Additional Employee Benefits Sec. 2201
Employee Benefits Matters (a) From and after the Effective Time, each of the Surviving Corporation and its Subsidiaries shall honor all of its respective compensation and benefits plans, programs, agreements and arrangements of the Company and its Subsidiaries in accordance with their terms as in effect immediately prior to the Effective Time, provided that nothing in this sentence shall prohibit the Surviving Corporation or its Subsidiaries from amending or terminating any such plans, programs, agreements and arrangements in accordance with their terms. The Surviving Corporation shall, for the six-month period immediately following the Effective Time, provide each retained employee of the Company and its Subsidiaries as of the Effective Time (each, a “Retained Employee”), other than any Retained Employee whose employment is subject to a collective bargaining or other labor agreement, with compensation and employee benefits, excluding equity, equity-based and similar compensation, that are comparable in the aggregate to those provided by the Company and its Subsidiaries (other than with respect to change of control payments or other payments resulting from the Offer or the Merger) to such Retained Employees immediately prior to the Effective Time. Nothing herein shall be deemed to be a guarantee of employment for any employee or prohibit or restrict the right of the Surviving Corporation to (i) make changes to salaries, employee benefits and incentive compensation pursuant to negotiations in connection with a collective bargaining agreement or (ii) amend and/or eliminate any benefit program, subject to compliance with the first sentence of this Section 6.7(a).
(b) The Retained Employees shall receive credit for service with the Company and its Subsidiaries for all purposes (including for purposes of eligibility to participate, vesting, benefit accrual and eligibility to receive benefits, but excluding benefit accruals under any defined benefit pension plan) under any compensation or employee benefit plan, program or arrangement established or maintained by Parent (to the extent an Retained Employee is brought under any such plan), the Surviving Corporation or any of their respective Affiliates under which each Retained Employee may be eligible to participate on or after the Effective Time to the same extent recognized by the Company or any of the Company’s Subsidiaries under comparable benefit plans immediately prior to the Effective Time; provided, however, that such crediting of service shall not operate to duplicate any benefit or the funding of any such benefit.
(c) To the extent that, after the Effective Time, the Surviving Corporation changes the welfare benefit plans, programs and arrangements in which Retained Employees participate, Parent shall (i) waive, or use its reasonable best efforts to cause its insurance carrier to waive, all limitations as to preexisting and at-work conditions, if any, with respect to participation and coverage requirements applicable to each Retained Employee to the same extent waived under a comparable benefit plan and (ii) with respect to the plan year in which the change was made, provide a credit to each Retained Employee for any co-payments, deductibles and out-of-pocket expenses paid by such Retained Employee under the benefit plans during the relevant plan year, up to and including the Effective Time.
(d) During the period from the date hereof to the Acceptance Date, the Company shall not, and shall not permit any of its Subsidiaries to, without Parent’s prior written consent, make any payment or contribution to the Employee Benefit Plans except in accordance with past practices in the ordinary course.
(e) The parties agree that the provisions of this Section 6.7 may be modified without the consent of any employee (it being understood and agreed that the employees to whom this Section 6.7 applies shall not be third party beneficiaries of this Section 6.7).
Employee Benefits; Expenses The Employee shall be eligible to participate in any fringe benefits which may be or may become applicable to the Bank's senior management employees, including by example, participation in any stock option or incentive plans adopted by the Board of Directors of Bank or Parent, club memberships, a reasonable expense account, and any other benefits which are commensurate with the responsibilities and functions to be performed by the Employee under this Agreement. The Bank shall reimburse Employee for all reasonable out-of-pocket expenses which Employee shall incur in connection with his service for the Bank.
Continuation of Employee Benefits (a) On and after the Effective Time, directors, officers and employees of the Company and its Subsidiaries shall be provided employee benefits, plans and programs (including but not limited to incentive compensation, deferred compensation, pension, life insurance, medical (which eligibility shall not be subject to any exclusions for any pre-existing conditions if such individual has met the participation requirements of such benefits, plans or programs of the Company or its Subsidiaries), profit sharing (including 401(k)), severance salary continuation and fringe benefits) which are no less favorable in the aggregate than those generally available to similarly situated directors, officers and employees of Parent and its significant Subsidiaries. For purposes of eligibility to participate and vesting in all benefits provided to directors, officers and employees, the directors, officers and employees of the Company and its Subsidiaries will be credited with their years of service with the Company and its Subsidiaries and prior employers to the extent service with the Company and its Subsidiaries and prior employers is taken into account under plans of the Company and its Subsidiaries. Upon termination of any medical plan of the Company or any of its Subsidiaries, individuals who were directors, officers or employees of the Company or its Subsidiaries at the Effective Time shall become eligible to participate in the medical plan of Parent. Amounts paid before the Effective Time by directors, officers and employees of the Company and its Subsidiaries under any medical plans of the Company shall after the Effective Time be taken into account in applying deductible and out-of-pocket limits applicable under the medical plan of Parent provided as of the Effective Time to the same extent as if such amounts had been paid under such medical plan of Parent.
(b) This Section 6.14, which shall survive the Effective Time and shall continue without limit, is intended to benefit and bind the Company and the Surviving Corporation, each of whom may enforce the provisions of this Section 6.14. Nothing contained in this Section 6.14 shall create any third party beneficiary rights in any director, officer or employee or former director, officer or employee (including any beneficiary or dependent thereof) of the Company, any of its Subsidiaries or the Surviving Corporation in respect of continued employment for any specified period of any nature or kind whatsoever, and nothing contained in this Section 6.14 shall create such third party rights in any such person in respect of any benefits that may be provided, directly or indirectly, under any employee benefit plan or arrangement.
Continued Employee Benefits If Executive elects continuation coverage pursuant to COBRA within the time period prescribed pursuant to COBRA for Executive and Executive’s eligible dependents, the Company will reimburse Executive for the premiums necessary to continue group health insurance benefits for Executive and Executive’s eligible dependents until the earlier of (A) a period of twelve (12) months from the date of Executive’s termination of employment, (B) the date upon which Executive and/or Executive’s eligible dependents becomes covered under similar plans or (C) the date upon which Executive ceases to be eligible for coverage under COBRA (such reimbursements, the “COC COBRA Premiums”). However, if the Company determines in its sole discretion that it cannot pay the COC COBRA Premiums without potentially violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), the Company will in lieu thereof provide to Executive a taxable monthly payment in an amount equal to the monthly COBRA premium that Executive would be required to pay to continue Executive’s group health coverage in effect on the date of Executive’s termination of employment (which amount will be based on the premium for the first month of COBRA coverage), which payments will be made regardless of whether Executive elects COBRA continuation coverage and will commence on the month following Executive’s termination of employment and will end on the earlier of (x) the date upon which Executive obtains other employment or (y) the date the Company has paid an amount equal to twelve (12) payments. For the avoidance of doubt, the taxable payments in lieu of COBRA Premiums may be used for any purpose, including, but not limited to continuation coverage under COBRA, and will be subject to all applicable tax withholdings. Notwithstanding anything to the contrary under this Agreement, if at any time the Company determines in its sole discretion that it cannot provide the payments contemplated by the preceding sentence without violating applicable law (including, without limitation, Section 2716 of the Public Health Service Act), Executive will not receive such payment or any further reimbursements for COBRA premiums.
Compensation Benefits and Reimbursement (a) The compensation specified under this Agreement shall constitute the salary and benefits paid for the duties described in Section 2. The Bank shall pay Executive as compensation a salary of not less than [$ ] per year (“Base Salary”). Such Base Salary shall be payable biweekly, or with such other frequency as officers and employees are generally paid. During the period of this Agreement, Executive’s Base Salary shall be reviewed at least annually. Such review shall be conducted by a committee designated by the Board, and the Bank may increase, but not decrease (except a decrease that is generally applicable to all employees) Executive’s Base Salary (with any increase in Base Salary to become “Base Salary” for purposes of this Agreement). Base Salary shall not include any director’s fees that the Executive is entitled to receive as a director of the Bank or any affiliate of the Bank. Such director’s fees shall be separately paid to the Executive.
(b) Executive will be entitled to participate in and receive benefits under any employee benefit plans including, but not limited to, retirement plans, supplemental retirement plans, pension plans, profit-sharing plans, health-and-accident insurance plans, medical coverage or any other employee benefit plan or arrangement made available by the Bank currently or in the future to its senior executives and key management employees. Executive will be entitled to participate in any incentive compensation and bonus plans offered by the Bank in which Executive is eligible to participate. Nothing paid to Executive under any such plan or arrangement will be deemed to be in lieu of other compensation to which Executive is entitled under this Agreement.
(c) In addition to the Base Salary provided for by paragraph (a) of this Section 3, the Bank shall pay or reimburse Executive for all reasonable travel and other reasonable expenses incurred by Executive performing his obligations under this Agreement and may provide such additional compensation in such form and such amounts as the Board may from time to time determine. The Bank shall reimburse Executive for his ordinary and necessary business expenses including, without limitation, fees for memberships in such clubs and organizations as Executive and the Board shall mutually agree are necessary and appropriate for business purposes, and travel and entertainment expenses, incurred in connection with the performance of his duties under this Agreement.
Employee Benefits; ERISA (a) Schedule 3.10(a) of the Disclosure Schedule sets forth a true and complete list of each material, written profit-sharing, stock option, restricted stock option, deferred compensation, pension, severance, thrift, savings, incentive, change of control, employment, retirement, bonus, or equity-based, group life and health insurance or other employee benefit plan, agreement, arrangement or commitment, which is maintained, contributed to or required to be contributed to by any Company or any Company Subsidiary on behalf of any current or former employee, director or consultant of any Company or any Company Subsidiary, or by Seller on behalf of any Transferred Employee, or pursuant to which any current or former employee, director or consultant of any Company or Company Subsidiary or any Transferred Employee is eligible to receive benefits on account of service with Seller, its Subsidiaries, any Company or any Company Subsidiary (all of which are hereinafter referred to as the "Benefit Plans"). Schedule 3.10(a) of the Disclosure Schedule identifies each of the Benefit Plans which constitutes an "employee benefit plan" as defined in Section 3(3) of the Employee Retirement Income Security Act of 1974, as amended ("ERISA") and identifies each of the Benefit Plans that are sponsored by or are otherwise obligations of the Company or any Company Subsidiary. None of the Companies or Company Subsidiaries has any formal commitment or intention communicated to employees, to create any additional Benefit Plan or materially modify or change any existing Benefit Plan.
(b) With respect to each of the Benefit Plans, Seller has made available to Buyer true and complete copies of each of the following documents, if applicable: (i) the plan document (including all amendments thereto); (ii) trust documents and insurance contracts; (iii) the annual report filed on Form 5500 for the last two years, if any; (iv) the actuarial report for the last two years, if any; (v) the most recent summary plan description, together with each summary of material modifications; (vi) the most recent determination letter received from the Internal Revenue Service; and (vii) any Form 5310 or Form 5330 filed with the Internal Revenue Service.
(c) Each Benefit Plan has been operated and administered substantially in accordance with its terms and with applicable law including, but not limited to, ERISA and the Code, and all notices, filings and disclosures required by ERISA or the Code (including notices under Section 4980B of the Code) have been timely made. Each Benefit Plan which is an "employee pension benefit plan" within the meaning of Section 3(2) of ERISA (a "Pension Plan") and which is intended to be qualified under Section 401(a) of the Code has received a favorable determination letter from the Internal Revenue Service for "TRA" (as defined in Rev. Proc. 93-39), and, to the knowledge of Seller or the Companies, there are no circumstances that are likely to result in revocation of any such favorable determination letter. There is no pending or, to the knowledge of Seller or the Companies, threatened litigation relating to any of the Benefit Plans. None of Seller, any affiliate of Seller, the Companies or the Company Subsidiaries has engaged in a transaction with respect to any Benefit Plan that, assuming the taxable period of such transaction expired as of the date hereof, could subject any Company or any Company Subsidiary or any Benefit Plan to a Tax or penalty imposed by either Section 4975 of the Code or Section 502(i) of ERISA in an amount which could be material. No action has been taken with respect to any of the Benefit Plans to either terminate any of such Benefit Plans or to cause distributions, other than in the Ordinary Course of Business to participants under such Benefit Plans.
(d) No Benefit Plan is, and no benefit plan of any entity which is considered one employer with any Company or any Company Subsidiary under Section 4001 of ERISA or Section 414 of the Code is, or has been for the past six years, subject to Title IV of ERISA. No notice of a "reportable event", within the meaning of Section 4043 of ERISA for which the 30-day reporting requirement has not been waived, has been required to be filed for any Benefit Plan or by any ERISA Affiliate within the 12-month period ending on the date hereof.
(e) All contributions required to be made under the terms of any Benefit Plan have been timely made when due or have been reflected on the Final Year End Statements.
(f) Except as set forth in Schedule 3.10(f) of the Disclosure Schedule, none of the Companies nor any Company Subsidiary has any obligations for retiree health or life benefits other than coverage mandated by applicable law. The amounts accrued as of the date hereof by each Company and each Company Subsidiary in respect of such obligations as of the date hereof are adequate to satisfy such obligations, and the amounts accrued as of the Closing Date by each Company and each Company Subsidiary in respect of such obligations as of the Closing Date will be adequate to satisfy such obligations as of the Closing Date. There are no restrictions on the rights of any Company or any Company Subsidiary to amend or terminate any Benefit Plan without incurring Liability thereunder.
(g) Except as set forth in Schedule 3.10(g) of the Disclosure Schedule, neither the execution of this Agreement nor the consummation of the transactions contemplated hereby will (or will upon termination of employment prior to or after the date hereof) (i) entitle any employee, director or consultant of any Company or any Company Subsidiary to severance pay or increase in severance pay, unemployment compensation or any other payment; (ii) accelerate the time of payment or vesting or funding (through a grantor trust or otherwise) or increase the amount of payment with respect to any compensation due to any employee, director or consultant; or (iii) meet the definition of a "Change in Control Event" or otherwise accelerate vesting of any award granted under the Seller's Performance Incentive Compensation Program.
Employee Benefits Plans Schedule 7.14 hereto identifies as of the date hereof each ERISA Plan sponsored or maintained by a Company or BRJ Seller. Except as would not reasonably be expected to have a Material Adverse Effect: (a) no ERISA Event has occurred or is expected to occur with respect to an ERISA Plan; (b) payment has been made of all amounts which a Controlled Group member is required, under applicable law or under the governing documents, to have been paid as a contribution to or a benefit under each ERISA Plan; (c) the liability of each Controlled Group member with respect to each ERISA Plan has been fully funded based upon reasonable and proper actuarial assumptions, has been fully insured, or has been fully reserved for on its financial statements to the extent required by GAAP; and (d) to our knowledge, no changes have occurred or are expected to occur that would cause an increase in the cost of providing benefits under any ERISA Plan. Except as would not reasonably be expected to have a Material Adverse Effect, with respect to each ERISA Plan that is intended to be qualified under Code Section 401(a): (i) there has been no non-compliance by the ERISA Plan and any associated trust with the applicable requirements of Code Section 401(a), (ii) the ERISA Plan and any associated trust have been amended to comply with all such requirements as currently in effect, other than those requirements for which a retroactive amendment can be made within the “remedial amendment period” available under Code Section 401(b) (as extended under Treasury Regulations and other Treasury pronouncements upon which taxpayers may rely), (iii) the ERISA Plan and any associated trust have received a favorable determination letter from the Internal Revenue Service stating that the ERISA Plan qualifies under Code Section 401(a), that the associated trust qualifies under Code Section 501(a) and, if applicable, that any cash or deferred arrangement under the ERISA Plan qualifies under Code Section 401(k), unless the ERISA Plan was first adopted at a time for which the above-described “remedial amendment period” has not yet expired, (iv) the ERISA Plan currently satisfies the requirements of Code Section 410(b), without regard to any retroactive amendment that may be made within the above-described “remedial amendment period”, and (v) no contribution made to the ERISA Plan is subject to an excise tax under Code Section 4972. Except as would not reasonably be expected to have a Material Adverse Effect, with respect to any Pension Plan, the “accumulated benefit obligation” of Controlled Group members with respect to the Pension Plan (as determined in accordance with Statement of Accounting Standards No. 87, “Employers’ Accounting for Pensions”) does not exceed the fair market value of Pension Plan assets. Except as would not reasonably be expected to have a Material Adverse Effect, no Controlled Group Member has or has had in the past, an obligation to contribute to a Multiemployer Plan.
Employee Benefit Plans and Compensation (a) For purposes of this Section 2.22, the following terms shall have the meanings set forth below:
Compensation and Fringe Benefits (a) The Company shall, during the Term of Employment, pay to the Executive as compensation for the performance of his duties and obligations a salary of $240,000 per annum. This compensation is subject to annual review and adjustment, as appropriate in the judgment of the Company. The compensation payable pursuant to this Section 5(a) shall be payable in equal semi-monthly installments on the last day of each such pay period.
(b) The Executive shall be enrolled and participate in any retirement, group insurance and other fringe benefit plans and arrangements which are applicable to the similarly situated personnel of the Company and in effect from time to time, if the Executive is eligible therefor, in each case in accordance with and subject to the provisions thereof.
