such employee who accepts Buyer’s offer of employment (collectively, the “Transferred Employees”). As of the Closing Date, Buyer shall cause all Transferred Employees who are not covered by a --------- collective bargaining agreement (collectively, the “Transferred Non-Union Employees”) to be eligible to participate in “employee welfare benefit plans” and “employee pension benefit plans” (as defined in Sections 3(1) and 3(2) of ERISA) of Buyer in which similarly situated employees of Buyer are generally eligible to participate from time to time (“Buyer’s Plans”), and except all Transferred Non-Union Employees shall be eligible for coverage immediately after the Closing Date (and shall not be excluded from coverage on account of any pre-existing condition) under Buyer’s Plans constituting employee welfare benefit plans to the extent permitted under such plans with respect to the Transferred Non-Union Employees. Following the Closing Date, Buyer shall cause Buyer’s Plans to recognize any prior accrued service credit, credit towards satisfying deductible expense requirements and out-of-pocket expense limits of Transferred Non-Union Employees for purposes of Buyer’s Plans to the extent such prior credits and limits are recognized by Buyer or Buyer’s Plans for similarly situated employees of Buyer (including, but not limited to, eligibility to participate and vesting, but excluding benefit accruals). As soon as otherwise provided practicable following the Closing Date, Buyer shall make available to the Transferred Non-Union Employees, Buyer’s 401(k) Plan in accordance with the terms and provisions of such plan. Seller shall cause to be transferred to Buyer’s 401(k) Plan, in cash, all of the individual account balances of the Transferred Non-Union Employees under the 401(k) plan in which the employees of the Stations now participate, upon receipt from Buyer of evidence satisfactory to Seller that Buyer's 401(k) Plan is tax-qualified. Buyer shall provide employees of the Stations who become employed by Buyer and are covered by a collective bargaining agreement listed on Schedule 6.4(d) (the “Transferred Union Employees”) benefits in accordance with the terms of such agreement to the --------------- extent such benefits constitute a part of the Assumed Liabilities. Except for the employment contracts listed in Schedule 6.4(d) hereto, nothing in this Section 7.1Agreement is intended to nor shall guaranty employment for any --------------- Transferred Employee for any length of time after the Closing Date.
(b) Seller shall pay, Buyers and the DMS Entities agree to continue the employment of the Business Employees and assume discharge and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing. Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect obligations which arise or are to such plans, including the payment of all benefits be paid or performed under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1).
(b) As of the date hereof, (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides benefits to certain Business Employees and former employees whose duties related primarily to the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, and (ii) the assets of the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closing, Sellers shall be responsible for the payment of all benefits under the Midstream Plan, including payment of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closing.
(c) For a period of one year following the Closing Date, Buyers shall provide or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal but not limited to such employee’s annual base salary liabilities and obligations arising as a result of or hourly wage in connection with the DMS Entities termination of any employee of any Station before, or their Affiliates immediately prior to the Closing Date. As of the upon Closing, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans including all severance or termination pay and qualified retirement plans which plansall accrued vacation, programs and policiessalary, or copies thereof, have been made available to Sellers and their Affiliates as of the date hereof, wages and other employee-related planscompensation payments or benefits, programs if any, which arise or become payable under any Plan as a result of or in connection with such termination. Buyer shall pay, discharge and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately prior to the Closing. Except as expressly set forth in this Section 7.1, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans and the Business Employees shall cease to accrue benefits under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business all liabilities which arise or become payable as a result of or in connection with Buyer’s employment of any Transferred Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plansupon Closing or Buyer’s termination of any Transferred Employees after Closing, including, without limitation, the “change in control” all severance or termination pay and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); providedall accrued vacation, that the COBRA medical benefit coverage shall be provided salary, wages and other compensation payments or benefits under or pursuant to the terms and conditions any employee benefit plan of the Partnership Benefit Buyer. Buyer shall not, however, assume or be obligated to pay or perform any liabilities under any Plans set forth on Schedule 7.1(c) (including, but not limited to, any stay bonus or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(cseverance policy, plan, arrangement or benefit).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:except that
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments Buyer shall provide accrued vacation days to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets under Sellers’ Bonus Plans had been satisfiedTransferred Employees, and (ii) for Business Employees who are no longer employed by Buyer shall assume and agree to perform the DMS Entities or their Affiliates as of employer’s obligations under the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid employment contracts listed on Schedule 6.4(d) hereto to the extent such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.obligations constitute Assumed Liabilities. ---------------
(ec) From and after the Closing, Buyers shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior Anything contained in this Section 10.4 to the Closing to be fully recognized for purposes of eligibilitycontrary notwithstanding, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As upon consummation of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA in which any Business Employee is or becomes eligible to participate, Buyers Buyer shall cause each such Partnership Benefit Plan to (i) waive all limitations as recognize each union which is a party to pre-existing conditions and waiting periods with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan a collective bargaining agreement set forth in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan Schedule 6.4(d) hereto, and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket assume and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependent.
(f) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers or their Affiliates to have a flexible spending account(s) with an amount payable as of the Closing equal to the amount payable immediately prior to the Closing under flexible spending account plans covering Business Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(s) under Sellers’ Benefit Plans for such calendar year. All claims submitted after the Closing for flexible spending account benefits by the Business Employees shall be paid by Buyers’, the DMS Entities’ or their ERISA Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred when the services are rendered, the supplies are provided or medication is filled, and not when the condition arose, except that claims relating to a hospital confinement that begins before the Closing shall be treated as incurred before the Closing. Except as set forth in this Section 7.1(h) or Section 7.1(l), as of the Closing, the Buyers and the Partnership Benefit Plans applicable to the Business Employees shall be responsible for all benefits payable with respect the obligations of Seller under each such --------------- collective bargaining agreement to the Business Employees for claims incurred after the Closingextent such obligations constitute Assumed Liabilities.
(i) No provision of this Section 7.1 shall create any third-party beneficiary rights in any Person, including employees or former employees (including any beneficiary or dependent thereof) of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their Affiliates.
Appears in 1 contract
Employee and Employee Benefit Matters. (a) Schedule 6.5(a) sets forth a list of Project Employees that Seller and such Affiliates will make available to Purchaser at least thirty (30) Business Days before the Closing Date (the "AVAILABLE EMPLOYEES") for the purpose of discussing potential employment with Purchaser (which discussions the Parties agree shall not violate SECTION 12.5), together with each such Available Employee's name, current annual base compensation, job title, work location, hire date, vacation balance and sick leave balance, as of the date hereof. Prior to the Closing Date, Purchaser may make an offer of employment to any Available Employee, and each such offer shall include terms and provisions determined by Purchaser that are consistent with the provisions of this SECTION 6.5; provided, that subject to the following provisions of this SECTION 6.5, the foregoing shall not be construed to prevent Purchaser from changing the terms and conditions of employment of any Continued Employee (as hereinafter defined) following the Closing Date. Seller shall be responsible for, and shall indemnify and hold Purchaser harmless from and against, (i) all severance benefits payable under Seller's applicable severance policies to any Available Employees (or any other employee of Seller or its Affiliates) who do not accept or are not provided with an offer of employment with Purchaser or its Affiliates prior to or at Closing, and (ii) any accrued salary or incentive compensation or outstanding vacation or sick pay balance as of the Closing owing to any employee of Seller or its Affiliates, whether or not any such employee is provided with or accepts an offer of employment with Purchaser or its Affiliates. Purchaser shall be responsible for, and shall indemnify and hold Seller harmless from and against, any Losses caused by or resulting from any failure by Purchaser to offer employment to any Available Employee on any basis prohibited by applicable Law.
(b) On or before five (5) Business Days prior to the Closing Date, Purchaser shall deliver to Seller a Schedule 6.5(b) that sets forth the names of the Available Employees who have agreed to accept employment with Purchaser effective as of the Closing Date (each, a "CONTINUED EMPLOYEE"); provided, that to be a Continued Employee, such employee must (i) accept Purchaser's offer to transfer employment to Purchaser under the terms provided in Purchaser's offer, and (ii) on the Closing Date, be actively at work, on wellness or sickness leave, short-term disability or an approved leave of absence.
(c) Effective as of the ClosingClosing Date, and except as otherwise provided the Continued Employees shall cease to participate in this all "employee benefit plans" (within the meaning of Section 7.1, Buyers and 3(3) of ERISA) of Seller or its Affiliates (the DMS Entities agree to continue the employment of the Business Employees and assume and be solely responsible for compliance with all Laws and for any and all claims against and liabilities or obligations of Sellers and their Affiliates, whether contingent or otherwise, with respect to the Business Employees (including liabilities or obligations with respect to their beneficiaries and alternate payees) arising out of or based upon events occurring after the Closing"SELLER PLANS"). Notwithstanding anything in this Agreement to the contrary, Buyers and the DMS Entities Purchaser shall not assume any of the Sellers’ Benefit Plans and, as a result, Sellers and their Affiliates shall remain solely responsible for compliance with all Laws relating to the Sellers’ Benefit Plans and for any and all obligations, liabilities and claims that may arise, including those incurred but not reported, as of the Closing, with respect to such plans, including the payment of all benefits under such plans (except for any contracts or other obligations or liabilities that are allocated or otherwise assumed by Buyers and the DMS Entities pursuant to this Section 7.1)Seller Plans.
(bd) As From and after the Closing Date, Purchaser shall cause each Continued Employee to be provided with compensation and benefits on a basis substantially similar to those provided to similarly situated employees of Purchaser and its Affiliates. Purchaser shall cause each Continued Employee and his or her "eligible dependents" (as defined by the date hereof, applicable group health plan of Purchaser or its Affiliates) to be covered under a group health plan maintained by Purchaser or an Affiliate of Purchaser that (i) the Partnership participates in the Dynegy Midstream Services Retirement Plan (“Midstream Plan”), which provides medical benefits to certain Business Employees the Continued Employee and former employees whose duties related primarily to such eligible dependents effective immediately upon the midstream business historically or as currently operated by the DMS Entities or their past or current Affiliates and is sponsored by Dynegy, Closing Date and (ii) credits such Continued Employee and such eligible dependents, for the assets year during which such coverage under such group health plan begins, with any deductibles and co-payments already incurred during such year under a group health plan maintained by Seller or an Affiliate of Seller (provided, that for purposes of applying this clause (ii) with respect to any Continued Employee or eligible dependent, the Midstream Plan are held in a master trust sponsored by Dynegy. Sellers agree that the sponsorship of the Midstream Plan shall not be transferred to Continued Employee or otherwise retained or assumed by Buyers or their Affiliates from and after the Closing. From and after the Closingeligible dependent, Sellers as applicable, shall be responsible for providing the payment necessary information to Purchaser based on explanation of all benefits under benefit forms received by the Midstream Plan, including payment Continued Employee or the eligible dependent from the group health plan maintained by Seller or an Affiliate of benefits to participants who retired or became entitled to deferred vested benefits on or before the Closing.
(c) For a period of one year following the Closing Date, Buyers Seller). Purchaser shall provide or cause the DMS Entities to provide each Business Employee with an annual base salary or hourly wage that is at least equal to such employee’s annual base salary or hourly wage with the DMS Entities or their Affiliates immediately prior to the Closing Date. As of the Closing, Buyers shall provide (i) each Business Employee (other than a Canadian Business Employee) with the employee benefit plans and qualified retirement plans which plans, programs maintained after the Closing by Purchaser and policies, or copies thereof, have been made available the Affiliates of Purchaser to Sellers recognize each Continued Employee's years of service and their Affiliates as level of the date hereof, and other employee-related plans, programs and policies as referenced on Schedule 7.1(c), and (ii) each Canadian Business Employee with the plans, programs and policies as referenced on Schedule 7.1(k). Buyers shall take all such action as may be necessary and appropriate to ensure that the aforementioned benefits are provided to all Business Employees so as to ensure coverage for all Business Employees as of the Closing. Sellers shall take all such action as may be necessary and appropriate to vest in the Business Employees their accrued benefits under the qualified retirement plans of the DMS Entities or their Affiliates immediately seniority prior to the Closing. Except as expressly set forth in this Section 7.1, effective immediately prior to the Closing, all Business Employees shall cease to participate in the Sellers’ Benefit Plans. In addition, effective immediately prior to the Closing, the DMS Entities shall withdraw from participation in Sellers’ Benefit Plans Closing Date with Seller and the Business Employees shall cease to accrue benefits Affiliates of Seller for purposes of terms of employment and eligibility and vesting under Sellers’ Benefit Plans. Nothing in this Agreement shall be deemed to restrict the ability of Buyers or their Affiliates to terminate the employment of any Business Employee after the Closing Date, provided that, for a period of one year following the Closing Date, Buyers shall be solely responsible for and shall pay severance benefits to such Business Employees that are identical to the severance benefits under the applicable Sellers’ Benefit Plans, including, without limitation, the “change in control” and COBRA premium payment period provisions contained therein (which “change in control” provisions will be applicable to Business Employees as a result of the Closing); provided, that the COBRA medical benefit coverage shall be provided pursuant to the terms and conditions of the Partnership Benefit Plans set forth on Schedule 7.1(c) (or any replacement plans adopted thereafter in the ordinary course of business) consistent with the medical benefit coverage to be provided by Buyers to all Business Employees as described in this Section 7.1(c).
(d) Notwithstanding anything in this Agreement to the contrary, Buyers shall be solely responsible for and shall pay all bonuses and incentive payments applicable to the Business Employees as follows:
(i) for Business Employees who remain employed by the DMS Entities or their Affiliates through the earlier of March 1, 2006, and the date on which Buyers otherwise pay their annual bonuses and incentive payments to similarly situated employees (the “2005 Bonus Payment Date”), bonuses and incentive payments shall be paid to applicable Business Employees on the 2005 Bonus Payment Date in accordance with the bonus and incentive plans or programs of Buyers, but in no event in an amount less than the target amount that would have been earned by such Business Employees under Sellers’ bonus and incentive plans and programs (which are listed on Schedule 7.1(d) and referred to herein as “Sellers’ Bonus Plans”) for 2005 assuming all applicable targets other than benefit accruals under Sellers’ Bonus Plans had been satisfied, and (ii) for Business Employees who are no longer employed by the DMS Entities or their Affiliates as of the 2005 Bonus Payment Date, bonuses and incentive payments shall be paid to such former Business Employees as part of the “change in control” severance benefits required to be paid by Buyers under Section 7.1(c) upon their termination of employment.
(e) From and after the Closing, Buyers any defined benefit pension plan). Purchaser shall cause the service and level of each Business Employee with the DMS Entities and their ERISA Affiliates immediately prior to the Closing to be fully recognized for purposes of eligibility, vesting, level of benefits and benefit accrual (excluding the accrual of benefits under a defined benefit plan) under each severance, retirement, compensation, workers’ compensation, vacation, fringe, welfare or other benefit plan, program or arrangement of Buyers, the DMS Entities or any of their ERISA Affiliates (collectively, the “Partnership Benefit Plans”) in which any Business Employee is or becomes eligible to participate. As of the Closing, with respect to each Partnership Benefit Plan that is an “employee welfare benefit plan” as defined in Section 3(1) plan or program sponsored by Purchaser or an Affiliate of ERISA Purchaser in which any Business Employee is or becomes the Continued Employees may be eligible to participate, Buyers shall cause each such Partnership Benefit Plan participate on or after the Closing Date to (i) waive all limitations as to pre-existing conditions and waiting periods any preexisting condition exclusion with respect to participation and coverage requirements applicable under such Partnership Benefit Plan to the same extent that such pre-existing conditions Continued Employees and waiting periods would not have applied or would have been waived under the corresponding Sellers’ Benefit Plan in which such Business Employee was a participant immediately prior to his commencement of participation in such Partnership Benefit Plan and (ii) cause each such Partnership Benefit Plan to provide each Business Employee with full credit for any out-of-pocket and deductible amounts paid by such Business Employee in the calendar year that, and prior to the date that, such Business Employee commences participation in such Partnership Benefit Plan in satisfying any applicable out-of-pocket or deductible requirements under such Partnership Benefit Plan for the applicable calendar year. For purposes of crediting out-of-pocket and deductible amounts in accordance with clause (ii) of the preceding sentence, the Partnership Benefit Plan will accept copies of explanation of benefit forms from the Sellers’ Benefit Plan supplied by any Business Employee on behalf of himself or any covered dependenttheir eligible dependents.
(fe) Buyers shall cause each Business Employee who participated in a flexible spending account plan with Sellers Claims of Continued Employees and their eligible beneficiaries and dependents for medical, dental, prescription drug, life insurance, or their Affiliates to have a flexible spending account(sother welfare benefits ("WELFARE BENEFITS") with an amount payable as of (other than disability benefits) that are incurred before the Closing equal to Date shall be the amount payable immediately prior to responsibility solely of Seller and the Closing under flexible spending account plans covering Business Seller Plans. Claims of Continued Employees immediately prior to the Closing. After the Closing, Buyers will continue to take appropriate deductions and their eligible beneficiaries and dependents for the remaining calendar year in order for the Business Employees to satisfy their initial enrollment amount(sWelfare Benefits (other than disability benefits) under Sellers’ Benefit Plans for such calendar year. All claims submitted that are incurred from and after the Closing for flexible spending account benefits by the Business Employees Date shall be paid by Buyers’, the DMS Entities’ or their ERISA responsibility solely of Purchaser and its Affiliates’ flexible spending account plan. As soon as reasonably practicable after the Closing, Sellers shall transfer to Buyers the net aggregate amount of flexible spending account deferrals made by Business Employees that are held by Sellers or their Affiliates immediately prior to the Closing, such net aggregate amount to be comprised of both positive and negative account balances that exist immediately prior to the Closing. Sellers agree to provide Buyers with such information and data as may be reasonably necessary to comply with the provisions of this paragraph.
(g) As soon as reasonably practicable after the Closing, with respect to each Business Employee who is a participant in a Sellers’ defined contribution plan (“Sellers’ DC Plan”), Sellers shall provide each such employee with the right to receive a distribution of such employee’s vested interest under the applicable Sellers’ DC Plan and an election to roll over such employee’s vested interest in the applicable Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to applicable law and the plan’s terms) to a Buyers’ defined contribution plan (“Buyers’ DC Plan”) in accordance with Section 402 of the Code. Sellers shall provide to each Business Employee that has an outstanding plan loan as of the Closing Date written notification of such Business Employee’s potential ability to roll the loan into Buyers’ DC Plan. Sellers shall provide such information to Buyers as is necessary and cooperate with Buyers to ensure that plan loans held by Business Employees do not go into default prior to their being rolled over into the Buyers’ DC Plan (other than any default caused by a Business Employee’s refusal to continue making loan payments). Buyers shall use their best efforts to take or cause the DMS Entities to take all such action as may be necessary or appropriate (including amending Buyers’ DC Plan if necessary) to permit the Business Employees to roll over their vested interests in Sellers’ DC Plan including any participant loans (provided such loans are adequately secured pursuant to the applicable law and the Sellers’ DC Plan’s terms) to Buyers’ DC Plan within ninety (90) days following the Closing. Buyers will, and will cause its Affiliates (including the DMS Entities) and each of their respective Representatives to, cooperate with Sellers, their Affiliates and each of their respective Representatives in providing information to the Business Employees regarding rollovers of their interests from the applicable Sellers’ DC Plan to Buyers’ DC Plan.
(h) The Sellers’ Benefit Plans shall retain responsibility for any valid claim for long-term disability or life insurance benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical/dental claim for life insurance is considered incurred when the death occurs and a claim for long-term disability benefits is shall be considered incurred on the first day the employee is determined to be disabled for purposes of entitlement to disability benefits. Further, the Sellers’ Benefit Plans shall retain responsibility for any valid claim for medical or dental benefits made by a Business Employee after the Closing arising from a claim incurred before the Closing. For purposes of this paragraph, a medical or dental claim is considered incurred date when the medical/dental services are rendered, the rendered or medical/dental supplies are provided or medication is filledprovided, and not when the condition arose, except that claims relating to arose or when the course of treatment began. Claims of individuals receiving long-term disability benefits under a hospital confinement that begins before Seller Plan as of the Closing Date shall be treated as incurred before the Closingresponsibility solely of Seller and the Seller Plans. Except as set forth provided in this Section 7.1(hthe preceding sentence, claims of Continued Employees and their eligible beneficiaries and dependents for short-term or long-term disability benefits from and after the Closing Date shall be the responsibility solely of Purchaser and its Affiliates (without regard to whether the circumstances giving rise to such claim occurred before, on or after the Closing Date).
(f) All claims for health care and dependent care flexible spending account benefits submitted on or Section 7.1(l), as of after the Closing, the Buyers and the Partnership Benefit Plans applicable Closing Date for expenses incurred prior to the Business Closing Date by Continued Employees shall be responsible for all benefits payable with respect paid by Seller's or its Affiliates' health care and dependent care flexible spending account plan to the Business Employees for claims incurred after extent permitted in accordance with the Closingterms of such plan.
(ig) No provision Claims for workers' compensation benefits arising out of this Section 7.1 occurrences prior to the Closing Date shall create any third-party beneficiary rights in any Person, including employees be the responsibility of Seller. Claims for workers' compensation benefits for Continued Employees arising out of occurrences on or former employees (including any beneficiary or dependent thereof) after the Closing Date shall be the responsibility of the DMS Entities or any of their Affiliates, unions or other representatives of such employees or former employees, or trustees, administrators, participants or beneficiaries of any employee benefit plan, and no provision of this Section 7.1 shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement, including currently existing Sellers’ Benefit Plans of the DMS Entities or their AffiliatesPurchaser.
Appears in 1 contract
Samples: Asset Purchase Agreement (Pinnacle West Capital Corp)
