Common use of Employee and Employee Benefit Matters Clause in Contracts

Employee and Employee Benefit Matters. (a) During the Interim Period, the Project Employees who are providing services directly relating to the Projects may, in Seller or Seller Affiliate’s sole discretion, continue in the same role following Closing as employees of Seller or a Seller Affiliate. Nothing in this Section 6.7 shall affect the right of Seller, or any Affiliate of Seller, to terminate the employment of any Project Employee for any reason or at any time. At all times prior to Closing, Seller, or an Affiliate of Seller, shall continue to have the exclusive right to control the Project Employees and make any and all employment decisions regarding Project Employees as it shall deem appropriate. Seller or its Affiliates shall be exclusively responsible for the payment of all wages, provision of all benefits and compliance with all applicable Laws with respect to the Project Employees until such Project Employees are no longer employed by Seller or its Affiliates. (b) Except as expressly contemplated herein or in the O&M Agreement, from the Effective Date through the latter of a period of two (2) years from and after the O&M Expiration or the date of termination of this Agreement (pursuant to Section 9.1 if a Closing does not occur hereunder), Buyer agrees not to solicit for hire or employment or employ, and to use Commercially Reasonable Efforts to cause Buyer Service Companies and their Affiliates not to solicit for hire or employment or employ, any Project Employee, without Seller’s prior written consent; provided, however, that the restrictions set forth in this Section 6.7(b) shall not apply to any solicitation (or any hiring as a result of any solicitation) that consists of advertising in a newspaper or periodical of general circulation or through similar general circulation on the internet or otherwise not specifically directed toward any Project Employee.

Employee and Employee Benefit Matters. (a) During Prior to or on the Interim PeriodClosing Date, Buyer shall make offers of employment, effective as of the Project Closing Date, to all Employees. Each offer of employment made by Buyer pursuant to this Section 9.01 shall be for employment (i) at the same rate of base pay as is applicable at the Closing Date, (ii) with benefits no less favorable in the aggregate than the benefits applicable in regards to each respective Employee as of the Closing Date to the extent required to comply with WARN or any similar state or local laws and (iii) with such other terms and conditions of employment as are determined by Buyer in its sole discretion. Those Employees who are providing services directly relating offered employment by Buyer and who accept such offers of employment shall be referred to herein as the Projects may“Transferred Employees”, in 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 Affiliates to, pay, and indemnify Seller for (i) any and all termination or Seller Affiliate’s sole discretionseverance Liabilities incurred on or after the Closing Date as a result of the actions of Buyer, continue in the same role following Closing as employees 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 first ninety (90) days after the Closing, Buyer shall provide, or shall cause to be provided, to each Transferred Employee (exclusive of any Employees who are subject to a Seller Affiliatecollective bargaining agreement) compensation and benefits from time to time that are no less favorable, in the aggregate, than the compensation and benefits provided to each such Transferred Employee immediately prior to the Closing. Nothing Notwithstanding anything to the contrary in this Section 6.7 9.01, Buyer shall affect have the right of Seller, or any Affiliate of Seller, to terminate the employment of any Project Transferred Employee after the Closing Date; provided, however, for any reason or at any time. At all times prior to the first ninety (90) days after the Closing, SellerBuyer shall retain, at a minimum, the number of Transferred Employees required to avoid liability arising from WARN or an Affiliate of Seller, shall continue to have the exclusive right to control the Project Employees and make any and all employment decisions regarding Project Employees as it shall deem appropriate. Seller similar state or its Affiliates shall be exclusively responsible for the payment of all wages, provision of all benefits and compliance with all applicable Laws with respect to the Project Employees until such Project Employees are no longer employed by Seller or its Affiliateslocal laws. (b) Except as expressly contemplated herein 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, Seller shall take all actions necessary to terminate the participation of all Employees in the O&M Agreement, from Plans (except as may be required by the Effective Date through continuation coverage rules of Section 4980B of the latter Code and part 6 of a period Subtitle B of two Title I of ERISA (2) years from and after the O&M Expiration or the date of termination of this Agreement (pursuant to Section 9.1 if a Closing does not occur hereunder“COBRA”), and any similar state or local law). (c) Buyer hereby agrees not to solicit for hire or employment or employpay, and to use Commercially Reasonable Efforts indemnify Seller from, (i) any and all termination or severance liability relating to cause any Employee with respect to any such liability incurred on or after the Closing Date, including any liability related to or arising out of WARN, COBRA, and any similar state or local laws with respect to the Employees, and (ii) any Liability incurred on or after the Closing Date under any of the Acquired Plans. Subject to Sections 2.05(d) and 2.07 hereof and except as provided in Sections 2.03 or 2.04 hereof, Seller hereby agrees to pay, and to indemnify Buyer Service Companies from, (x) any Liabilities relating to Employees with respect to any periods prior to the Closing, excluding any Liability payable after the Closing relating to or arising out of WARN or any similar state or local laws with respect to Employees, and their Affiliates not (y) any Liability under any of the Plans with respect to solicit for hire or employment or employ, any Project Employee, without Seller’s periods prior written consent; provided, however, that to the restrictions set forth in this Section 6.7(b) Closing. Seller shall not apply take any action to terminate any solicitation ERISA Plan intended to qualify under Section 4.01(a) of the Code for at least sixty (or any hiring as a result of any solicitation60) that consists of advertising in a newspaper or periodical of general circulation or through similar general circulation on days following the internet or otherwise not specifically directed toward any Project EmployeeClosing Date.

Employee and Employee Benefit Matters. (a) During Parent agrees to honor in accordance with their terms all Company Employee Benefit Plans listed in Section 6.2 of the Interim Period, the Project Employees who are providing services directly relating Company Disclosure Letter or filed as exhibits to the Projects may, in Seller or Seller Affiliate’s sole discretion, continue in the same role following Closing as employees of Seller or a Seller Affiliate. Nothing Available Company SEC Documents and all accrued benefits vested thereunder; it being understood and agreed that nothing in this Section 6.7 6.2(a) shall affect the right of Seller, prevent Parent from amending or terminating any Affiliate of Seller, to terminate the employment of any Project Company Employee for any reason Benefit Plan or at any time. At all times prior to Closing, Seller, or an Affiliate of Seller, shall continue to have the exclusive right to control the Project Employees other agreement in accordance with its terms and make any and all employment decisions regarding Project Employees as it shall deem appropriate. Seller or its Affiliates shall be exclusively responsible for the payment of all wages, provision of all benefits and compliance with all applicable Laws with respect to the Project Employees until such Project Employees are no longer employed by Seller or its AffiliatesLaw. (b) Except As of the Closing, the Surviving Corporation or one of the Company Subsidiaries shall continue to employ the employees of the Company and the Company Subsidiary as expressly contemplated herein or in the O&M Agreement, from of the Effective Date through the latter of Time. For a period of two one year following the Effective Time, Parent agrees to provide, or cause to be provided, to those employees of the Company and the Company Subsidiaries who are employed by them as of immediately prior to the Effective Time and who continue to be actively employed by the Surviving Corporation (2or any Affiliate thereof) years from during such one-year period the base salary (or base wages, as the case may be), no less favorable than the base salary (or base wages, as applicable) provided by the Company and the Company Subsidiaries to such employees immediately prior to the Effective Time; provided that Parent shall be under no obligation to retain any employee or group of employees of the Company or the Company Subsidiaries other than as required by applicable Law. (c) For purposes of all employee benefit plans, programs and arrangements maintained by or contributed to by Parent and its Subsidiaries (including, after the O&M Expiration Closing, the Surviving Corporation), Parent shall, or shall cause its subsidiaries to, use commercially reasonable efforts to cause each such plan, program or arrangement to treat the prior service with the Company and its Affiliates of each person who is an employee or former employee of the Company or the date Company Subsidiaries immediately prior to the Closing (a “Company Employee”) (to the same extent such service is recognized under analogous plans, programs or arrangements of termination the Company or its affiliates prior to the Closing) as service rendered to Parent or the Parent Subsidiaries, as the case may be, for purposes of this Agreement eligibility to participate in and vesting thereunder (pursuant to Section 9.1 if a Closing does but not occur hereunderbenefit accrual), Buyer agrees not to solicit for hire or employment or employ, and to use Commercially Reasonable Efforts to cause Buyer Service Companies and their Affiliates not to solicit for hire or employment or employ, any Project Employee, without Seller’s prior written consent; provided, however, that the restrictions set forth in this Section 6.7(b) such crediting of service shall not apply operate to duplicate any benefit or the funding of such benefit. Parent shall, or shall cause its Subsidiaries to use commercially reasonable efforts to, give Company Employees credit for any deductible or co-payment amounts paid in respect of the plan year in which the Closing occurs, to the extent that, following the Closing, they participate in any other plan for which deductibles or co-payments are required. Parent shall also use commercially reasonable efforts to cause each Employee Benefit Plan maintained by or contributed to by Parent and its subsidiaries (including, after the Closing, the Surviving Corporation) in which Company Employees participate, to waive any preexisting condition that was waived under the terms of any Company Employee Benefit Plan immediately prior to the Closing or waiting period limitation which would otherwise be applicable to a Company Employee on or after the Closing. Parent shall recognize any accrued but unused vacation, sick leave, and sabbatical time of the Company Employees as of the Closing Date, in accordance with the terms of such Company policies and Parent shall cause the Company and the Company Subsidiaries to provide such vacation, sick leave, and sabbatical time in accordance with the terms of such Company policies but in no event will Parent be obligated to extend or enlarge the benefits available under such Company policies. (d) Parent agrees to provide any required notice under the Worker Adjustment and Retraining Notification Act, as amended (the “WARN Act”), and any similar federal, state or local Law or regulation, and to otherwise comply with the WARN Act and any such other similar Law or regulation with respect to any solicitation “plant closing” or “mass layoff” (as defined in the WARN Act) or any hiring group termination or similar event affecting Company Employees (including as a result of the consummation of the Transactions) and occurring from and after the Closing. Parent shall not take any solicitationaction on or after the Closing Date that would cause any termination of employment of any employees by Company or its affiliates that occurs prior to the Closing to constitute a “plant closing,” “mass layoff” or group termination or similar event under the WARN Act or any similar federal, state, local or foreign Law or regulation, or to create any liability or penalty to Company or its affiliates for any employment terminations under applicable Law. (e) If requested by Parent in writing within thirty (30) Business Days prior to the Effective Time, effective as of, and contingent upon, the Closing Date, the Company shall adopt such resolutions or amendments to terminate the Company 401(k) plan. The Company shall provide Parent with a copy of the resolutions or plan amendments (the form and substance of which shall be subject to review and approval by Parent) evidencing that consists the Company 401(k) plan has been terminated. (f) The parties acknowledge and agree that all provisions contained in this Section 6.2 are included for the sole benefit of advertising the parties, and that nothing in this Agreement, whether express or implied, (i) shall create any third party beneficiary or other rights (A) in any other person, including any employees or former employees of the Company, any Company Subsidiary or any Affiliate of the Company, any Company Employee, or any dependent or beneficiary thereof, or (B) to continued employment with Parent or any of its Affiliates or to employment or continued employment or to a newspaper particular term or periodical condition of general circulation employment with Parent or through similar general circulation on the internet any of its Subsidiaries, or otherwise not specifically directed toward any Project Employeeof their respective Affiliates or (ii) shall be treated as an amendment or other modification of any employee benefit plan.