Employee and Employee Benefit Matters. (a) Unless otherwise directed in writing by Parent at least five (5) Business Days prior to the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliate shall take (or cause to be taken) all actions reasonably determined by Parent to be necessary or appropriate to terminate each Company Employee Benefit Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “401(k) Plan”), with such termination effective as of the Business Day immediately prior to the date the Offer Acceptance Time occurs. The Company shall provide Parent with evidence that such 401(k) Plan(s) have been timely terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such 401(k) Plan(s) as Parent may reasonably request. In the event of such 401(k) Plan termination, Parent shall take all actions necessary to allow Continuing Employees who meet the age and service eligibility requirements under the 401(k) plan maintained by Parent or its affiliates (the “Parent 401(k) Plan”) to enroll as soon as reasonably practicable following the Offer Acceptance Time (and in no event later than sixty (60) days following the Offer Acceptance Time) under the Parent 401(k) Plan and to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code), including outstanding participant loans. (b) Effective as of no later than the day immediately preceding the date the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliates shall terminate any and all group severance, separation, deferred compensation or salary continuation plans, programs or arrangements maintained by the Company and the Company ERISA Affiliates, and all Company Employee Benefit Plans set forth on Schedule 6.2(b) hereof (the “Other Plans”) (but excluding (A) plans, programs or arrangements required by Law and deferred compensation arrangements that cannot be terminated without violating Section 409A of the Code) and (B) agreements entered into by the Company or Company Subsidiaries, on the one hand, and individual employees of the Company or Company Subsidiaries, on the other hand, providing for severance or other employment benefits, including without limitation any agreements entered into after the date of this Agreement (which are hereby expressly permitted for purposes of Section 5.1) providing for severance or termination benefits consistent with existing plans or policies and the provisions of Sections 6.2(e) or (f) below). For the avoidance of any doubt, the termination of the Other Plans pursuant to the preceding sentence (other than any deferred compensation arrangements) shall be effected without any payment or benefit (or giving rights to any payment or benefit) thereunder. The Company shall provide Parent evidence that such Other Plans have been terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such Other Plans as Parent may reasonably request. (c) From and after the Offer Acceptance Time, and to the extent permitted by applicable Law, Parent shall, or shall cause the Surviving Corporation to, recognize the prior service with the Company or the Company Subsidiaries of each employee of the Company or Company Subsidiaries in connection with all employee benefit plans, programs or policies (including vacation and severance, but excluding the sabbatical program) of Parent or its Affiliates in which Continuing Employees are eligible to participate following the Offer Acceptance Time for purposes of eligibility and vesting and determination of level of benefits (but not for purposes of benefit accruals or benefit amounts under any defined benefit pension plan or to the extent that such recognition would result in duplication of benefits). From and after the Offer Acceptance Time, Parent shall, or shall cause the Surviving Corporation to use its commercially reasonable best efforts to, (i) cause any pre-existing conditions or limitations and eligibility waiting periods (to the extent that such waiting periods would be inapplicable, taking into account service with the Company) under any group health plans of Parent or its affiliates to be waived with respect to employee of the Company or Company Subsidiaries and their eligible dependents, and (ii) provide each employee of the Company or Company Subsidiaries with credit for any deductibles, coinsurance, copay, or other out of pocket expenses paid under any Company Employee Benefit Plan that provides medical, prescription dental or vision benefits in the plan year in effect as of the Closing Date in satisfying any applicable deductible, coinsurance, copay or out of pocket requirements under any medical, prescription dental or vision plans of Parent or the Surviving Corporation that such employees are eligible to participate in after the Offer Acceptance Time to the same extent that such expenses were recognized under the comparable Company Employee Plan. (d) Nothing contained in this Agreement shall, or shall be construed so as to, (i) constitute an amendment or modification of any employee benefit plan; (ii) create any third party rights in any such current or former service provider of the Company or any of the Company Subsidiaries (including any beneficiary or dependent thereof); or (iii) obligate Parent or any of its Affiliates (including the Company, the Company Subsidiaries following the Offer Acceptance Time) to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent the Parent or any of its Affiliates (including the Company and the Company Subsidiaries following the Offer Acceptance Time) from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time. (e) Parent shall, and shall cause the Surviving Corporation to, for a period ending on the date that is 12 months following the Effective Time to provide for (i) at least the same level of base salary or base hourly wage levels, if applicable, that were provided to such Continuing Employees immediately prior to the Effective Time, (ii) bonus, commission, management by objective or other cash incentive compensation opportunities disclosed to Parent prior to the Agreement Date that are substantially equivalent, in the aggregate, to such opportunities as were provided to such Continuing Employees as of the Agreement Date or in the case of sales commission plans adopted after the Agreement Date, such plans that are consistent with past practice, (iii) employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) that are substantially equivalent in the aggregate to the employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) provided to such Continuing Employees immediately prior to the Effective Time, or otherwise as required by applicable Law and (iv) upon a termination without cause or, if applicable, resignation for good reason of a Continuing Employee, severance benefits that are no less favorable than those that would have been provided to each such Continuing Employee under the applicable severance benefit plans, programs, policies or arrangements as in effect immediately prior to the date of this Agreement. Parent shall cause each Continuing Employee of the Company or any of its Subsidiaries who participate in the Company’s annual bonus, commission, management by objective or other incentive plan as of immediately prior to the Effective Date to be paid a bonus, commission or other applicable incentive payment, as applicable, through the end of the applicable fiscal year in accordance with the terms of the plan as in effect on the Closing Date (provided that any terms of such plans that are not Made Available to the Parent, are approved by Parent, or in the case of sales commission plans, are consistent with past practice). (f) For any Company Employee that is not a Continuing Employee (each a “Non-Continuing Employee”), Parent shall provide such Non-Continuing Employee with the severance payments and termination payments or benefits under the Company’s current practices or any higher amount of severance and/or termination payments or benefits as may be required by applicable Law, any agreement between such Company Employee and the Company or any of its Subsidiaries, or any agreement governing the relationship between such Company Employee and the Company or any of its Subsidiaries, in each case as in place prior to the termination of any such agreement pursuant to Section 6.2(b) hereof (such payments and benefits, the “Transaction Severance Benefits”). Except as otherwise required by applicable Law, Parent will pay or deliver the Transaction Severance Benefits to any such Non-Continuing Employee as soon as reasonably practicable following the termination of such Non-Continuing Employee’s employment. In addition to the foregoing, the Company and Parent or any Subsidiary of Parent shall use reasonable best efforts and take any action reasonably necessary to mitigate and/or eliminate the impact of the tax consequences of Section 280G of the Code (including as a result of the transactions under all employment, severance and termination agreements, other compensation arrangements and Company Employee Benefit Plans) on any individual that is regarded as a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1); provided, however, that the foregoing shall in no event require or be deemed to require Parent or any Subsidiary of Parent to, or permit the Company to, provide any “gross ups”.
Appears in 2 contracts
Samples: Credit Agreement (RhythmOne PLC), Agreement and Plan of Merger and Reorganization (YuMe Inc)
Employee and Employee Benefit Matters. (a) Unless otherwise directed in writing by Parent at least five (5) Business Days prior to the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliate shall take (or cause to be taken) all actions reasonably determined by Parent to be necessary or appropriate to terminate each Company Employee Benefit Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “401(k) Plan”), with such termination effective as of the Business Day immediately prior to the date the Offer Acceptance Time occurs. The Company shall provide Parent with evidence that such 401(k) Plan(s) have been timely terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such 401(k) Plan(s) as Parent may reasonably request. In the event of such 401(k) Plan termination, Parent shall take all actions necessary to allow Continuing Employees who meet the age and service eligibility requirements under the 401(k) plan maintained by Parent or its affiliates (the “Parent 401(k) Plan”) to enroll as soon as reasonably practicable following the Offer Acceptance Time (and in no event later than sixty (60) days following the Offer Acceptance Time) under the Parent 401(k) Plan and to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code), including outstanding participant loans.
(b) Effective as of no later than the day immediately preceding the date the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliates shall terminate any and all group severance, separation, deferred compensation or salary continuation plans, programs or arrangements maintained by the Company and the Company ERISA Affiliates, and all Company Employee Benefit Plans set forth on Schedule 6.2(b) hereof (the “Other Plans”) (but excluding (A) plans, programs or arrangements required by Law and deferred compensation arrangements that cannot be terminated without violating Section 409A of the Code) and (B) agreements entered into by the Company or Company Subsidiaries, on the one hand, and individual employees of the Company or Company Subsidiaries, on the other hand, providing for severance or other employment benefits, including without limitation any agreements entered into after the date of this Agreement (which are hereby expressly permitted for purposes of Section 5.1) providing for severance or termination benefits consistent with existing plans or policies and the provisions of Sections 6.2(e) or (f) below). For the avoidance of any doubt, the termination of the Other Plans pursuant to the preceding sentence (other than any deferred compensation arrangements) shall be effected without any payment or benefit (or giving rights to any payment or benefit) thereunder. The Company shall provide Parent evidence that such Other Plans have been terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such Other Plans as Parent may reasonably request.
(c) From and after the Offer Acceptance TimeClosing Date, Purchaser shall cause all of the employees of the Subject Company to be eligible for and to the extent permitted by applicable Law, Parent shall, or shall cause the Surviving Corporation to, recognize the prior service with the Company or the Company Subsidiaries of each participate in such employee of the Company or Company Subsidiaries in connection with all employee compensation and benefit plans, programs or programs, policies and arrangements that are made available by Purchaser and its subsidiaries to their own employees who are similarly situated (including vacation and severance, but excluding the sabbatical program) of Parent or its Affiliates in which Continuing Employees are eligible to participate following the Offer Acceptance Time for purposes of eligibility and vesting and determination of level of benefits (but not for purposes of benefit accruals or benefit amounts under any defined benefit pension plan or to the extent that such recognition would result in duplication of benefits"Purchaser Benefit Plans"). From and after the Offer Acceptance TimeClosing Date, Parent shall, or the Subject Company shall cause all of the Surviving Corporation Purchaser Benefit Plans to use its commercially reasonable best efforts to, provide that (i) cause all service of the Subject Company's officers and employees completed prior to the Closing Date with Seller or the Subject Company will be recognized under such Purchaser Benefit Plan as if it were service with Purchaser for purposes of eligibility to participate in Purchaser Benefit Plans and vesting of benefits thereunder, (ii) any waiting or eligibility periods or exclusions for pre-existing conditions or limitations and eligibility waiting periods (to the extent that such waiting periods would be inapplicable, taking into account service with the Company) under any group health plans of Parent or its affiliates to shall be waived with respect to employee of the Company or Company Subsidiaries such officers and employees and their eligible dependents, dependents under Purchaser Benefit Plans that are "welfare benefit plans" (as defined in section 3(1) of ERISA) and (iiiii) provide each all co-payments, deductibles and similar amounts and costs incurred by any such officer or employee under a comparable plan, agreement or arrangement of Seller or the Subject Company or Company Subsidiaries with credit for any deductibles, coinsurance, copay, or other out of pocket expenses paid under any Company Employee Benefit Plan that provides medical, prescription dental or vision benefits in during the plan year in effect which the Closing occurs shall be recognized under the applicable Purchaser Benefit Plan. The foregoing shall not constitute any commitment, contract, understanding, undertaking or guarantee (express or implied) on the part of Purchaser to maintain or establish any Purchaser Benefit Plan or on the part of the Purchaser or the Subject Company to continue the employment of any employee of the Subject Company for any duration.
(b) From and after the Closing, Purchaser shall cause the Subject Company to honor, pay and perform all of its covenants and obligations under, and in accordance with the existing terms of, all employment, severance, termination and similar agreements identified in Schedule 2.13 of the Seller Disclosure Schedule between the Subject Company and any officer, director or employee thereof.
(c) Effective as of the Closing Date in satisfying any applicable deductibleDate, coinsurancethe participation of all directors, copay or out of pocket requirements under any medical, prescription dental or vision plans of Parent or the Surviving Corporation that such officers and employees are eligible to participate in after the Offer Acceptance Time to the same extent that such expenses were recognized under the comparable Company Employee Plan.
(d) Nothing contained in this Agreement shall, or shall be construed so as to, (i) constitute an amendment or modification of any employee benefit plan; (ii) create any third party rights in any such current or former service provider of the Subject Company or any of the Company Subsidiaries (including any beneficiary or dependent thereof); or (iii) obligate Parent or any of its Affiliates (including the Company, the Company Subsidiaries following the Offer Acceptance Time) to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent the Parent or any of its Affiliates (including the Company and the Company Subsidiaries following the Offer Acceptance Time) from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
(e) Parent shall, and shall cause the Surviving Corporation to, for a period ending on the date that is 12 months following the Effective Time to provide for (i) at least the same level of base salary or base hourly wage levels, if applicable, that were provided to such Continuing Employees immediately prior to the Effective Time, (ii) bonus, commission, management by objective or other cash incentive compensation opportunities disclosed to Parent prior to the Agreement Date that are substantially equivalent, in the aggregate, to such opportunities as were provided to such Continuing Employees as of the Agreement Date or in the case of sales commission plans adopted after the Agreement Date, such plans that are consistent with past practice, (iii) employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) that are substantially equivalent in the aggregate to the employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) provided to such Continuing Employees immediately prior to the Effective Time, or otherwise as required by applicable Law compensation and (iv) upon a termination without cause or, if applicable, resignation for good reason of a Continuing Employee, severance benefits that are no less favorable than those that would have been provided to each such Continuing Employee under the applicable severance benefit plans, programs, policies and arrangements of Seller (the "Seller Benefit Plans") shall cease and the Subject Company shall execute and deliver such resolutions of its Board of Directors and other documents as Seller deems reasonably necessary or arrangements appropriate for the Subject Company to withdraw as a participating employer in effect immediately the Seller Benefit Plans. Seller shall remain responsible and liable for payment of all medical, dental, vision and other health claims incurred by any Subject Company employee prior to the date of this AgreementClosing Date under a Seller Benefit Plan. Parent shall cause each Continuing Employee of the Company Purchaser (or any of its Subsidiaries who participate in the Company’s annual bonus, commission, management by objective or other incentive plan as of immediately prior to the Effective Date to be paid a bonus, commission or other applicable incentive payment, as applicable, through the end of the applicable fiscal year in accordance with the terms of the plan as in effect on the Closing Date (provided that any terms of such plans that are not Made Available to the Parent, are approved by Parent, or in the case of sales commission plans, are consistent with past practice).
(f) For any Company Employee that is not a Continuing Employee (each a “Non-Continuing Employee”), Parent shall provide such Non-Continuing Employee with the severance payments and termination payments or benefits under the Company’s current practices or any higher amount of severance and/or termination payments or benefits as may be required by applicable Law, any agreement between such Company Employee and the Company or any of its Subsidiaries, or any agreement governing the relationship between such Company Employee and the Company or any of its Subsidiaries, in each case as in place prior to the termination of any such agreement pursuant to Section 6.2(b) hereof (such payments and benefits, the “Transaction Severance Benefits”). Except as otherwise required by applicable Law, Parent will pay or deliver the Transaction Severance Benefits to any such Non-Continuing Employee as soon as reasonably practicable following the termination of such Non-Continuing Employee’s employment. In addition to the foregoing, the Company and Parent or any Subsidiary of Parent shall use reasonable best efforts and take any action reasonably necessary to mitigate and/or eliminate the impact of the tax consequences of Section 280G of the Code (including as a result of the transactions under all employment, severance and termination agreements, other compensation arrangements and Company Employee Purchaser Benefit Plans) shall be responsible for all covered medical, dental, vision and health claims incurred by any Subject Company employee on any individual that or after the Closing Date. For purposes of this paragraph (c), a claim is regarded as a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1); provided, however, that the foregoing shall in no event require or be deemed to require Parent have been incurred when the medical or any Subsidiary of Parent to, or permit other service giving rise to the Company to, provide any “gross ups”claim is performed.
Appears in 2 contracts
Samples: Stock Purchase Agreement (Lady Luck Gaming Corp), Stock Purchase Agreement (Sodak Gaming Inc)
Employee and Employee Benefit Matters. (a) Unless otherwise directed in writing by Parent at least five (5) Business Days prior to the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliate shall take (or cause to be taken) all actions reasonably determined by Parent to be necessary or appropriate to terminate each Company Employee Benefit Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “401(k) Plan”), with such termination effective as of the Business Day immediately prior to the date the Offer Acceptance Time occurs. The Company shall provide Parent with evidence that such 401(k) Plan(s) have been timely terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such 401(k) Plan(s) as Parent may reasonably request. In the event of such 401(k) Plan termination, Parent shall take all actions necessary to allow Continuing Employees who meet the age and service eligibility requirements under the 401(k) plan maintained by Parent or its affiliates (the “Parent 401(k) Plan”) to enroll as soon as reasonably practicable following the Offer Acceptance Time (and in no event later than sixty (60) days following the Offer Acceptance Time) under the Parent 401(k) Plan and to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code), including outstanding participant loans.
(b) Effective as of no later than the day immediately preceding the date the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliates shall terminate any and all group severance, separation, deferred compensation or salary continuation plans, programs or arrangements maintained by the Company and the Company ERISA Affiliates, and all Company Employee Benefit Plans set forth on Schedule 6.2(b) hereof (the “Other Plans”) (but excluding (A) plans, programs or arrangements required by Law and deferred compensation arrangements that cannot be terminated without violating Section 409A of the Code) and (B) agreements entered into by the Company or Company Subsidiaries, on the one hand, and individual employees of the Company or Company Subsidiaries, on the other hand, providing for severance or other employment benefits, including without limitation any agreements entered into after the date of this Agreement (which are hereby expressly permitted for purposes of Section 5.1) providing for severance or termination benefits consistent with existing plans or policies and the provisions of Sections 6.2(e) or (f) below). For the avoidance of any doubt, the termination of the Other Plans pursuant to the preceding sentence (other than any deferred compensation arrangements) shall be effected without any payment or benefit (or giving rights to any payment or benefit) thereunder. The Company shall provide Parent evidence that such Other Plans have been terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such Other Plans as Parent may reasonably request.
(c) From and after the Offer Acceptance Time, and to the extent permitted by applicable Law, Parent Buyer shall, or shall cause the Surviving Corporation each Company and each Company Subsidiary to, recognize during the prior service with period commencing at the Company or Closing Date and ending on the Company Subsidiaries of each employee of the Company or Company Subsidiaries in connection with all first anniversary thereof, provide to their active and former employees employee benefit plans, programs or programs, policies and arrangements (including vacation and severance, but excluding the sabbatical program) of Parent or its Affiliates in which Continuing Employees are eligible to participate following the Offer Acceptance Time for purposes of eligibility and vesting and determination of level of benefits (but not for purposes of benefit accruals or benefit amounts under any defined benefit pension plan or to the extent that such recognition would result in duplication of benefits). From and after the Offer Acceptance Time, Parent shall, or shall cause the Surviving Corporation to use its commercially reasonable best efforts to, (i) cause any pre-existing conditions or limitations and eligibility waiting periods (to the extent that such waiting periods would be inapplicable, taking into account service with the Company) under any group health plans of Parent or its affiliates to be waived with respect to employee of the Company or Company Subsidiaries and their eligible dependents, and (ii) provide each employee of the Company or Company Subsidiaries with credit for any deductibles, coinsurance, copay, other than stock option or other out plans involving the potential issuance of pocket expenses paid under any Company Employee Benefit Plan that provides medical, prescription dental or vision benefits securities) which in the plan year aggregate are substantially comparable to those provided under the applicable employee benefit plans, programs, policies and arrangements of each Company and each Company Subsidiary in effect as of the Closing Date in satisfying any applicable deductibleClosing; provided, coinsurance, copay or out of pocket requirements under any medical, prescription dental or vision plans of Parent or the Surviving Corporation that such employees are eligible to participate in after the Offer Acceptance Time to the same extent that such expenses were recognized under the comparable Company Employee Plan.
(d) Nothing contained in this Agreement shall, or shall be construed so as to, (i) constitute an amendment or modification of any employee benefit plan; (ii) create any third party rights in any such current or former service provider of the Company or any of the Company Subsidiaries (including any beneficiary or dependent thereof); or (iii) obligate Parent or any of its Affiliates (including the Company, the Company Subsidiaries following the Offer Acceptance Time) to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent the Parent or any of its Affiliates (including the Company and the Company Subsidiaries following the Offer Acceptance Time) from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
(e) Parent shall, and shall cause the Surviving Corporation to, for a period ending on the date that is 12 months following the Effective Time to provide for (i) at least the same level of base salary or base hourly wage levels, if applicablehowever, that were provided the requirements of this sentence shall not apply to such Continuing Employees immediately prior to the Effective Timeemployees who are covered by a collective bargaining agreement; provided, (ii) bonusfurther, commission, management by objective or other cash incentive compensation opportunities disclosed to Parent prior to the Agreement Date that are substantially equivalent, in the aggregate, to such opportunities as were provided to such Continuing Employees as of the Agreement Date or in the case of sales commission plans adopted after the Agreement Date, such plans that are consistent with past practice, (iii) employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) that are substantially equivalent in the aggregate to the employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) provided to such Continuing Employees immediately prior to the Effective Time, or otherwise as required by applicable Law and (iv) upon a termination without cause or, if applicable, resignation for good reason of a Continuing Employee, severance benefits that are no less favorable than those that would have been provided to each such Continuing Employee under the applicable severance benefit specific plans, programs, policies or arrangements shall be required to be provided, except as in effect immediately prior to the date required by applicable Law. Employees of this Agreement. Parent each Company and each Company Subsidiary shall cause be given credit for purposes of eligibility and vesting under each Continuing Employee employee benefit plan, program, policy or arrangement (and for purposes of the Company benefit accrual under each vacation or severance benefit plan, program or arrangement) of Buyer or any of its Subsidiaries who Related Persons in which the employees are eligible to participate in the Company’s annual bonus, commission, management for all service with any Company or any Company Subsidiary or any predecessor employer (if such credit was given by objective or other incentive plan as of immediately prior to the Effective Date to be paid a bonus, commission or other applicable incentive payment, as applicable, through the end of the applicable fiscal year in accordance with the terms of the plan as in effect on the Closing Date (provided that any terms of such plans that are not Made Available to the Parent, are approved by Parent, or in the case of sales commission plans, are consistent with past practiceSeller).
(fb) For If employees of any Company Employee that is not a Continuing Employee (each a “Non-Continuing Employee”), Parent shall provide such Non-Continuing Employee with the severance payments and termination payments or benefits under the Company’s current practices or any higher amount of severance and/or termination payments or benefits as may be required by applicable Law, any agreement between such Company Employee and the Company or any Company Subsidiary become eligible to participate in the year in which the Closing occurs in a medical, dental or health plan of Buyer or its SubsidiariesRelated Persons, Buyer shall cause such plan to (i) waive any pre- existing condition limitations for conditions covered under the applicable medical, health or dental plans of any Company or any Company Subsidiary (the "Company Welfare Plans") to the same extent such pre-existing condition was waived under the Company Welfare Plans and (ii) honor any deductible and out-of-pocket expenses incurred by the employees and their beneficiaries under the Company Welfare Plans during the portion of the plan year preceding the Closing. If employees of any Company or any Company Subsidiary become eligible to participate in the year in which the Closing occurs in a group term life insurance plan maintained by Buyer or its Related Persons, Buyer shall cause such plan to waive any medical certification for such employees up to the amount of coverage the employees had elected under the life insurance plan of any Company or any Company Subsidiary (but subject to any limits on the maximum amount of coverage under Buyer's life insurance plan).
(c) On the Closing Date, Seller shall cause each employee set forth on Schedule 5.14 (each, a "Transferred Employee") to cease to be an employee of Seller and shall use its reasonable best efforts to cause each Transferred Employee to become an employee, on substantially the same terms and conditions as he or she is currently employed by Seller, of the Company listed on Schedule 5.14 with respect to such Transferred Employee (the "Employee Transfer"), it being understood that Seller shall not be required to offer any monetary inducement to such employees to so cause such employees to become employees of a Company. Seller shall retain responsibility for (i) all claims incurred with respect to Transferred Employees and (ii) any benefit accrued under a Benefit Plan, or any agreement governing the relationship between such Company Employee and the Company or any other obligation of its SubsidiariesSeller arising, in each case, with respect to Transferred Employees, in each case as in place (i) and (ii) for claims incurred, benefits accrued or obligations arising for the period prior to the termination Closing Date; it being understood that Seller may satisfy such liability by transferring to Liberty Life assets equal in market value to the Liabilities related to the Transferred Employees. For purposes of any such agreement pursuant this Section 5.14(c), a claim shall be deemed to Section 6.2(b) hereof (such payments and benefits, the “Transaction Severance Benefits”). Except as otherwise required by applicable Law, Parent will pay or deliver the Transaction Severance Benefits be incurred with respect to any such Non-Continuing Employee as employee benefit welfare plan, when the medical or other service giving rise to the claim is performed, except that disability claims shall be deemed to have been incurred on the date the employee becomes disabled.
(d) As soon as reasonably practicable following the termination date hereof, Seller shall (i) change the sponsorship of any Benefit Plans designated by Buyer, including The Liberty Corporation Retirement and Savings Plan, as amended and restated (the "401(k) Plan"), so that such plans become sponsored by the Company designated by Buyer not later than the Closing and so that Seller and its remaining affiliates shall cease to be participating employers in any such plan effective as of the Closing; (ii) amend the 401(k) Plan so as to preclude any new contributions to or investments in the Seller stock fund following the Closing (the "Plan Transfer"); (iii) develop with Buyer employee communications regarding such changes; and (iv) transfer to the Companies and Company Subsidiaries, all payroll and personnel records relating to current and former employees of each Company and Company Subsidiary, including Transferred Employees, and such related information as may be reasonably required by Buyer.
(e) All outstanding stock options held by employees of any Company and any Company Subsidiary and the Transferred Employees will become fully exercisable as of the Closing and all other equity based awards of such Non-Continuing Employee’s employment. In addition Persons will fully vest, and Seller shall take such action as is necessary to accomplish the foregoing, the Company and Parent or any Subsidiary of Parent shall use reasonable best efforts and take any action reasonably necessary to mitigate and/or eliminate the impact of the tax consequences of Section 280G of the Code (including as a result of the transactions under all employment, severance and termination agreements, other compensation arrangements and Company Employee Benefit Plans) on any individual that is regarded as a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1); provided, however, that the foregoing shall in no event require or be deemed to require Parent or any Subsidiary of Parent to, or permit the Company to, provide any “gross ups”.
Appears in 2 contracts
Samples: Purchase Agreement (Hipp W Hayne), Purchase Agreement (Liberty Corp)
Employee and Employee Benefit Matters. (a) Unless Parent hereby acknowledges and agrees that a “change of control” (or similar phrase) within the meaning of each Company Employee Benefit Plan, as applicable, will occur as of the Effective Time. From and after the Effective Time, Parent agrees to honor in accordance with their terms all Company Employee Benefit Plans listed in Section 6.2 of the Company Disclosure Letter or filed as exhibits to the Available Company SEC Documents and all accrued benefits vested thereunder; it being understood and agreed that nothing in this Section 6.2(a) will prevent Parent from amending or terminating any Company Employee Benefit Plan or other agreement in accordance with its terms and applicable Law.
(b) 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 Subsidiaries as of the Effective Time. For a period of 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 (or any Affiliate thereof) 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 Closing, the Surviving Corporation), Parent shall, or shall cause its Subsidiaries to, subject to applicable law and the terms of such plan, program or arrangement, 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 of the Company or the 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 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 eligibility to participate in and vesting thereunder (but not benefit accrual) and for sabbatical purposes; provided, however, that such crediting of service will not operate to duplicate any benefit or the funding of such benefit. With respect to each health or welfare benefit plan maintained by Parent and its Subsidiaries (including, after the Closing, the Surviving Corporation) for the benefit of Company Employees, Parent shall use its commercially reasonable efforts to (i) ensure that Company Employees will be given 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 health or welfare benefit plan for which deductibles or co-payments are required and (ii) 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 or the Surviving Corporation shall cause any accrued but unused vacation, sick leave or other paid time off (excluding sabbatical) that is accrued as of the Closing Date to be paid out to Company Employees through payroll following the Closing, less applicable withholding Taxes.
(d) If directed in writing by Parent at least five (5) Business Days prior to the Offer Acceptance Effective Time occursand, the Company and the Company ERISA Affiliate shall take (or cause with respect to be taken) all actions reasonably determined by Parent to be necessary or appropriate to terminate each Company Employee Benefit Plan plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “401(k) Plan”), prior to the date on which the Acceptance Time occurs, the Company shall take (or cause to be taken) all actions reasonably determined by Parent to be necessary or appropriate to terminate any such employee benefit plan, with such termination effective as of the Business Day business day immediately prior to the date on which the Offer Acceptance Time occursoccurs with respect to any such 401(k) Plan. The Company shall provide Parent with evidence that such 401(k) Plan(s) have been timely terminated pursuant to resolutions of the board of directors of the Company Board andor the Company Subsidiary, as applicable, any Company ERISA Affiliatethe case may be. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such 401(k) Plan(s) as Parent may reasonably request. In the event of such 401(k) Plan termination, Parent shall take all actions necessary to allow Continuing Employees who meet the age and service eligibility requirements under the 401(k) plan maintained by Parent or its affiliates (the “Parent 401(k) Plan”) to enroll as soon as reasonably practicable following the Offer Acceptance Time (and in no event later than sixty (60) days following the Offer Acceptance Time) under the Parent 401(k) Plan and to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code), including outstanding participant loans.
(b) Effective as of no later than the day immediately preceding the date the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliates shall terminate any and all group severance, separation, deferred compensation or salary continuation plans, programs or arrangements maintained by the Company and the Company ERISA Affiliates, and all Company Employee Benefit Plans set forth on Schedule 6.2(b) hereof (the “Other Plans”) (but excluding (A) plans, programs or arrangements required by Law and deferred compensation arrangements that cannot be terminated without violating Section 409A of the Code) and (B) agreements entered into by the Company or Company Subsidiaries, on the one hand, and individual employees of the Company or Company Subsidiaries, on the other hand, providing for severance or other employment benefits, including without limitation any agreements entered into after the date of this Agreement (which are hereby expressly permitted for purposes of Section 5.1) providing for severance or termination benefits consistent with existing plans or policies and the provisions of Sections 6.2(e) or (f) below). For the avoidance of any doubt, the termination of the Other Plans pursuant to the preceding sentence (other than any deferred compensation arrangements) shall be effected without any payment or benefit (or giving rights to any payment or benefit) thereunder. The Company shall provide Parent evidence that such Other Plans have been terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such Other Plans as Parent may reasonably request.
(c) From and after the Offer Acceptance Time, and to the extent permitted by applicable Law, Parent shall, or shall cause the Surviving Corporation to, recognize the prior service with the Company or the Company Subsidiaries of each employee of the Company or Company Subsidiaries in connection with all employee benefit plans, programs or policies (including vacation and severance, but excluding the sabbatical program) of Parent or its Affiliates in which Continuing Employees are eligible to participate following the Offer Acceptance Time for purposes of eligibility and vesting and determination of level of benefits (but not for purposes of benefit accruals or benefit amounts under any defined benefit pension plan or to the extent that such recognition would result in duplication of benefits). From and after the Offer Acceptance Time, Parent shall, or shall cause the Surviving Corporation to use its commercially reasonable best efforts to, (i) cause any pre-existing conditions or limitations and eligibility waiting periods (to the extent that such waiting periods would be inapplicable, taking into account service with the Company) under any group health plans of Parent or its affiliates to be waived with respect to employee of the Company or Company Subsidiaries and their eligible dependents, and (ii) provide each employee of the Company or Company Subsidiaries with credit for any deductibles, coinsurance, copay, or other out of pocket expenses paid under any Company Employee Benefit Plan that provides medical, prescription dental or vision benefits in the plan year in effect as of the Closing Date in satisfying any applicable deductible, coinsurance, copay or out of pocket requirements under any medical, prescription dental or vision plans of Parent or the Surviving Corporation that such employees are eligible to participate in after the Offer Acceptance Time to the same extent that such expenses were recognized under the comparable Company Employee Plan.
(de) Nothing contained in this Agreement shall, or shall be construed so as to, (i) constitute an amendment or modification of any employee benefit plan; (ii) create any third party rights in any such current or former service provider of the Company or any of the Company Subsidiaries (including any beneficiary or dependent thereof); or (iii) obligate Parent or any of its Affiliates (including the Company, the Company Subsidiaries following the Offer Acceptance Effective Time) to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent the Parent or any of its Affiliates (including the Company and the Company Subsidiaries following the Offer Acceptance Effective Time) from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
(e) Parent shall, and shall cause the Surviving Corporation to, for a period ending on the date that is 12 months following the Effective Time to provide for (i) at least the same level of base salary or base hourly wage levels, if applicable, that were provided to such Continuing Employees immediately prior to the Effective Time, (ii) bonus, commission, management by objective or other cash incentive compensation opportunities disclosed to Parent prior to the Agreement Date that are substantially equivalent, in the aggregate, to such opportunities as were provided to such Continuing Employees as of the Agreement Date or in the case of sales commission plans adopted after the Agreement Date, such plans that are consistent with past practice, (iii) employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) that are substantially equivalent in the aggregate to the employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) provided to such Continuing Employees immediately prior to the Effective Time, or otherwise as required by applicable Law and (iv) upon a termination without cause or, if applicable, resignation for good reason of a Continuing Employee, severance benefits that are no less favorable than those that would have been provided to each such Continuing Employee under the applicable severance benefit plans, programs, policies or arrangements as in effect immediately prior to the date of this Agreement. Parent shall cause each Continuing Employee of the Company or any of its Subsidiaries who participate in the Company’s annual bonus, commission, management by objective or other incentive plan as of immediately prior to the Effective Date to be paid a bonus, commission or other applicable incentive payment, as applicable, through the end of the applicable fiscal year in accordance with the terms of the plan as in effect on the Closing Date (provided that any terms of such plans that are not Made Available to the Parent, are approved by Parent, or in the case of sales commission plans, are consistent with past practice).
(f) For any Company Employee that is not a Continuing Employee (each a “Non-Continuing Employee”), Parent shall provide such Non-Continuing Employee with the severance payments and termination payments or benefits under the Company’s current practices or any higher amount of severance and/or termination payments or benefits as may be required by applicable Law, any agreement between such Company Employee and the Company or any of its Subsidiaries, or any agreement governing the relationship between such Company Employee and the Company or any of its Subsidiaries, in each case as in place prior to the termination of any such agreement pursuant to Section 6.2(b) hereof (such payments and benefits, the “Transaction Severance Benefits”). Except as otherwise required by applicable Law, Parent will pay or deliver the Transaction Severance Benefits to any such Non-Continuing Employee as soon as reasonably practicable following the termination of such Non-Continuing Employee’s employment. In addition to the foregoing, the Company and Parent or any Subsidiary of Parent shall use reasonable best efforts and take any action reasonably necessary to mitigate and/or eliminate the impact of the tax consequences of Section 280G of the Code (including as a result of the transactions under all employment, severance and termination agreements, other compensation arrangements and Company Employee Benefit Plans) on any individual that is regarded as a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1); provided, however, that the foregoing shall in no event require or be deemed to require Parent or any Subsidiary of Parent to, or permit the Company to, provide any “gross ups”.
Appears in 1 contract
Samples: Merger Agreement (Tubemogul Inc)
Employee and Employee Benefit Matters. (a) Unless otherwise directed in writing by Parent at least five (5) Business Days prior to the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliate shall take (or cause to be taken) all actions reasonably determined by Parent to be necessary or appropriate to terminate each Company Employee Benefit Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “401(k) Plan”), with such termination effective Effective as of the Business Day immediately prior Closing Date, Buyer may offer employment to the date the Offer Acceptance Time occurs. The Company shall provide Parent with evidence that such 401(k) Plan(s) have been timely terminated pursuant to resolutions employees of the Company Board andwho are actively employed by the Company as of the Closing Date and other employees of the Company that are listed on Schedule 4.16(b) (collectively, the “Employees”) on such terms and conditions as applicableare acceptable to Buyer in its sole discretion. All Employees who, on or immediately after the Closing Date, accept any Company ERISA Affiliate. The form offer of employment from Buyer and substance become employees of such resolutions Buyer shall be subject referred to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such 401(k) Plan(s) herein as Parent may reasonably request. In the event of such 401(k) Plan termination, Parent shall take all actions necessary to allow Continuing Employees who meet the age and service eligibility requirements under the 401(k) plan maintained by Parent or its affiliates (the “Parent 401(k) PlanTransferred Employees.”) to enroll as soon as reasonably practicable following the Offer Acceptance Time (and in no event later than sixty (60) days following the Offer Acceptance Time) under the Parent 401(k) Plan and to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code), including outstanding participant loans.
(b) Effective as of no later than Buyer shall, in its discretion, decide the day immediately preceding fringe benefits, if any, that it will provide to the date the Offer Acceptance Time occursTransferred Employees.
(c) With respect to each Company group health plan subject to COBRA, the Company shall retain all Liability and responsibility for providing and administering all required notices and continuation coverage under COBRA to Transferred Employees, all Employees other than Transferred Employees, and any “M&A qualified beneficiaries” as defined under Treasury Regulation Section 54.4980B-9.
(d) No provision of this Agreement shall be construed to amend any provision of any employee benefit plan or arrangement maintained by Buyer.
(e) Without limiting the generality of the Excluded Liabilities, the Company ERISA Affiliates agrees that it shall terminate retain, be responsible for, perform and pay:
(i) all Liabilities (including without limitation any claim of any governmental agency, any trustee, any fiduciary, any plan administrator, any Person dealing with any of the Plans, any Employee, Person or any beneficiary and all group severancewithout regard to whether such Liability arises prior to or after the Closing Date or results from an event, separation, deferred compensation prior to or salary continuation plans, programs or arrangements maintained by after the Company and the Company ERISA Affiliates, and all Company Employee Benefit Plans set forth on Schedule 6.2(bClosing Date) hereof (the “Other Plans”) (but excluding which relate to (A) plansany program, programs plan, policy or arrangements required by Law and deferred compensation arrangements that canarrangement (whether or not be terminated without violating Section 409A of the Codeterminated) and (Bw) agreements entered into which is or has been maintained, established, or offered by the Company or Company SubsidiariesCompany, on the one hand, and individual employees of (x) to which the Company contributes or has contributed, (y) to which the Company Subsidiarieshas or has had any obligation to contribute, on or (z) to which the other hand, providing for severance Company has or other employment benefitshas had any Liability or potential Liability, including without limitation any agreements entered into after the date of this Agreement (which are hereby expressly permitted for purposes of Section 5.1) providing for severance or termination benefits consistent with existing plans or policies and the provisions of Sections 6.2(e) or (f) below). For the avoidance of any doubt, the termination of the Other Plans pursuant to the preceding sentence (other than any deferred compensation arrangements) shall be effected without any payment or benefit (or giving rights Plans; all Liabilities relating to any payment such program, plan, policy, or benefit) thereunder. The Company shall provide Parent evidence that such Other Plans have been terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of ParentPlans, which approval shall not be unreasonably withheldmay result as a violation of law or any Liability, conditioned including any potential or delayed. The Company also shall take such other actions in furtherance actual Liability, relating to any failure to comply with the requirements of terminating such Other Plans as Parent may reasonably request.law;
(cii) From duties and after the Offer Acceptance TimeLiabilities relating to any claims by Employees or former employees or independent contractors (including dependents, spouses and to the extent permitted by applicable Law, Parent shall, or shall cause the Surviving Corporation to, recognize the prior service with the Company or the Company Subsidiaries of each employee other beneficiaries thereof) of the Company or Company 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 of the Plans (including any claims, costs or expenses related to continuation coverage provided to any former employee, Person 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 all employee 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 plans, programs offered or policies (including vacation and severance, but excluding the sabbatical program) of Parent or its Affiliates in which Continuing Employees are eligible to participate following the Offer Acceptance Time for purposes of eligibility and vesting and determination of level of benefits (but not for purposes of benefit accruals or benefit amounts available under any defined benefit pension plan of the Plans, payable as a result of facts, actions or conditions existing on or prior to the extent that such recognition would result in duplication of benefits). From and after the Offer Acceptance Time, Parent shall, Closing Date or shall cause the Surviving Corporation which are provided to use its commercially reasonable best efforts to, any Person who is not an active Employee (ior a dependent thereof) cause any pre-existing conditions or limitations and eligibility waiting periods (to the extent that such waiting periods would be inapplicable, taking into account service with the Company) under any group health plans of Parent or its affiliates to be waived with respect to employee of the Company on or Company Subsidiaries and their eligible dependents, and (ii) provide each employee of the Company or Company Subsidiaries with credit for any deductibles, coinsurance, copay, or other out of pocket expenses paid under any Company Employee Benefit Plan that provides medical, prescription dental or vision benefits in the plan year in effect as of the Closing Date in satisfying any applicable deductible, coinsurance, copay or out of pocket requirements under any medical, prescription dental or vision plans of Parent or the Surviving Corporation that such employees are eligible to participate in after the Offer Acceptance Time to the same extent that such expenses were recognized under the comparable Company Employee Plan.
(d) Nothing contained in this Agreement shall, or shall be construed so as to, (i) constitute an amendment or modification of any employee benefit plan; (ii) create any third party rights in any such current or former service provider of the Company or any of the Company Subsidiaries (including any beneficiary or dependent thereof); or (iii) obligate Parent or any of its Affiliates (including the Company, the Company Subsidiaries following the Offer Acceptance Time) to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent the Parent or any of its Affiliates (including the Company and the Company Subsidiaries following the Offer Acceptance Time) from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
(e) Parent shall, and shall cause the Surviving Corporation to, for a period ending on the date that is 12 months following the Effective Time to provide for (i) at least the same level of base salary or base hourly wage levels, if applicable, that were provided to such Continuing Employees immediately prior to the Effective Time, (ii) bonus, commission, management by objective or other cash incentive compensation opportunities disclosed to Parent prior to the Agreement Date that are substantially equivalent, in the aggregate, to such opportunities as were provided to such Continuing Employees as of the Agreement Date or in the case of sales commission plans adopted after the Agreement Closing Date, such plans that are consistent with past practice, (iii) employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) that are substantially equivalent in the aggregate to the employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) provided to such Continuing Employees immediately prior to the Effective Time, or otherwise as required by applicable Law and ; and
(iv) upon a termination without cause orcontributions, if applicablepremiums, resignation for good reason of a Continuing Employee, severance benefits that are no less favorable than those that would have been provided duties and Liabilities relating to each such Continuing Employee under the applicable severance benefit plans, programs, policies or arrangements as in effect immediately prior to the date of this Agreement. Parent shall cause each Continuing Employee of the Company or any of its Subsidiaries who participate in the Company’s annual bonus, commission, management by objective obligation to contribute to any of the Plans with respect to the operation of the Company’s business on or other incentive plan as of immediately prior to the Effective Date to be paid a bonus, commission or other applicable incentive payment, as applicable, through the end of the applicable fiscal year in accordance with the terms of the plan as in effect on the Closing Date (provided that regardless of when any terms of such plans that are not Made Available contribution is required to the Parent, are approved by Parent, or in the case of sales commission plans, are consistent with past practicebe made).
(f) For any Company Employee that is not a Continuing Employee (each a “Non-Continuing Employee”), Parent shall provide such Non-Continuing Employee with the severance payments and termination payments or benefits under the Company’s current practices or any higher amount of severance and/or termination payments or benefits as may be required by applicable Law, any agreement between such Company Employee and the Company or any of its Subsidiaries, or any agreement governing the relationship between such Company Employee and the Company or any of its Subsidiaries, in each case as in place prior to the termination of any such agreement pursuant to Section 6.2(b) hereof (such payments and benefits, the “Transaction Severance Benefits”). Except as otherwise required by applicable Law, Parent will pay or deliver the Transaction Severance Benefits to any such Non-Continuing Employee as soon as reasonably practicable following the termination of such Non-Continuing Employee’s employment. In addition to the foregoing, the Company and Parent or any Subsidiary of Parent shall use reasonable best efforts and take any action reasonably necessary to mitigate and/or eliminate the impact of the tax consequences of Section 280G of the Code (including as a result of the transactions under all employment, severance and termination agreements, other compensation arrangements and Company Employee Benefit Plans) on any individual that is regarded as a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1); provided, however, that the foregoing shall in no event require or be deemed to require Parent or any Subsidiary of Parent to, or permit the Company to, provide any “gross ups”.
Appears in 1 contract
Employee and Employee Benefit Matters. (a) Unless otherwise directed in writing Brigxx xxxees that those individuals who are employed by Parent at least five (5) Business Days prior to the Offer Acceptance Time occurs, the Company and the Company ERISA GPP or any Affiliate shall take (or cause to be taken) all actions reasonably determined by Parent to be necessary or appropriate to terminate each Company Employee Benefit Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “401(k) Plan”), with such termination effective as of the Business Day immediately prior to the date Effective Time of Merger shall continue to be employees of GPP or such Affiliate, as the Offer Acceptance Time occurs. The Company shall provide Parent with evidence that such 401(k) Plan(s) have been timely terminated pursuant to resolutions case may be, as of the Company Board andEffective Time of Merger (each such employee, as applicablean "Affected Employee"); provided, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parenthowever, which approval that this Section 3.7 shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such 401(k) Plan(s) as Parent may reasonably request. In construed to limit the event of such 401(k) Plan termination, Parent shall take all actions necessary to allow Continuing Employees who meet the age and service eligibility requirements under the 401(k) plan maintained by Parent or its affiliates (the “Parent 401(k) Plan”) to enroll as soon as reasonably practicable following the Offer Acceptance Time (and in no event later than sixty (60) days following the Offer Acceptance Time) under the Parent 401(k) Plan and to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) ability of the Code), including outstanding participant loansapplicable employer to terminate the employment of any Affected Employee at any time.
(b) For a period of 14 months following the Closing Date, Brigxx xxxll, or shall cause GPP to, provide each Affected Employee with employee benefits that are no less favorable in the aggregate than those provided to each such Affected Employee immediately prior to the Closing Date, it being acknowledged and agreed that (i) Brigxx'x XXX xxxn may be substituted for GPP's bonus plan, (ii) Brigxx xxxll be entitled to freeze the pension plan currently maintained for the benefit of the Affected Employees and merge such plan into Brigxx'x xxxsion plan, so long as Brigxx xxxvides substantially equivalent retirement benefits to such Affected Employees following the Effective as Time of no later than the day immediately preceding the date the Offer Acceptance Time occurs, the Company and the Company ERISA Affiliates shall terminate any and all group severance, separation, deferred compensation or salary continuation plans, programs or arrangements maintained by the Company and the Company ERISA AffiliatesMerger, and all Company (iii) Brigxx xxxll be entitled to determine in its sole discretion to whom it grants employee stock options. Brigxx xxxll, for a period of 14 months following the Closing Date, maintain (or cause GPP to maintain) a severance pay practice, program or arrangement for the benefit of each Affected Employee Benefit Plans set forth on Schedule 6.2(b) hereof (the “Other Plans”) (but excluding (A) plansthat is no less favorable than such practice, programs program or arrangements required by Law and deferred compensation arrangements that cannot be terminated without violating Section 409A of the Code) and (B) agreements entered into by the Company or Company Subsidiaries, on the one hand, and individual employees of the Company or Company Subsidiaries, on the other hand, providing for severance or other employment benefits, including without limitation any agreements entered into after the date of this Agreement (which are hereby expressly permitted for purposes of Section 5.1) providing for severance or termination benefits consistent with existing plans or policies and the provisions of Sections 6.2(e) or (f) below). For the avoidance of any doubt, the termination of the Other Plans pursuant arrangement in effect immediately prior to the preceding sentence (other than any deferred compensation arrangements) shall be effected without any payment or benefit (or giving rights Closing Date with respect to any payment or benefit) thereunder. The Company shall provide Parent evidence that such Other Plans have been terminated pursuant to resolutions of the Company Board and, as applicable, any Company ERISA Affiliate. The form and substance of such resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld, conditioned or delayed. The Company also shall take such other actions in furtherance of terminating such Other Plans as Parent may reasonably requestAffected Employee.
(c) From and Brigxx xxxll pay, or cause GPP to pay, all amounts due after the Offer Acceptance Time, and Effective Time of Merger to any Affected Employee under any bonus plan or program maintained by GPP or any Affiliate in accordance with the extent permitted by applicable Law, Parent shallterms thereof; provided that any such amounts that are payable solely as a result of the Merger shall be Transaction Costs for purposes of this Agreement.
(d) Brigxx xxxll, or shall cause the Surviving Corporation GPP to, recognize the prior service with the Company or the Company Subsidiaries of each employee of the Company or Company Subsidiaries in connection with all employee benefit plans, programs or policies (including vacation and severance, but excluding the sabbatical program) of Parent or its Affiliates in which Continuing give Affected Employees are eligible to participate following the Offer Acceptance Time full credit for purposes of eligibility and vesting and determination of level of benefits benefit accrual (but not except for purposes of the benefit accruals or benefit amounts under any defined benefit pension plan plan) under such employee benefit plans or arrangements maintained by Brigxx xx which such Affected Employees participate for such Affected Employees' service with GPP or any Affiliate to the same extent that recognized by GPP or such recognition would result in duplication of benefits). From and after Affiliate immediately prior to the Offer Acceptance Time, Parent shallClosing Date.
(e) Brigxx xxxll, or shall cause the Surviving Corporation to use its commercially reasonable best efforts GPP to, (i) cause any pre-existing conditions or waive all limitations as to preexisting conditions, exclusions and eligibility waiting periods (to the extent that such waiting periods would be inapplicable, taking into account service with the Company) under any group health plans of Parent or its affiliates to be waived with respect to employee of participation and coverage requirements applicable to the Company or Company Subsidiaries and their Affected Employees under any welfare benefit plans in which such Affected Employees may be eligible dependents, to participate after the Closing Date and (ii) provide each employee of the Company or Company Subsidiaries Affected Employee with credit for any deductibles, coinsurance, copay, or other out of pocket expenses co-payments and deductibles paid under any Company Employee Benefit Plan that provides medical, prescription dental or vision benefits in the plan year in effect as of prior to the Closing Date in satisfying any applicable deductible, coinsurance, copay deductible or out of out-of-pocket requirements under any medical, prescription dental or vision welfare plans of Parent or the Surviving Corporation that such employees Affected Employees are eligible to participate in after the Offer Acceptance Time to the same extent that such expenses were recognized under the comparable Company Employee PlanClosing Date.
(d) Nothing contained in this Agreement shall, or shall be construed so as to, (i) constitute an amendment or modification of any employee benefit plan; (ii) create any third party rights in any such current or former service provider of the Company or any of the Company Subsidiaries (including any beneficiary or dependent thereof); or (iii) obligate Parent or any of its Affiliates (including the Company, the Company Subsidiaries following the Offer Acceptance Time) to adopt or maintain any particular plan or program or other compensatory or benefits arrangement at any time or prevent the Parent or any of its Affiliates (including the Company and the Company Subsidiaries following the Offer Acceptance Time) from modifying or terminating any such plan, program or other compensatory or benefits arrangement at any time.
(e) Parent shall, and shall cause the Surviving Corporation to, for a period ending on the date that is 12 months following the Effective Time to provide for (i) at least the same level of base salary or base hourly wage levels, if applicable, that were provided to such Continuing Employees immediately prior to the Effective Time, (ii) bonus, commission, management by objective or other cash incentive compensation opportunities disclosed to Parent prior to the Agreement Date that are substantially equivalent, in the aggregate, to such opportunities as were provided to such Continuing Employees as of the Agreement Date or in the case of sales commission plans adopted after the Agreement Date, such plans that are consistent with past practice, (iii) employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) that are substantially equivalent in the aggregate to the employee benefits (other than equity-based awards, defined benefit, or non-qualified retirement arrangements) provided to such Continuing Employees immediately prior to the Effective Time, or otherwise as required by applicable Law and (iv) upon a termination without cause or, if applicable, resignation for good reason of a Continuing Employee, severance benefits that are no less favorable than those that would have been provided to each such Continuing Employee under the applicable severance benefit plans, programs, policies or arrangements as in effect immediately prior to the date of this Agreement. Parent shall cause each Continuing Employee of the Company or any of its Subsidiaries who participate in the Company’s annual bonus, commission, management by objective or other incentive plan as of immediately prior to the Effective Date to be paid a bonus, commission or other applicable incentive payment, as applicable, through the end of the applicable fiscal year in accordance with the terms of the plan as in effect on the Closing Date (provided that any terms of such plans that are not Made Available to the Parent, are approved by Parent, or in the case of sales commission plans, are consistent with past practice).
(f) For any Company Employee that is not a Continuing Employee (each a “Non-Continuing Employee”), Parent shall provide such Non-Continuing Employee with the severance payments and termination payments or benefits under the Company’s current practices or any higher amount of severance and/or termination payments or benefits as may be required by applicable Law, any agreement between such Company Employee and the Company or any of its Subsidiaries, or any agreement governing the relationship between such Company Employee and the Company or any of its Subsidiaries, in each case as in place prior to the termination of any such agreement pursuant to Section 6.2(b) hereof (such payments and benefits, the “Transaction Severance Benefits”). Except as otherwise required by applicable Law, Parent will pay or deliver the Transaction Severance Benefits to any such Non-Continuing Employee as soon as reasonably practicable following the termination of such Non-Continuing Employee’s employment. In addition to the foregoing, the Company and Parent or any Subsidiary of Parent shall use reasonable best efforts and take any action reasonably necessary to mitigate and/or eliminate the impact of the tax consequences of Section 280G of the Code (including as a result of the transactions under all employment, severance and termination agreements, other compensation arrangements and Company Employee Benefit Plans) on any individual that is regarded as a “disqualified individual” (as such term is defined in proposed Treasury Regulation Section 1.280G-1); provided, however, that the foregoing shall in no event require or be deemed to require Parent or any Subsidiary of Parent to, or permit the Company to, provide any “gross ups”.
Appears in 1 contract
