Common use of Employee Benefits Arrangements Clause in Contracts

Employee Benefits Arrangements. (a) During the period commencing at Closing and ending on the date which is twelve months from the Closing (or if earlier, the date of the employee’s termination of employment with the Company), Purchaser shall, and shall cause the Company to, provide all persons who were employed by the Company immediately preceding the Closing, including those on vacation, leave of absence or disability (the “Company Employees”) with (i) substantially similar types and levels of cash compensation opportunities in the aggregate for each Company Employee as provided immediately prior to the Closing (without taking into account any Closing Bonuses) and (ii) substantially similar benefits (including vacation, paid time-off and severance) in the aggregate for each Company Employee as provided to similarly situated employees of Purchaser. Purchaser shall, and shall cause the Company to, treat, and cause the applicable benefit plans (excluding any equity or equity based compensation plans and defined benefit retirement plans) to treat, the service of Company Employees attributable to any period before the Closing as service rendered to Purchaser or the Company for all purposes (other than benefit accrual under a defined benefit retirement plan), including but not limited to, eligibility to participate, vesting and for other appropriate benefits, including, but not limited to, applicability of any minimum waiting periods for participation. Without limiting the foregoing, Purchaser shall not, and shall cause the Company not to, treat any Company Employee as a “new” employee for purposes of any exclusions under any health or similar plan of Purchaser or the Company for a pre-existing medical condition, and any deductibles (but not co-pays) paid under any of the Company’s health plans shall be credited towards deductibles under the health plans of Purchaser or the Company. Purchaser shall, and shall cause the Company, to use commercially reasonable efforts to make appropriate arrangements with its insurance carrier(s) to provide for such results. (b) In addition to the Estimated Merger Consideration, Purchaser and the Company would mutually agree on an employee retention pool to be established at the Closing and funded by the Purchaser. (c) The Company will adopt, or will cause to be adopted, all necessary corporate resolutions (which shall be subject to Purchaser’s reasonable review and approval) to terminate each 401(k) plan sponsored or maintained by the Company, effective as of no later than one day prior to Closing. Immediately prior to such termination, the Company will have made or, if such payments are not yet due and payable, accrued, all necessary payments to fund the contributions: (i) necessary or required to maintain the tax-qualified status of the 401(k) plan; (ii) for elective deferrals made pursuant to the 401(k) plan for the period prior to termination; and (iii) for any employer contributions (including, without limitation, any matching contributions, if any) for the period prior to termination. The Company shall provide Purchaser with a copy of resolutions duly adopted by the Company Board so terminating any such 401(k) plan. (d) The provisions of this Section 4.5 are solely for the benefit of the parties to this Agreement and nothing in this Section 4.5 or elsewhere in this Agreement, expressed or implied, shall be construed to (i) create a right in any Company Employee to employment with Purchaser, the Surviving Corporation or any of their respective Affiliates or shall restrict in any way the rights of Purchaser, the Surviving Corporation or any of their respective Affiliates to terminate such employee’s services at any time for any reason or no reason, (ii) limit the right of Purchaser, the Company, the Surviving Corporation or any of their respective Affiliates to amend or terminate any employee benefit plan, (iii) create any third party rights, benefits or remedies of any nature whatsoever in any Company Employee (or any beneficiaries or dependents thereof) or any other Person that is not a party to this Agreement, or (iv) be treated as establishing or amending any employee benefit plan or arrangement of Purchaser, the Company or any of their respective Affiliates.

Employee Benefits Arrangements. (a) During the period commencing at Closing and ending on the date which is twelve (12) months from the Closing (or if earlier, the date of the employeeCompany Employee’s termination of employment with the Company), Purchaser shall, and shall cause the Company to, Group to provide all persons who were employed by the Company Group immediately preceding the Closing, including those on vacation, leave of absence or disability Closing and who remain so employed immediately following the Closing (the “Company Employees”) with (i) substantially similar types the same base salary or wage rate, as applicable, and levels of at least the same target short-term cash incentive compensation opportunities in the aggregate for each Company Employee (excluding equity or equity-based compensation, long-term incentive, retention, transaction or nonqualified deferred compensation or benefits) as were provided to such employees as of immediately prior to the Closing (without taking into account any Closing Bonuses) and (ii) substantially similar employee benefits (including vacation, paid time-off and severanceseverance but excluding defined benefit pension benefits, and retiree medical or welfare benefits) that are substantially comparable in the aggregate for each Company Employee as to those provided by Purchaser to its similarly situated employees of Purchaseremployees. 57 (b) Purchaser shall, and shall cause the Company to, to treat, and cause the applicable analogous Purchaser 401(k), health, welfare, and paid time off benefit plans (excluding other than any equity or equity based compensation plans and plans, nonqualified deferred compensation plans, defined benefit retirement plans, and retiree medical or welfare plans or arrangements) to treat, the service of Company Employees attributable to any period before the Closing as service rendered to Purchaser or the Company for all purposes (other than benefit accrual under a defined benefit retirement plan), including but not limited to, of eligibility to participate, vesting and for other appropriate benefitsdetermining the level of paid time off and severance pay to the same extent and for the same purpose as recognized under the analogous Benefit Plan, including, but not limited and provided that no service shall be credited if duplication of benefits or compensation would result. Purchaser shall use commercially reasonable efforts to, applicability of any minimum waiting periods for participation. Without limiting the foregoingplan year in which the Closing occurs, Purchaser shall not, and shall cause the Company not to, treat any Company Employee as a “new” employee for purposes of any exclusions under any corresponding group health or similar plan of Purchaser or the Company that replaces a group health Benefit Plan for a pre-existing medical condition, and any deductibles (but not and co-pays) insurance paid under any of the Company’s or any of its Subsidiaries’ group health plans and credited to such Company Employee shall be credited for the same purpose towards the corresponding deductibles and co-insurance under the corresponding group health plans of Purchaser or the Company. Purchaser shall, and shall cause the Company, to use commercially reasonable efforts to make appropriate arrangements with its insurance carrier(s) to provide for such results. (b) In addition to the Estimated Merger Consideration, Purchaser and the Company would mutually agree on an employee retention pool to be established at the Closing and funded by the Purchaser. (c) The Company will adoptPurchaser shall honor all the terms and obligations of the retention bonus agreements included on Schedule 6.1(c) of the Disclosure Schedules (the “Retention Bonuses Agreements” and the bonuses payable thereunder, the “Retention Bonuses”). In the event that any Retention Bonus is not paid out in accordance with the terms of the applicable Retention Bonus Agreement (other than upon such applicable employee’s voluntary resignation or will cause notice of voluntary resignation in either case within six (6) months following the Closing Date), Purchaser shall reimburse Seller for the full amount of any such Retention Bonus, including the employer portion of any Taxes related thereto, within five (5) days following the earlier of (x) the six month anniversary of the Closing Date and (y) the date the applicable employee ceases to be adopted, all necessary corporate resolutions (which shall be subject eligible to Purchaser’s reasonable review and approval) to terminate each 401(k) plan sponsored or maintained by the Company, effective as of no later than one day prior to Closing. Immediately prior to receive such termination, the Company will have made or, if such payments are not yet due and payable, accrued, all necessary payments to fund the contributions: (i) necessary or required to maintain the tax-qualified status of the 401(k) plan; (ii) for elective deferrals made pursuant to the 401(k) plan for the period prior to termination; and (iii) for any employer contributions (including, without limitation, any matching contributions, if any) for the period prior to termination. The Company shall provide Purchaser with a copy of resolutions duly adopted by the Company Board so terminating any such 401(k) planRetention Bonus. (d) The To the extent the Company Group’s 401(k) plan is terminated prior to the Closing pursuant to Section 5.6, Purchaser shall, or shall cause one of its Subsidiaries to, make Company Employees who participated in the Company Group’s 401(k) plan immediately prior to the Closing eligible to participate in a defined contribution plan maintained by Purchaser or one of its Subsidiaries that is intended to qualify as qualified cash or deferred arrangements under Section 401(k) of the Code (a “Purchaser 401(k) Plan”) effective as soon as administratively practicable following the Closing Date. To the extent applicable, the Parties shall make commercially reasonable efforts such that each such Company Employee may make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) from the Company Group’s 401(k) plan to the Purchaser 401(k) Plan and avoid defaults of outstanding plan loans (which may include facilitating a rollover of such loans). (e) Nothing in this Section 6.1 shall give any Person, other than the parties to this Agreement, any right to enforce the provisions of this Section 4.5 are solely for the benefit of the parties to this Agreement and nothing 6.1 or otherwise create any third party beneficiary rights in any Person, including any Company Employee. Nothing in this Section 4.5 or elsewhere in this Agreement, expressed or implied, shall be construed 6.1 is intended to (i) create a right in obligate the Purchaser or any of its Affiliates (including the Company Group following the Closing) to continue the employment of any Company Employee to employment with Purchaser, the Surviving Corporation or any of their respective Affiliates or shall restrict in any way the rights of Purchaser, the Surviving Corporation or any of their respective Affiliates to terminate such employee’s services at any time for any reason or no reasonspecific period, (ii) create, terminate, modify or amend any Benefit Plan or any other benefit or compensation plan, program, agreement or arrangement, or (iii) limit the right ability of Purchaser, the Company, the Surviving Corporation Purchaser or 58 any of their respective its Affiliates (including following the Closing the Company Group) to amend amend, modify or terminate any employee benefit or compensation plan, (iii) create any third party rightsprogram, benefits or remedies of any nature whatsoever in any Company Employee (or any beneficiaries or dependents thereof) or any other Person that is not a party to this Agreementpolicy, or (iv) be treated as establishing or amending any employee benefit plan contract, agreement or arrangement of Purchaser, the Company or at any of time in accordance with their respective Affiliatesterms.

Employee Benefits Arrangements. (a) During the period commencing at Closing and ending on the date which is twelve months from As of the Closing Date, Buyer shall make available to Hired Employees, a total compensation package of salary, bonus opportunity and employee benefits (excluding stock options) that, in the aggregate, is substantially similar to that being paid to such employees by the Sellers immediately prior to the Closing Date. The Buyer shall take such reasonable actions as may be required to permit any electing Hired Employees to roll over all or if earlierany part of their account balances (including any outstanding plan loans) in the Tilia, Inc. 401(k) Profit Sharing Plan to the date comparable benefit plan or plans maintained by the Buyer. With respect to any outstanding plan loans under the Tilia, Inc. 401(k) Profit Sharing Plan relating to the Hired Employees, unless expressly contemplated by this Agreement, in no event will the transactions contemplated by this Agreement alter the terms of such loans or the employee’s controlling provisions in the Tilia, Inc. 401(k) Profit Sharing Plan; provided, however, that, such plan loans shall not be deemed to be in default solely by reason of such employees' termination of employment with the Company), Purchaser shall, and Sellers. (b) The Buyer shall undertake commercially reasonable efforts to cause the Company to, provide all persons who were employed by the Company immediately preceding the Closing, including those on vacation, leave each of absence or disability (the “Company Employees”) with its benefit plans to recognize (i) substantially similar types for purposes of satisfying any deductibles, co-pays and levels out-of-pocket maximums during the coverage period that includes the Closing Date, any payment made by any Hired Employee towards deductibles, co-pays and out-of-pocket maximums in any of cash compensation opportunities the Sellers' health or other insurance plan incurred during the portion of the calendar year prior to the Closing Date, in which the Closing Date occurs for the purposes of satisfying applicable deductible, co-insurance, and maximum out-of-pocket expenses, and (ii) for all purposes, including for purposes of eligibility to participate, early retirement eligibility, early retirement subsidies, vesting, schedule of benefits and benefit accrual (including vacation and PTO accrual), all service with the Sellers, including service with predecessor employers that was recognized by the Sellers; provided that such service shall not be recognized to the extent such recognition would result in or have the effect of a duplication of benefits, the determination of which will be in the aggregate for each Company reasonable discretion of the Buyer. (c) With respect to any Hired Employee as provided who participated in a Seller Benefit Plan immediately prior to the Closing Date which was a "flexible spending arrangement," within the meaning of Proposed Treasury Regulation ss. 1.125-2 (without taking into a "SELLER FSA"), the Buyer shall permit such Hired Employee to participate after the Closing Date in a flexible spending account any Closing Bonuses) and (ii) substantially similar benefits (including vacation, paid time-off and severance) in maintained by the aggregate for each Company Employee as provided to similarly situated employees of Purchaser. Purchaser shallBuyer on a continuation basis, and shall cause credit such Hired Employee with an account balance equivalent to that which applied, as of the Company toClosing Date, treat, and cause to the Hired Employee under the applicable benefit plans (excluding any equity or equity based compensation plans and defined benefit retirement plans) Seller FSA. The Sellers shall, as soon as practicable after the Closing Date, pay to treatthe Buyer, by wire transfer in a cash lump sum, the service of Company aggregate amount deferred through such date by Hired Employees attributable to any period before under such Seller FSAs during the plan year in which the Closing Date occurs, less claims paid for such year on behalf of such Hired Employees under the Seller FSAs. The Buyer shall, as service rendered soon as practicable after the Closing Date, pay to Purchaser or the Company for all purposes (other than benefit accrual under Sellers, by wire transfer in a defined benefit retirement plan)cash lump sum, including but not limited to, eligibility to participate, vesting and for other appropriate benefits, including, but not limited to, applicability of any minimum waiting periods for participation. Without limiting the foregoing, Purchaser shall not, and shall cause the Company not to, treat any Company Employee as a “new” employee for purposes of any exclusions under any health or similar plan of Purchaser or the Company for a pre-existing medical condition, and any deductibles (but not co-pays) paid under any excess of the Company’s health plans shall be credited towards deductibles aggregate amount of the claims paid with respect to Hired Employees and their dependents under the health plans of Purchaser or Seller FSAs during the Company. Purchaser shall, and shall cause the Company, to use commercially reasonable efforts to make appropriate arrangements with its insurance carrier(s) to provide for such results. (b) In addition to the Estimated Merger Consideration, Purchaser and the Company would mutually agree on an employee retention pool to be established at year in which the Closing and funded Date occurs over the aggregate amount deferred through such date by such Hired Employees under the PurchaserSeller FSAs. (c) The Company will adopt, or will cause to be adopted, all necessary corporate resolutions (which shall be subject to Purchaser’s reasonable review and approval) to terminate each 401(k) plan sponsored or maintained by the Company, effective as of no later than one day prior to Closing. Immediately prior to such termination, the Company will have made or, if such payments are not yet due and payable, accrued, all necessary payments to fund the contributions: (i) necessary or required to maintain the tax-qualified status of the 401(k) plan; (ii) for elective deferrals made pursuant to the 401(k) plan for the period prior to termination; and (iii) for any employer contributions (including, without limitation, any matching contributions, if any) for the period prior to termination. The Company shall provide Purchaser with a copy of resolutions duly adopted by the Company Board so terminating any such 401(k) plan. (d) The provisions of this Section 4.5 are solely for the benefit of the parties to this Agreement and nothing in this Section 4.5 or elsewhere in this Agreement, expressed or implied, shall be construed to (i) create a right in any Company Employee to employment with Purchaser, the Surviving Corporation or any of their respective Affiliates or shall restrict in any way the rights of Purchaser, the Surviving Corporation or any of their respective Affiliates to terminate such employee’s services at any time for any reason or no reason, (ii) limit the right of Purchaser, the Company, the Surviving Corporation or any of their respective Affiliates to amend or terminate any employee benefit plan, (iii) create any third party rights, benefits or remedies of any nature whatsoever in any Company Employee (or any beneficiaries or dependents thereof) or any other Person that is not a party to this Agreement, or (iv) be treated as establishing or amending any employee benefit plan or arrangement of Purchaser, the Company or any of their respective Affiliates.

Employee Benefits Arrangements. (a) During the period commencing at Closing and ending on the date which is twelve (12) months from the Closing (or or, if earlier, the date of the employee’s termination of employment with employee is not employed by the CompanySurviving Corporation or a Subsidiary), Purchaser shall, and shall cause the Company Surviving Corporation to, provide all persons who were employed by employees of the Company immediately preceding the Closing, including those on vacation, leave of absence or disability its Subsidiaries (the “Company Employees”) ), other than Transition Employees, with compensation (i) substantially similar types including base salary and levels of cash compensation opportunities in the aggregate for each Company Employee as provided immediately prior to the Closing (without taking into account any Closing Bonusesincentive bonus opportunities, but excluding equity and equity-based compensation) and (ii) substantially similar benefits (including vacation, paid time-off and severance) ), which, when considered in the aggregate for each Company Employee as Employee, are not less than were provided to similarly situated employees such Company Employees immediately prior to the Closing. Purchaser may provide, or cause the Surviving Corporation to provide, such benefits by Company Employees’ continued participation in the Employee Benefit Plans, by permitting Company Employees to participate in Purchaser’s employee benefit plans or by a combination of Company Employees’ continued participation in one or more Employee Benefit Plans and participation in one or more of Purchaser’s employee benefit plans. Purchaser shall, and shall cause the Company Surviving Corporation to, treatprovide Transition Employees with compensation and benefits as required by the TSA Agreement. If and to the extent coverage for Company Employees or Transition Employees is discontinued under one or more Employee Benefit Plans and is instead provided under one or more of Purchaser’s employee benefit plans, Purchaser shall, and shall cause the Surviving Corporation to, treat and cause the applicable Purchaser employee benefit plans (excluding any equity plan to treat Company Employees’ service with the Company or equity based compensation plans a Subsidiary and defined benefit retirement plans) to treatTransition Employees’ service with the Company, the service of Company Employees a Subsidiary or a Service Provider, in each case, attributable to any period before the Closing Closing, as service rendered to Purchaser or the Company Surviving Corporation for all purposes (other than benefit accrual under a defined benefit retirement plan), including but not limited to, eligibility to participate, vesting and for other appropriate benefits, including, but not limited to, applicability of determining satisfaction of any minimum waiting periods for participation. Notwithstanding the preceding sentence, Company Employees’ and Transition Employees’ service for any period prior to the Closing shall not be recognized under Purchaser’s employee benefit plans (i) for purposes of any equity or equity-based compensation plans, (ii) for purposes of any employer-provided credits or non-elective “contributions” under any nonqualified deferred compensation plans, (iii) to the extent that the recognition of such service would result in a duplication of benefits or (iv) to the extent that such service was not recognized under the terms of the corresponding Employee Benefit Plan or the corresponding benefit plan of a Service Provider. Without limiting the foregoing, Purchaser shall not, and shall cause the Company Surviving Corporation not to, treat any Company Employee or Transition Employee as a “new” employee for purposes of any exclusions under any health or similar plan of Purchaser or the Company Surviving Corporation for a pre-existing medical condition, and any deductibles (but not co-pays) paid under any of the Company’s health plans shall be credited towards deductibles under the health plans of Purchaser or the Company. Purchaser shall, and shall cause the CompanySurviving Corporation to, to use commercially reasonable efforts to make appropriate arrangements with its insurance carrier(s) to provide for ensure such results. (b) In addition to the Estimated Merger Consideration, Purchaser and the Company would mutually agree on an employee retention pool to be established at the Closing and funded by the Purchaser. (c) The Company will adopt, or will cause to be adopted, all necessary corporate resolutions (which shall be subject to Purchaser’s reasonable review and approval) to terminate each 401(k) plan sponsored or maintained by the Company, effective as of no later than one day prior to Closing. Immediately prior to such termination, the Company will have made or, if such payments are not yet due and payable, accrued, all necessary payments to fund the contributions: (i) necessary or required to maintain the tax-qualified status of the 401(k) plan; (ii) for elective deferrals made pursuant to the 401(k) plan for the period prior to termination; and (iii) for any employer contributions (including, without limitation, any matching contributions, if any) for the period prior to termination. The Company shall provide Purchaser with a copy of resolutions duly adopted by the Company Board so terminating any such 401(k) plan. (d) The provisions of this Section 4.5 are solely for the benefit of the parties to Nothing in this Agreement and nothing in this Section 4.5 shall constitute a guarantee of employment of any employee or elsewhere in this Agreement, expressed or implied, shall be construed to (i) create a right in any Company Employee to employment with Purchaser, the Surviving Corporation or any of their respective Affiliates or shall restrict in any way the rights exercise of Purchaser, the Surviving Corporation or any of their respective Affiliates to terminate such employee’s services at any time for any reason or no reason, (ii) limit the right of Purchaser, discretion by the Company, the Surviving Corporation any Subsidiary or any of their respective Affiliates to amend or terminate any employee benefit plan, Purchaser (iii) create any third party rights, benefits or remedies of any nature whatsoever in any Company Employee (or any beneficiaries or dependents thereof) or any other Person that is not a party to this Agreement, or (iv) be treated as establishing or amending any employee benefit plan or arrangement of Purchaser, the Company or any of their respective Affiliates) to employ or terminate the employment of any employee. Notwithstanding anything contained herein to the contrary, no provision of this Section 4.9 shall create any third-party beneficiary rights in any employee or former employee (including any beneficiary or dependent of such employee or former employee) in respect of continued employment (or resumed employment) or otherwise.