Employee and Employee Benefits Matters. (a) The Redwood Parties are not obligated to hire any Xxxxxxxx Employees, but may interview and discuss potential employment with all Xxxxxxxx Employees; provided, however, it is the intention of the Redwood Parties to hire substantially all employees of ERC at Closing, subject to ongoing due diligence. Prior to Closing, Redwood will provide ERC with a list of Xxxxxxxx Employees to whom a Redwood Party has made an offer of employment that has been accepted to be effective upon the Closing (the “Transferred Employees”). Effective immediately prior to the Closing, ERC will, or will cause its applicable Affiliate to, terminate the employment of all Transferred Employees. (b) ERC shall, or shall cause its applicable Affiliate to, cause all group health plans under which Xxxxxxxx Employees and their beneficiaries are covered on the Closing Date to continue to cover such Xxxxxxxx Employees until 11:59 p.m., New York City time, on the last calendar day of the month in which the Closing Date occurs (the “Benefit Cutoff Time”). As of the Benefit Cutoff Time, all Transferred Employees shall cease participation in all Employee Plans, except with respect to benefits accrued as of, or claims incurred on or prior to, such time, and except with respect to Employee Plans that ManagementCo assumes pursuant to this Agreement. It is anticipated that Redwood will assume all Employee Plans except for ERC’s Growth Participation Plan, subject to Redwood’s right to reject any such Employee Plans based on further due diligence performed prior to the Closing Date. (c) With respect to claims by Transferred Employees and their beneficiaries and dependents for workers’ compensation or for the type of benefits described in Section 3(1) of ERISA (whether or not covered by ERISA) that are due under the terms of an Employee Plan, as between ERC and the Redwood Parties for the period of time ending at the Benefit Cutoff Time, (i) ERC shall assume and be responsible for such claims that are incurred on or prior to the Closing Date; and (ii) the Redwood Parties shall assume and be responsible for such claims that are incurred after the Closing Date and prior to the Benefit Cutoff Time. For purposes of the foregoing, a medical/dental claim shall be considered incurred when the medical services are rendered or medical supplies are provided, and not when the condition arose; provided that claims relating to a hospital confinement that commences on or prior to the Closing Date but continuing thereafter shall be treated as incurred on or prior to the Closing Date. A disability or workers’ compensation claim shall be considered incurred on or prior to the Closing Date if the injury or condition giving rise to the claim occurred on or prior to the Closing Date. (d) The Xxxxxxxx Parties shall be responsible (regardless of whether such responsibility would be imposed on the Xxxxxxxx Parties under Section 54.4980B-9 of the Treasury Regulations) for satisfying any and all Liabilities under the continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and any applicable state Law to provide continuation coverage to or with respect to all employees or former employees of the Xxxxxxxx Parties, the Management Agreement Counterparties, and any ERISA Affiliates thereof, and the beneficiaries of such employees, as a result of any “qualifying event” occurring prior to the Closing or as a result of the Transactions. ERC shall not take any action or cause any action to be taken that would trigger Liability to any Redwood Party with respect to any M&A qualified beneficiary within the meaning of Section 54.4980B-9 of the Treasury Regulations of the Code. (e) In respect of notices and payments relating to events occurring prior to the Closing or as a result of the Transactions, ERC shall be responsible for and assume all liability for any and all notices, payments, fines or assessments due to any Government Entity, pursuant to any Law with respect to the employment, discharge or layoff of any Xxxxxxxx Employees as of or before the Closing, including pursuant to the WARN Act. (f) Nothing expressed or implied in this Section 7.3 will confer upon any Xxxxxxxx Employee, any employee of any Redwood Party, or any legal representative of any such Person, any rights or remedies, including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Agreement. Nothing in this Agreement will limit or restrict in any way the right of the Redwood Parties to modify, amend, terminate or establish employee benefit plans or arrangements in whole or in part at any time after the Closing Date.
Appears in 2 contracts
Samples: Master Purchase and Sale Agreement, Master Purchase and Sale Agreement
Employee and Employee Benefits Matters. (a) The Redwood Parties are not obligated Buyer shall offer or cause an Affiliate of Buyer to offer to hire any Xxxxxxxx Employees, but may interview and discuss potential employment with all Xxxxxxxx Employees; provided, however, it is the intention as of the Redwood Parties to hire substantially all employees Closing Date each employee of ERC at Closing, subject to ongoing due diligence. Prior to Closing, Redwood will provide ERC with a list of Xxxxxxxx Employees to whom a Redwood Party has made an offer of employment that has been accepted to be effective upon the Closing (Eagle Entities who is actively employed by the “Transferred Employees”). Effective immediately prior to the Closing, ERC will, or will cause its applicable Affiliate to, terminate the employment of all Transferred Employees.
(b) ERC shall, or shall cause its applicable Affiliate to, cause all group health plans under which Xxxxxxxx Employees and their beneficiaries are covered Eagle Entities on the Closing Date and each employee of LMC who is listed on Schedule 8.2(a) (the "LMC Employees") at the same salary or rate of pay, and with reasonably equivalent or comparable employee benefits to continue to cover such Xxxxxxxx which the Transferred Employees until 11:59 p.m., New York City time, on the last calendar day are entitled as of the month date of this Agreement, subject to any adjustments as permitted by the proviso to Section 7.4. Such employees who accept a position with Buyer or its Affiliates shall be referred to herein as "Transferred Employees." Buyer shall honor all accrued vacation of each Transferred Employee in which accordance with the Closing Date occurs (Eagle Entities' or, in the “Benefit Cutoff Time”). As case of the Benefit Cutoff TimeLMC Employees, all Transferred Employees shall cease participation LMC's vacation policy in all Employee Plans, except with respect to benefits accrued effect as of, or claims incurred on or prior to, such time, and except with respect to Employee Plans that ManagementCo assumes pursuant to of the date of this Agreement. It is anticipated that Redwood will assume Sellers shall indemnify and hold harmless Buyer and its Affiliates from any and all Employee Plans except liabilities and obligations arising from or in connection with any claim for ERC’s Growth Participation Planseverance (if any) or other benefits (other than time-off from work for accrued vacation) resulting from the termination of any employee by the Eagle Entities or LMC, subject to Redwood’s right to reject whether or not any such employee becomes a Transferred Employee. Sellers shall, except to the extent such liabilities are rolled over to Buyer's 401(k) Plan pursuant to Section 8.2(b), retain sole responsibility for and shall discharge all liabilities and obligations arising in connection with or pursuant to all compensation (other than vacation benefits) and Employee Benefit Plans for any Transferred Employee (and all other employees of the Companies or Sellers, including liabilities for any claims under any self-insured group life, accident, worker's compensation, medical, hospitalization, prescription drug, dental, spending account or short-term or long-term disability plans). Notwithstanding the foregoing, Buyer agrees to pay each Transferred Employee a pro rata portion of any annual bonus due to such Person under the existing 2003 bonus plan of the Eagle Entities, based on further due diligence performed prior to the number of days within calendar year 2003 that follow the Closing Date.
(cb) With respect to claims by Transferred Employees and their beneficiaries and dependents for workers’ compensation or for the type of benefits described in Section 3(1) of ERISA (whether or not covered by ERISA) that are due under the terms of an Employee Plan, As soon as between ERC and the Redwood Parties for the period of time ending at the Benefit Cutoff Time, (i) ERC shall assume and be responsible for such claims that are incurred on or prior to administratively practicable after the Closing Date; and , the Buyer shall establish a defined contribution plan under Section 401(k) of the Code (ii"Buyer's 401(k) the Redwood Parties shall assume and be responsible for such claims that are incurred Plan"). On or as soon as reasonably practicable after the Closing Date and prior to Date, Sellers shall cause the Benefit Cutoff Time. For purposes trustee of the foregoingEagle Employees Savings and Profit Sharing Plan ("Eagle 401(k) Plan") to permit rollovers of Eagle 401(K) assets and participant loans, a medical/dental claim shall be considered incurred when in accordance with the medical services are rendered or medical supplies are providedrequirements of the Code, and not when the condition arose; provided that claims relating upon request of any Transferred Employee to a hospital confinement that commences on or prior new 401(k) plan and trust established by Buyer. Sellers shall use all reasonable efforts to effect such transfer of assets in a timely manner. Until such transfers are accomplished, Sellers shall allow any Transferred Employees with loan balances outstanding under the Closing Date but continuing thereafter shall be treated as incurred on or prior Eagle 401(k) Plan to continue making loan payments under the Closing Date. A disability or workers’ compensation claim shall be considered incurred on or prior to the Closing Date if the injury or condition giving rise to the claim occurred on or prior to the Closing DateEagle 401(k) Plan without incurring any default of their loan.
(dc) The Xxxxxxxx Parties Sellers shall be responsible retain all liabilities and obligations for health, welfare, retiree welfare and severance benefits (regardless of whether such responsibility would be imposed on the Xxxxxxxx Parties under Section 54.4980B-9 of the Treasury Regulationsif any) for satisfying any and all Liabilities under the continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and any applicable state Law to provide continuation coverage to or with respect to all employees or former employees of the Xxxxxxxx Parties, the Management Agreement Counterparties, and any ERISA Affiliates thereof, and the beneficiaries of such employees, as a result of any “qualifying event” occurring prior to the Closing or as a result of the Transactions. ERC shall not take any action or cause any action to be taken that would trigger Liability to any Redwood Party with respect to any M&A qualified beneficiary within the meaning of Section 54.4980B-9 of the Treasury Regulations of the Code.
(e) In respect of notices and payments relating to events occurring prior to the Closing or as a result of the Transactions, ERC shall be responsible for and assume all liability for any and all notices, payments, fines or assessments due to any Government Entity, pursuant to any Law with respect to the employment, discharge or layoff of Transferred Employees previously employed by LMC under any Xxxxxxxx Employees as of or before the Closing, including pursuant to the WARN ActEmployee Benefit Plan.
(f) Nothing expressed or implied in this Section 7.3 will confer upon any Xxxxxxxx Employee, any employee of any Redwood Party, or any legal representative of any such Person, any rights or remedies, including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Agreement. Nothing in this Agreement will limit or restrict in any way the right of the Redwood Parties to modify, amend, terminate or establish employee benefit plans or arrangements in whole or in part at any time after the Closing Date.
Appears in 1 contract
Samples: Purchase Agreement (Seabright Insurance Holdings Inc)
Employee and Employee Benefits Matters. (a) The Redwood Parties are not obligated to hire any Xxxxxxxx Employees, but may interview and discuss potential employment with all Xxxxxxxx Employees; provided, however, it is the intention of the Redwood Parties to hire substantially all employees of ERC at Closing, subject to ongoing due diligence. Prior to Closing, Redwood will provide ERC with a list of Xxxxxxxx Employees to whom a Redwood Party has made an offer of employment that has been accepted to be effective upon the Closing (the “Transferred Employees”). Effective immediately prior to the Closing, ERC will, or will cause its applicable Affiliate to, terminate the employment of all Transferred Employees.
(b) ERC shallAs of 11:59 p.m., or shall cause its applicable Affiliate to, cause all group health plans under which Xxxxxxxx Employees and their beneficiaries are covered on the Closing Date to continue to cover such Xxxxxxxx Employees until 11:59 p.m., New York City time, on the last calendar day of the month in which the Closing Date occurs (the “Benefit Cutoff Time”). As of the Benefit Cutoff TimeDate, all Transferred Employees shall cease participation in all Employee Plans, except with respect to benefits accrued as of, or claims incurred on or prior to, such time. Beginning on the day immediately following the Closing Date, and except with respect to Employee Plans that ManagementCo assumes pursuant to this AgreementRedwood or its Affiliates will provide employee benefit coverages for Transferred Employees under new or existing plans sponsored by Redwood or one of its Affiliates. It is anticipated that Redwood will assume all Employee Plans except for ERC’s Growth Participation PlanERC shall terminate the Xxxxxxxx Retirement Communities, subject to Redwood’s right to reject any such Employee Plans based LLC 401(k) Plan on further due diligence performed the day immediately prior to the Closing DateDate and shall take all such actions as are necessary to (i) fully vest Transferred Employees in all of their account balances under such plan, (ii) permit Transferred Employees to rollover their account balances (including notes associated with plan loans if permitted by the third party administrator) to a 401(k) plan sponsored by Redwood or one of its Affiliates as soon as reasonably practicable on or following the Closing Date and (iii) not place any Transferred Employees’ plan loans into default prior to the date of such rollovers as long as such rollovers occur prior to the last day of the calendar quarter following the calendar quarter in which the Closing Date occurs.
(c) With respect Prior to claims by Transferred Employees and their beneficiaries and dependents for workers’ compensation or the Closing, ERC shall use Medical Claims Cash solely for the type purpose of benefits described in Section 3(1paying self-funded medical or dental claims (up to applicable levels of stop-loss), medical or dental insurance premiums (including stop-loss premiums) of ERISA (whether or not covered by ERISA) that are due and related administrative expenses under group health Employee Plans. Following the terms of an Employee PlanClosing, as between ERC and the Redwood Parties for the period of time ending at the Benefit Cutoff Time, (i) ERC shall assume and be responsible for such claims that are incurred on or prior to the Closing Date; and (ii) the Redwood Parties shall assume and be responsible reimburse ERC (or, in the Redwood Parties’ discretion, pay the claims administrator directly) for such the cost (up to applicable levels of stop-loss) of eligible self-funded medical or dental claims that are incurred after under group health Employee Plans, up to a maximum amount, in the Closing Date and prior aggregate, equal to the Benefit Cutoff Time. For purposes of the foregoing, a medical/dental claim shall be considered incurred when the medical services are rendered or medical supplies are provided, and not when the condition arose; provided that claims relating to a hospital confinement that commences on or prior Medical Claims Cash delivered to the Closing Date but continuing thereafter shall be treated as incurred on or prior to the Closing Date. A disability or workers’ compensation claim shall be considered incurred on or prior to the Closing Date if the injury or condition giving rise to the claim occurred on or prior to the Closing DateRedwood Parties at Closing.
(d) The Xxxxxxxx Parties shall be responsible (regardless of whether such responsibility would be imposed on the Xxxxxxxx Parties under Section 54.4980B-9 of the Treasury Regulations) for satisfying any and all Liabilities under the continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), and any applicable state Law to provide continuation coverage to or with respect to all employees or former employees of the Xxxxxxxx Parties, the Management Agreement Counterparties, and any ERISA Affiliates thereof, and the beneficiaries of such employees, as a result of any “qualifying event” occurring prior to the Closing or as a result of the Transactions. ERC ; provided, however, that the Acquisition Companies shall not take any action or cause any action provide COBRA to be taken that would trigger Liability to any Redwood Party with respect to any M&A qualified beneficiary within the meaning of beneficiaries (as such term is defined under Section 54.4980B-9 of the Treasury Regulations of the Code) under the new group health plans sponsored by the Acquisition Companies immediately following the Closing Date.
(e) In respect of notices and payments relating to events occurring prior to the Closing or as a result of the Transactions, ERC shall be responsible for and assume all liability for any and all notices, payments, fines or assessments due to any Government Entity, pursuant to any Law with respect to the employment, discharge or layoff of any Xxxxxxxx Employees (including, for this purpose, any Employee who is not classified by an ERC Company as an Xxxxxxxx Employee, but who is later determined to be an Employee of any ERC Company) as of or before the Closing, including pursuant to the WARN Act.
(f) Nothing expressed or implied in this Section 7.3 will confer upon any Xxxxxxxx Employee (including, for this purpose, any Employee who is not classified by an ERC Company as an Xxxxxxxx Employee, but who is later determined to be an Employee of any ERC Company), any employee of any Redwood Party, or any legal representative of any such Person, any rights or remedies, including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Agreement. Nothing in this Agreement (i) will limit or restrict in any way the right of the Redwood Parties to modify, amend, terminate or establish employee benefit plans or arrangements in whole or in part at any time after the Closing Date, (ii) shall be construed to establish, amend, or modify any benefit plan, program, agreement or arrangement, or (iii) is intended to confer upon any individual (including Employees, retirees, or dependents or beneficiaries of Employees or retirees) any right as a third- party beneficiary of this Agreement.
Appears in 1 contract
Samples: Master Purchase and Sale Agreement
Employee and Employee Benefits Matters. (a1) The Redwood Parties There are not obligated no pending or, to hire the Knowledge of Delta, threatened disputes, labor controversies, strikes, lockouts, or work stoppages with any Xxxxxxxx Employeescurrent or former employees of Delta. Except for Donaxx X. Xxxxxxx, but may interview and discuss potential employment with all Xxxxxxxx Employees; providedxxe President of Delta, however, it is the intention of the Redwood Parties to hire substantially all employees of ERC at Closing, subject to ongoing due diligence. Prior to Closing, Redwood Delta are employed on an at-will provide ERC with a list of Xxxxxxxx Employees to whom a Redwood Party has made an offer of employment that has been accepted to basis and may be effective upon the Closing (the “Transferred Employees”). Effective immediately prior to the Closing, ERC will, or will terminated without cause its applicable Affiliate to, terminate the employment of all Transferred Employeesby Delta.
(b2) ERC shallDelta is not a party to any collective bargaining agreement, nor are any collective bargaining agreements currently being negotiated by or shall cause its applicable Affiliate to, cause all group health plans under which Xxxxxxxx Employees and their beneficiaries are covered on the Closing Date to continue to cover such Xxxxxxxx Employees until 11:59 p.m., New York City time, on the last calendar day of the month in which the Closing Date occurs (the “Benefit Cutoff Time”). As of the Benefit Cutoff Time, all Transferred Employees shall cease participation in all Employee Plans, except with respect to benefits accrued Delta.
(3) Delta has properly verified the identity and authorization to work in the United States and has properly completed and retained INS forms I-9 for all employees where required by the Immigration Reform and Control Act of 1986 and related statutes.
(4) Delta has delivered to Nabors a description of Delta's severance pay program for salaried employees that was announced to the salaried employees of Delta in conjunction with the contemplated disposition of Delta and that will be in effect on the day before the Closing Date. Delta does not maintain any other severance pay program, but does have certain severance obligations to Donaxx X. Xxxxxxx xxxsuant to an Employment Agreement dated January 10, 1990, a true, correct and complete copy of which has been provided to Nabors.
(5) Except as ofset forth on Schedule 2(o) of the Disclosure Schedule, or claims incurred on or prior to, such time, and except with respect to all employees and former employees of Delta, neither Delta nor any ERISA Affiliate presently maintains, contributes to or has any Liability under any Employee Plans that ManagementCo assumes pursuant Benefit Plan. The plans, programs and arrangements set forth on Schedule 2(o) of the Disclosure Schedule are herein referred to this Agreement. It is anticipated that Redwood will assume all as the "Delta Employee Plans except for ERC’s Growth Participation Plan, subject to Redwood’s right to reject any such Employee Plans based on further due diligence performed prior to the Closing DateBenefit Plans."
(c6) With respect to claims all employees and former employees of Delta, neither Delta nor any ERISA Affiliate presently maintains, contributes to or has any Liability under any funded or unfunded medical, health or life insurance plan or arrangement for present or future retirees or present or future terminated employees except as required by Transferred Employees and their beneficiaries and dependents for workers’ compensation or for the type of benefits described in Section 3(1) of ERISA (whether or not covered by ERISA) that are due under the terms of an Employee Plan, as between ERC and the Redwood Parties for the period of time ending at the Benefit Cutoff Time, (i) ERC shall assume and be responsible for such claims that are incurred on or prior to the Closing Date; and (ii) the Redwood Parties shall assume and be responsible for such claims that are incurred after the Closing Date and prior to the Benefit Cutoff Time. For purposes of the foregoing, a medical/dental claim shall be considered incurred when the medical services are rendered or medical supplies are provided, and not when the condition arose; provided that claims relating to a hospital confinement that commences on or prior to the Closing Date but continuing thereafter shall be treated as incurred on or prior to the Closing Date. A disability or workers’ compensation claim shall be considered incurred on or prior to the Closing Date if the injury or condition giving rise to the claim occurred on or prior to the Closing Date.
(d) The Xxxxxxxx Parties shall be responsible (regardless of whether such responsibility would be imposed on the Xxxxxxxx Parties under Section 54.4980B-9 of the Treasury Regulations) for satisfying any and all Liabilities under the continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“"COBRA”"), and any applicable state Law to provide continuation coverage to or with respect to all employees or former employees of except as set forth in the Xxxxxxxx Parties, the Management Agreement Counterparties, Delta Drilling Company Special Health and Welfare Plan (and any ERISA Affiliates thereofpredecessor plan, and the beneficiaries arrangement or court order relating to such benefits).
(7) Delta does not maintain or contribute to a trust, organization or association described in any of such employeessections 501(c)(9), as a result of any “qualifying event” occurring prior to the Closing 501(c)(17) or as a result of the Transactions. ERC shall not take any action or cause any action to be taken that would trigger Liability to any Redwood Party with respect to any M&A qualified beneficiary within the meaning of Section 54.4980B-9 of the Treasury Regulations 501(c)(20) of the Code.
(e8) Favorable determination letters have been received from the Internal Revenue Service with respect to each Delta Employee Benefit Plan that is intended to comply with the provisions of section 401(a) In of the Code, evidencing compliance with the relevant provisions of the Tax Equity and Fiscal Responsibility Act of 1982, the Tax Reform Act of 1984 and the Retirement Equity Act of 1984 and each such Delta Employee Benefit Plan complies in form and in operation with the requirements of the Code and meets the requirements of a "qualified plan" under section 401(a) of the Code. The 401(k) Plan has been or will be amended by December 31, 1994 so as to bring it into compliance with the Tax Reform Act of 1986 and other applicable laws and governmental regulations for which amendment is required by such date, and is and will be as of the transfer date described in Section 5(c) qualified under section 401(a) of the Code and the trust established thereunder will be exempt from tax pursuant to section 501(a) of the Code.
(9) With respect to each Delta Employee Benefit Plan that is subject to Title I of notices ERISA, neither Delta nor any ERISA Affiliate has failed to comply with any of the applicable reporting, disclosure or other requirements of ERISA and payments the Code. There has been no "prohibited transaction" as described in section 4975 of the Code or section 406 of ERISA for which Delta has any Liability.
(10) Delta does not have any unsatisfied Liability that is not disclosed on Schedule 2(o) of the Disclosure Schedule for failure to comply with ERISA or the Code for any action or failure to act in connection with the administration or investment of, or with respect to, the Delta Employee Benefit Plans including any actions taken or omitted in connection with the Retirement Plan for Employees of DeltaUS Corporation.
(11) Any Delta Employee Benefit Plan that is or has been subject to section 412 of the Code, section 302 of ERISA, or Title IV of ERISA has been terminated. Except as set forth in Schedule 2(o) of the Disclosure Schedule, Delta does not have any unsatisfied Liability relating to events occurring any such terminated plan. With respect to the Delta Employee Benefit Plans, all applicable contributions and premium payments for all periods ending prior to the Closing or as a result Date (including periods from the first day of the Transactions, ERC then current plan year to the Closing Date) shall be responsible made prior to the Closing Date in accordance with past practice.
(12) Delta does not presently maintain, contribute to or have any Liability (including current or potential withdrawal liability) with respect to any "multiemployer plan" as such term is defined in section 3(37) of ERISA.
(13) Except with regard to the Delta Employee Benefit Plans listed on Schedule 2(o) of the Disclosure Schedule, Delta does not have any Liability attributable to any Employee Benefit Plan. No ERISA Affiliate sponsors, maintains, contributes to or has any Liability under or, within six years of the date of this Agreement, sponsored, maintained or contributed to or had any Liability under any multiemployer plan as defined in section 3(37) of ERISA or any Employee Benefit Plan subject to section 302 or Title IV of ERISA or section 412 of the Code.
(14) There is no pending or threatened legal action, proceeding or investigation against or involving any Delta Employee Benefit Plan (other than routine claims for and assume all liability benefits) and, to the Knowledge of Delta, there is no basis for any and all noticessuch condition, paymentslegal action, fines proceeding or assessments due to any Government Entity, pursuant to any Law investigation. Any bonding required with respect to the employmentDelta Employee Benefit Plans in accordance with applicable provisions of ERISA has been obtained and is in full force and effect. No Delta Employee Benefit Plan is presently under audit or examination (nor has notice been received of a potential audit) by the Internal Revenue Service, discharge the Department of Labor, or layoff the PBGC, nor are there any matters pending with respect to any Delta Employee Benefit Plan with the Internal Revenue Service under its Voluntary Compliance Resolution program, its Closing Agreement Program, or similar programs.
(15) Except as set forth on Schedule 2(o) of the Disclosure Schedule.
(a) Delta is not a party to any Xxxxxxxx Employees employment agreement, whether written or oral, or agreement with change in control or similar provisions;
(b) Delta does not have a currently outstanding loan or loans to any current or former employees of Delta, nor has Delta guaranteed such loans;
(c) No amount payable to an employee or former employee of Delta in connection with the consummation of the transactions contemplated by this Agreement will be an "excess parachute payment" which is non-deductible under section 280G of the Code.
(16) To the Knowledge of Delta, there has been no act or acts which would result in a disallowance of a deduction to Delta or the imposition of a tax upon Delta pursuant to section 4980B of the Code, or with regard to plan years beginning before December 31, 1988, section 162(i) of the Code as in effect immediately prior to the enactment of the Technical and Miscellaneous Revenue Act of 1988, or before any regulations promulgated thereunder, whether final, temporary or proposed, which disallowance or imposition would have a Material Adverse Effect. No event has occurred with respect to which Delta could be liable for a tax imposed by
(17) With respect to each of the ClosingDelta Employee Benefit Plans, Delta has delivered to Naboxx xxxe and complete copies of: (a) the plan documents, including any related trust agreements, insurance contracts or other funding arrangements, or a written summary of the terms and conditions of the plan if there is no written plan document; (b) the most recent determination letter received from the Internal Revenue Service (where applicable); (c) the most recent IRS Form 5500; (d) the most recent financial statement; and (e) the most recent summary plan description. Except with respect to the Delta Drilling Company Special Health and Welfare Plan and the benefits to be provided pursuant to the WARN Act.
(f) Nothing expressed severance pay program referred to in Section 2(o)(4), there has been no act or implied in this Section 7.3 will confer upon omission by Delta or any Xxxxxxxx Employee, current or prior affiliate of Delta that would impair the right or ability of Delta to unilaterally amend or terminate any employee Delta Employee Benefit Plans or to unilaterally terminate as of the Closing Date the accrual of any Redwood Party, benefits after such date with respect to employees or any legal representative former employees of any such Person, any rights or remedies, including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Agreement. Nothing in this Agreement will limit or restrict in any way the right of the Redwood Parties to modify, amend, terminate or establish employee benefit plans or arrangements in whole or in part at any time after the Closing DateDelta.
Appears in 1 contract
Employee and Employee Benefits Matters. (a) The Redwood Parties For at least one (1) year following the Closing Date, Buyer shall and shall cause its Affiliates to provide each employee of each Acquired Company with (a) the same base salary or hourly wage rate as provided to each such employee immediately prior to the Closing Date, (b) cash incentive compensation opportunities and other cash compensation that are not obligated no less favorable than provided to hire any Xxxxxxxx Employeeseach such employee immediately prior to the Closing Date, but may interview (c) other benefits (excluding equity arrangements and discuss potential employment with all Xxxxxxxx Employees; provideddefined benefit pension benefits) that are no less favorable in the aggregate than the benefits available to each such employee immediately prior to the Closing Date, howeveror if greater, it is the intention benefits available to similarly situated employees of Buyer and its Affiliates under the Redwood Parties Buyer’s Plans (as defined below), and (d) severance benefits that are no less favorable than provided to hire substantially each such employee under the applicable severance benefit plans, programs, policies, agreements or arrangements as in effect immediately prior to the Closing Date. Buyer further agrees that, from and after the Closing Date, Buyer shall and shall cause its Affiliates to grant all employees of ERC at Closingthe Acquired Companies credit for all service with Sellers and their Affiliates (including the Acquired Companies) prior to the Closing Date for purposes of eligibility, subject participation, determining levels of benefits and vesting (but not for benefit accrual under a defined benefit pension plan or eligibility for any company-subsidized retiree benefits) under any benefit or compensation plan, program, policy, agreement or arrangement maintained by Buyer, any of the Acquired Companies or any of its or their respective Affiliates on or after the Closing Date (the “Buyer’s Plans”). In addition, Buyer shall (i) cause to ongoing be waived for the employees of the Acquired Companies (and their dependents) all pre-existing condition exclusions, actively-at-work requirements and similar limitations, eligibility waiting periods, and evidence of insurability requirements under the Buyer’s Plans, and (ii) cause any deductible, co-insurance, co-payments, and out-of-pocket expenses paid by the employees of the Acquired Companies (and their dependents) under the Benefit Plans on or before the Closing Date to be taken into account under any applicable Buyer’s Plan. Buyer and its Affiliates (including the Acquired Companies) shall be solely responsible for any and all obligations under Code Section 4980B with respect to all “M&A qualified beneficiaries” as defined in Treasury Regulation Section 54.4980B-9 and for the avoidance of doubt, with respect to all individuals who lose coverage due diligenceto the termination of each Benefit Plan that is a group health plan. Prior Seller and Buyer shall mutually cooperate to Closing, Redwood will provide ERC comply with requirements under this Section 6.09.
(b) In respect of all annual bonuses or commissions with a list completed performance period that are accrued but unpaid as of Xxxxxxxx Employees immediately prior to whom a Redwood Party has made an offer of employment that has been accepted to be effective upon the Closing (the each, a “Transferred EmployeesComplete Performance Annual Bonus”). Effective , Seller shall cause one or more of the Acquired Companies, as applicable, to pay, no later than immediately prior to the Closing, ERC will, or will cause its applicable Affiliate to, terminate all Complete Performance Annual Bonuses that are accrued but unpaid as of immediately prior to the employment Closing to all employees of the Acquired Companies who are eligible for Complete Performance Annual Bonuses. In respect of all Transferred Employees.
annual bonuses or commissions with an incomplete performance period as of the Closing (b) ERC each, an “Incomplete Performance Annual Bonus”), Seller shall, or shall cause one or more of the Acquired Companies, to pay, no later than immediately prior to the Closing, an Incomplete Performance Annual Bonus to all employees of the Acquired Companies who are eligible for Incomplete Performance Annual Bonus, in an amount equal to the greater of (x) the applicable amount that is accrued for each Incomplete Performance Annual Bonus based on achievement of actual performance through the Closing Date, and (y) the applicable amount based on achievement assuming target performance, but, in either case, pro-rated to reflect the number of calendar days from the beginning of the performance period through the Closing Date. Following the Closing, Buyer shall, or shall cause one or more of its Affiliates, to pay an Incomplete Performance Annual Bonus on the applicable Affiliate topayment date under the terms of the applicable Benefit Plan or in accordance with the applicable Acquired Companies’ past practice, cause all group health plans under which Xxxxxxxx Employees and their beneficiaries are covered in an amount equal to the applicable amount based on achievement assuming target performance, but pro-rated to reflect the number of calendar days from the first calendar day following the Closing Date to continue to cover such Xxxxxxxx Employees until 11:59 p.m., New York City time, on through the last calendar day end of the month in which the Closing Date occurs (the “Benefit Cutoff Time”). As of the Benefit Cutoff Time, all Transferred Employees shall cease participation in all Employee Plans, except with respect to benefits accrued as of, or claims incurred on or prior to, such time, and except with respect to Employee Plans that ManagementCo assumes pursuant to this Agreement. It is anticipated that Redwood will assume all Employee Plans except for ERC’s Growth Participation Plan, subject to Redwood’s right to reject any such Employee Plans based on further due diligence performed prior to the Closing Dateapplicable performance period.
(c) With respect to claims by Transferred Employees The Parties acknowledge and their beneficiaries and dependents for workers’ compensation or agree that all provisions contained in this Section 6.09 are included for the type sole benefit of benefits described in Section 3(1) of ERISA (whether or not covered by ERISA) that are due under Buyer, on the terms of an Employee Planone hand, as between ERC and the Redwood Parties for Company, on the period of time ending at the Benefit Cutoff Timeother hand, and that nothing in this Agreement, whether express or implied, shall create any third-party beneficiary or other rights (i) ERC shall assume and be responsible for such claims that are incurred on in any other Person, including any employee or prior to former employee of the Closing Date; and Acquired Companies, any participant in any employee benefit plan maintained by Buyer or any of its Affiliates or any dependent or beneficiary thereof or (ii) the Redwood Parties shall assume and be responsible for such claims that are incurred after the Closing Date and prior to the Benefit Cutoff Time. For purposes continued employment with Buyer or any of the foregoing, a medical/dental claim shall be considered incurred when the medical services are rendered or medical supplies are provided, and not when the condition arose; provided that claims relating to a hospital confinement that commences on or prior to the Closing Date but continuing thereafter shall be treated as incurred on or prior to the Closing Date. A disability or workers’ compensation claim shall be considered incurred on or prior to the Closing Date if the injury or condition giving rise to the claim occurred on or prior to the Closing Dateits Affiliates.
(d) The Xxxxxxxx Parties shall be responsible Nothing contained herein, express or implied, is intended to confer any rights (regardless of whether such responsibility would be imposed on the Xxxxxxxx Parties under Section 54.4980B-9 of the Treasury Regulations) for satisfying including any and all Liabilities under the continuation coverage provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”third-party beneficiary rights), and any applicable state Law to provide continuation coverage to remedies or with respect to all employees or former employees of the Xxxxxxxx Parties, the Management Agreement Counterparties, and any ERISA Affiliates thereof, and the beneficiaries of such employees, as a result of any “qualifying event” occurring prior to the Closing or as a result of the Transactions. ERC shall not take any action or cause any action to be taken that would trigger Liability to any Redwood Party with respect to any M&A qualified beneficiary within the meaning of Section 54.4980B-9 of the Treasury Regulations of the Code.
(e) In respect of notices and payments relating to events occurring prior to the Closing or as a result of the Transactions, ERC shall be responsible for and assume all liability for any and all notices, payments, fines or assessments due to any Government Entity, pursuant to any Law with respect to the employment, discharge or layoff of any Xxxxxxxx Employees as of or before the Closing, including pursuant to the WARN Act.
(f) Nothing expressed or implied in this Section 7.3 will confer claims upon any Xxxxxxxx Employee, any employee of any Redwood PartyAcquired Company or any other Person, other than the Parties to this Agreement, or shall constitute an amendment to or any legal representative other modification of any such PersonBenefit Plan, any rights or remedies, including any right to employment shall be treated as an amendment or continued employment for any specified period, modification of any nature or kind whatsoever under or by reason of this Agreement. Nothing in this Agreement will limit or restrict in any way the right of the Redwood Parties to modify, amend, terminate or establish employee benefit plans plan maintained by Buyer or arrangements in whole or in part at any time after the Closing Dateof its Affiliates.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Employee and Employee Benefits Matters. (a) The Redwood Parties are not obligated to hire any Xxxxxxxx Employees, but may interview and discuss potential employment with all Xxxxxxxx Employees; provided, however, it is Other than the intention employees of the Redwood Parties Company indicated in writing by Parent at least ten (10) Business Days prior to hire substantially all employees of ERC at Closing, subject to ongoing due diligence. Prior to Closing, Redwood will provide ERC with a list of Xxxxxxxx Employees to whom a Redwood Party has made an offer of employment that has been accepted to be effective upon the Closing (the “Transferred Continuing Employees”), the Company shall terminate all employees of the Company immediately prior to the Closing (the “Terminated Company Employees”). Effective The name of each Terminated Company Employee shall be specified on Section 5.11 of the Parent Disclosure Letter and, unless another later date is specified thereon, the termination date for each Terminated Company Employee shall be the Closing Date immediately prior to the ClosingEffective Time. The Company shall pay, ERC or after the Effective Time, the Parent shall cause the Surviving Corporation to pay, the Terminated Company Employees for their accrued salary and wages through the termination date plus unused paid time off, in each case, as required by applicable Law. The Company shall pay, or after the Effective Time, the Parent shall cause the Surviving Corporation to pay, to Terminated Company Employees any amount to which they are entitled as described in Section 5.2(b)(xiv) of the Company Disclosure Letter in accordance with the Company’s contractual obligations.
(b) In addition to any obligations imposed by applicable Laws and the terms of any employment agreements and Employee Benefit Plans, Parent will, or will cause its applicable Affiliate the Surviving Corporation, to, terminate : (i) continue to employ Continuing Employees at the employment of all Transferred Employees.
(b) ERC shallsame wage level, or shall cause its applicable Affiliate tohigher, cause all group health plans under which Xxxxxxxx Employees and their beneficiaries are covered on as in effect at the Closing Date to continue to cover such Xxxxxxxx Employees until 11:59 p.m., New York City time, on for a period of not less than one (1) year after the last calendar day Closing Date; (ii) maintain the Company group medical and dental plans and Code section 125 plans through the end of the month calendar year in which the Closing Date occurs (occurs, and the “Benefit Cutoff Time”). As Continuing Employees shall continue their participation in such plans without interruption and without any diminution of benefits according to the terms and conditions of the Benefit Cutoff Timeplans; (iii) provide the Continuing Employees with employee benefits, all Transferred Employees shall cease participation in all Employee Plansincluding, except with respect to benefits accrued as of, or claims incurred on or prior but not limited to, such time, medical and except with respect to Employee Plans that ManagementCo assumes pursuant to this Agreement. It is anticipated that Redwood will assume all Employee Plans except for ERC’s Growth Participation Plan, dental (subject to Redwood’s right (ii) hereof), disability, life insurance and 401(k) plan benefits, substantially similar in the aggregate to reject any such Employee Plans based on further due diligence performed prior to those provided by the Closing Date.
(c) With respect to claims by Transferred Employees and their beneficiaries and dependents for workers’ compensation or for the type Company as of benefits described in Section 3(1) of ERISA (whether or not covered by ERISA) that are due under the terms of an Employee Plan, as between ERC and the Redwood Parties for the period of time ending at the Benefit Cutoff Time, (i) ERC shall assume and be responsible for such claims that are incurred on or prior to the Closing Date; and (iiiv) treat the Redwood Parties shall assume and be responsible for such claims that are incurred after the Closing Date and prior to the Benefit Cutoff Time. For purposes service of the foregoing, a medical/dental claim shall be considered incurred when Continuing Employees with the medical services are rendered or medical supplies are provided, and not when the condition arose; provided that claims relating to a hospital confinement that commences on or Company prior to the Closing Date as service with the Surviving Corporation and its Affiliates for eligibility and vesting purposes (but continuing thereafter shall be treated as incurred on or prior to not for purposes of benefit accrual) under the Closing Date. A disability or workers’ compensation claim shall be considered incurred on or prior to the Closing Date if the injury or condition giving rise to the claim occurred on or prior to the Closing Date.
(d) The Xxxxxxxx Parties shall be responsible (regardless of whether such responsibility would be imposed on the Xxxxxxxx Parties under Section 54.4980B-9 employee benefit plans, programs policies and arrangements of the Treasury Regulations) Surviving Corporation and its Affiliates. No pre-existing conditions limitation or exclusion shall apply to participation or coverage for satisfying any Continuing Employees and all Liabilities their dependents under a Parent or Surviving Corporation plan that is a group health plan. The Parent or the continuation coverage provisions Surviving Corporation shall cause the trustee of the Consolidated Omnibus Budget Reconciliation Act Parent 401(k) Plan to accept rollovers of 1985, as amended (“COBRA”), the account balances and any applicable state Law to provide continuation coverage to or with respect to all employees or former employees promissory notes evidencing outstanding loans of the Xxxxxxxx Parties, Continuing Employees from the Management Agreement Counterparties, and any ERISA Affiliates thereof, and the beneficiaries of such employees, as a result of any “qualifying event” occurring prior to the Closing or as a result of the Transactions. ERC shall not take any action or cause any action to be taken that would trigger Liability to any Redwood Party with respect to any M&A qualified beneficiary within the meaning of Section 54.4980B-9 of the Treasury Regulations of the Code.
(e) In respect of notices and payments relating to events occurring prior to the Closing or as a result of the Transactions, ERC shall be responsible for and assume all liability for any and all notices, payments, fines or assessments due to any Government Entity, pursuant to any Law with respect to the employment, discharge or layoff of any Xxxxxxxx Employees as of or before the Closing, including pursuant to the WARN Act.
(f) Nothing expressed or implied in this Section 7.3 will confer upon any Xxxxxxxx Employee, any employee of any Redwood Party, or any legal representative of any such Person, any rights or remedies, including any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Agreement. Nothing in this Agreement will limit or restrict in any way the right of the Redwood Parties to modify, amend, terminate or establish employee benefit plans or arrangements in whole or in part at any time after the Closing Date.2004 Company 401(k)
Appears in 1 contract
