Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed. (b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation. (c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time. (d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries. (e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter. (f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries. (g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld). (h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period). (i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code. (j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries. (k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 3 contracts
Samples: Merger Agreement (Banta Corp), Merger Agreement (Banta Corp), Merger Agreement (RR Donnelley & Sons Co)
Employee Benefits. With respect to those employees of the Company who are employed by the Company as of immediately prior to the Second Effective Time including the Key Employees, Xxxxxxx Xxxxxx and Xxxxx Xxxxxxxx (the “Continuing Employees”):
(a) Parent agrees that, for a period shall continue the employment of one year all the Continuing Employees immediately following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.Closing;
(b) Prior Parent shall assume the liability for accrued but unused personal, sick or vacation time to which any Continuing Employee is entitled pursuant to the personal, sick or vacation policies applicable to Continuing Employees immediately prior to the Second Effective Time;
(c) Parent shall enroll all Continuing Employees in Parent’s health and welfare benefit plans (to the same extent such Continuing Employees were eligible to participate under the Company’s health and welfare benefit plans immediately prior to the Second Effective Time); provided, if requested by however, that nothing in this Section 5.11 (Employee Benefits) or elsewhere in this Agreement shall limit the right of Parent in writingor the Surviving Entity to amend or terminate any such health or welfare benefit plan or migrate the Continuing Employees to a successor health or welfare benefit plan at any time. To the extent that service is relevant for eligibility, vesting or allowances (including paid time off) under any such plan, then Parent shall use commercially reasonable efforts to (i) waive all limitations as to pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees, to the extent permitted by applicable Law that such conditions, exclusions and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the waiting periods would not apply under a similar employee benefit plans and arrangements of it and its Subsidiaries plan in which such employees participated immediately prior to the extent necessary to provide that no employees commencement of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or in such Subsidiary explicitly authorizes such participation plan, and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes ensure that such officer health or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees thatwelfare benefit plan shall, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits vesting, deductibles, co-payments and out-of-pocket maximums and allowances (excluding accruals under a defined benefit plan) including paid time off), credit Continuing Employees for service and vesting thereunder service by amounts paid immediately prior to the commencement of participation in such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, plan to the same extent that such service was credited and amounts paid were recognized prior to such commencement of participation under a comparable the corresponding health or welfare benefit plan of the Company.
(d) To the extent requested in writing by Parent at least ten Business Days prior to the Second Effective Time, the Company or its Subsidiaries, provided, shall take all actions that no credit shall may be given necessary under frozen benefit plansthe Company’s 401(k) plan to terminate the Company’s 401(k) plan at least one day prior to the Second Effective Time. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee In connection with the termination of the Company or any of its Subsidiaries401(k) plan, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans recognize prior service with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying eligibility and vesting of employer contributions, and take any and all deductible, coinsurance and maximum out-of-pocket requirements applicable actions as may be reasonably required to such employees and their covered dependents under permit each Continuing Employee to make rollover contributions of “eligible rollover distributions” (within the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in meaning Section 6.9(g401(a)(31) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior Code) in an amount equal to the Effective Time full account balance distributed or distributable to employees of the such Continuing Employee from such Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g401(k) of the Company Disclosure Letter and subject plan to the approval of a Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company plan or any other retirement plan that is qualified within the meaning of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregateSections 401(a) (as opposed to the current educational period).
(iand 401(k) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(ke) Nothing contained in this Section 6.9 5.11 (Employee Benefits) or elsewhere in this Agreement shall be construed to create a right in any employee to continued employment with Parent, the Surviving Entity or any other Affiliate of the Surviving Entity and, except as may be otherwise set forth in employment agreements with such parties, the employment of each Continuing Employee shall be “at will” employment. The provisions of this Section 5.11 (iEmployee Benefits) be treated as are solely for the benefit of the Parties to this Agreement, and no provision of this Section 5.11 (Employee Benefits) is intended to, or shall, constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise and no current or former employee or any particular Benefit Plan, (ii) give other individual associated therewith shall be regarded for any third party any purpose as a Third Party beneficiary of this Agreement or have the right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeehereof.
Appears in 3 contracts
Samples: Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Cyclo Therapeutics, Inc.), Merger Agreement (Rafael Holdings, Inc.)
Employee Benefits. (a) For purposes of vesting, eligibility to participate and level of vacation accruals under the employee benefit plans of Parent agrees that, for a period of one year following and Parent’s Subsidiaries that provide benefits to any individual employed by the Surviving Corporation immediately after the Effective DateTime (each, a “Continuing Employee” and such plans, the employees “Parent Benefit Plans”), each Continuing Employee shall be credited with his or her years of service with the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to their respective predecessors before the Effective Time, to the same extent permitted by applicable Law and the terms of the applicable plan or arrangementas such Continuing Employee was entitled, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following before the Effective Time, decisions regarding utilization of facilities of the to credit for such service under any similar Company and its Subsidiaries Benefit Plan in which such Continuing Employee participated or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard was eligible to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment participate immediately prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with as set forth on Section 6.9(e5.16(a) of the Company Disclosure Letter.
(f) Except ; provided, that the foregoing shall not apply to the extent it that its application would result in a duplication of benefits. In addition and without limiting the generality of the foregoing, Parent shall, or shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries Benefit Plans providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesContinuing Employee to, Parent shall use commercially reasonable efforts to cause its employee benefit plans to (i) waive each Continuing Employee to be immediately eligible to participate, without any waiting period, in such Parent Benefit Plans to the extent such restrictions were not applicable under a comparable Company Plan immediately prior to the Effective Time, (ii) all pre-existing condition exclusions and actively-at-work requirements of its such Parent Benefit Plan to be waived for such employee benefit plans with respect to such employees and their his or her covered dependents to the same extent such exclusions restrictions were waived not applicable under a comparable plan of Company Plan immediately prior to the Company Effective Time, and (iiiii) take into account to cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year in which the Closing Date occurs to be taken into account under such Parent Benefit Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under the applicable employee benefit for such plan of year as if such amounts had been paid in accordance with such Parent or its SubsidiariesBenefit Plan.
(gb) The Company may establish a retention and transaction bonus pool (After the “Retention Pool”); providedClosing Date, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded Continuing Employees will either continue under the Retention Pool shall Surviving Company’s group medical, dental, vision and disability benefit plans (as same may be allocated amended or revised by Parent) or will be allowed to participate in comparable group medical, dental, vision and disability Parent Benefit Plans, as amended from time to time, to the same extent as similarly situated employees of Parent, in either case, as determined by Parent at or prior to the Effective Time to Time.
(c) Between the date hereof and the Closing Date, the Company shall implement any retention bonus arrangements for employees of the Company and its Subsidiaries designated that are specifically directed by Parent, which retention bonuses shall be payable at or following the Effective Time and shall otherwise be on the form, terms and conditions established by Parent (the “Parent Retention Bonuses”). Parent Retention Bonuses shall be for the account of Parent and, to the extent Parent Retention Bonuses are paid by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject prior to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program they will be continued throughout such course of training (not to exceed two years or $1,000,000 added back in the aggregate) (as opposed to the current educational period)determination of Company Cash.
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(kd) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated interpreted to require Parent to provide for the participation of any Continuing Employee in any benefit plan of Parent or its Affiliates. This Section is not intended, and shall not be deemed, to confer any rights or remedies upon any Person other than the parties to this Agreement and their respective successors and permitted assigns, to create any agreement of employment with any Person or otherwise to create any third-party beneficiary hereunder, or to be interpreted as an amendment to any plan of Parent or any particular Benefit Planaffiliate of Parent. Furthermore, (ii) give nothing in this Agreement shall be construed to create a right in any third party Continuing Employee to employment with Parent, the Surviving Corporation, or any right other Subsidiary of Parent and, subject to enforce the provisions of this Section 6.9 or (iii) obligate any agreement between a Continuing Employee and Parent, the Surviving Corporation or any other Subsidiary of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain Parent, the employment of any particular employeeeach Continuing Employee shall be “at will” employment.
Appears in 3 contracts
Samples: Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Patterson Uti Energy Inc), Merger Agreement (Pioneer Energy Services Corp)
Employee Benefits. (a) Parent agrees that, for a period Until the first anniversary of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation (or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms an earlier termination of the applicable plan or arrangementrelevant employee’s employment), Parent shall cause to be amended the each employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent who continues to be employed by the Surviving Company or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive (after giving effect to the Spin-Off and the provisions of the Separation and Distribution Agreement) (a “Continuing Employee”) will be provided (i) an annual base salary or wage rate and annual target cash bonus opportunity that are, in each case, no less favorable than the annual base salary or wage rate and annual target cash bonus opportunity provided to such Continuing Employee as of immediately prior to the Effective Time, (ii) employee benefits that are substantially comparable in the aggregate to the employee benefits (excluding equity compensation, change in control, transaction or retention payments, defined benefit, nonqualified deferred compensation, severance benefits, post-retirement or retiree medical benefits (the “Excluded Benefits”)) that are (A) in effect immediately prior to the date of this Agreement or (B) provided to similarly situated Parent employees based on levels of responsibility and seniority (excluding the Excluded Benefits) and (iii) severance benefits in accordance with the terms set forth on Section 6.9(e6.7(a) of the Company Disclosure Letter.
(fb) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees As of the Company Effective Time, all Continuing Employees in the United States (and its Subsidiaries in any other jurisdiction where permitted by Law) will become subject to take into account for purposes Parent’s vaccine mandate, which requires colleagues to be fully vaccinated and to provide proof of eligibility, benefits full vaccination or to be granted a medical or religious accommodation by Parent.
(excluding accruals under a defined benefit planc) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, With respect to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee applicable benefit plan of Parent or its Subsidiaries providing medicalAffiliates, dental, prescription drug, vision, life insurance or disability benefits to each Continuing Employee who participates in any employee such plan will receive service credit for all periods of employment with the Company or any of its Subsidiaries, Parent shall cause its employee as applicable, prior to the Effective Time for purposes of vesting, benefit plans accrual and eligibility, in each case, in accordance with the terms of such plans, to the same extent and for the same purposes thereunder as such service was recognized under an analogous Benefit Plan in effect on the date of this Agreement; provided, that the foregoing will not apply (i) waive all to the extent that its application would result in a duplication of benefits with respect to the same period of service or (ii) for purposes of (x) any “retirement savings contribution” under any Parent employee plan providing 401(k) plan benefits, (y) any retiree medical plan or defined benefit plan or (z) any benefit plan, program or policy of Parent or the Surviving Company that is a frozen plan or that provides benefits to a grandfathered employee population, either with respect to level of benefits or participation; provided, further, that the Company has made available to Parent such information as is reasonably requested by Parent to satisfy its obligations under this Section 6.7(c). If, on or after the Effective Time, any Continuing Employee becomes covered by any benefit plan providing medical, dental, health, pharmaceutical or vision benefits (a “Successor Plan”), other than the plan in which he or she participated immediately prior to the Effective Time (a “Prior Plan”), Parent will use commercially reasonable efforts to (1) cause any restrictions or limitations with respect to pre-existing condition exclusions of its employee benefit plans with respect and actively-at-work requirements to be waived for such employees Continuing Employee and their his or her eligible dependents (except to the same extent such exclusions or requirements were waived applicable under a comparable plan of the Company corresponding Prior Plan), and (ii2) permit such Continuing Employee to take into account any eligible expenses incurred by such employees employee and their his or her covered dependents during the plan year in which the employee elects to be covered by the Successor Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their employee and/or his or her covered dependents under for that year, to the extent that such expenses were incurred during the applicable period in which such employee benefit plan of Parent or its Subsidiariescovered dependent was covered by a corresponding Prior Plan.
(gd) The Company may establish a retention and transaction In the event that any Continuing Employee who participates in an annual cash bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated plan is terminated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Surviving Company or any of its Subsidiaries to be drafted and administered without “cause” (as determined by Parent or its relevant Affiliate in a manner that complies consistent with Section 409A their analogous plans) prior to the date such annual cash bonuses are paid by the Surviving Company or any of its Subsidiaries in respect of the Codecalendar year in which the Closing occurs, such Continuing Employee shall be provided a cash bonus in respect of such year with performance deemed achieved at no less than target performance and prorated to reflect the portion of the calendar year completed prior to such termination of employment.
(je) For a period of three years after the Effective Time, Parent The Company shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices provide an updated version of the Company and its Subsidiariesemployee census referenced in Section 3.12(e) no later than thirty (30) days following satisfaction of the condition set forth in Section 7.1(a).
(kf) Nothing The provisions contained in this Section 6.9 6.7 are included for the sole benefit of the parties hereto, and nothing in this Section 6.7, whether express or this Agreement shall (i) be treated as an amendment of implied, will create any particular third-party beneficiary or other rights in any other person, including, without limitation, any current or former employee, director, officer, other service provider, any participant in any Benefit PlanPlan or other benefit plan or arrangement, (ii) give or any third party dependent or beneficiary thereof, or any right to enforce continued employment or service, or any term or condition of employment with the provisions of this Section 6.9 or (iii) obligate Company, any Company Subsidiary, Parent, the Surviving Corporation Company or any of their Affiliates to (x) maintain respective Affiliates. Nothing contained herein, whether express or implied, will be treated as the establishment of, amendment to, waiver or other modification of any particular Benefit Plan or (y) retain other employee benefit plan, program, policy, agreement, or arrangement, or will limit the employment right of the Company, any particular employeeCompany Subsidiary, Parent, the Surviving Company or any of their respective Affiliates to amend, terminate or otherwise modify any Benefit Plan or other employee benefit plan, program, policy, agreement, or arrangement in accordance with its terms.
Appears in 3 contracts
Samples: Merger Agreement (Biohaven Research Ltd.), Merger Agreement (Biohaven Research Ltd.), Merger Agreement (Biohaven Pharmaceutical Holding Co Ltd.)
Employee Benefits. (a) Parent agrees that, for a during the period of one year following commencing at the Effective DateTime and ending on the first anniversary thereof, the U.S. employees of the Company and its Subsidiaries will continue to be provided with pension and welfare benefits under employee benefit plans (but excluding equity based benefits) that are at the election of Parent are either (i) a minimum substantially similar comparable in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar at a minimum generally comparable in the aggregate to those provided by to similarly situated employees of Parent and its Subsidiaries as elected by Parent in its sole discretion. On and after the Closing Date, Parent will cause the employee benefit plans in which the employees of the Company are eligible to participate (the “New Plans”) to take into account for purposes of eligibility and vesting thereunder, except for purposes of qualifying for subsidized early retirement benefits or to the extent it would result in a duplication of benefits, service by the U.S. employees of the Company as if such service were with Parent to the same extent such service was credited under a comparable plan of the Company and to the extent that such time period is recognized under the terms of such plan of Parent. In addition, Parent shall cause, to the extent permissible under the New Plans (it being understood that Parent shall use its similarly situated employeescommercially reasonable efforts to cause the New Plans to permit the following), (i) the waiver of all pre-existing condition exclusion and actively-at-work requirements and similar limitations, eligibility waiting periods and evidence of insurability requirements under any New Plans to the extent waived or satisfied by an employee under any comparable Company Benefit Plan as of the Closing Date, and (ii) any covered expenses incurred on or before the Closing Date by any employee (or covered dependent thereof) of the Company to be taken into account for purposes of satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date under any applicable New Plan. With respect Notwithstanding the foregoing, nothing contained herein shall (x) be treated as an amendment of any particular Company Benefit Plan, (y) give any third party any right to any bonus enforce the provisions of this Section 6.9, or long-term cash incentive awards calculated based on 2006 performance(z) obligate Parent, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement Surviving Corporation or any nonrecurring charges that would not reasonably be expected of their respective Affiliates to have been incurred had (A) maintain any particular Company Benefit Plan, or (B) retain the transactions contemplated by the Agreement not been proposedemployment of any particular employee.
(b) Prior to the Effective Time, if requested by Parent in writingwriting prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time Closing unless Parent or such Subsidiary explicitly authorizes such participation, and (ii) cause the Company 401(k) Plan to be terminated effective at least one day prior to the Closing. Parent shall cause a tax-qualified defined contributions retirement plan established or maintained by Parent or an Affiliate (the “Buyer Plan”) to accept eligible rollover distributions from the Company 401(k) Plan with respect to any account balance distributed to employees on or after the Closing Date. Rollovers of outstanding loans from the Company 401(k) Plan to the Buyer Plans shall be permitted.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans liens or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries Prior to making any written or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except oral communications to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company directors, officers or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries pertaining to take into account for purposes of eligibilitycompensation or benefit matters that are affected by the transactions contemplated by this Agreement, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were shall provide Parent with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan copy of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiariesintended communication, Parent shall cause its employee benefit plans have a reasonable period of time to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees review and their dependents to comment on the same extent such exclusions were waived under a comparable plan of communication, and Parent and the Company and (ii) take into account shall cooperate in providing any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiariesmutually agreeable communication.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 3 contracts
Samples: Merger Agreement (Visicu Inc), Merger Agreement (Sterling Venture Partners L P), Merger Agreement (Cardinal Health Partners Lp)
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the All employees of the Company Safety Fund and its Subsidiaries will be provided with pension and welfare benefits under as of the Effective Time shall become employees of Buyer or a Subsidiary as of the Effective Time. Nothing in this Agreement shall give any employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and Safety Fund or its Subsidiaries a right to such employees or (ii) substantially similar in continuing employment with Buyer after the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employeesEffective Time. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, Any employee of Safety Fund whose employment with Buyer is terminated after the Company’s performance for calendar year 2006 Effective Time shall be calculated without taking into account any reasonable expenses or costs associated entitled to the same severance benefits generally available to employees of Buyer, provided, however, that for purposes of determining eligibility for and vesting of such severance benefits, service with or arising as a result of the transactions contemplated by this Agreement Safety Fund or any nonrecurring charges that would not reasonably Safety Fund Subsidiary prior to the Effective Time shall be expected treated as service with an "employer" to have the same extent as if such persons had been incurred had the transactions contemplated by the Agreement not employees of Buyer. A copy of Buyer's severance policy has previously been proposedmade available to Safety Fund.
(b) Prior to As soon as practicable after the Effective Time, if requested Buyer shall provide or cause to be provided to all employees of Safety Fund and any Safety Fund Subsidiary who remain employed by Parent Buyer or any of Buyer's Subsidiaries after the Effective Time with employee benefits which, in writingthe aggregate, are no less favorable than those generally afforded to other employees of Buyer or Buyer's Subsidiaries holding similar positions, subject to the extent permitted by applicable Law terms and the terms of the applicable plan or arrangementconditions under which those employee benefits are made available to such employees, the Company shall provided, however, that (i) cause for purposes of determining eligibility for and vesting of such employee benefits only (and not for pension benefit accrual purposes), service with Safety Fund or any Safety Fund Subsidiary prior to the Effective Time shall be amended treated as service with an "employer" to the employee benefit plans and arrangements same extent as if such persons had been employees of it Buyer, (ii) this Section 6.10 shall not be construed to limit the ability of Buyer and its Subsidiaries to terminate the extent necessary employment of any employee or to provide that no employees review employee benefits programs from time to time and to make such changes as they deem appropriate, and (iii) neither Buyer nor any of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary required to provide that no any employees or former employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationSafety Fund with post-retirement medical benefits more favorable than those provided to new hires of Buyer.
(c) The Company agrees to cause each Safety Fund has listed certain employment and change of its officers control agreements and directors to repay any outstanding loans or notes that such officer or director owes to a tin parachute plan in Schedule 6.10 hereto. Following the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the ------------- Effective Time, decisions regarding utilization of facilities of the Company and Buyer shall honor or cause its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits honor in accordance with Section 6.9(e) their terms all such employment and change of control agreements and the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall tin parachute plan and assume or cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibilityassume all duties, benefits (excluding accruals liabilities and obligations under a defined benefit plan) such agreements and vesting thereunder service by such employees with arrangements. Buyer agrees that the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan consummation of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes transactions contemplated hereby constitutes a "Change in Control" as defined in the change of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company control agreements entered into between Safety Fund or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees Safety Fund Subsidiary and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) certain officers as disclosed in Schedule 6.10 hereto. The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 ------------- 6.10 are expressly intended to be for the irrevocable benefit of, and shall be enforceable by, each director, officer, employee and former employee covered hereby and his or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeeher heirs and representatives.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (CFX Corp), Merger Agreement (CFX Corp), Merger Agreement (Safety Fund Corp)
Employee Benefits. (a) Parent agrees thatthat each Continuing Employee shall, for a period of one year following the Effective DateClosing, the employees of the Company and its Subsidiaries will be provided with pension (i) base salary or base wage and target annual cash bonus opportunities that are at least as favorable in the aggregate as the base salary or base wage and target annual cash bonus opportunities for such Continuing Employee that are in effect immediately prior to the Effective Time and (ii) retirement and welfare benefits under employee benefit plans (excluding any pension benefits and any equity and long-term incentive compensation) that at the election of Parent are either (i) substantially similar comparable in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in Continuing Employee immediately prior to the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedEffective Time.
(b) Parent shall use commercially reasonable efforts to (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Parent or its Affiliates to be waived with respect to the Continuing Employees and their eligible dependents, (ii) give each Continuing Employee credit for the plan year in which the Effective Time occurs towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred prior to the Effective Time for which payment has been made and (iii) give each Continuing Employee service credit for such Continuing Employee’s employment with the Company and its Subsidiaries for purposes of vesting, benefit accrual and eligibility to participate under each applicable Parent benefit plan, as if such service had been performed with Parent, except for benefit accrual under defined benefit pension plans, for purposes of qualifying for subsidized early retirement benefits or to the extent it would result in a duplication of benefits.
(c) Prior to the Effective Time, if requested by Parent in writing, writing no less than five days prior to the extent permitted by applicable Law and the terms of the applicable plan or arrangementEffective Time, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly Company 401(k) Plan to be terminated terminate effective no later than immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, event that Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide requests that no employees of the Company and its Subsidiaries 401(k) Plan terminate, the Company shall commence participation therein following the Effective Time unless provide Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes with evidence that such officer or director owes plan has been terminated (the form and substance of which shall be subject to reasonable review and approval by Parent) not later than the Company or its Subsidiaries prior to day immediately preceding the Effective Time.
(d) Parent agrees that, following From and after the Effective Time, decisions regarding utilization of facilities Parent shall, or shall cause the Surviving Corporation to, assume and honor in accordance with their terms all Company Benefit Plans as of the date hereof, in the same manner and to the same extent that the Company or any Subsidiary would be required to perform and its Subsidiaries honor such Company Benefit Plans if the Transactions had not been consummated.
(e) Prior to making any written or Parent and its Subsidiaries shall be made by Parent on a basis that reflects oral communications to the best long-term business interests of Parent and its Subsidiaries directors or employees (including the Company and its Subsidiariesany officers) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the Transactions the Company shall provide Parent or any of its Subsidiaries.
(e) Parent agrees that any employee with a copy of the Company intended communication, Parent shall have a reasonable period of time to review and its Subsidiaries who is terminated without cause during comment on the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of communication, and the Company Disclosure Lettershall cooperate in providing any such communication.
(f) Except Nothing set forth in this Agreement is intended to (i) be treated as an amendment of any particular Company Benefit Plan, (ii) prevent Parent, the extent it would result in a duplication Surviving Corporation or any of benefits, Parent shall cause their Affiliates from amending or terminating any employee of their benefit plans or, after the Effective Time, any Company Benefit Plan in accordance with their terms, (including vacationiii) prevent Parent, severance and disability plansthe Surviving Corporation or any of their Affiliates, after the Effective Time, from terminating the employment of any Continuing Employee, or (iv) covering employees without limiting the generality of the Company and its Subsidiaries to take into account for purposes of eligibilitySection 10.7(b), benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to create any third-party beneficiary rights in any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductiblebeneficiary or dependent thereof, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees thatany collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole Continuing Employee by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain or under any particular Benefit Plan benefit plan which Parent, the Surviving Corporation or (y) retain the employment any of any particular employeetheir Affiliates may maintain.
Appears in 3 contracts
Samples: Agreement and Plan of Merger (Cards Acquisition Inc.), Agreement and Plan of Merger (Collectors Universe Inc), Merger Agreement (Collectors Universe Inc)
Employee Benefits. (a) As of the Effective Time, Parent agrees shall assume all MLP Benefit Plans in accordance with their terms as in effect immediately before the Effective Time; provided that, for nothing herein shall limit the right of MLP or Parent or any of their respective Affiliates to amend or terminate such MLP Benefit Plans to the extent permitted by their terms. For a period of one year following the Effective DateTime (the “Continuation Period”), Parent shall provide, or shall cause to be provided, to each employee of MLP or any of its Subsidiaries as of immediately prior to the Effective Time (the “MLP Employees”), for so long as such MLP Employee remains an employee of Parent, the employees Surviving Entity or any of their respective Affiliates during the Company Continuation Period, (i) base salary or regularly hourly wage which is the same as or no less favorable than that provided to such MLP Employee immediately before the Effective Time and its Subsidiaries will be provided with pension and welfare benefits under (ii) eligibility to participate in the employee benefit plans that at (including cash incentive compensation plans) sponsored or maintained by Parent Managing GP or its Subsidiaries on the election same basis as such eligibility to participate is provided to similarly situated employees of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and Managing GP or its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedSubsidiaries.
(b) Prior For all purposes (including purposes of vesting, eligibility to participate and level of benefits) under the employee benefit plans of Parent Managing GP and its Subsidiaries providing benefits to any MLP Employees after the Effective Time as required pursuant to this Section 5.13(b) (the “New Plans”), each MLP Employee shall be credited with his or her years of service with MLP and its Subsidiaries and their respective predecessors before the Effective Time, if requested by Parent in writingto the same extent as such MLP Employee was entitled, before the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan credit for such service under any similar MLP Benefit Plan in which such MLP Employee participated or arrangement, the Company shall (i) cause was eligible to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective participate immediately prior to the Effective Time. In addition, prior ; provided that the foregoing shall not apply with respect to the Effective Time, either benefit accrual attributable to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment period prior to the Effective Time was with the Company under any defined benefit pension plan, or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it that its application would result in a duplication of benefits. In addition, Parent shall cause any employee benefit plans (including vacationto the extent such MLP Employee is eligible to participate in a New Plan pursuant to Section 5.13(a), severance and disability plans) covering employees without limiting the generality of the Company foregoing, (i) each MLP Employee shall be immediately eligible to participate, without any waiting time, in any and its Subsidiaries to take into account all New Plans of the same type as any MLP Benefit Plans in which such MLP Employee participated immediately before the consummation of the transactions contemplated hereby (such plans, collectively, the “Old Plans”), and (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesMLP Employee, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such employee and his or her covered dependents, unless such conditions would not have been waived under the comparable plans of MLP or its Subsidiaries in which such employee benefit plans with respect to such employees and their dependents participated immediately prior to the same extent such exclusions were waived under a comparable plan of the Company Effective Time, and (ii) take into account Parent shall cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiariesyear as if such amounts had been paid in accordance with such New Plan.
(gc) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, Parent hereby acknowledges that (i) a “change of control” (or similar phrase) within the aggregate amount meaning of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 the MLP Equity Plans will occur as of the Effective Time and (ii) a “change of control” (or similar phrase) within the Retention Pool complies with meaning of the requirements MLP Benefit Plans (other than any MLP Equity Plans) set forth in Section 6.9(g5.13(c)(ii) of the Company MLP Disclosure LetterSchedule will occur as of the Effective Time.
(d) Upon the earlier to occur of March 1, 2014 and the date which is 30 days after the Closing Date, MLP and its Subsidiaries shall pay to each MLP Employee who participates in MLP GP’s Annual Incentive Plan, a prorated 2013 annual bonus in an amount that is equal to the product of (A) such MLP Employee’s previously established target 2013 annual bonus (as provided to Parent in writing prior to the date hereof), multiplied by (B) a fraction equal to the number of days elapsed in 2013, through and including the Closing Date, divided by 365. Amounts awarded under If the Retention Pool Effective Time does not occur until calendar year 2014, no new awards in respect of calendar year 2014 shall be allocated made pursuant to MLP GP’s Annual Incentive Plan without the consent of Parent.
(e) Parent shall honor, or shall cause to be honored, all vacation that is accrued and unused by each of the MLP Employees as of the Effective Time and reflected on the balance sheet of MLP and its Subsidiaries (the “Pre-Closing Vacation”) in accordance with the terms of MLP’s policies as in effect as of immediately prior to the Effective Time, for the avoidance of doubt, including the terms of such policies regarding the forfeiture and carryover of such Pre-Closing Vacation. All vacation and paid time off that is accrued by each MLP Employee following the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and shall be subject to the approval policies of Parent (such approval not to be unreasonably withheld)Managing GP.
(hf) Parent agrees thatNothing in this Agreement, expressed or implied, shall (i) confer upon any MLP Employee or any other Person any right to continue in the employ or service of Parent, the Surviving Entity or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Entity or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any MLP Employee or any Person at any time for any reason whatsoever, with respect or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Entity or any Affiliate of Parent and the MLP Employee, (ii) constitute an amendment to any MLP Benefit Plan or any employee benefit or compensation plan of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company Parent Managing GP or any of its SubsidiariesAffiliates, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation Entity or any Affiliate of their Affiliates Parent to (x) maintain any particular Benefit Plan compensation or benefit plan, program arrangement, policy or contract. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 5.13 shall create any third party rights in any current or former service provider of MLP or its Affiliates (y) retain the employment of or any particular employeebeneficiaries or dependents thereof).
Appears in 3 contracts
Samples: Merger Agreement, Merger Agreement (PVR Partners, L. P.), Merger Agreement (Regency Energy Partners LP)
Employee Benefits. (a) Parent agrees that, for a period of one year following Following the Effective DateTime, the Healtheon/WebMD shall provide to officers and employees of Envoy employee benefits based on the Company and positions they hold with Healtheon/WebMD and/or its Subsidiaries will be provided with pension and welfare benefits after the Effective Time under employee benefit plans that at the election of Parent on terms and conditions which are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent Healtheon/WebMD and its Subsidiaries to its their similarly situated employeesofficers and employees after the Effective Time. With respect to any bonus benefits plans of Healtheon/WebMD or long-term cash incentive awards calculated based on 2006 performance, its Subsidiaries in which the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result officers and employees of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to Envoy participate after the Effective Time, if requested by Parent in writingHealtheon/WebMD shall, to or shall cause the extent permitted by applicable Law and the terms of the applicable plan or arrangementSurviving Corporation to, the Company shall use reasonable efforts to: (i) cause waive any limitations as to pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such officers and employees under any welfare benefit plan in which such employees may be amended the employee benefit plans and arrangements of it and its Subsidiaries eligible to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following participate after the Effective Time unless the Surviving Corporation (provided, however, that no such waiver shall apply to a pre-existing condition of any such officer or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionemployee who was, prior to as of the Effective Time, to the extent permitted excluded from participation in a Envoy or Quintiles benefit plan by applicable Law and the terms nature of the applicable plan or arrangementsuch pre-existing condition), Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to (ii) provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent employee with credit for any co-payments and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment deductibles paid prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following year in which the Effective Time shall receive severance benefits occurs in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause satisfying any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent applicable deductible or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable under any welfare benefit plan in which such employees may be eligible to participate after the Effective Time, and (iii) other than with respect to vesting credit with respect to Healtheon/WebMD options granted to such officers and employees, recognize all service of such officers and employees with Envoy for all purposes (including without limitation purposes of eligibility to participate, vesting credit, entitlement for benefits, and their covered dependents under the applicable employee benefit accrual) in any benefit plan in which such employees may be eligible to participate after the Effective Time, except to the extent such treatment would result in duplicative accrual of Parent or its Subsidiariesbenefits for the same period of service.
(gb) The Company may establish a retention and transaction bonus pool (Not later than the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated day immediately prior to the Effective Time (the "Termination Date"), Quintiles and Envoy shall cause (i) the adoption of appropriate resolutions which terminate each retirement plan of Envoy which qualifies or is intended to qualify under Section 401(a) of the Internal Revenue Code (each, a "Envoy Retirement Plan"), effective as of the Termination Date, (ii) the cessation of all employee salary deferral contributions under each Envoy Retirement Plan, effective as of the Termination Date, and (iii) the adoption of appropriate resolutions, contemporaneous with the adoption of resolutions identified in clause (i) above, which reserve the right to amend each Envoy Retirement Plan notwithstanding such applicable plan's termination, and which amend each Envoy Retirement Plan to comply with all applicable changes under the Internal Revenue Code which were effective or were enacted on or before the Termination Date. The preceding sentence shall apply to the Envoy Retirement Plans, as sponsored by Envoy or any other entity for the eligible employees of Envoy, but shall not apply to the Company Quintiles Employee Stock Ownership and its Subsidiaries designated 401(k) Plan (the "Quintiles Retirement Plan"). Not later than the Termination Date, (i) Quintiles shall adopt appropriate resolutions that terminate Envoy as of the Termination Date as a participating employer in the Quintiles Retirement Plan, and (ii) Quintiles and Envoy shall cause the cessation of all salary deferral contributions of the eligible Envoy employees under the Quintiles Retirement Plan. Envoy shall make all contributions to the Quintiles Retirement Plan that are payable through the Termination Date with respect to the eligible Envoy employees who are Quintiles Retirement Plan participants and who are entitled to an allocation of such contributions under such plan. Quintiles represents and warrants that all contributions to the Quintiles Retirement Plan with respect to eligible Envoy employees which are required to be made by the Chief Executive Officer of the Company in accordance with the guidelines time set forth in Section 6.9(g) 4.6 of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, Quintiles Retirement Plan with respect to the period ending December 31, 1999 have been paid to the trust relating to the Quintiles Retirement Plan and that all such contributions required to be made by such time in such Quintiles Retirement Plan section with respect to the period ending on the date of this Agreement (other than salary deferral contributions) do not exceed $40,000. Envoy shall be solely responsible for the preparation and timely filing of all Treasury Forms 5500 which are required to be filed in connection with the Envoy Retirement Plans (other than the Quintiles Retirement Plans) before, on or after the Closing Date. Quintiles shall be solely responsible for filing all Treasury Forms 5500 which are required to be filed in connection with the participation of Envoy employees in the Quintiles Retirement Plan. Nothing in this Agreement shall give any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part Envoy any third-party beneficiary or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period)other rights under this Agreement.
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Quintiles Transnational Corp), Merger Agreement (Healtheon Webmd Corp)
Employee Benefits. (a) Parent agrees thatthat it shall cause the Surviving Corporation to maintain all Company Plans that are welfare benefit plans for those individuals who as of the Effective Time were employees of the Company or any of the Company Subsidiaries (other than collectively bargained employees) (the “Affected Employees”), in accordance with the terms of such Company Plans as in effect immediately before the Effective Time, without amendment, other than amendments that do not decrease benefits for participants or that are required by Law, for a period of one year following from the Effective DateTime through at least January 1, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed2006.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended For all purposes under the employee benefit plans of Parent and arrangements the Parent Subsidiaries providing benefits to any Affected Employees after the Effective Time (the “New Plans”), each Affected Employee shall receive credit for his or her service with the Company and the Company Subsidiaries before the Effective Time (including predecessor or acquired entities or any other entities for which the Company and the Company Subsidiaries have given credit for prior service) for purposes of it eligibility and its Subsidiaries vesting (but not (i) for purposes of eligibility for subsidized early retirement benefits, (ii) for purposes of benefit accrual under defined benefit pension plans and (iii) for any new program for which credit for benefit accrual for service prior to the extent necessary effective date of such program is not given to provide that no similarly situated employees of Parent and its the Parent Subsidiaries shall commence participation therein following other than the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (iiAffected Employees) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionsame extent as such Affected Employee was entitled, prior to before the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the credit for such service under a Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard Plan (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of accrual of benefits). In addition, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees without limiting the generality of the foregoing: (i) at the Effective Time, each Affected Employee immediately shall be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Plan in which such Affected Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”); and its Subsidiaries to take into account (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesAffected Employee, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of its employee benefit plans with respect such New Plan to be waived for such employees Affected Employee and their his or her covered dependents to the same extent such pre-existing condition exclusions and actively-at-work requirements were waived inapplicable to or had been satisfied by such Affected Employee and his or her covered dependents immediately prior to the Effective Time under a comparable plan of the Company relevant Old Plan, and (ii) take into account Parent shall cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiariesyear as if such amounts had been paid in accordance with such New Plan.
(gc) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant With respect to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth matters described in this Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior 6.15 relating to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not benefits or compensation to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and provided after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company will, to the extent permitted by applicable Law, provide Parent prior to delivery with copies of any broad-based notices or any other communication materials of its Subsidiaries a general nature to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after delivered prior to the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Commonwealth Industries Inc/De/), Merger Agreement (Imco Recycling Inc)
Employee Benefits. (a) Parent agrees thatBest Buy has agreed to, for and will cause the Surviving Corporation to, honor in accordance with their respective terms, all of Musicland's employment, severance and termination agreements, plans and policies in effect as of the date of the Merger Agreement. For a period of not less than one year following the Effective DateTime, Best Buy shall provide to the employees of the Company Musicland and its Subsidiaries will be provided with pension and welfare subsidiaries ("Musicland Employees"), taken as a whole, employee benefits under employee benefit plans that at the election of Parent are either (i) substantially similar are, in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to aggregate, no less favorable than those provided by Parent Musicland and its Subsidiaries subsidiaries to its similarly situated employees. With respect to any bonus or longnon-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising officer employees as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms date of the applicable plan or arrangement, Merger Agreement. Musicland Employees who are officers of Musicland and its subsidiaries are eligible only for the Company shall (i) cause employee benefits available to non-officer Musicland Employees. Any additional benefits available to Musicland Employees who are officers will be amended considered by Best Buy in its sole discretion. For all purposes under the employee benefit plans and arrangements of it and its Subsidiaries Best Buy providing benefits to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following Musicland Employees after the Effective Time unless (the Surviving Corporation "New Plans"), each Musicland Employee shall be credited with his or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms her years of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following service with Musicland before the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that as such Musicland Employee was entitled before the Effective Time to credit for such service was credited under any similar Musicland plan. Each Musicland Employee will be immediately eligible to participate in all New Plans to the extent coverage under such plans replaces coverage under a comparable plan of Musicland Plan in which such Musicland Employee previously participated immediately before the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansEffective Time. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee Musicland Employee, Best Buy will cause all preexisting condition exclusions and actively at work requirements of the Company New Plan to be waived (other than limitations or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans waiting periods that are already in effect with respect to such employees and their covered dependents to the same extent such exclusions were waived under a comparable plan and are not satisfied as of the Company and (ii) take into account any Effective Time). All eligible expenses incurred by such employees and their dependents Musicland Employees under Musicland benefit plans will be taken into account under such New Plans for purposes of satisfying all deductible, coinsurance and maximum out-of-out of pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure LetterMusicland Employee. Amounts awarded under the Retention Pool shall be allocated If prior to the Effective Time Time, Best Buy agrees to employees grant options to acquire Best Buy's common stock to any officer or director of Musicland, the Board of Best Buy or the appropriate subcommittee thereof shall, if necessary, adopt a resolution consistent with the SEC's interpretive guidance so that the acquisition by any officer or director of Musicland, who may become a covered person of Best Buy for purposes of Section 16 of the Company and its Subsidiaries designated by the Chief Executive Officer Exchange Act, of options shall be an exempt transaction for purposes of Section 16 of the Company Exchange Act. Musicland has agreed to make required contributions to its Capital Accumulation Plan in accordance the normal course consistent with the guidelines set forth past practice in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, January 2001 with respect to any employee fiscal year 2000 service, to freeze participation and benefit accruals under the Musicland Group, Inc. Employees' Retirement Plan prior to December 31, 2000, and to terminate its Employee Stock Purchase Plan effective as of the Company and its Subsidiaries whoDecember 31, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period)2000.
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Offer to Purchase (Best Buy Co Inc), Offer to Purchase (Best Buy Co Inc)
Employee Benefits. (a) Parent agrees that7.6.1 Except as otherwise provided in this Agreement, for a period of one year following First Guaranty will review all the Effective DatePremier Compensation and Benefit Plans to determine whether to maintain, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit terminate or continue such plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to after the Effective Time. In additionthe event that any Premier Compensation and Benefit Plan is frozen or terminated by First Guaranty, First Guaranty will use best efforts so that former employees of Premier who become employees of First Guaranty or First Guaranty Bank after the Effective Time ("Continuing Employees") who were participants in such plan will become eligible to participate in any benefit plan of First Guaranty of similar character (to extent that one exists, other than any First Guaranty non-qualified deferred compensation plan, employment agreement, change in control agreement or equity incentive plan or other similar-type of arrangement). Continuing Employees who become participants in a benefit plan of First Guaranty shall, for purposes of determining eligibility for and any applicable vesting periods of such employee benefits only (and not for benefit accrual purposes) be given credit for meeting eligibility and vesting requirements in such plans for service as an employee of Premier or any predecessor thereto prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, however, that no credit for prior service shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents First Guaranty ESOP only for purposes of satisfying all deductible, coinsurance determining eligibility to participate in such plan and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool not for vesting purposes. This Agreement shall not exceed $3,000,000 and (ii) be construed to limit the Retention Pool complies with the requirements set forth in Section 6.9(g) ability of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior First Guaranty or First Guaranty Bank to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain terminate the employment of any particular employeePremier or Premier Subsidiary employee or to review any Premier Compensation and Benefit Plan from time to time and to make such changes (including terminating any such plan) as they deem appropriate.
7.6.2 In the event of any termination of any Premier health plan or consolidation of any such plan with any First Guaranty or First Guaranty Bank health plan, First Guaranty shall make available to Continuing Employees and their eligible dependents employer-provided health coverage on the same basis as it provides such coverage to First Guaranty employees. Unless a Continuing Employee affirmatively terminates coverage under a Premier health plan prior to the time that such Continuing Employee becomes eligible to participate in the First Guaranty health plan, no coverage of any of the Continuing Employees or their dependents shall terminate under any of the Premier health plans prior to the time such Continuing Employees and their dependents become eligible to participate in the health plans, programs and benefits common to all employees of First Guaranty and their dependents. In the event of a termination or consolidation of any Premier health plan, terminated Premier employees and qualified beneficiaries will have the right to continued coverage under group health plans of First Guaranty in accordance with COBRA.
7.6.3 First Guaranty agrees to take all such actions related to the Premier 401(k) Plan as stated in Section 6.12.1 of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (First Guaranty Bancshares, Inc.), Merger Agreement (First Guaranty Bancshares, Inc.)
Employee Benefits. (a) Parent agrees that, for For a period of one year following the Effective DateTime, the employees Parent shall provide, or cause to be provided, to each employee of the Company who is employed by the Company as of immediately prior to the Effective Time and its Subsidiaries will who continues to be employed by the Surviving Corporation (or any Affiliate thereof) during such one-year period (each, a “Continuing Employee”) a base salary (or base wages, as the case may be) and short-term cash incentive compensation opportunities, each of which is no less favorable than the base salary (or base wages, as the case may be) and short-term cash incentive compensation opportunities provided with pension to such Continuing Employee immediately prior to Effective Time, and welfare commission opportunities and benefits under (including severance benefits and other employee benefit plans benefits) that at the election of Parent are either (i) substantially similar comparable in the aggregate to those currently the commission opportunities and benefits (including severance benefits and other employee benefits) provided by to such Continuing Employee immediately prior to Effective Time. Without limiting the foregoing:
(a) Each Continuing Employee shall be given service credit for all purposes, including for eligibility to participate, benefit levels (including, for the avoidance of doubt, levels of benefits under Parent’s and/or the Surviving Corporation’s vacation policy) and eligibility for vesting under Parent and/or the Surviving Corporation’s employee benefit plans and arrangements with respect to his or her length of service with the Company (and its Subsidiaries and predecessors) prior to such employees or (ii) substantially similar the Closing Date, provided that the foregoing shall not result in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect duplication of benefits or apply for purposes of benefit accrual under any pension plan or to any bonus benefit plan that is a frozen plan or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as that provides benefits to a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedgrandfathered employee population.
(b) Prior To the extent that service is relevant for eligibility, vesting or allowances (including paid time off) under any health or welfare benefit plan of Parent and/or the Surviving Corporation, then Parent shall use commercially reasonable efforts to (i) waive all limitations as to pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Effective Time, if requested by Parent in writingContinuing Employees, to the extent permitted by applicable Law that such conditions, exclusions and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the waiting periods would not apply under a similar employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no plan in which such employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment participated prior to the Effective Time was with the Company and (ii) ensure that such health or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefitswelfare benefit plan shall, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits vesting, deductibles, co-payments and out-of-pocket maximums and allowances (excluding accruals under a defined benefit plan) including paid time off), credit Continuing Employees for service and vesting thereunder service by such employees amounts paid prior to the Effective Time with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service and amounts paid was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated recognized prior to the Effective Time to employees under the corresponding health or welfare benefit plan of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Company.
(hc) Parent agrees thatshall, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation to, assume and its Subsidiaries to make charitable contributions honor all Employee Benefit Plans in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent accordance with the past practices of the Company and its Subsidiariestheir terms.
(kd) Nothing contained If requested by Parent in writing at least five business days prior to the Offer Acceptance Time, the Company shall cause any 401(k) plan sponsored or maintained by the Company (each, a “Company 401(k) Plan”) to be terminated effective as of the day immediately prior to the Offer Acceptance Time and contingent upon the occurrence of the Closing. If Parent requests that any Company 401(k) Plan be terminated, the Company shall provide Parent with evidence that such plan has been terminated (the form and substance of which shall be subject to reasonable review and comment by Parent) not later than two days immediately preceding the Offer Acceptance Time.
(e) The provisions of this Section 6.9 6.4 are solely for the benefit of the Parties to this Agreement, and no provision of this Section 6.4 is intended to, or this Agreement shall (i) be treated as shall, constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise and no current or former employee or any particular Benefit Plan, (ii) give other individual associated therewith shall be regarded for any purpose as a third party any beneficiary of the Agreement or have the right to enforce the provisions hereof. Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any Affiliate of their Affiliates Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Company or any Affiliate of Parent, which rights are hereby expressly reserved, to (x) maintain any particular Benefit Plan discharge or (y) retain terminate the employment services of any particular employeeContinuing Employee at any time for any reason whatsoever, with or without cause.
Appears in 2 contracts
Samples: Merger Agreement (Sucampo Pharmaceuticals, Inc.), Merger Agreement (Mallinckrodt PLC)
Employee Benefits. (a) Parent agrees that, for a that during the period of one year following commencing at the Effective DateTime and ending on the first anniversary thereof, the employees of the Company and its Subsidiaries Employees will continue to be provided with pension and welfare benefits under employee benefit plans that at (other than stock options or other plans involving the election issuance of Parent are either (isecurities of the Company or Parent) substantially similar which in the aggregate are substantially comparable to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Employees. Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result will cause each employee benefit plan of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, which Employees are eligible to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries participate to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) eligibility and vesting thereunder the service by of such employees Employees with the Company and its Subsidiaries as if such service were with Parent or its SubsidiariesParent, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits and such service period would have been credited to any an employee of the Company or Parent participating in the relevant plan. For the first plan year ending after the Effective Time, any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect exclusion under any Purchase Benefit Plan providing medical or dental benefits shall be no more restrictive for any Employee who, immediately prior to commencing participation in such employees Purchaser Benefit Plan, was participating in a Company Benefit Plan providing medical or dental benefits and their dependents had satisfied any pre-existing condition provision under such Company Benefit Plan. Any expenses that were taken into account under a Company Benefit Plan providing medical or dental benefits in which the Employee participated immediately prior to commencing participation in a Purchaser Benefit Plan providing medical or dental benefits shall be taken into account to the same extent under such exclusions were waived under a comparable plan Purchaser Benefit Plan, in accordance with the terms of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents Purchaser Benefit Plan, for purposes of satisfying all applicable deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees provisions and life-time benefit limits. Parent will, and will cause the Surviving Corporation to, honor in accordance with their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that terms (i) all employee benefit obligations to Employees accrued as of the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 Effective Time and (ii) to the Retention Pool complies with the requirements extent set forth on Schedule 6.1(h)(i), all employee severance plans in Section 6.9(g) of existence on the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated date hereof and all employment or severance agreements entered into prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)date hereof.
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Merck & Co Inc), Agreement and Plan of Merger (Merck & Co Inc)
Employee Benefits. (a) Parent agrees thatshall, for a period of one year following or shall cause the Effective DateSurviving Corporation to, the employees of provide each employee who is actively employed by the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that on the Closing Date (each a “Continuing Employee”) while employed by Parent or any of its Subsidiaries with: (A) during the period commencing at the election Effective Time and ending on the 12 month anniversary of Parent are either (i) substantially similar in the aggregate to those currently Effective Time, base salary or base wage no less favorable than the base salary or base wage provided by the Company and its Subsidiaries to such Continuing Employee immediately prior to the Effective Time, (B) during the period commencing at the Effective Time and ending on the December 31 of the year in which the Effective Time occurs, (x) target annual cash bonus opportunities and severance benefits, in each case, that are no less favorable than those provided by the Company and its Subsidiaries to such Continuing Employee immediately prior to the Effective Time and (y) retirement and welfare benefits (other than defined benefit plan and retiree welfare benefits) that are no less favorable in the aggregate than those provided by the Company and its Subsidiaries to such Continuing Employee immediately prior to the Effective Time, and (C) during the period commencing on January 1 of the year following the year in which the Effective Time occurs and ending on the 12 month anniversary of the Effective Time, (x) target annual cash bonus opportunities and severance benefits, in each case, that are substantially comparable to those provided to similarly situated employees or of Parent and (iiy) retirement and welfare benefits (other than defined benefit plan and retiree welfare benefits) that are substantially similar comparable in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With employees of Parent; provided, however, that until such time as Parent fully integrates the Continuing Employees into its plans, participation in the Company Benefit Plans shall be deemed to satisfy the foregoing standards, it being understood that the Continuing Employees may commence participating in the plans of Parent on different dates following the Effective Time with respect to any bonus or long-term cash incentive awards calculated based on 2006 performancedifferent benefit plans; provided, further, that the Company’s performance for calendar year 2006 requirements of this sentence shall be calculated without taking into account any reasonable expenses or costs associated with or arising as not apply to Continuing Employees who are covered by a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedcollective bargaining agreement.
(b) Prior Parent shall (A) use its reasonable best efforts to cause any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Parent or its Affiliates to be waived with respect to the Effective TimeContinuing Employees and their eligible dependents, if requested by Parent (B) use its reasonable best efforts to give each Continuing Employee credit for the plan year in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following which the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation occurs towards applicable deductibles and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately annual out-of-pocket limits for medical expenses incurred prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law Time for which payment has been made and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of (C) give each Continuing Employee service credit for such Continuing Employee’s employment with the Company and its Subsidiaries shall commence participation therein following the Effective Time unless for purposes of vesting, benefit accrual and eligibility to participate under each applicable Parent benefit plan, as if such service had been performed with Parent, except for benefit accrual under defined benefit pension plans, or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits.
(c) If requested in writing by Parent at least five business days prior to the Effective Time, the Company shall take (or cause to be taken) all actions reasonably determined by Parent to be necessary or appropriate to terminate, effective not later than the business day immediately prior to the Effective Time, any Company Benefit Plans that contain a cash or deferred arrangement intended to qualify under Section 401(k) of the Code. In the event that Parent requests that such plan(s) be terminated, (i) the Company shall provide Parent with evidence that such plan(s) has been terminated (the form and substance of which shall be subject to review and approval by Parent) not later than the business day immediately preceding the Effective Time and (ii) Parent shall cause any employee benefit plans permit each eligible Continuing Employee to become a participant in an “eligible retirement plan” (including vacation, severance and disability planswithin the meaning of Section 401(a)(31) covering employees of the Company and Code) of Parent or any of its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit planthe “Parent 401(k) Plan”) and vesting thereunder service by such employees with make rollover contributions of “eligible rollover distributions” (within the Company and its Subsidiaries as if such service were with Parent or its Subsidiariesmeaning of Section 401(a)(31) of the Code, including, to the same extent that permitted by the Parent 401(k) Plan, all participant loans) in cash or notes (in the case of participant loans and to the extent permitted by the Parent 401(k) Plan) in an amount equal to the eligible rollover distribution portion of the account balance distributed to each such service was credited under a comparable Continuing Employee from such plan to the Parent 401(k) Plan. Nothing contained in this Agreement is intended to (A) be treated as an amendment of any particular Company Benefit Plan, (B) prevent Parent, the Company or its Subsidiariesany of their Affiliates from amending or terminating any of their benefit plans in accordance their terms, provided(C) prevent Parent, that no credit shall be given under frozen benefit plans. For purposes the Company or any of each employee benefit plan their Affiliates, after the Effective Time, from terminating the employment of Parent any Continuing Employee, or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to (D) create any third party beneficiary rights in any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductiblebeneficiary or dependent thereof, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees thatany collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any employee of the Company and its Subsidiaries whoContinuing Employee by Parent, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiariestheir Affiliates or under any benefit plan which Parent, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeemay maintain.
Appears in 2 contracts
Samples: Merger Agreement (Tesoro Corp /New/), Merger Agreement (Western Refining, Inc.)
Employee Benefits.
(a) Parent agrees thatFidelity or its Subsidiaries shall: (i) provide MNB’s and Merchants Bank’s employees who become employees of Fidelity or its Subsidiaries credit for all years of service with MNB or any of its Subsidiaries and predecessors, for a period of one year following prior to the Effective Date, Time for the purpose of eligibility to participate and vesting and (ii) cause to be credited any deductibles incurred by MNB and Merchants Bank employees and their beneficiaries and dependents during the portion of the Company calendar year prior to their participation in the benefit plans of Fidelity after the Effective Time with the objective that there be no double counting during the year in which the Effective Time occurs of such deductible. Fidelity and its Subsidiaries will agree to honor, or to cause to be provided honored, in accordance with pension their terms to the extent allowed by law, all vested or accrued benefit obligations to, and welfare contractual rights of MNB’s and Merchant Bank’s current and former employees, including, without limitation, any benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or rights arising as a result of the transactions contemplated by this Agreement (either alone 68 or in combination with any nonrecurring charges that would not reasonably be expected other event). At such time as employees of MNB and the MNB Subsidiaries become eligible to have been incurred had participate in the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Timebenefit plans of Fidelity, if requested by Parent in writingFidelity shall, to the extent permitted by applicable Law and the terms of the applicable available from its insurers, cause each such plan or arrangement, the Company shall to (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries waive any preexisting condition limitations to the extent necessary to provide that no employees such conditions are covered under the applicable benefit plans of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation Fidelity and (ii) cause waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to such employee or dependent on or after the Xxxxx Corporation Incentive Savings Effective Time to the extent such employee or dependent had satisfied any similar limitation or requirement under an analogous MNB Benefit Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition
(b) MNB or its Subsidiary shall fully fund, amend, freeze, merge or terminate any MNB Benefit Plan effective before the Effective Time at the request of Fidelity, provided any such action shall be in compliance with applicable laws. Fidelity agrees that if the 401(k) plan maintain by MNB or Merchants Bank (the “MNB 401(k) plan”) shall be terminated pursuant to Fidelity’s request and if permitted by law, regulation and the Fidelity 401(k) plan, and there is no material adverse financial impact to Fidelity or Fidelity 401(k) plan participants: (i) participants in the MNB 401(k) plan shall become 100% vested in all benefits thereunder; (ii) as soon as administratively practicable following the Effective Time and in accordance with ERISA and the IRC, Fidelity shall cause the account balances in the MNB 401(k) Plan to be either distributed to the participants in the MNB 401(k) Plan and/or transferred to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct, and (iii) Fidelity shall take all other actions necessary and proper in order to implement the termination of the MNB 401(k) Plan and related trust. If permitted by law, regulation, and the Fidelity 401(k) plan, Fidelity agrees to permit participants in the MNB 401(k) Plan to roll over their account balances in the MNB 401(k) Plan to the Fidelity 401(k) Plan if they become employees of Fidelity, and to the extent permitted by ERISA, the IRC and the terms of the Fidelity 401(k) plan, permit outstanding loans under the MNB 401(k) plan to remain outstanding under the Fidelity 401(k) plan and subject to current repayment schedules.
(c) Except as provided on MNB Disclosure Schedule 4.16(c), Fidelity agrees that all vacation time, sick leave, personal time or similar paid leave accrued by an employee of MNB or any MNB Subsidiary which is not used by such employee prior to the Effective Time, to shall, in the extent permitted by applicable Law and the terms case of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent MNB or such any MNB Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each who become employees of its officers and directors to repay Fidelity or any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, Fidelity Subsidiary following the Effective Time, decisions regarding utilization of facilities of the Company be rolled over and its Subsidiaries or Parent and its Subsidiaries shall be made available for use by Parent on a basis such employees during such employees’ service with Fidelity as paid time off (“PTO”); provided that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiariesi) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of such employees shall not be made authorized to use or, unless their employments are terminated by Parent on a fair and equitable basisFidelity without cause, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment reimbursed for accrued PTO prior to the Effective Time was with date on which system conversion occurs without the Company or any consent of its Subsidiaries or Parent or any of its Subsidiaries.
Fidelity and (eii) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time Fidelity shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by reimburse such employees with the Company and its Subsidiaries as if for any accrued PTO which such service were with Parent or its Subsidiariesemployees have not used prior to any termination of their employments, to the same extent that as MNB or Merchants Bank would have reimbursed such service was credited under a comparable plan of the Company employees had their employments ended while they were employed by MNB or its SubsidiariesMerchants Bank.
(d) Nothing in this Section 4.16, provided, that no credit express or implied shall be given under frozen benefit plans. For purposes of each employee require Fidelity to maintain any specific benefit plan of Parent MNB or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to guarantee employment of any employee for any period of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and time after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Fidelity D & D Bancorp Inc), Merger Agreement (Fidelity D & D Bancorp Inc)
Employee Benefits. (a) Parent agrees that, for a period As of one year following the Effective DateTime, Powertel will have terminated all Powertel Benefit Plans except for those Powertel Benefit Plans that VoiceStream requests not be terminated and those Powertel Benefit Plans described in Annex 5.18. VoiceStream shall take all necessary action so that after the Effective Time, any current or former employee of Powertel who is eligible to participate in a Powertel Benefit Plan as of the Effective Time shall either be eligible to continue his or her participation in such Powertel Benefit Plan or participate in a corresponding employee benefit plan maintained by VoiceStream or any of its Subsidiaries, subject to the terms of such corresponding plan. VoiceStream shall have the sole discretion to determine which current or former employees of Powertel will continue participation in a Powertel Benefit Plan after the Company Effective Time and which will commence participation in a corresponding employee benefit plan maintained by VoiceStream or any of its Subsidiaries after the Effective Time and, with respect to current or former employees who transfer participation to such a corresponding plan, when such transfer will be provided occur. VoiceStream need not treat all current and former employees of Powertel (including those who are similarly situated) in the same manner with pension respect to which plans they participate in and welfare benefits under when, if at all, they transfer participation from a Powertel Benefit Plan to a corresponding employee benefit plans plan maintained by VoiceStream or any of its Subsidiaries. For example, VoiceStream may decide to have a current or former employee of Powertel continue participation after the Effective Time in certain Powertel Benefit Plans that at have not been terminated, and with respect to other benefits transition his participation on or shortly after the election Effective Time to a corresponding employee benefit plan maintained by VoiceStream or one of Parent are either its Subsidiaries. VoiceStream may take such actions (i) substantially similar in the aggregate to those currently provided by the Company and or cause its Subsidiaries or the Surviving Corporation to take such employees actions) as are necessary or (ii) substantially similar in advisable to accomplish the aggregate to those provided by Parent and foregoing, including, without limitation, amending the eligibility provisions of plans of VoiceStream, any of its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based the Surviving Corporation (including, without limitation, Powertel Benefit Plans that are not terminated on 2006 performance, or before the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedEffective Time).
(b) Prior Except as otherwise provided in this Section 5.01, nothing in this Agreement shall be interpreted as limiting the power of the Surviving Corporation to amend or terminate any particular Powertel Benefit Plan or any other particular employee benefit plan, program, agreement or policy or as requiring the Effective TimeSurviving Corporation to offer to continue (other than as required by its terms) any written employment contract or to continue the employment of any specific person, if requested provided, however, (1) that no such termination or amendment may take away benefits or any other payments already accrued as of the time of such termination or amendment without the consent of such person, except as allowed by Parent law, and (2) that nothing in writingthis Section 5.01 shall be interpreted as limiting or modifying any requirement in Section 5.18 or provisions of Annex 5.18.
(c) VoiceStream shall, or shall cause the Surviving Corporation to, (A) waive all limitations, to the extent permitted by allowable under applicable Law law, as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the terms current and former employees of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it Powertel and its Subsidiaries under any welfare or fringe benefit plan in which such employees and former employees may be eligible to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following participate after the Effective Time unless the Surviving Corporation (other than a Powertel Benefit Plan that is not terminated on or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to before the Effective Time. In addition), other than limitations or waiting periods that are in effect with respect to such employees and that have not been satisfied under the corresponding welfare or fringe benefit plan maintained by Powertel for such current and former employees prior to the Effective Time, (B) provide each current and former employee with credit under any welfare plans in which such employee or former employee becomes eligible to participate after the Effective Time for any co-payments and deductibles paid by such current or former employee for the then current plan year under the corresponding welfare plans maintained by Powertel prior to the Effective Time, and (C) provide (to the extent permitted allowed by law and Treasury regulations applicable Law to tax-qualified plans) each current and the terms former employee with full credit for purposes of eligibility, vesting, and determination of the applicable plan or arrangement, Parent shall cause to be amended the level of benefits under any employee benefit plans and plans, policies, practices or arrangements of it and its Subsidiaries maintained by VoiceStream or any VoiceStream Subsidiary for such current or former employee's service with Powertel or any Powertel Subsidiary to the same extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries recognized by Powertel immediately prior to the Effective Time.
(d) Parent agrees thatExcept as expressly contemplated under Section 5.02 of this Agreement, following neither Powertel nor any affiliate thereof shall, from the date hereof until the Effective Time, decisions regarding utilization without the prior express written consent of facilities VoiceStream, make any contribution, sale or other transfer of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company Powertel Stock or any other "employer security" (as such term is defined in Section 407 of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except ERISA), whether to the extent it would result in satisfy a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiariesrequired obligation, to the same extent that such service was credited under a comparable plan of the Company reimburse for expenses incurred, or its Subsidiariesotherwise, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Powertel Benefit Plan or to the Powertel stock fund (yor any other fund) retain under the employment Powertel 401(k) Profit Sharing Plan. Moreover, Powertel shall, promptly after the date hereof, amend the Powertel 401(k) Profit Sharing Plan (as amended and restated effective as of January 1, 1998, and further amended August 23, 1999), (a) to require that all contributions, from whatever source, be made in the form of cash and (b) to preclude the use of any particular employeepresent or future Powertel 401(k) Profit Sharing Plan assets to purchase from Powertel or any affiliate thereof shares of Powertel Stock or other "employer securities" (as such term is defined in Section 407 of ERISA); it being understood, however, that such amendment need not preclude the Powertel 401(k) Profit Sharing Plan from purchasing Powertel Stock on the open market from any person or entity other than Powertel or an affiliate thereof, nor require that shares of Powertel Stock and units in the Powertel stock fund presently under the Powertel 401(k) Profit Sharing Plan be sold or otherwise liquidated.
Appears in 2 contracts
Samples: Agreement and Plan of Reorganization (Powertel Inc /De/), Agreement and Plan of Reorganization (Voicestream Wireless Corp /De)
Employee Benefits. (a) From the Effective Time through December 31, 2017, Parent agrees thatwill, for a period or will cause its Affiliates to, provide each of one year the Employees who remains in the active employment of Parent or any of its Affiliates following the Effective DateTime (the “Continuing Employees”) with (i) a base salary or wages that are no less than such Continuing Employee’s base salary or wages as of the Effective Time, and (ii) a target bonus opportunity that is no less favorable than the employees opportunity provided to such Continuing Employee as of the Effective Time.
(b) Parent will, or will cause its Affiliates to, honor all obligations under each Company Employee Benefit Plan listed on Section 5.19(a) of the Company and its Subsidiaries will be provided with pension and welfare Disclosure Schedule that remains in effect after the Effective Time, including any rights or benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by under this Agreement (either alone or in combination with any nonrecurring charges other event, including termination of employment), and Parent hereby agrees and acknowledges that would not reasonably be expected to have been incurred had the consummation of the transactions contemplated by this Agreement constitutes a “change of control” or a “change in control” or similar term, as the Agreement not been proposedcase may be, for all purposes under each Company Employee Benefit Plan.
(bc) Prior to Effective as of the Effective Time, if requested by Parent will, or will cause its Affiliates to use commercially reasonable efforts to cause each material Parent Employee Benefit Plan (including all applicable vacation, severance and defined contribution retirement benefit plans and programs) in writingwhich any Continuing Employee becomes eligible to participate to treat the prior service of such Continuing Employee with any of the Company and its Affiliates as service rendered to Parent for all purposes (including vesting, eligibility, level of benefit and benefit accrual purposes, but other than for purposes of benefit accrual under any defined benefit plan or vesting under any equity compensation plan) to the extent permitted by that such service crediting does not violate any applicable Law and or result in duplication of benefits for the terms same period of the applicable plan service.
(d) Parent will, or arrangementwill cause its Affiliates to, the Company shall use commercially reasonable efforts to (i) cause waive any limitation on health and welfare coverage of any Continuing Employee and his or her eligible dependents due to be amended pre-existing conditions and/or waiting periods, active employment requirements, and requirements to show evidence of good health under the employee benefit plans applicable health and arrangements welfare plan of it and its Subsidiaries Parent or any Affiliate of Parent to the extent necessary such Continuing Employee and his or her eligible dependents are covered under a health and welfare benefit plan of the Company or any of its Affiliates (as the case may be), and such conditions, periods or requirements are satisfied or waived under such plan, immediately prior to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) credit each Continuing Employee and his or her eligible dependents with all deductible payments, co-payments and co-insurance paid by such employee and covered dependents under the medical employee benefit plan of the Company or any of its Affiliates (as the case may be) prior to the Effective Time during the year in which the Effective Time occurs for the purpose of determining the extent to which any such employee and his or her dependents have satisfied their deductible and whether they have reached the out-of-pocket maximum under any medical plan of Parent or any Affiliate of Parent for such year.
(e) For purposes of determining the number of vacation days and other paid time off to which each Continuing Employee is entitled during the calendar year in which the Effective Time occurs, Parent will, or will cause its Affiliates to, assume and honor all vacation and other paid time off days accrued or earned but not yet taken by such Continuing Employee as of the Effective Time to the extent reflected on the Company’s books and records.
(f) To the extent requested by Parent, the Company or its appropriate Affiliate shall execute and deliver such instruments and take such other actions as Parent may reasonably require in order to cause the Xxxxx Corporation Incentive Savings amendment, termination and/or liquidation of any Company Employee Benefit Plan, on terms that are in accordance with the applicable amendment, termination and/or liquidation provisions of such Company Employee Benefit Plan and the Xxxxx Hourly 401(k) Plan to be terminated in accordance with applicable law and effective immediately prior to the Effective Time. In addition, prior With respect to any Company Employee Benefit Plan for which the Effective Time, to amendment or termination of such plan requires the extent permitted by applicable Law and the terms consent of the applicable plan or arrangementparticipants of such plan, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior appropriate Affiliate shall use its reasonable best efforts to the Effective Timeobtain such consent as necessary to amend or terminate such plan as requested by Parent.
(dg) Parent agrees that, following The provisions of this Section 7.13 are for the Effective Time, decisions regarding utilization of facilities sole benefit of the Company Parties and its Subsidiaries nothing herein, expressed or Parent and its Subsidiaries shall implied, is intended or will be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard construed to whether the facility is a legacy facility of Parent confer upon or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits give to any person (including, for the avoidance of doubt, any Continuing Employee or other current or former employee of the Company or any of its Subsidiariestheir respective Affiliates), Parent shall cause its employee benefit plans to other than the Parties and their respective permitted successors and assigns, any legal or equitable or other rights or remedies (i) waive all pre-existing condition exclusions of its employee benefit plans including with respect to such employees the matters provided for in this Section 7.13) under or by reason of any provision of this Agreement. Nothing in this Section 7.13 amends, or will be deemed to amend (or prevent the amendment or termination of), any Company Employee Benefit Plan or Parent Employee Benefit Plan. Parent and their dependents its Affiliates shall have no obligation to continue to employ or retain the same extent such exclusions were waived under a comparable plan services of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents Continuing Employee for purposes any period of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to time following the Effective Time to employees of the Company and Parent and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program Affiliates will be continued throughout entitled to modify any compensation or benefits provided to, and any other terms or conditions of employment of, any such course of training (not to exceed two years or $1,000,000 employees in the aggregate) (as opposed to the current educational period)its absolute discretion.
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Clayton Williams Energy Inc /De), Merger Agreement (Noble Energy Inc)
Employee Benefits. (ai) Parent agrees thatThe health insurance plan currently sponsored by the BANK for the benefits of its employees and administered through the Ohio League of Financial Institutions will continue to be the health insurance plan of the BANK, provided, CAMCO may in its discretion in the future provide coverage under the health insurance plan maintained by CAMCO for a period the benefit of one year following the Effective Date, the employees of the Company CAMCO and its Subsidiaries will subsidiaries; provided, that all waiting periods and pre-existing condition limitations shall be provided with pension waived and welfare benefits under employee employees are given full credit for claims arising prior to the change in health plans for purposes of deductibles, out-of-pocket maximums, benefit plans maximums and all other similar limitations for the applicable plan year in which any transition is made and provided, further, that at such plan shall permit the election continued coverage of Parent all individuals entitled to purchase health insurance through the plan of the BANK. If such waiting periods, pre-existing condition limitations and other provisions are either (i) substantially similar not waived, CAMCO shall keep in place, so long as legally possible, the aggregate to those health insurance plan currently provided maintained by the Company BANK, provided that CAMCO may in its discretion keep the health insurance plan maintained by the BANK in place, in lieu of providing coverage to BANK employees under the health insurance plan maintained by CAMCO for employees of CAMCO and its Subsidiaries to such employees or subsidiaries.
(ii) substantially similar in The BANK will allow no new additions to beneficiaries of its supplemental medical retirement health insurance plan and the aggregate supplemental medical retirement health insurance plan will be terminated or amended prior to those provided by Parent and its Subsidiaries the EFFECTIVE TIME to its similarly situated employees. With respect allow only for the current one beneficiary to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedcovered.
(b) Prior WHFC and the BANK shall take all steps necessary to terminate WHFC's 401(k) Plan as promptly as possible and prior to the Effective TimeEFFECTIVE TIME, if requested by Parent in writingand to file as soon as possible, to an Application for Determination with the extent permitted by applicable Law Internal Revenue Service (the "IRS") regarding tax qualification upon termination. WHFC's Employee Stock Ownership Plan (the "ESOP") shall be terminated and the terms ESOP's net assets shall be distributed as promptly as possible. Subject to applicable law and regulation, commencing as promptly as possible following both the termination of WHFC's 401(k) Plan and the final distribution under the ESOP pursuant to 6.06(c) of this AGREEMENT, or such earlier date as may be required under the CODE or ERISA, employees of the applicable plan or arrangementBANK shall become participants in the CAMCO 401(k) Plan in accordance with the terms and conditions of such Plan as then in effect, with prior service credit given for their years of employment by the Company BANK for eligibility and vesting purposes. Except as otherwise provided herein, after the EFFECTIVE TIME, BANK employees shall (i) cause be entitled to be amended the participate in all CAMCO employee benefit plans and arrangements programs generally available to employees of it CAMCO and its Subsidiaries to subsidiaries, including, without limitation, all vacation and sick leave programs and the extent necessary to provide that no Return on Equity Cash Bonus Plan. BANK employees shall be given full credit for prior service for purposes of vesting, eligibility for participation and benefit levels and all waiting periods shall be waived. CAMCO shall honor all accrued vacation leave for employees of Parent and its Subsidiaries shall commence participation therein BANK following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationEFFECTIVE TIME.
(c) The Company agrees (i) WHFC and the BANK are authorized to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities commence termination of the Company ESOP and its Subsidiaries or Parent and its Subsidiaries to file as soon as possible an Application for Determination with the IRS regarding tax qualification upon termination. No additional contribution shall be made to the ESOP by Parent on a basis CAMCO, WHFC or the BANK except as necessary to make the minimum required payment under the current exempt loan (the "LOAN") between WHFC and the ESOP; provided, however, that reflects all such contribution shall be deductible by WHFC and the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility BANK under Section 404 of the CompanyCODE and the allocations of such contribution shall otherwise be in compliance with Section 415 of the CODE. In addition, following All WHFC SHARES held by the Effective Time, decisions regarding promotions and retention Trustee of employees the ESOP at the EFFECTIVE TIME shall be made exchanged by Parent on a fair and equitable basis, in light of the circumstances and Trustee for the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits PER SHARE MERGER CONSIDERATION in accordance with Section 6.9(e) of this AGREEMENT and the Company Disclosure Letter.
(f) Except cash proceeds paid by CAMCO to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees ESOP with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, respect to the same unallocated WHFC SHARES owned by the ESOP shall be applied against the LOAN. To the extent that such service was credited under a comparable plan cash proceeds together with other cash owned by the ESOP are insufficient to retire the LOAN, the Trustee for the ESOP shall dispose of shares held in the suspense account of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansESOP for the purpose of retiring the LOAN. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee Any shares and other assets remaining in the suspense account following repayment of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans LOAN in full including interest will be available for allocation and distribution as promptly as possible to participants (ias defined in the ESOP) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) provisions of the Company Disclosure Letter ESOP and subject applicable law. It is the intent of the parties that the ESOP be terminated and distributions made concurrently with the CLOSING to the approval of Parent (such approval not to be unreasonably withheld)extent possible.
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Mid Iowa Financial Corp/Ia), Merger Agreement (Camco Financial Corp)
Employee Benefits. (a) To the extent service is relevant for purposes of eligibility, participation or vesting (but not the accrual of benefits under any defined benefit pension plan) under any employee benefit plan, program or arrangement established or maintained by Parent agrees thatin which Company Employees may participate, such Company Employees shall be credited for a period service accrued as of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided Time with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to the extent such employees service was credited under a similar plan, program or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, arrangement of the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior To the extent Company Employees and their dependents enroll in any health plan sponsored by Parent, Parent shall waive any preexisting condition limitation applicable to the Effective Time, if requested by Parent in writing, such Company Employees to the extent permitted that the employee’s or dependent’s condition would not have operated as a preexisting condition under the group health plan maintained by applicable Law and the terms of the applicable plan or arrangementCompany. In addition, the Company Parent shall cause such health plans (i) cause to be amended waive all waiting periods otherwise applicable to Company Employees and their dependents, other than waiting periods that are in effect with respect to such individuals as of the employee benefit plans and arrangements of it and its Subsidiaries Effective Time to the extent necessary to provide that no employees not satisfied under the corresponding benefit plans of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation Company, and (ii) cause to provide each Company Employee and his or her dependents with corresponding credit for any co-payments and deductibles paid by them under the Xxxxx Corporation Incentive Savings Plan and corresponding benefit plans of Company during the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms portion of the applicable respective plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries year prior to the Effective Time.
(dc) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with With respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole Employees who become employed by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and Parent after the Effective Time, Parent will permit such Company Employees to schedule and take vacation days that have accrued prior to the Effective Time with pay through December 31, 2008, and Parent shall cause give service credit for purposes of determining post Effective Time vacation, sick leave and any nonqualified deferred compensation plans covering other paid time off entitlements that Parent provides to its employees generally.
(d) If requested by Parent, the Company shall terminate, immediately prior to the Effective Time, such Company Benefit Plan(s) that are identified by Parent, other than the Retention Bonus Plan and the Overriding Royalty Interest Incentive Plan.
(e) The Company and Parent shall cooperate with each other in all reasonable respects relating to any actions to be taken pursuant to this Section 5.11. The Company shall allow Parent reasonable opportunities to meet with employees of the Company from the date hereof to the Effective Time in order to discuss and answer questions regarding employment and benefits.
(f) Nothing in this Agreement shall constitute an amendment to, or be construed as amending, any benefit plan, program or agreement sponsored, maintained or contributed to by Parent or any Subsidiary of Parent. No Company Employee nor any other Person (other than the parties to this Agreement) is intended to be a beneficiary of the provisions of this Section 5.11. Nothing in this Agreement shall require or be construed or interpreted as requiring Parent or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A continue the employment of the Code.
(j) For a period of three years any Company Employee after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Bois D Arc Energy, Inc.), Merger Agreement (Stone Energy Corp)
Employee Benefits. (a) Parent agrees thatand Merger Sub shall, for a period of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective its Subsidiaries, to, give each person who, immediately prior to the Effective Time. In addition, prior to was an employee of the Company or its Subsidiaries (an “Employee”) who remains employed by the Surviving Corporation or one of its Subsidiaries following the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Time credit for such Employee’s service with the Company and its Subsidiaries for purposes of eligibility, vesting, and severance and vacation entitlement (but not for purposes of benefit accrual), under any benefit plans made generally available to employees or officers or any class or level of employees or officers maintained by Parent or Merger Sub or the Surviving Corporation and its Subsidiaries in which such Employee participates, to the same extent recognized by the Company under a comparable benefit plan immediately prior to the date hereof (excluding, for the avoidance of doubt, with respect to any equity awards or incentives granted after the Effective Time); provided, however, that such service shall commence participation therein not be recognized to the extent that such recognition would result in a duplication of benefits with respect to the same period of service.
(b) Following the Effective Time, Parent and Merger Sub shall, or shall cause the Surviving Corporation and its Subsidiaries to, make reasonable efforts to (i) waive any preexisting condition limitations otherwise applicable to Employees who remain employed by the Surviving Corporation or any of its Subsidiaries and their eligible dependents under any plan of Parent or Merger Sub or the Surviving Corporation and its Subsidiaries that provides health benefits in which such Employees may be eligible to participate following the Effective Time unless other than any limitations that were in effect with respect to such Employees as of the date hereof or at any time prior to the Effective Time under the analogous Company benefit plan, (ii) honor any deductible, co-payment and out-of-pocket maximums incurred by any such Employees and their eligible dependents under the health plans in which they participated immediately prior to the date hereof during the portion of the calendar year prior to the Effective Time in satisfying any deductibles, co-payments or out-of-pocket maximums under health plans of Parent or Merger Sub or the Surviving Corporation and its Subsidiaries in which they are eligible to participate after the Effective Time in the same plan year in which such Subsidiary explicitly authorizes deductibles, co-payments or out-of-pocket maximums were incurred and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to any such participation.
(c) The Company agrees to cause Employee and his or her eligible dependents on or after the Effective Time, in each of its officers and directors to repay any outstanding loans or notes that such officer or director owes case to the extent such Employee or eligible dependent had satisfied any similar limitation or requirement under an analogous Company or its Subsidiaries benefit plan prior to the Effective Time.
(c) As of and contingent upon the Effective Time, each of the executives of the Company identified in the FY2015 Executive Bonus Plan (the “Executive Incentive Plan”) shall be entitled to receive a cash payment from the Surviving Corporation in an amount equal to 100% of the payment that such executive would be entitled to receive assuming performance at the FY2015 Pre-Tax/Pre-Bonus income level set forth in such plan, prorated for the portion of fiscal 2015 ending on the last day of the month immediately preceding the Effective Time, reduced by any income or employment Tax required to be withheld with respect to such payment. Each applicable payment required under this Section 4.3(c) shall be made not later than 3 business days after the Effective Time so long as payment information for the applicable recipient of such payment is delivered to Parent no later than the Effective Time. The Executive Incentive Plan will terminate upon the Effective Time and, except as set forth in this Section 4.3(c), no payments will thereafter be issued under such plan.
(d) Parent agrees thatNotwithstanding the foregoing, the provisions of Section 4.3(a) through Section 4.3(c) shall not apply with respect to any Employee whose employment is governed by any collective bargaining agreement in effect as of the Closing Date.
(e) No provision of this Section 4.3 shall be construed (i) to create a right of any Employee to continued employment by the Surviving Corporation or any of its Subsidiaries following the Effective Time, decisions regarding utilization (ii) (without limiting the generality of facilities Section 7.6) to create a right in any Employee or beneficiary of any Employee under any benefit plan of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company Surviving Corporation or any of its Subsidiaries or Affiliates, (iii) to require Parent or any of its Subsidiaries.
(e) Parent agrees that Subsidiaries to provide any particular employee benefits rates of the Company and its Subsidiaries who is terminated without cause during the 18 months base salary or hourly wage or annual bonus opportunities for any period following the Effective Time shall receive severance benefits in accordance with Section 6.9(eTime, or (iv) obligate the Surviving Corporation, the Company, Parent or any of the Company Disclosure Lettertheir respective Subsidiaries to maintain any particular Benefit Plan.
(f) Except Prior to the Effective Time, the Company shall take the necessary action to terminate its 401(k) plan effective as of the Closing Date. Upon request of an Employee and to the extent it would result in a duplication of benefitspermitted by the Company’s 401(k) plan and applicable Law, Parent shall cause permit the direct rollover of cash account balances and any employee benefit plans (including vacation, severance and disability plansnotes evidencing an outstanding plan loan or loans to Parent’s 401(k) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool further agrees, upon Parent’s request (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool which request shall be allocated made no less than ten (10) days prior to the Effective Time Time), to employees of the Company take any and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject all actions required to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees thatamend, with respect to freeze, and/or terminate any employee of the Company and its Subsidiaries whoor all Benefit Plans, at effective no earlier than immediately before the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Elecsys Corp), Merger Agreement (Lindsay Corp)
Employee Benefits. (a) Parent agrees that, for For a period of one year period following the Effective DateClosing, Acquiror shall provide, or shall cause to be provided, to each Offered Employee who continues employment with Acquiror, the employees Surviving Corporation or any Subsidiary of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at Acquiror or Surviving Corporation after the election of Parent are either Closing (collectively, the “Continuing Employees”) (i) substantially similar base compensation and bonus opportunities that, in each case, are no less favorable than were provided to the aggregate Continuing Employees immediately prior to those currently provided by the Company Closing, and its Subsidiaries to such employees or (ii) substantially similar other employee benefits (excluding equity or equity-based awards) that are no less favorable, in the aggregate aggregate, than the employee benefits (excluding equity or equity-based awards) that were provided to those provided by Parent and its Subsidiaries the Continuing Employees immediately prior to its similarly situated employeesthe Closing. With respect The Acquiror shall grant to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result Continuing Employees within 30 days of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected Effective Time restricted share units to have been incurred had purchase Acquiror Ordinary Shares in the transactions contemplated by the Agreement not been proposedamount specified in Schedule 5.15(a).
(b) Prior to the Effective TimeAcquiror shall, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation to, treat, and (ii) cause the Xxxxx Corporation Incentive Savings Plan and applicable plans in which Continuing Employees are eligible to participate or receive benefits thereunder to treat, the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms service of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was Continuing Employees with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits attributable to any employee of period before the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans Closing Date as service rendered to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate ParentAcquiror, the Surviving Corporation or any Affiliate of Acquiror for purposes of eligibility to participate, vesting, level of benefits for purposes of vacation and severance, and applicability of minimum waiting periods for participation. Without limiting the foregoing, Acquiror shall cause any pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any health or welfare plan of Acquiror, the Surviving Corporation and any Affiliate of Acquiror to be waived with respect to Continuing Employees and their dependents to the extent such conditions were inapplicable or waived under the comparable plans in which such Continuing Employees participated immediately prior to the Closing. If the Continuing Employees become eligible to participate in a health or welfare plan maintained by the Acquiror or any Affiliate of Acquiror in the calendar year in which the Closing occurs, any deductibles, co-pays or similar amounts incurred by the Continuing Employees (or their dependents) under any of the Company’s (or any of its Subsidiaries’) health or welfare plans in the calendar year in which the Closing occurs shall be credited towards deductibles, co-pays or similar payments under the corresponding health and welfare plans of Acquiror or any Affiliate of Acquiror for such calendar year as if such amounts had been paid in accordance with such plans.
(c) No provision of this Agreement shall create any third party beneficiary or other rights in any employee or former employee (including any beneficiary or dependent thereof or other person representing the rights or interests of any such persons) of Acquiror or the Company or any of their Affiliates in respect of continued employment (or resumed employment) with either Acquiror or the Company or any of their Affiliates or with respect to (x) maintain the compensation, benefits, or other terms and conditions of employment with Acquiror or the Company or any particular Benefit Plan of their Affiliates. This Agreement is not intended to and shall not be construed to amend, modify or (y) retain terminate any employee benefit plan, program or arrangement or to affect Acquiror’s or the employment Company’s or any of their Affiliates’ ability to amend, modify or terminate any particular employeeemployee benefit plan, program or arrangement.
Appears in 2 contracts
Samples: Merger Agreement (Mellanox Technologies, Ltd.), Merger Agreement (Ezchip Semiconductor LTD)
Employee Benefits. (a) Parent Xxxxxxxx agrees that, for from and after the Effective Time, Xxxxxxxx and its Subsidiaries shall assume and honor all Tosco Benefit Plans in accordance with their terms as in effect immediately before the Effective Time, subject to any amendment or termination thereof that may be permitted by such terms. For a period of not less than one year following the Effective DateTime, the Xxxxxxxx shall provide, or shall cause to be provided, to individuals who are employees of the Company Tosco and its Subsidiaries will immediately before the Effective Time and who continue to be employed by Xxxxxxxx and its Subsidiaries after the Effective Time (the "Tosco Employees") compensation and employee benefits that are, in the aggregate, not less favorable than those provided with pension and welfare benefits under employee benefit plans to Tosco Employees immediately before the Effective Time, as disclosed by Tosco to Xxxxxxxx before the date of this Agreement. The foregoing shall not be construed to prevent the termination of employment of any Tosco Employee or the amendment or termination of any particular Tosco Benefit Plan to the extent permitted by its terms as in effect immediately before the Effective Time; provided, however, that at the election option of Parent are either an affected Tosco Employee (i) substantially similar in the aggregate up to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to a total of fifteen Tosco Employees), any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 split dollar life insurance policies shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedcontinued.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended For all purposes under the employee benefit plans and arrangements of it Xxxxxxxx and its Subsidiaries providing benefits to any Tosco Employees after the extent necessary to provide that no employees Effective Time (the "New Plans"), each Tosco Employee shall be credited with his or her years of Parent service with Tosco and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to predecessor employers before the Effective Time, to the same extent permitted by applicable Law and the terms of the applicable plan or arrangementas such Tosco Employee was entitled, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following before the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In additioncredit for such service under any similar Tosco Benefit Plans, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of benefits. In addition, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees without limiting the generality of the Company foregoing: (i) each Tosco Employee shall be immediately eligible to participate, without any waiting time, in any and its Subsidiaries all New Plans to take into account the extent coverage under such New Plan replaces coverage under a Tosco Benefit Plan in which such Tosco Employee participated immediately before the Effective Time (such plans, collectively, the "Old Plans"); and (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesTosco Employee, Parent Xxxxxxxx shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of its such New Plan to be waived for such employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company his or her covered dependents, and (ii) take into account Xxxxxxxx shall cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee's participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses year as if such amounts had been paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)New Plan.
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Tosco Corp), Merger Agreement (Phillips Petroleum Co)
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the employees of the Company From and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to after the Effective Time, if requested by Parent HoldCo shall assume and honor all Orion Benefit Plans and Diamond Benefit Plans (including, without limitation, and in writing, to the extent permitted by applicable Law and accordance with the terms thereof, the arrangements identified on Section 6.11 of the applicable plan or arrangement, Orion Disclosure Letter and Section 6.11 of the Company shall (i) cause to be amended Diamond Disclosure Letter). For all purposes under the employee benefit plans and arrangements of it HoldCo and its Subsidiaries affiliates providing benefits to any current or former employee of Orion or Diamond or any of their respective affiliates (collectively, the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following “Employees”) after the Effective Time unless (the Surviving Corporation “New Plans”), and subject to Applicable Law and obligations under any applicable Orion Labor Agreements and Diamond Labor Agreements, each Employee shall be credited with his or such Subsidiary explicitly authorizes such participation and (ii) cause her years of service with Orion or Diamond or any of their respective affiliates, as the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additioncase may be, prior to before the Effective Time, to the same extent permitted by applicable Law and the terms of the applicable plan or arrangementas such Employee was entitled, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following before the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries to credit for such service under any similar Orion Benefit Plans or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In additionDiamond Benefit Plans, following the Effective Timeas applicable, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of benefits. In addition, Parent and without limiting the generality of the foregoing, and subject to any Applicable Law and obligations under applicable Orion Labor Agreements or Diamond Labor Agreements: (i) each Employee shall cause be immediately eligible to participate, without any employee waiting time, in any and all New Plans which are welfare benefit plans to the extent coverage under such New Plan replaces coverage under a comparable Orion Benefit Plan or Diamond Benefit Plan, as applicable, in which such Employee participated immediately before the Effective Time (including vacationsuch plans, severance collectively, the “Old Plans”); and disability plans(ii) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesEmployee, Parent HoldCo shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of its employee benefit plans with respect such New Plan to be waived for such employees Employee and their dependents to the same extent such exclusions were waived under a comparable plan of the Company his or her covered dependents, and (ii) take into account HoldCo shall cause any eligible expenses incurred by such employees Employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such Employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees Employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiariesyear as if such amounts had been paid in accordance with such New Plan.
(gb) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior Notwithstanding anything to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company contrary in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees thatthis Agreement, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From from and after the Effective Time, Parent HoldCo shall honor or cause any nonqualified deferred compensation plans covering any employees to be honored, in accordance with their terms, each of the Company or any of its Subsidiaries Orion Labor Agreements and Diamond Labor Agreements. Prior to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent Orion shall cause comply with any obligations it has under Applicable Laws and the Surviving Corporation Orion Labor Agreements, and its Subsidiaries Diamond shall comply with any obligations it has under Applicable Laws and the Diamond Labor Agreements, to make charitable contributions inform and/or consult with any labor union, labor organization, works council or any other employee representative body in connection with this Agreement, the communities that arrangements proposed in this Agreement and/or the Company Closing. Each of Orion and its Subsidiaries serve, Diamond agree to reasonably cooperate with each other in order to comply with such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiariesobligations.
(kc) Nothing contained in this Section 6.9 or this Agreement 6.11 shall (i) be treated as an amendment of construed to establish, amend, or modify any particular Benefit Planbenefit or compensation plan, program, agreement, contract, policy or arrangement, (ii) give any third party any right to enforce limit the provisions ability of this Section 6.9 HoldCo, Orion or (iii) obligate Parent, the Surviving Corporation Diamond or any of their Affiliates subsidiaries or affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement, contract, policy or arrangement at any time assumed, established, sponsored or maintained by any of them, (xiii) maintain create any third-party beneficiary rights or obligations in any person (including any Employee) other than the parties to this Agreement or any right to employment or continued employment or to a particular Benefit Plan term or condition of employment with HoldCo, Orion or Diamond or any of their subsidiaries, or any of their respective affiliates, or (yiv) retain limit the right of HoldCo, Orion or Diamond (or any of their subsidiaries) to terminate the employment or service of any particular employeeemployee or other service provider following the Closing Date at any time and for any or no reason.
Appears in 2 contracts
Samples: Merger Agreement (Dupont E I De Nemours & Co), Merger Agreement (Dow Chemical Co /De/)
Employee Benefits. (a) Parent agrees that, for a period For the benefit of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided employed as of the Effective Time (the “Employees”), for a period of 12 months following the Effective Time (or, if shorter, during an Employee’s period of employment), and subject to the applicable Law of each jurisdiction where Employees are located, Parent agrees to provide or cause its Subsidiaries (including the Surviving Corporation) to provide each Employee with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) a base salary or wage rate that is substantially similar comparable to the base salary or wage rate in effect for similarly situated employees of Parent immediately prior to the Effective Time, and (ii) with employee benefits (excluding equity and cash incentive compensation) that, in the aggregate aggregate, are substantially comparable to those currently in effect for similarly situated employees of Parent immediately prior to the Effective Time. Notwithstanding the foregoing, (x) to the extent required by applicable Law, base salary or wage rate and incentive compensation opportunities and employee benefits for any Employee shall be no less favorable than the base salary or wage rate and incentive compensation opportunity in effect for such Employee immediately prior to the Effective Time and (y) nothing in this Agreement shall be interpreted as conferring, or intending to confer, on any Employee a right to continued employment with Parent, the Surviving Corporation or any of their Subsidiaries. Notwithstanding anything to the contrary herein, for the period following the Effective Time through December 31, 2016, Parent shall provide the Employees with severance benefits not less favorable than those provided by the Company and its Subsidiaries to such employees Employees pursuant to the Severance Guidelines adopted by the Company and as in effect on the date hereof and provided to Parent.
(b) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its Subsidiaries (iiincluding the Surviving Corporation) substantially similar following the Effective Time and in which any of the aggregate Employees participate (the “Parent Plans”), and except to those provided by the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate and vesting, service with the Company and its Subsidiaries (or predecessor employers to the extent the Company provides past service credit under its benefit plans) shall be treated as service with Parent and its Subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Benefit Plan. Parent agrees to give or cause its Subsidiaries (including the Surviving Corporation) to its similarly situated employees. With respect give the Employees credit under the applicable Parent Plan for amounts paid prior to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for Effective Time during the calendar year 2006 in which the Effective Time occurs under a corresponding Benefit Plan for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(c) Parent shall, or shall cause the Surviving Corporation or relevant Subsidiary to, assume and honor in accordance with their terms all deferred compensation plans, agreements and arrangements, severance and separation pay plans, agreements and arrangements, and written employment, severance, retention, incentive, change in control and termination agreements (including any change in control provisions therein) set forth in Section 5.9(a) of the Company Disclosure Schedule applicable to employees of the Company and its Subsidiaries, in the same manner and to the same extent that the Company or such Subsidiary would be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of required to perform and honor such plans, agreements and arrangements if the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Timeconsummated.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company The parties hereto acknowledge and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis agree that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, all provisions contained in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with this Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans 7.4 with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by are included for the Chief Executive Officer sole benefit of the Company respective parties hereto and shall not create any direct or third party beneficiary right (i) in accordance any other Person, including employees, former employees, any participant or any beneficiary thereof in any Benefit Plan, Foreign Benefit Plan or Parent Plans, or (ii) to continued employment with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries whoSubsidiaries, at Parent or the Effective TimeSurviving Corporation or their Subsidiaries. Notwithstanding anything in this Section 7.4 to the contrary, is nothing in a course this Agreement, whether express or implied, shall be treated as an amendment or other modification of training covered in part any Benefit Plan or in whole by a tuition reimbursement program Foreign Benefit Plan or any other employee benefit plans of the Company, any Company Subsidiary or Parent or prohibits Parent or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years including the Surviving Corporation, from amending or $1,000,000 in the aggregate) (as opposed to the current educational period)terminating any employee benefit plan.
(ie) From and after the Effective TimeThe Company will adopt, Parent shall or will cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted adopted, all necessary corporate resolutions (which shall be subject to Parent’s reasonable review and administered in a manner that complies with Section 409A of the Code.
(japproval) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.to
Appears in 2 contracts
Samples: Merger Agreement (Qlogic Corp), Merger Agreement (Cavium, Inc.)
Employee Benefits. (a) Parent agrees that, for For a period of one year following the Effective DateClosing, the employees Marriott shall provide, or cause to be provided, to each employee of the Company Starwood and its Subsidiaries will subsidiaries who continues to be provided with pension employed by Marriott and welfare its subsidiaries, compensation and benefits under employee benefit plans that at the election of Parent are either (i) substantially similar no less favorable in the aggregate than the compensation and benefits provided to those currently each such employee prior to the Closing. In addition, Marriott shall provide, or cause to be provided, to each employee of Starwood and its subsidiaries who is terminated on or prior to the first anniversary of the Closing with severance benefits that are no less favorable than the severance benefits provided to each such employee prior to the Closing. This Section 5.10(a) shall not apply to collectively bargained employees, the terms and conditions of whose employment shall be determined by the Company and its Subsidiaries to such employees or (ii) substantially similar applicable collective bargaining agreement as in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or longeffect from time-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedto-time.
(b) Prior to From and after the Initial Holdco Merger Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company Marriott shall (i) cause to be amended honored all Starwood Benefit Plans in accordance with the terms thereof. For all purposes under each employee benefit plans and arrangements plan of it Marriott and its Subsidiaries affiliates providing benefits to any current or former employee of Starwood or any of their respective affiliates after the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Initial Holdco Merger Effective Time unless (the Surviving Corporation “New Plans”), and subject to Applicable Law and obligations under applicable collective bargaining or such Subsidiary explicitly authorizes such participation and (ii) cause similar agreements, each employee shall be credited with his or her years of service with Starwood or any of their respective affiliates, as the Xxxxx Corporation Incentive Savings Plan and case may be, before the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Initial Holdco Merger Effective Time, to the same extent permitted by applicable Law and as such employee was entitled, before the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Initial Holdco Merger Effective Time, decisions regarding utilization of facilities to credit for such service under any Starwood Benefit Plan of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In additionsame type, following the Effective Timeas applicable, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of benefits. In addition, Parent and without limiting the generality of the foregoing, and subject to Applicable Law and obligations under applicable collective bargaining or similar agreements: (i) each employee shall cause be immediately eligible to participate, without any employee waiting time, in any and all New Plans which are welfare benefit plans (including vacation, severance and disability plans) covering employees to the extent coverage under such New Plan replaces coverage under a Starwood Benefit Plan of the Company same type, as applicable, in which such employee participated immediately before the Initial Holdco Merger Effective Time (such plans, collectively, the “Old Plans”); and its Subsidiaries to take into account (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance pharmaceutical or disability vision benefits to any employee of the Company or any of its Subsidiariesemployee, Parent Marriott shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of its such New Plan to be waived for such employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company his or her covered dependents, and (ii) take into account Marriott shall cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiariesyear as if such amounts had been paid in accordance with such New Plan.
(gc) The Company may establish Marriott and Starwood hereby acknowledge that a retention and transaction bonus pool “change in control” (or similar phrase) within the “Retention Pool”); provided, that (i) meaning of any Starwood Benefit Plan will occur at the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Initial Holdco Merger Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Time.
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(kd) Nothing contained in this Section 6.9 or this Agreement 5.10 shall (i) be treated as an amendment of construed to establish, amend, or modify any particular Benefit Planbenefit or compensation plan, program, agreement, contract, policy or arrangement, (ii) give any third party any right to enforce limit the provisions ability of this Section 6.9 Marriott or (iii) obligate Parent, the Surviving Corporation Starwood or any of their Affiliates subsidiaries or affiliates to amend, modify or terminate any benefit or compensation plan, program, agreement, contract, policy or arrangement at any time assumed, established, sponsored or maintained by any of them, (xiii) maintain create any third-party beneficiary rights or obligations in any person (including any employee) other than the parties to this Agreement or any right to employment or continued employment or to a particular Benefit Plan term or condition of employment with Marriott or Starwood or any of their subsidiaries, or any of their respective affiliates or (yiv) retain limit the right of Marriott or Starwood (or any of their subsidiaries) to terminate the employment or service of any particular employeeemployee or other service provider following the Closing Date at any time and for any or no reason.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Marriott International Inc /Md/), Merger Agreement (Starwood Hotel & Resorts Worldwide, Inc)
Employee Benefits. (a) Parent agrees that, for For a period of one (1) year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made shall, subject to any requirements imposed by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In additionlocal Law, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives cause to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time provided to employees of the Company and its Subsidiaries designated by who are primarily employed in the Chief Executive Officer United States (the “US Employees”) who remain in the employment of the Company Surviving Corporation base salary or hourly wage rates that, on an individual-by-individual basis, are no less favorable than those provided to such US Employees immediately prior to the Effective Time. Parent shall cause the Surviving Corporation to recognize the service of each US Employee as if such service had been performed with Parent (i) for purposes of vesting (but not benefit accrual) under Parent’s defined benefit pension plan, (ii) for purposes of vesting under Parent’s 401(k) retirement plan, (iii) for purposes of eligibility for vacation under Parent’s vacation program, (iv) for purposes of eligibility and participation under any health or welfare plan maintained by Parent (other than any post-employment health or post-employment welfare plan) and (v) unless covered under another arrangement with or of the Company, for benefit accrual purposes under Parent’s severance plan (in the case of each of clauses (i), (ii), (iii), (iv) and (v), solely to the extent that Parent makes such plan or program available to such US Employee and not in any case where credit would result in duplication of benefits), but not for purposes of any other employee benefit plan of Parent. Each benefit plan, program, practice, policy or arrangement maintained by Parent or its Subsidiaries following the Effective Time and in which US Employees participate (the “Parent Plans”) shall waive pre-existing condition limitations to the extent waived or not applicable under the applicable Benefit Plan. US Employees shall be given credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the year in which the Effective Time occurs under a corresponding Benefit Plan during the same period for purposes of applying deductibles, co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the guidelines set forth in Section 6.9(g) terms and conditions of the Company Disclosure Letter and subject to the approval of Parent (such approval not Plan. Parent shall cause to be unreasonably withheld).
(h) Parent agrees that, with respect provided to any employee employees of the Company and its Subsidiaries whowho are primarily employed in Israel (the “Israeli Employees” and, at together with the Effective TimeUS Employees, is in a course the “Employees”) any terms and conditions of training covered in part employment (including plans, programs and social insurance contributions or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregatearrangements) (as opposed to the current educational period)extent required by Israeli Law in order for Parent, the Surviving Corporation and their Subsidiaries to avoid any liability that would otherwise result from a failure to comply with relevant Israeli Law and honor all Benefit Plans and Specified Benefit Agreements in which (or to which) such Israeli Employees are a participant or a party in accordance with their terms.
(ib) From and after the Effective TimeParent shall, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions to, honor the terms of all Benefit Plans set forth in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices Section 6.5(b) of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or Disclosure Schedule. Notwithstanding the foregoing, no provision of this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party create any right in any Employee to enforce continued employment by Parent, the provisions of this Section 6.9 or (iii) obligate ParentCompany, the Surviving Corporation or any respective subsidiary thereof, or preclude the ability of their Affiliates Parent, the Company, the Surviving Corporation or any respective subsidiary thereof, to (x) maintain any particular Benefit Plan or (y) retain terminate the employment of any particular employeeemployee for any reason or (ii) require Parent, the Company, the Surviving Corporation, or any respective subsidiary thereof, to continue any Benefit Plan or prevent the amendment, modification, or termination thereof after the Closing Date.
(c) Parent agrees that the Company shall be permitted to pay (in accordance with Section 6.5(c) of the Company Disclosure Schedule), immediately prior to the Effective Time (to the extent not theretofore paid), 2008 incentive compensation to Employees who participate in the Company’s annual incentive plans for fiscal year 2008. Such payments shall be made in accordance with the Company’s annual incentive plans for fiscal year 2008 and all determinations relating thereto shall be consistent with the incentive compensation paid to Employees for fiscal year 2007. Section 6.5(c) of the Company Disclosure Schedule sets forth the actual bonuses to be paid to Employees under the Company’s annual incentive plans for fiscal year 2008.
(d) This Section 6.5 shall be binding upon and shall inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.5, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.5 or is intended to be, shall constitute or be construed as an amendment to or modification of any employee benefit plan, program, arrangement or policy of Parent, the Company, the Surviving Corporation or any respective subsidiary thereof.
Appears in 2 contracts
Samples: Merger Agreement (Omrix Biopharmaceuticals, Inc.), Merger Agreement (Johnson & Johnson)
Employee Benefits. (a) Parent agrees that, for For a period commencing upon the Effective Time and continuing through the end of one the calendar year that includes the Effective Time, Parent shall provide or cause to be provided to each Company Associate who is employed at the Effective Time and continues to be employed by Parent or an Affiliate of Parent following the Effective DateTime (the “Continuing Employees”) base salary or base hourly rate, as applicable, welfare and fringe benefits and annual bonus opportunities (the employees of the Company “Continuing Benefits”), excluding equity-based compensation and its Subsidiaries will be provided with pension retention and welfare benefits under employee benefit plans retirement benefits, that are at the election of Parent are either (i) least substantially similar in the aggregate to those currently the compensation and benefits provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Continuing Employees immediately prior to the Effective Time; provided that such obligation shall not apply to any Continuing Employees who voluntarily transfers to another position of employment with Parent or an Affiliate after the Effective Time or who voluntarily elects a reduced work schedule if, as a result of such change in status, the Continuing Employee’s base salary will be modified or the Continuing Employee does not meet the eligibility requirements under which such Continuing Benefits are provided. Without limiting the foregoing:
(a) At the Effective Time, with respect to any accrued but unused personal, sick or vacation time to which any Continuing Employee is entitled pursuant to the personal, sick or vacation policies applicable to such Continuing Employee immediately prior to the Effective Time, Parent shall, or shall cause the Surviving Company to and instruct its Subsidiaries to, as applicable, assume the liability for such accrued personal, sick or vacation time and allow such Continuing Employee to use such accrued personal, sick or vacation time in accordance with the practice and policies of the applicable Acquired Corporation.
(b) If requested by Parent at least ten (10) business days prior to the Effective Time, the Acquired Corporations shall terminate any and all U.S. Employee Plans intended to qualify under Section 401(k) of the Code (the “401(k) Plan(s)”), effective not later than the business day immediately preceding the Effective Time. In additionthe event that Parent requests that such 401(k) Plan(s) be terminated, the Acquired Corporations shall provide Parent with evidence that such 401(k) Plan(s) have been terminated pursuant to resolution of the Company’s Board of Directors not later than two (2) business days immediately preceding the Effective Time. The form and substance of such resolutions shall be subject to the reasonable approval of Parent. The Company shall use its commercially reasonable efforts to take such other actions in furtherance of terminating any such 401(k) Plan(s) as Parent may reasonably request. Immediately prior to such termination, the Company will make (or cause to be made) all necessary payments to fund the contributions (i) necessary or required to maintain the tax-qualified status of any such 401(k) Plan, (ii) for elective deferrals made pursuant to any such 401(k) Plan for the period prior to termination, and (iii) for employer matching contributions (if any) for the period prior to termination. If the Parent does not request that the 401(k) Plans be terminated prior to the Effective Time, then the Acquired Corporations shall amend such plans, prior to the Effective Time, to provide that the extent permitted by applicable Law and cash payments made in connection with the terms transactions contemplated hereby, including but not limited to, the payments made pursuant to Section 6.2 hereof, be excluded from the definition of compensation under such plans. Whether or not the Parent requests that the 401(k) Plans be terminated, the Continuing Employees shall be provided, through the end of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following calendar year in which the Effective Time unless Parent occurs, a 401(k) plan that provides substantially similar benefits to either the benefits provided under the 401(k) Plans or such Subsidiary explicitly authorizes such participationthe benefits that are provided under the Parent’s 401(k) Plan to its eligible employees (subject to the requirements of subsection (c) below).
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following after the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries all Continuing Employees shall be made by Parent on a basis eligible to continue to participate in the Surviving Company’s health and welfare benefit plans to the extent that reflects they were eligible to participate in such plans prior to the best long-term business interests of Parent and its Subsidiaries Closing; provided, however, that (including i) nothing in this Section 6.3 or elsewhere in this Agreement shall limit the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility right of Parent or a legacy facility the Surviving Company to amend or terminate any such health or welfare benefit plan at any time, and (ii) if Parent or the Surviving Company terminates any such health or welfare benefit plan, then (upon expiration of any appropriate transition period) Parent shall use reasonable best efforts to cause the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives Continuing Employees to be achievedeligible to participate in Parent’s or an Affiliate’s health and welfare benefit plans, giving consideration to previous work historysubstantially the same extent as similarly situated employees of Parent or its Affiliate (taking into account job location). To the extent that service is relevant for eligibility, job experiencevesting or allowances (including paid time off) under any benefit plan of Parent and/or the Surviving Company, qualifications and business needs without regard Parent shall use reasonable efforts to cause such benefit plan to (except to the extent affecting relevant experiencethat it would not result in any duplication of benefits), for purposes of eligibility, vesting and allowances (including paid time off) to whether employment but not for purposes of benefit accrual, credit Continuing Employees for service prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, Acquired Corporations to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated recognized prior to the Effective Time to employees under the corresponding benefit plan of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Company.
(hd) Parent agrees that, with With respect to all employees, the Acquired Corporations shall be responsible for providing any employee notices required to be given and otherwise complying with the WARN or similar statutes or regulations of any jurisdiction relating to any plant closing or mass layoff (or similar triggering event) caused by the Company and its Subsidiaries who, at Acquired Corporations prior to the Effective Time, is in a course of training covered in part . If Parent determines that an event would trigger WARN obligations (or in whole by a tuition reimbursement program of the Company obligations arising under similar statutes or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregateregulations) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any be responsible for providing notices to all employees of the Company as are required to be provided notice under WARN (or any of its Subsidiaries to be drafted and administered similar statute or regulation), in a manner form that complies is compliant with Section 409A of the Codeapplicable regulations.
(je) For Except as otherwise expressly required by any collective bargaining agreement to which an Acquired Corporation is a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner party as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained date of this Agreement, nothing in this Section 6.9 6.3 or elsewhere in this Agreement is intended nor shall be construed to (i) be treated as an amendment of to any particular Benefit Employee Plan, (ii) give prevent Parent from modifying, amending or terminating any third party of its benefit plans or, after the Effective Time, any right to enforce the provisions of this Section 6.9 or Employee Plan, (iii) obligate create a right in any Person to employment with Parent, the Surviving Corporation Company or any Subsidiary of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the Surviving Company, it being understood that the employment of each Continuing Employee shall be “at will” employment, or (iv) create any particular employeethird-party beneficiary rights in any Person, including, without limitation, any employee of the Acquired Corporations or the Surviving Company, any beneficiary or dependent thereof, or any collective bargaining representative thereof.
(f) Continuing Employees shall be eligible for severance benefits as set forth in Schedule 6.3(f) and (ii) after the Effective Time, Parent agrees to cause the Surviving Company to honor the terms, as in effect on the date of this Agreement, of each Contract set forth on Schedule 6.3(f), including by causing the Surviving Company to pay and provide all post-termination benefits required to be paid or provided to any individual pursuant to the express terms, as in effect on the date of this Agreement, of the applicable Contract in the event that such individual does not become (or ceases to be) a Continuing Employee after the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (Quad/Graphics, Inc.), Merger Agreement (COURIER Corp)
Employee Benefits. (a) Parent agrees that, for a during the period commencing at the Effective Time and ending on the earlier of one year (i) the expiration of 12 months following the Effective DateClosing Date or (ii) December 31, the employees 2013, each employee of the Company and its Subsidiaries who continue employment with Parent, the Surviving Corporation or any Subsidiary of the Surviving Corporation after the Effective Time (“Affected Employees”) will be provided with pension (A) base salary and welfare benefits under employee benefit plans that at annual and long-term cash bonus opportunities which are no less than the election of Parent are either (i) substantially similar in the aggregate to those currently base salary and annual and long-term cash bonus opportunities provided by the Company and its Subsidiaries to each such employees or Affected Employee immediately prior to the Effective Time, (iiB) employee benefits (other than defined benefit pension benefits, equity based benefits, and as otherwise provided in this Section 6.9) that are substantially similar in the aggregate to those provided by Parent the Company and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, each such Affected Employee under the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Plans in effect immediately prior to the Effective Time. In addition, prior to Time and (C) severance benefits that are no less favorable than the Effective Time, to the extent permitted severance benefits provided by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or to each such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to Affected Employee under the Company or its Subsidiaries Plans in effect immediately prior to the Effective Time.
(db) With respect to any employee benefit plans maintained by Parent agrees that(collectively, following “Parent Benefit Plans”) which the Affected Employees are entitled to participate in as of the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries Parent Benefit Plans to take into account for purposes of eligibilityeligibility and vesting (other than vesting of future equity awards) and for purposes of determining amounts of severance, benefits or future vacation or other paid time off accrual (excluding accruals but not for benefit accrual purposes under a any qualified defined benefit pension plan) and vesting thereunder thereunder, service by such employees with for the Company and its Subsidiaries as if such service were with Parent or its SubsidiariesParent, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its SubsidiariesSubsidiaries (except to the extent it would result in a duplication of benefits with respect to the same period of service). In the event of any change in the welfare benefits provided to Affected Employee following the Effective Time, Parent shall, and shall cause its employee benefit plans direct and indirect Subsidiaries (including the Surviving Corporation) to use commercially reasonable efforts to (i) waive all pre-existing condition limitations as to preexisting conditions exclusions of its employee benefit plans and all waiting periods with respect to such employees participation and their dependents coverage requirements applicable to each Affected Employee under any welfare benefit plan in which an Affected Employee is eligible to participate on or after the same extent such exclusions were waived under a comparable plan of the Company Effective Time and (ii) take into account credit each Affected Employee for any eligible co-payments, deductibles and other out-of-pocket expenses incurred by such employees and their dependents for purposes paid prior to the Effective Time under the terms of any corresponding Company Plan in satisfying all any applicable deductible, coinsurance and maximum co-payment or out-of-pocket requirements applicable to such employees and their covered dependents for the plan year in which the Effective Time occurs under the applicable employee any welfare benefit plan of Parent or its Subsidiariesin which the Affected Employee participates on and after the Effective Time.
(gc) The Company may establish a retention Parent agrees that for the year in which the Effective Time occurs, it shall provide Annual Incentive Plan cash bonus opportunities that are not less than the threshold, target and transaction maximum annual cash bonus pool opportunities in effect as of the Effective Time and performance metrics relative to such opportunities that are substantially comparable to the existing Annual Incentive Program performance metrics as reasonably adjusted in good faith following the Effective Time to reflect changes in corporate structure, the Merger or the Carveout Transaction.
(d) Parent agrees that following the Effective Time, it shall provide long-term incentive performance-based cash program (the “Retention PoolLTIP”); provided) opportunities in respect of outstanding LTIP award cycles that are not less than the threshold, that (i) target and maximum LTIP opportunities as in effect as of the aggregate amount of bonuses paid pursuant Effective Time and performance metrics relative to such Retention Pool opportunities that are substantially comparable to the existing LTIP performance metrics as reasonably adjusted in good faith following the Effective Time to reflect changes to corporate structure, the Merger or the Carveout Transaction.
(e) Parent hereby acknowledges that a “change in control” or “change of control” within the meaning of each Company Plan that contains such terms will occur upon the Effective Time.
(f) Parent shall, and shall not exceed $3,000,000 cause the Surviving Corporation and (iiany successor thereto to honor, assume, fulfill and discharge the Company’s and its Subsidiaries’ obligations under the plans, policies and agreements identified in Section 6.9(f) of the Retention Pool complies Company Disclosure Letter in accordance with their terms as well as the requirements terms set forth in on Section 6.9(g6.9(f) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to .
(g) Parent hereby acknowledges and recognizes that, as of the Effective Time to Time, all of the Company’s and/or the Company’s Affiliates’ contractual obligations with the unions representing bargaining unit employees of the Company and or its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth Affiliates will continue, including all contractual obligations under applicable collective bargaining agreements, as listed in Section 6.9(g5.1(m) of the Company Disclosure Letter and (subject to future bargaining between the approval of Parent (such approval not to be unreasonably withheldunions and the Company or the Company’s Affiliates).
(h) For purposes of Section 6.9 (other than 6.9(e)), each reference to “Parent” shall be deemed to also be a reference to “Wolverine” and each reference to Parent agrees that, shall also be a reference to the Subsidiary of Wolverine that is party to the Carveout Transaction Agreement to the extent applicable with respect to any employee of the Company and its Subsidiaries who, at PLG Business in connection with the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period)Carveout Transaction.
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner The parties agree that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained all provisions in this Section 6.9 are included for the sole benefit of the parties hereto, and that nothing in this Agreement, whether express or this Agreement implied, shall (i) be treated as constitute an amendment of to any particular Parent Benefit Plan, Company Plan or any other applicable employee benefit arrangement, (ii) give create any third party beneficiary rights (x) in any right to enforce the provisions of this Section 6.9 other Person, or (iiiy) obligate to continued employment with Parent, the Surviving Corporation Company or any of their Affiliates or Subsidiaries or (iii) shall alter or limit Parent’s, the Company’s or any of their Affiliates’ or Subsidiaries’ ability to (x) maintain amend, modify or terminate, in accordance with the terms of such plan, any particular Benefit Plan benefit plan, program, agreement or (y) retain the employment of any particular employeearrangement.
Appears in 2 contracts
Samples: Merger Agreement (Wolverine World Wide Inc /De/), Merger Agreement (Collective Brands, Inc.)
Employee Benefits. (a) Parent agrees Acquiror and SCB agree that, unless otherwise mutually determined, the SCB Employee Plans in effect at the date of this Agreement (except stock plans) will remain in effect through December 31, 1997 with respect to employees (including retirees) covered by such plans at the Effective Time. Acquiror, as appropriate, will take such steps as are required so that all employees of SCB and SC Bank who become or remain as employees of the Acquiror or any of its subsidiaries (the "CONTINUING EMPLOYEES") thereafter become participants in Acquirors Employee Plans. All of the Continuing Employees will be credited for a period eligibility for participation and vesting purposes (but not for purposes of one year calculating accrued benefits, except as provided below) with all of their years of past service with SCB or SC Bank (or any of their predecessors to the extent SCB is obligated to credit past service under acquisition agreements) as though they had been employees of the Acquiror under all Acquiror Employee Plans in which the Continuing Employees participate following the Effective Date, Time. Acquiror agrees to assume and honor in accordance with their terms all accrued benefits and other obligations of SCB under the SCB Employee Plans for the benefit of all current and former employees of SCB and SC Bank.
(b) All Continuing Employees shall be entitled to participate in stock plans, bonus plans and other such incentive plans of Acquiror and subsidiaries on the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its same basis as other similarly situated employeesemployees of such companies. With respect As to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising employees of SCB and SC Bank whose employment is terminated as a result of the transactions contemplated hereby, Acquiror undertakes to make available the information regularly made available to its employees concerning employment positions available with Acquiror to enable such SCB and SC Bank employees to apply for such positions.
(c) SCB or SC Bank has entered into employment and severance agreements with certain senior executives, copies of which have been furnished to Acquiror (the "EXECUTIVE AGREEMENTS"). SCB and SC Bank also have established policies and procedures for termination and severance of employees' employment. These policies ("SEVERANCE POLICIES") shall be amended as soon as practicable following the date hereof to exclude employees hired by this Agreement Acquiror under reasonably comparable terms to those presently in effect. Acquiror shall assume and honor all Executive Agreements and maintain all benefits described thereunder without modification, offset or counterclaim; PROVIDED, HOWEVER, that executives with Executive Agreements shall not be entitled to benefits under the Severance Policies. Acquiror shall cause the Severance Policies to remain in effect on the same basis as in effect at the Effective Time for the benefit of any Continuing Employee whose employment is terminated by Acquiror or any nonrecurring charges of its subsidiaries on or prior to December 31, 1997. Until at least December 31, 1998, Acquiror shall cause the Continuing Employees to be eligible for coverage under severance plans or programs that would are no less favorable to such employees than the Severance Policies, which plans or programs shall include employer-provided outplacement services that are appropriate to the employee's position and experience.
(d) Acquiror agrees to honor in accordance with their terms the obligations of SCB or SC Bank under all deferred compensation plans and agreements for the benefit of all current and former employees of SCB and SC Bank, including all funding arrangements with respect to such obligations and all amendments to such plans, agreements and arrangements through the date hereof. Acquiror agrees to assume and honor in accordance with their terms all bonus and incentive compensation arrangements for employees of SCB and SC Bank, it being acknowledged that with the prior consent of Acquiror (not reasonably to be expected unreasonably withheld) SCB or SC Bank may make adjustments to have been incurred had such arrangements as are necessary or appropriate to reflect the impact of the transactions contemplated by the this Agreement not been proposed(but without providing any material increase in benefits).
(be) Prior With respect to vacation pay, sick pay, leave of absence and similar payroll practices of SCB or SC Bank, Acquiror agrees to honor as of the Effective Time all existing obligations of SCB or SC Bank under policies of SCB or SC Bank as currently in effect and, with respect to the Continuing Employees, agrees to recognize all service recognized by SCB or SC Bank under similar policies of Acquiror for purposes of eligibility and accrual of benefits after the Effective Time, if requested by Parent in writing, to .
(f) SCB shall cause the extent permitted by applicable Law and the terms "401(k) Plan" which is part of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Southern California Bank Employee Retirement Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Monarch Bancorp), Merger Agreement (Sc Bancorp)
Employee Benefits. (a) From and after the Effective Time, the Parent agrees thatshall, for except as may otherwise be required by applicable Law, cause the Surviving Corporation to honor in accordance with their terms all benefits and obligations under the Company Benefit Plans, each as in effect on the date of this Agreement (or as amended as contemplated hereby or with the prior written consent of the Parent).
(b) For a period of one year following the Effective DateTime, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent shall provide to individuals who are either (i) substantially similar in the aggregate to those currently provided employed by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless ("AFFECTED EMPLOYEES"), employee benefits which, in the Surviving Corporation aggregate, are substantially equivalent to the benefits provided pursuant to the Company's or such Subsidiary explicitly authorizes such participation any Company Subsidiaries' employee benefit plans, programs and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective policies immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries .
(c) Except to the extent necessary to provide that no employees prevent the duplication of benefits, the Parent will, or will cause the Surviving Corporation to, give Affected Employees full credit for purposes of eligibility, vesting, benefit accrual and determination of the Company and its Subsidiaries shall commence participation therein following level of benefits under any employee benefit plans or arrangements maintained by the Effective Time unless Parent or any Parent Subsidiary for such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to Affected Employees' service with the Company or its Subsidiaries any Company Subsidiary to the same extent recognized by the Company immediately prior to the Effective Time.
(d) The Parent agrees thatwill, following or will cause the Effective TimeSurviving Corporation to, decisions regarding utilization of facilities of the Company and use its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the reasonable best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans efforts to (i) waive all pre-existing condition limitations as to preexisting conditions, exclusions of its employee and waiting periods with respect to participation and coverage requirements applicable to the Affected Employees under any welfare benefit plans that such employees may be eligible to participate in after the Effective Time, other than limitations or waiting periods that are already in effect with respect to such employees and their dependents that have not been satisfied as of the Effective Time under any welfare plan maintained for the Affected Employees immediately prior to the same extent such exclusions were waived under a comparable plan of the Company Effective Time, and (ii) take into account provide each Affected Employee with credit for any eligible expenses incurred by such employees co-payments and their dependents for purposes of deductibles paid prior to the Effective Time in satisfying all deductible, coinsurance and maximum any applicable deductible or out-of-pocket requirements applicable to under any welfare plans that such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant are eligible to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth participate in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Metromedia Fiber Network Inc), Merger Agreement (Metromedia Fiber Network Inc)
Employee Benefits. (a) Parent agrees thatthat it shall cause the Surviving Corporation to honor each Benefit Plan and Benefit Agreement in accordance with its terms as in effect immediately before the Effective Time, for subject to any amendment or termination thereof that may be permitted by such terms. For a period of from the Effective Time through at least one year following from Effective Time, Parent shall provide, or shall cause to be provided, to those individuals who as of the Effective Date, the Time were employees (other than employees subject to collective bargaining agreements) of the Company and its Subsidiaries will be provided with pension (the “Affected Employees”) compensation and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar no less favorable in the aggregate than those provided to those currently provided by the Company and its Subsidiaries to such employees Affected Employees immediately before the Effective Time or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performanceNotwithstanding the foregoing, the Company’s performance for calendar year 2006 nothing contained herein shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeeAffected Employee.
(b) Each Affected Employee shall receive credit for his or her service with the Company and its Subsidiaries (and their respective predecessors) before the Effective Time under the employee benefit plans of Parent and its Affiliates (other than the Company and its Subsidiaries) providing benefits to any Affected Employees after the Effective Time (the “New Plans”) for purposes of eligibility and vesting thereunder to the same extent as such Affected Employee was entitled, before the Effective Time, to credit for such service under any comparable Benefit Plans (except to the extent such credit would result in a duplication of benefits). In addition, and without limiting the generality of the foregoing: (i) at the Effective Time, each Affected Employee immediately shall be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Benefit Plans in which such Affected Employee participated immediately before the Effective Time (such plans, collectively, the “Old Plans”); (ii) for purposes of each New Plan providing medical, dental, drug and/or vision benefits to any Affected Employee, Parent shall cause all pre-existing condition exclusions of such New Plan to be waived for such Affected Employee and his or her covered dependents to the extent such pre-existing condition exclusions were inapplicable to or had been satisfied by such Affected Employee and his or her covered dependants immediately prior to the Effective Time under the relevant Old Plan; and (iii) each Affected Employee and their eligible dependents shall receive credit for the dollar amount of expenses incurred by such Affected Employee and eligible dependants under the Old Plan for the calendar year in which the Effective Time or the commencement of participation in the New Plan occurs for purposes of satisfying applicable deductibles and annual out-of-pocket limits for such year under the New Plan.
(c) Without limiting the generality of Section 11.06, nothing herein expressed or implied shall confer upon any current or former employee of the Company or any of its Subsidiaries or upon any representative of any such Person, or upon any collective bargaining agent, any rights or remedies, including any third party beneficiary rights or any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Pw Eagle Inc), Merger Agreement (Pw Eagle Inc)
Employee Benefits. (a) Parent agrees that, for a period of For at least one year following the Effective DateTime, AGI shall, or shall cause its Subsidiaries to, provide the employees of the Company and Lebenthal who are employed by AGI or any of its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at immediately after the election of Parent are either Effective Time ("Lebenthal Employees")
(i) substantially similar the same base salary and wages on substantially the same terms and conditions as those in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior effect immediately prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause employee benefits that are no less favorable in the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan aggregate to be terminated effective Lebenthal Plans provided to Lebenthal Employees immediately prior to the Effective Time. In addition, prior to Following the Effective Time, AGI agrees that AGI shall, or shall cause its Subsidiaries to, (i) recognize all Lebenthal Employees' service with Lebenthal for the purposes of eligibility, participation, level of benefits and vesting of benefits (but not for benefit accrual under defined benefit pension plans) under any employee benefit plans of AGI or its Subsidiaries providing benefits to Lebenthal Employees after the Effective Date (the "New Plans") to the extent permitted by applicable Law and the terms of such service would have been recognized under the applicable plan or arrangementLebenthal Plans; provided, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide however, that no employees of the Company and its Subsidiaries such credited service shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits. In addition, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees without limiting the generality of the Company foregoing: (i) each Lebenthal Employee shall be immediately eligible to participate, without any waiting time, in any and its Subsidiaries all New Plans to take into account the extent coverage under such New Plan replaces coverage under comparable Lebenthal Plans in which such Lebenthal Employee participated immediately before the Effective Time (such plans, collectively, the "Old Plans") and to the extent such coverage would have been recognized under the applicable Old Plan; and (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesLebenthal Employee, Parent AGI shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively at work requirements of its such New Plan to be waived for such employee benefit plans with respect to such employees and their his or her covered dependents to the same extent such exclusions were waived exclusion or requirement would not have applied under a comparable plan of the Company applicable Old Plan, and (ii) take into account AGI shall cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee's participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-out of pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses year as if such amounts had been paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with such New Plan. Nothing in this Section shall limit the guidelines set forth in Section 6.9(g) right of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation MONY and its Subsidiaries to make charitable contributions in the communities that the Company terminate an employee of Lebenthal and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in after the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its SubsidiariesClosing.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Mony Group Inc), Agreement and Plan of Merger (Mony Group Inc)
Employee Benefits. (a) Parent agrees that, for For a period of at least one year following the Effective DateTime, Parent shall, or shall cause the Surviving Corporation, to provide employees of the Company Surviving Corporation and its Subsidiaries will be provided with pension (“Affected Employees”) compensation (including bonus opportunities but excluding equity based compensation) and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries at least as favorable to such employees or (ii) substantially similar in Affected Employees as the aggregate to those compensation and benefits provided by Parent and its Subsidiaries Affiliates to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result employees of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedParent and such Affiliates.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause ensure that Affected Employees receive credit (for purposes of eligibility to be amended participate and vesting, but not benefit accrual) for service with the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment Acquired Entities prior to the Effective Time (to the same extent such service credit was with granted under the Company or Plans) under the comparable employee benefit plans, programs and policies of Parent, the Surviving Corporation and any of its their Subsidiaries or in which such employees became participants (the “Parent Employee Plans”), as if such service had been performed with Parent or any of its Subsidiaries.
(e) Parent agrees that any employee . In addition, and without limiting the generality of the Company and its Subsidiaries who is terminated without cause during the 18 months following foregoing, Parent shall ensure that: (i) at the Effective Time Time, each Affected Employee immediately shall receive severance benefits be eligible to participate, without any waiting time, in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except any and all Parent Employee Plans to the extent it would result coverage under such Parent Employee Plan replaces coverage under a similar or comparable Company Plan in a duplication which such Affected Employee participated immediately before the Effective Time, (ii) to the extent permitted under the terms of benefitssuch Parent Employee Plan, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with each Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries Employee Plan providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company Affected Employee and his or her covered dependents, any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions conditions or limitations, evidence of its employee benefit plans insurability, actively-at-work or similar requirements and eligibility waiting periods will be waived with respect to such employees Affected Employees and their dependents his or her covered dependents; and (iii) to the same extent permitted under the terms of such exclusions were waived under a comparable Parent Employee Plan, each Affected Employee and his or her covered dependents shall receive credit for the plan of year in which the Company Effective Time occurs towards applicable deductibles, co-insurance and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum annual out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated limits for expenses incurred prior to the Effective Time to employees of under the Company and its Subsidiaries designated by Plans. Nothing in this Section 4.8(b) is intended to amend any employee benefit plans or prevent Parent from terminating any employee benefit plans in a manner permissible under the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)terms thereof.
(hc) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions assume and honor in accordance with their terms all written employment, severance, retention and termination agreements (including any change in control provisions therein) applicable to the communities that Affected Employees. Notwithstanding the Company and its Subsidiaries serveforegoing, in such amounts (not nothing contained herein shall obligate Parent or the Surviving Corporation to exceed $1.5 million in maintain the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment employment of any particular Benefit Plan, (ii) give Affected Employee for any third party any right to enforce the specific period of time. The provisions of this Section 6.9 4.8 are for the sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any Person (iii) obligate Parentincluding, for the Surviving Corporation avoidance of doubt, any Affected Employee), other than the parties hereto and their respective permitted successors and assigns, any legal or any of their Affiliates to (x) maintain any particular Benefit Plan equitable or (y) retain the employment other rights or remedies under or by reason of any particular employeeprovision of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Zayo Group LLC), Merger Agreement (Abovenet Inc)
Employee Benefits. (a) Parent Holdco agrees that, for a period of not less than one (1) year following the Effective DateClosing, the it shall, or it shall cause its applicable Subsidiary to, provide all individuals who are employees of any Group Company (including employees who are not actively at work on account of illness, disability or leave of absence) as of the Company Closing (the “Affected Employees”), while employed by Holdco, or any of its Subsidiaries, with salaries, annual bonus opportunities (excluding equity and its Subsidiaries will be provided with pension long-term incentive awards) and welfare employee benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar comparable in the aggregate to those provided by Parent to such Affected Employees immediately prior to the Closing. From and its Subsidiaries after the Closing, Holdco shall cause each Group Company to its similarly situated employees. With respect comply with the terms (including terms which provide for or permit amendment or termination) of all contracts, agreements, plans and commitments of such Group Company as in effect immediately prior to the Closing that are applicable to any bonus employees or long-term cash incentive awards calculated based on 2006 performance, the current or former directors or managers of such Group Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior Holdco shall cause each Affected Employee to the Effective Timereceive full credit for service accrued, if requested by Parent in writingor deemed accrued, to the extent permitted by applicable Law and the terms as of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionClosing with the applicable Group Company for all purposes (including for purposes of eligibility, vesting and benefit accrual, but excluding benefit accrual under any defined benefit pension plan), under any employee benefit plan, program or arrangement established or maintained by Holdco or any of its Subsidiaries under which such Affected Employee may be eligible to participate from or after the Closing to the same extent recognized by the applicable Group Company immediately prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard Closing (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits).
(c) With respect to the welfare benefit plans, Parent shall cause programs and arrangements maintained, sponsored or contributed to by Holdco or any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries (the “Holdco Welfare Benefit Plans”) in which an Affected Employee may become eligible to take into account for purposes of eligibilityparticipate from or after the Closing, benefits Holdco shall use commercially reasonable efforts to (excluding accruals i) cause to be waived all limitations as to at-work conditions, if any, with respect to participation and coverage requirements applicable to each such Affected Employee and his or her eligible dependents under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, any Holdco Welfare Benefit Plan to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the an analogous Company and Employee Benefit Plan, (ii) take into account cause any eligible expenses incurred by any Affected Employee and his or her eligible dependents under a Company Employee Benefit Plan during the plan year in which such employees and individuals transition their dependents coverage to an analogous Holdco Welfare Benefit Plan to be taken into account under such Holdco Welfare Benefit Plan for purposes of satisfying all deductible, coinsurance co-insurance and maximum out-of-pocket requirements applicable to such employees Affected Employee and his or her eligible dependents as if such amounts had been paid in accordance with such Holdco Welfare Benefit Plan and (iii) waive any waiting period limitation or evidence of insurability requirement that would otherwise be applicable to an Affected Employee and his or her eligible dependents from or after the Closing during the plan year in which such individuals transition their covered dependents under the applicable employee benefit plan of Parent or its Subsidiariescoverage to an analogous Holdco Welfare Benefit Plan.
(gd) The Without limiting the generality of the foregoing, nothing contained in this Section 6.08 will create any third party beneficiary rights in any Person not a Party hereto, including any employee of a Group Company may establish a retention and transaction bonus pool (the “Retention Pool”); providedor beneficiary or dependent thereof. Nothing contained in this Section 6.08, that express or implied, (i) the aggregate amount of bonuses paid pursuant shall be construed to such Retention Pool shall not exceed $3,000,000 and establish, amend or modify any Company Employee Benefit Plan or other benefit plan, program or arrangement, (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company require Holdco or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of continue any Company Employee Benefit Plan or other benefit plan, program or arrangement, or prevent the Code.
(j) For a period of three years after the Effective Timeamendment, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries servemodification or termination thereof, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent accordance with the past practices of terms thereof and applicable Law, following the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 Closing or (iii) obligate Parent, guarantee employment for any period of time or preclude the Surviving Corporation ability of Holdco or any of their Affiliates its Subsidiaries to (x) maintain terminate any particular Benefit Plan or (y) retain the employment of employee for any particular employeereason.
Appears in 2 contracts
Samples: Master Transaction Agreement (RTI Surgical Holdings, Inc.), Master Transaction Agreement (Rti Surgical, Inc.)
Employee Benefits. (a) Parent agrees that, for a period of one year following Following the Effective DateTime until the first to occur of (i) the first anniversary of the Effective Time and (ii) December 31, 2002 (such shorter period referred to herein as the "Benefit Protection Period"), Valero shall provide, or shall cause to be provided, to individuals who are employees of UDS and its Subsidiaries immediately before the Effective Time and who continue to be employed by Valero and its Subsidiaries after the Effective Time (the "UDS Employees") Benefit Plans (other than any equity-based UDS Benefit Plans) that are, in the aggregate, not less favorable than those generally provided to UDS Employees as of the date hereof, as disclosed by UDS to Valero immediately prior to the date of this Agreement. After the expiration of the Benefit Protection Period, Valero shall provide, or cause to be provided, to UDS Employees compensation and employee benefit plans and programs that are, in the aggregate, not less favorable than those generally provided to other similarly situated employees of Valero and its Subsidiaries. After the Effective Time, the equity-based benefits to be provided to an eligible UDS Employee shall be pursuant to the equity-based benefit plans and programs provided to similarly situated employees of Valero. Nothing contained herein shall be construed to prevent the termination of employment of any UDS Employee; provided, however, that in the event of a qualifying termination of any UDS Employee during the Benefit Protection Period, Valero shall provide, or cause to be provided, to such terminated UDS Employee severance benefits that are not less than the amount of severance benefits that would have been payable under the terms of the UDS severance plan or policy listed on Section 6.8(a) of the Company and its Subsidiaries will Disclosure Letter as in effect as of the date hereof that is applicable to any such UDS Employee. Notwithstanding anything contained herein to the contrary, UDS Employees who are covered under a collective bargaining agreement shall be provided with pension and welfare the benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate required by such collective bargaining agreement from time to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedtime.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended For all purposes under the employee benefit plans and arrangements of it Valero and its Subsidiaries providing benefits to any UDS Employee after the extent necessary to provide that no employees Effective Time (the "New Plans"), each UDS Employee shall be credited with his or her years of Parent service with UDS and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to predecessor employers before the Effective Time, to the same extent permitted by applicable Law and the terms of the applicable plan or arrangementas such UDS Employee was entitled, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following before the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In additioncredit for such service under any similar UDS Benefit Plans, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of benefits. In addition, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees without limiting the generality of the Company foregoing: (i) each UDS Employee shall be immediately eligible to participate, without any waiting time, in any and its Subsidiaries all New Plans to take into account the extent coverage under such New Plan replaces coverage under a UDS Benefit Plan in which such UDS Employee participated immediately before the Effective Time (such plans, collectively, the "Old Plans"); (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesUDS Employee, Parent Valero shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of its such New Plan to be waived for such employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company his or her covered dependents, and (ii) take into account Valero shall cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee's participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable plan year as if such amounts had been paid in accordance with such New Plan; and (iii) for purposes of each New Plan providing long-term or short-term disability, life insurance or other welfare benefits (other than medical, dental, pharmaceutical and/or vision benefits) to any UDS Employee, Valero shall cause all pre-existing condition exclusions of such New Plan to be waived for such employee benefit plan of Parent and his or its Subsidiariesher covered dependents.
(gc) The Company may establish a retention Valero will honor, in accordance with their terms, all vested and transaction bonus pool (accrued benefit obligations to, and contractual rights of, current and former employees of UDS and its Subsidiaries which are disclosed on UDS's Disclosure Schedules, including, without limitation, the “Retention Pool”); provided, that (i) "change of control" provisions contained in the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) UDS Benefit Plans listed on the Retention Pool complies with the requirements set forth in Section 6.9(g6.8(c) of the Company Valero Disclosure LetterSchedule. Amounts awarded under the Retention Pool Nothing in this Agreement shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company interpreted as preventing Valero from amending, modifying or terminating any UDS Benefit Plan or other contract, arrangement, commitment or understanding, in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter their terms and subject to the approval of Parent (such approval not to be unreasonably withheld)applicable law.
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Ultramar Diamond Shamrock Corp), Merger Agreement (Valero Energy Corp/Tx)
Employee Benefits. (a) Parent agrees that, for a period of one year following from and after the Effective DateTime and until the one-year anniversary of the Effective Time, Parent will cause the employees of Company or the Surviving Corporation, as applicable, to provide the Company Employees who remain employed by the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at Affiliates following the election of Parent are either Effective Time (the “Continuing Employees”) (i) substantially similar in a base salary or regular hourly wage, as applicable, that is not less than the aggregate base salary or regular hourly wage provided to those currently provided such Continuing Employees by the Company and its Subsidiaries immediately prior to such employees or the Effective Time and (ii) incentive compensation opportunities (excluding equity-based incentive compensation opportunities) and employee benefits that are substantially similar similar, in the aggregate aggregate, to those provided to similarly situated employees of Parent, in each case, as determined in the sole discretion of Parent. Until such time as Parent shall cause the Continuing Employees to participate in the applicable compensation and employee benefit plans maintained by Parent and its Subsidiaries or any Subsidiary of Parent (collectively, the “Parent Benefit Plans”), the continued participation of the Continuing Employees in the Benefit Plans shall be deemed to its similarly situated employees. With satisfy the requirements of Section 4.8(a)(ii) (it being understood that participation in Parent Benefit Plans may commence at different times with respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result each of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedParent Benefit Plans).
(b) Prior With respect to any Parent Benefit Plans in which the Continuing Employees or their respective beneficiaries and dependents are otherwise eligible to participate effective as of the Effective Time, if requested by Parent in writingshall, or shall cause the Surviving Corporation to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall take commercially reasonable efforts to (i) cause to be amended the employee benefit plans and arrangements recognize all service of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was Continuing Employees with the Company or any of its Subsidiaries Subsidiaries, as the case may be, for purposes of determining eligibility to participate, vesting, accruals, and entitlement to benefits where length of service is relevant, other than benefit accruals under a defined benefit pension plan or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it as would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (iii) waive all any pre-existing condition exclusions limitations, eligibility waiting periods and evidence of its employee benefit plans with respect to such employees and their dependents insurability requirements to the same extent such exclusions conditions were waived or satisfied under a comparable plan of similar Benefit Plans immediately prior to the Company Effective Time, and (iiiii) take into account provide credit for any eligible expenses co-payments and deductibles incurred by such employees and their dependents prior to the Effective Time for purposes of satisfying all any applicable deductible, coinsurance and maximum out-of-pocket or similar requirements applicable to under any such employees and their covered dependents under Parent Benefit Plans that may apply as of or following the applicable employee benefit plan of Parent or its SubsidiariesEffective Time for the year in which the Effective Time occurs.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(ic) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or the Surviving Corporation, as applicable, will, and Parent will cause the Company or the Surviving Corporation, as applicable, to, honor, in accordance with their terms, all employment, severance, income continuity and change of control programs, plans or agreements between the Company and the Continuing Employees including bonuses, incentives, severance payments or deferred compensation in existence on the date hereof; provided that the foregoing shall not prohibit Parent, the Company or the Surviving Corporation from amending, suspending or terminating any of its Subsidiaries to be drafted and administered such arrangements in a manner that complies accordance with Section 409A of the Codetheir terms.
(jd) For a period of three years after If requested by Parent in writing at least ten (10) business days prior to the Effective Time, the Company shall cause any Benefit Plan that is a defined contribution plan intended to be qualified under Section 401(a) of the Code (a “Company 401(k) Plan”) to be terminated effective as of the day immediately prior to the Effective Time and contingent upon the occurrence of the Closing. If Parent maintains a defined contribution plan that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (the “Parent 401(k) Plan”) Parent shall permit each Continuing Employee who is then actively employed and participating in the Company 401(k) Plan to elect, and Parent agrees to cause the Surviving Corporation and its Subsidiaries Parent 401(k) Plan to make charitable contributions accept, a “direct rollover” of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) in the communities that form of cash, promissory notes (in the case of outstanding loans) or a combination thereof in an amount equal to the full account balance (including earnings thereon) distributed to such Continuing Employee from the Company and its Subsidiaries serve, in such amounts (not 401(k) Plan. Each Continuing Employee shall be eligible to exceed $1.5 million participate in the aggregate), at such times and in such manner Parent 401(k) Plan as are generally consistent with the past practices of the Company and its SubsidiariesClosing Date.
(ke) No later than twenty (20) calendar days following the execution of this Agreement, the Company shall make available to Parent true and correct copies of each material Non-U.S. Benefit Plan, the most recent summary plan description, and the most recent actuarial valuation report, in each case, to the extent applicable.
(f) All provisions contained in this Section 4.8 are included for the sole benefit of the respective parties to this Agreement, and shall not create (A) any third-party beneficiary or other rights in any Company Employee or Continuing Employee, or their respective legal representatives or beneficiaries, or any other Person or (B) any right to continued employment with the Company, any of its Subsidiaries, Parent or the Surviving Corporation. Nothing contained in this Section 6.9 4.8 is intended to be or this Agreement shall (i) be treated as considered to be an amendment or adoption of any particular Plan, program, Contract, arrangement or policy of the Company, any of its Subsidiaries, Parent or the Surviving Corporation nor shall it interfere with Parent’s, the Surviving Corporation’s or any of the Surviving Corporation’s Subsidiaries’ right to amend, suspend, modify or terminate any Benefit Plan or Parent Benefit Plan, (ii) give any third party any right or to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain terminate the employment of any particular employeeemployee of the Company or its Subsidiaries for any reason.
Appears in 2 contracts
Samples: Merger Agreement (XPO Logistics, Inc.), Merger Agreement (Con-Way Inc.)
Employee Benefits. (a) At the Effective Time, Parent agrees thatwill, or will cause one of its Affiliates (including the Surviving Entity and its Subsidiaries) to, continue the employment of (either automatically or through an offer of employment, as necessary) each employee of the Partnership or any of its Subsidiaries as of immediately prior to the Effective Time (each, a “ Partnership Employee ”). A Partnership Employee who is offered employment pursuant to this Section 5.12(a) and who performs work at his or her principal place of work on the first Business Day following the Closing Date will be deemed for all purposes of this Agreement to have accepted such offer of employment. For a period of one year following the Effective DateTime, Parent or its applicable Affiliate (including the Surviving Entity and its Subsidiaries) will cause to be provided to each Partnership Employee, for so long as such Partnership Employee remains an employee of Parent, the Surviving Entity or any of their respective Affiliates (i) a base salary or regular hourly wage which is comparable to those base salaries or regular hourly wages of similarly situated employees of the Company applicable Parent, Surviving Entity or other Affiliate employer and, in any event, the same as or no less favorable than that provided to such Partnership Employee immediately before the Effective Time and its Subsidiaries will be provided with pension and welfare benefits under (ii) eligibility to participate in employee benefit plans sponsored or maintained by the applicable Parent, Surviving Entity or other Affiliate employer that are at the election of Parent are either (i) substantially similar least comparable in the aggregate to those currently provided by the Company and its Subsidiaries to Partnership Benefit Plans (including incentive-based compensation plans) in which such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective participated immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(db) For purposes of vesting, eligibility to participate and benefit entitlement (but excluding benefit accruals under any defined benefit pension arrangements) under the employee benefit plans of the Parent agrees thatEntities and their Affiliates (including the Surviving Entity and its Subsidiaries) providing benefits to any Partnership Employees after the Effective Time as required pursuant to Section 5.12(a)(ii) (the “ New Plans ”), following each Partnership Employee will be credited with his or her years of service with the Partnership and its Subsidiaries and their respective predecessors, and his or her years of service with any third parties prior to employment with the Partnership and its Subsidiaries to the extent that he or she received such credit with the Partnership or its Subsidiaries, as applicable, before the Effective Time, decisions regarding utilization of facilities of to the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In additionsame extent as such Partnership Employee was entitled, following before the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basisto credit for such service under any similar Partnership Benefit Plan in which such Partnership Employee participated or was eligible to participate prior to the Effective Time, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of benefits. In addition, to the extent such Partnership Employee is eligible to participate in a New Plan pursuant to Section 5.12(a)(ii), and without limiting the generality of the foregoing, (i) Parent shall cause any employee benefit plans will use commercially reasonable efforts (including vacation, severance by directing its third party insurance providers or third party administrators) to waive or cause to be waived any waiting time in any and disability plans) covering employees all New Plans of the Company same type as any Partnership Benefit Plans in which such Partnership Employee participated before the consummation of the transactions contemplated hereby (such plans, collectively, the “ Old Plans ”), and its Subsidiaries to take into account (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesPartnership Employee, Parent shall will use commercially reasonable efforts to cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of such New Plan to be waived for such employee and his or her covered dependents, unless such waiting times or conditions would not have been waived under the comparable plans of the Partnership or its Subsidiaries in which such employee benefit plans with respect to such employees and their dependents participated immediately prior to the same extent such exclusions were waived Effective Time. Parent will use commercially reasonable efforts to cause the Partnership Employee to be given credit, under the applicable New Plan providing medical, dental, pharmaceutical and/or vision benefits, for amounts paid prior to the Effective Time during the year in which the Effective Time occurs under a comparable plan of corresponding Old Plan during the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents same period for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under as though such amounts had been paid in accordance with the applicable employee benefit plan terms and conditions of Parent or its Subsidiariesthe New Plan.
(gc) The Company may establish a retention and transaction bonus pool (Prior to the “Retention Pool”); providedEffective Time, that the Partnership will take all actions necessary to terminate (i) all of the aggregate amount of bonuses paid pursuant Partnership Equity Plans effective at the Effective Time so that, after the Effective Time, no Phantom Units or other rights with respect to such Retention Pool shall not exceed $3,000,000 Common Units or other Partnership Securities will be granted thereunder and (ii) the Retention Pool complies with MarkWest Hydrocarbon 401(k) Savings and Profit Sharing Plan (the requirements set forth in Section 6.9(g“ Partnership 401(k) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(gPlan ”) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, effective at the Effective Time, is in each case contingent upon the Closing. Effective as of or as soon as reasonably practicable following the Effective Time, Parent or its applicable Affiliate shall establish or designate a course of training covered in part Benefit Plan sponsored by Parent or in whole by a tuition reimbursement program its applicable Affiliate qualified under Section 401(a) of the Company or any Code and containing a Section 401(k) cash arrangements (the “ Parent 401(k) Plan ”) that shall accept the direct rollover of its Subsidiaries, such program will be continued throughout such course of training (not distributions from the Partnership 401(k) Plan to exceed two years or $1,000,000 participants in the aggregatePartnership 401(k) Plan, including in-kind distributions of loan notes. Parent and its Affiliates (as opposed including the Surviving Entity) shall take all actions necessary to ensure that (A) the Parent 401(k) Plan accepts the in-kind rollover of participant loans from the Partnership 401(k) Plan to the current educational period)Parent 401(k) Plan, as described in the preceding sentence, and (B) such employees have the opportunity to continue to make scheduled loan payments pending the rollover of the notes evidencing such loans.
(id) From and after the Effective Time, Parent and its Affiliates (including the Surviving Entity and its Subsidiaries) shall cause any nonqualified deferred compensation plans covering any employees honor each Partnership Benefit Plan listed in Section 3.11(g) of the Company Partnership Disclosure Schedule that is identified as an “Employment Agreement” in accordance with its terms as in effect immediately prior to the Effective Time. For the avoidance of doubt, all parties hereto hereby acknowledge that the consummation of the transactions contemplated hereby constitute (i) a “change of control” for purposes of any Partnership Benefit Plan listed on Section 3.11(g) of the Partnership Disclosure Schedule that is identified as an “Employment Agreement” and (ii) a “corporate transaction” as defined in Section 2.10 of the Partnership 2008 Long-Term Incentive Plan for purposes of such plan and any outstanding awards granted thereunder.
(e) Parent or its applicable Affiliate (including the Surviving Entity and its Subsidiaries) shall provide to each Partnership Employee who remains employed through the applicable payment or grant date, as applicable, with payment or awards with respect to such employee’s annual cash bonus and long-term Phantom Unit award in respect of the Partnership’s 2015 calendar year in accordance with the terms set forth in Section 5.12(e) of the Partnership Disclosure Schedule.
(f) Nothing in this Section 5.12, expressed or implied, will (i) subject to Parent’s or its applicable Affiliate’s (including the Surviving Entity and its Subsidiaries) obligations under Section 5.12(a)(ii) with respect to severance, confer upon any Partnership Employee or any other Person any right to continue in the employ or service of Parent, the Surviving Entity or any Affiliate of Parent, or will interfere with or restrict in any way the rights of Parent, the Surviving Entity or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Partnership Employee or any Person at any time for any reason whatsoever, with or without cause, (ii) constitute an amendment to any Partnership Benefit Plan or any employee benefit or compensation plan of Parent or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective TimeAffiliates, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) subject to Parent’s or its applicable Affiliate’s (including the Surviving Entity and its Subsidiaries) obligations under Section 5.12 , including paragraphs (a), (d) and (e), obligate Parent, the Surviving Corporation Entity or any Affiliate of their Affiliates Parent to (x) maintain any particular Benefit Plan compensation or benefit plan, program arrangement, policy or contract. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 5.12 will create any third party rights in any current or former service provider of the Partnership or its affiliates (y) retain the employment of or any particular employeebeneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Merger Agreement (MPLX Lp), Merger Agreement (Marathon Petroleum Corp)
Employee Benefits. (a) Parent agrees that, for a during the period of one year following commencing at the Effective DateTime and ending twelve (12) months thereafter, the employees of the Company and its Subsidiaries who continue to be employed by the Surviving Corporation after the Effective Time (the “Continuing Employees”) will be provided with pension (i) base salaries that are no less than the base salaries provided by the Company and its Subsidiaries immediately prior to the Effective Time and (ii) welfare benefits under employee benefit plans that are no less favorable in the aggregate than those welfare benefits that, at the election of Parent Parent, are either (i) substantially similar in the aggregate to those currently provided by either (x) the Company and its Subsidiaries to such employees Employees or (iiy) substantially similar in the aggregate are provided from time to those provided time by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly Company’s 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries Continuing Employees to take into account account, for purposes of eligibility, benefits (excluding accruals under a defined benefit planplan or for purposes of qualifying for subsidized early retirement benefits), participation (including “grandfathering” generally but excluding “grandfathering” for any frozen plan or benefit) and vesting thereunder service by such employees Continuing Employees with the Company and its Subsidiaries (and, to the extent applicable, their respective predecessors but only to the same extent as currently recognized by the Company as of the date of this Agreement under corresponding benefits, if applicable) as if such service were with Parent or its SubsidiariesParent, to the same extent that such service was credited taken into account, waived or satisfied under a comparable plan of the Company or of its Subsidiaries, provided, that no credit shall be given under frozen benefit plans or defined benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees Continuing Employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its SubsidiariesCompany.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(id) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted honor and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause its Affiliates (including the Surviving Corporation and its Subsidiaries Subsidiaries) to make charitable contributions in the communities that the Company and its Subsidiaries servehonor, in such amounts (not to exceed $1.5 million accordance with its terms, each Benefit Plan set forth in the aggregate), at such times and in such manner as are generally consistent with the past practices Section 6.9(d) of the Company and its SubsidiariesDisclosure Letter.
(ke) Nothing contained To the extent that applicable cash bonuses for 2010 have not otherwise been paid by the Company to Employees prior to the Effective Time, each Employee who is a participant in the Company’s annual incentive plan and performance incentive plan (the “Cash Bonus Plans”), who remains employed through such date, shall earn and be paid, in accordance with the terms of the applicable Cash Bonus Plans existing as of the date of this Agreement, a cash bonus in an amount equal to a pro-rata portion of the amounts earned under the Cash Bonus Plans based on actual performance during 2010 through the end of the quarter during which the Effective Time occurs (the “Bonus Determination Date”); provided, however, that the portion of the bonus calculated based on the number of days it takes the Company to collect revenue after a sale (“Day Sales Outstanding”) be calculated based on the trailing 12 month average of Day Sales Outstanding as of the Bonus Determination Date. Additionally, cash bonuses for quarters beginning after the Effective Time (including for the remaining quarters of the calendar year during which the Effective Time occurs) shall be earned and paid based on actual performance in accordance with the Parent’s corresponding cash bonus plan; provided, however, that any Employee whose employment is terminated without cause by the Company or its Affiliates after the Effective Time and prior to the applicable bonus payment date for the year in which the Effective Time occurs shall be paid a pro-rata bonus through the Bonus Determination Date, paid within 30 days following such Employee’s termination of employment. For the avoidance of doubt, all bonus payments under the Cash Bonus Plans pursuant to this Section 6.9 6.9(e) shall be accrued, earned and paid solely in cash, and shall not include any equity award component.
(f) For each Benefit Plan set forth in Section 6.9(f) of the Company Disclosure Letter, Parent hereby acknowledges that a “change of control” or this Agreement “change in control” within the meaning of each such Benefit Plan will occur upon the Effective Time.
(g) Notwithstanding the foregoing, nothing contained herein shall (i1) be treated as an amendment of any particular Benefit Plan, (ii2) give any third party any right to enforce the provisions of this Section 6.9 or (iii3) obligate Parent, the Surviving Corporation or any of their Affiliates to (xi) maintain any particular Benefit Plan benefit plan or (yii) retain the employment of any particular employee.
(h) Prior to Closing, the Company will be permitted to adopt (and, in accordance with Section 6.1(b), communicate to participants) a retention program in accordance with the terms set forth on Section 6.9(h) of the Company Disclosure Letter.
Appears in 2 contracts
Samples: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (Bowne & Co Inc)
Employee Benefits. (a) Parent agrees that, for a period of one year following that all Continuing Employees shall be eligible to continue to participate in the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension Surviving Corporation’s health and welfare benefits under employee benefit plans plans; provided, however, that at the election of Parent are either (i) substantially similar nothing in the aggregate to those currently provided by the Company and its Subsidiaries to such employees this Section 6.9 or (ii) substantially similar elsewhere in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had shall limit the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees right of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless or the Surviving Corporation to amend or terminate any such Subsidiary explicitly authorizes such participation health or welfare benefit plan at any time and (ii) cause if Parent or the Xxxxx Surviving Corporation Incentive Savings Plan terminates any such health or welfare benefit plan (a “Terminated Plan”), then (upon expiration of any appropriate transition period), the Continuing Employees shall be eligible to participate in the Surviving Corporation’s health and the Xxxxx Hourly 401(kwelfare benefit plans (subject to applicable terms and conditions) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and that coverage under such plans is replacing comparable coverage under any such Terminated Plan. To the terms extent that service is relevant for eligibility, vesting or allowances (including paid time off) under any health or welfare benefit plan of Parent and/or the applicable plan or arrangementSurviving Corporation, then Parent shall cause use its commercially reasonable efforts to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes ensure that such officer health or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees thatwelfare benefit plan shall, following the Effective Timefor purposes of eligibility, decisions regarding utilization of facilities of the Company vesting, allowances and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries benefit accrual (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In additionpaid time off), following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment credit Continuing Employees for service prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited recognized prior to the Effective Time under a comparable the corresponding health or welfare benefit plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansCompany. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its SubsidiariesIn addition, Parent shall cause its employee benefit plans to (i) waive all in no event apply a pre-existing condition exclusions or actively at work or similar limitation, eligibility waiting period, evidence of its employee benefit plans insurability requirement or other condition under any group health or welfare plan with respect to the Continuing Employees and the eligible dependents of the Continuing Employees, other than limitations or waiting periods that are already in effect with respect to such employees and their dependents individuals to the same extent such exclusions were waived not satisfied as of the Effective Time under the corresponding Employee Plan. To the extent that any Continuing Employee or any eligible dependent of a Continuing Employee is transferred during a plan year from coverage under one or more of the Employee Plans to coverage under a comparable plan of successor group health and welfare plan, Parent shall, or shall cause the Company to, provide the affected Continuing Employee, or eligible dependent with credit for any co-payments, deductibles and offsets (iior similar payments) take into account any eligible expenses incurred by such employees and their dependents made during the plan year in which the transfer occurs for the purposes of satisfying all any applicable deductible, coinsurance and maximum out-of-pocket or similar requirements applicable to under any such employees and their covered dependents under successor benefit plan, program or arrangement. In the applicable employee benefit plan of event Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation terminates any Employee Plan that is a Section 125 plan flexible spending arrangement, Surviving Corporation shall transfer and its Subsidiaries to make charitable contributions in Parent shall accept the communities that the Company flexible spending account elections and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices accounts of the Company and its SubsidiariesContinuing Employees.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Acquisition Agreement (Ca, Inc.), Acquisition Agreement (Rally Software Development Corp)
Employee Benefits. (a) Parent agrees thatthat it shall cause the Surviving Corporation to honor each Benefit Plan in accordance with its terms as in effect immediately before the Effective Time, for subject to any amendment or termination thereof that may be permitted by such terms. For a period of one year following from the Effective DateTime through at least one (1) year from Closing, Parent shall provide, or shall cause to be provided, to those individuals who as of the Effective Time were employees (other than employees subject to collective bargaining agreements) of the Company and its Subsidiaries will be provided with pension (the “Affected Employees”) pension, health, life insurance, disability and welfare vacation benefits under employee benefit plans (the “Employee Plan Benefits”) that at the election of Parent are either (i) substantially similar no less favorable in the aggregate to those currently Employee Plan Benefits provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Affected Employees immediately prior to before the Effective Time. In additionNotwithstanding the foregoing, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and but subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate7.8(c), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing nothing contained in this Section 6.9 or this Agreement herein shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular Affected Employee.
(b) Each Affected Employee shall receive credit for his or her service with the Company and its Subsidiaries (and their respective predecessors) before the Effective Time under the employee benefit plans of Parent and its affiliates (other than the Company and its Subsidiaries) providing Employee Plan Benefits to any Affected Employees after the Effective Time (the “New Plans”) for purposes of eligibility, vesting and benefit accrual to the same extent as such Affected Employee was entitled, before the Effective Time, to credit for such service under any comparable Benefit Plans (except to the extent such credit would result in a duplication of accrual of benefits); provided that, notwithstanding the forgoing, such service shall only be recognized to the extent the service would be recognized under the New Plan had the service been performed at the Parent; and provided further that (i) with respect to any pension plan, such service credit will only be recognized by the Parent for purposes of vesting and not for purposes of benefit accrual or early retirement subsidies; and (ii) with respect to retiree health benefits, such service credit will only be recognized for service performed past the age of forty (40). In addition, and without limiting the generality of the foregoing: (i) at the Effective Time, each Affected Employee immediately shall be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Benefit Plans in which such Affected Employee participated immediately before the Effective Time to the extent permissible by any applicable insurance carrier or vendor; (ii) with respect to the calendar year in which the Effective Time occurs, for purposes of each New Plan providing welfare benefits to any Affected Employee, Parent shall cause all pre-existing condition exclusions of such New Plan to be waived for such Affected Employee and his or her covered dependents; and (iii) each Affected Employee and their eligible dependents shall receive credit for the plan year in which the Effective Time (or commencement of participation in a New Plan) occurs towards applicable deductibles and annual out-of-pocket limits for expenses incurred prior to the Effective Time (or the date of commencement of participation in a New Plan).
(c) Not later than five business days prior to the Stockholders’ Meeting, Company shall adopt a severance plan consistent with the terms set forth in Section 7.8(c) of the Company Disclosure Schedule for the benefit of the Affected Employees. Parent agrees that it shall maintain, or cause to be maintained, such severance plan for a period of two years following the Closing Date.
(d) The Company shall take all actions necessary to ensure that all Company Stock Options that the Company or its Subsidiaries are obligated to grant, as of the date hereof, to any employee, consultant or director of the Company or any of its Subsidiaries at any time after the date hereof shall be fully granted to such employee, consultant or director prior to the Closing Date.
(e) With respect to the ESPP, the Company shall take all actions necessary such that no more than 20,000 shares of Common Stock may be issued in the aggregate in any individual Offering Period that begins after the date hereof.
(f) Without limiting the generality of Section 10.8, nothing herein expressed or implied shall confer upon any current or former employee of the Company or any of its Subsidiaries or upon any representative of any such person, or upon any collective bargaining agent, any rights or remedies, including any third party beneficiary rights or any right to employment or continued employment for any specified period, of any nature or kind whatsoever under or by reason of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Merck & Co Inc), Merger Agreement (Sirna Therapeutics Inc)
Employee Benefits. (a) Parent agrees thatIn order to further an orderly transition and integration, for Telaria and Rubicon Project shall cooperate in good faith in reviewing, evaluating and analyzing the Rubicon Project Benefit Plans and/or Telaria Benefit Plans with a period of one year following view towards developing appropriate new benefit plans, or selecting the Effective DateRubicon Project Benefit Plans or Telaria Benefit Plans, the as applicable, that will apply with respect to employees of the Company Rubicon Project and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at (including the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company Surviving Corporation and its Subsidiaries to such employees or Subsidiaries) after the Effective Time (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performancecollectively, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time“New Benefit Plans”), if requested by Parent in writingwhich New Benefit Plans will, to the extent permitted by applicable Law Applicable Law, and the terms of the applicable plan or arrangementamong other things, the Company shall (i) cause to be amended the employee benefit plans and arrangements treat similarly situated employees of it Rubicon Project and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless (including the Surviving Corporation or such Subsidiary explicitly authorizes such participation and its Subsidiaries) on a substantially equivalent basis, taking into account all relevant factors, including duties, geographic location, tenure, qualifications and abilities, and (ii) cause not discriminate between employees who were covered by Rubicon Project Benefit Plans, on the Xxxxx Corporation Incentive Savings Plan one hand, and those covered by Telaria Benefit Plans, on the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionother hand, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to at the Effective Time.
(db) Parent agrees thatFor purposes of eligibility, following the Effective Timeparticipation, decisions regarding utilization of facilities of the Company vesting and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard benefit accrual (except (i) for purposes of benefit accrual under any defined benefit pension plan, (ii) to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of benefits, Parent shall cause or (iii) under any employee benefit plans (including vacationplan that is grandfathered or frozen) under the Rubicon Project Benefit Plans, severance Telaria Benefit Plans and disability plans) covering the New Benefit Plans, service with or credited by Rubicon Project, Telaria or any of their respective Subsidiaries or predecessors for continuing employees of the Company Telaria and its Subsidiaries to take into account for purposes or continuing employees of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and Rubicon Project or its Subsidiaries shall be treated as if such service were with Parent or its Subsidiaries, Rubicon Project to the same extent that such service was credited taken into account under a comparable plan of the Company analogous Telaria Benefit Plan or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansRubicon Project Benefit Plan prior to the Effective Time. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits With respect to any employee Telaria Benefit Plan, Rubicon Project Benefit Plan or New Benefit Plan in which any employees of Rubicon Project or Telaria (or their Subsidiaries) prior to the Company Effective Time first become eligible to participate on or any of its Subsidiariesafter the Effective Time, Parent and in which such employees did not participate prior to the Effective Time, Rubicon Project shall cause its employee benefit plans to use commercially reasonable efforts to: (i) waive all pre-existing condition preexisting conditions, exclusions of its employee benefit plans and waiting periods with respect to such employees participation and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket coverage requirements applicable to such employees and their covered dependents eligible dependents, except to the extent such pre-existing conditions, exclusions or waiting periods would apply under the applicable employee benefit plan of Parent analogous Rubicon Project Benefit Plan or its Subsidiaries.
(g) The Company Telaria Benefit Plan, as the case may establish a retention and transaction bonus pool (the “Retention Pool”); providedbe, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies provide each such employee and his or her eligible dependents with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated credit for any co-payments and deductibles paid prior to the Effective Time (or, if later, prior to employees the time such employee commenced participation in the New Benefit Plan) under a Rubicon Project Benefit Plan or Telaria Benefit Plan (to the same extent that such credit was given under the analogous Telaria or Rubicon Project Benefit Plan) in satisfying any applicable deductible or out-of-pocket requirements under any Telaria Benefit Plan, Rubicon Project Benefit Plan or New Benefit Plan in which such employee first become eligible to participate after the Effective Time.
(c) If requested by Rubicon Project no later than five (5) Business Days before the Closing Date, Telaria shall terminate, effective as of the Company and its Subsidiaries designated by day immediately preceding the Chief Executive Officer date Telaria becomes a member of the Company in accordance with the guidelines set forth same controlled group of corporations (as defined in Section 6.9(g414(b) of the Company Disclosure Letter Code) as Rubicon Project, any and subject to the approval of Parent (such approval not to be unreasonably withheld).
(hall 401(k) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole plans maintained by a tuition reimbursement program of the Company Telaria or any of its Subsidiaries. Telaria shall provide Rubicon Project evidence that the 401(k) plan(s) of Telaria and its Subsidiaries have been terminated pursuant to resolutions of the Telaria Board of Directors or the board of directors of its Subsidiaries, as applicable. The form and substance of such program will resolutions shall be continued throughout subject to review and approval of Rubicon Project, which shall not be unreasonably withheld. Telaria shall also take such course other actions in furtherance of training (not to exceed two years or $1,000,000 in the aggregateterminating any such 401(k) (Plans as opposed to the current educational period)Rubicon Project may reasonably request.
(d) Rubicon Project shall take (or cause to be taken) the actions set forth on Section 6.11(d) of the Rubicon Project Disclosure Letter.
(e) Without limitation to the agreements set forth in Section 2.1 or Section 6.11(d): (i) From and after the Effective Timenothing in this Agreement shall confer upon any employee, Parent shall cause any nonqualified deferred compensation plans covering any employees officer, director or consultant of the Company Rubicon Project or Telaria or any of its their Subsidiaries or Affiliates any right to be drafted and administered continue in a manner that complies with Section 409A the employ or service of the Code.
(j) For a period Surviving Corporation, Telaria, Rubicon Project or any Subsidiary or Affiliate thereof, or shall interfere with or restrict in any way the rights of three years after the Effective Time, Parent shall cause the Surviving Corporation Corporation, Telaria, Rubicon Project or any Subsidiary or Affiliate thereof to discharge or terminate the services of any employee, officer, director or consultant of Rubicon Project or Telaria or any of their Subsidiaries or Affiliates at any time for any reason whatsoever, with or without cause; and its Subsidiaries to make charitable contributions (ii) nothing in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall be deemed to (i) be treated as an amendment of establish, amend, or modify any particular Telaria Benefit Plan, Rubicon Project Benefit Plan, New Benefit Plan or any other benefit or employment plan, program, agreement or arrangement or (ii) give any third party any right to enforce alter or limit the provisions ability of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their its Subsidiaries or Affiliates to (x) maintain amend, modify or terminate any particular Telaria Benefit Plan, Rubicon Project Benefit Plan, New Benefit Plan or (y) retain any other benefit or employment plan, program, agreement or arrangement after the employment Effective Time. Without limiting the generality of Section 9.6, nothing in this Agreement, express or implied, is intended to or shall confer upon any Person, including any current or former employee, officer, director or consultant of Rubicon Project or Telaria or any of their Subsidiaries or Affiliates, any right, benefit or remedy of any particular employeenature whatsoever under or by reason of this Agreement, including but not limited to the provisions of this Section 6.11.
Appears in 2 contracts
Samples: Merger Agreement (Rubicon Project, Inc.), Merger Agreement (Telaria, Inc.)
Employee Benefits. (a) Parent agrees that, for a For the period commencing on the Effective Time and ending on the December 31 of one the calendar year immediately following the calendar year in which the Effective DateTime occurs, Parent shall provide or cause to be provided to the employees of the Company and its Subsidiaries will who continue to be provided with pension employed by Parent or its Affiliates following the Effective Time (the “Company Employees”), compensation and welfare employee benefits under employee benefit plans (other than equity compensation) that at the election of Parent are either (i) substantially similar comparable in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or greater of: (iii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation Subsidiaries; and (ii) cause those provided by the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Company immediately prior to the Effective Time. In additionThe preceding sentence shall not preclude Parent or its Subsidiaries at any time following the Effective Time from terminating the employment of any Company Employee for any reason (or no reason).
(b) Each Company Employee shall be given credit for all service with the Company and its Subsidiaries and their respective predecessors under any Parent Plan, including any such plans providing vacation, sick pay, severance and retirement benefits maintained by Parent in which such Company Employees participate for purposes of eligibility, vesting and entitlement to benefits, including for severance benefits and vacation entitlement (but not for accrual of pension benefits), to the extent past service was recognized for such Company Employees under the comparable Company Plans immediately prior to the Effective Time, and to the same extent permitted by applicable Law and past service is credited under such plans or arrangements for similarly situated employees of Parent. Notwithstanding the terms foregoing, nothing in this Section 6.10(b) shall be construed to require crediting of the applicable service that would result in (i) duplication of benefits, (ii) service credit for benefit accruals under a defined benefit pension plan, or (iii) service credit under a newly established plan or arrangement, for which prior service is not taken into account for employees of Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationgenerally.
(c) The In the event of any change in the welfare benefits provided to Company agrees Employees following the Effective Time, Parent shall cause (i) the waiver of all limitations as to cause each of its officers pre-existing conditions, exclusions and directors waiting periods with respect to repay any outstanding loans or notes that such officer or director owes participation and coverage requirements applicable to the Company Employees under any such welfare benefit plans to the extent that such conditions, exclusions or its Subsidiaries waiting periods would not apply in the absence of such change, and (ii) for the plan year in which the Effective Time occurs, the crediting of each Company Employee with any co-payments and deductibles paid prior to the Effective Timeany such change in satisfying any applicable deductible or out-of-pocket requirements after such change.
(d) Subject to the review and written approval of Parent agrees that(which approval shall not be unreasonably withheld), the Company shall be permitted to adopt a retention plan within 30 Business Days following the Effective Time, decisions regarding utilization date of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was this Agreement consistent with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company terms and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with conditions set forth on Section 6.9(e6.10(d) of the Company Disclosure Letter.
(e) Notwithstanding anything in this Section 6.10 to the contrary, nothing contained herein, whether express or implied, shall be treated as an amendment or other modification of any Parent Plan, or shall limit the right of Parent to amend, terminate or otherwise modify any Parent Plan following the Effective Time. If (i) a party other than the parties hereto makes a claim or takes other action to enforce any provision in this Agreement as an amendment to any Parent Plan, and (ii) such provision is deemed to be an amendment to such Parent Plan even though not explicitly designated as such in this Agreement, then, solely with respect to such Parent Plan, such provision shall lapse retroactively and shall have no amendatory effect with respect thereto.
(f) Except to The parties hereto acknowledge and agree that all provisions contained in this Section 6.10 are included for the extent it would result in a duplication of benefits, Parent shall cause any employee sole benefit plans (including vacation, severance and disability plans) covering employees of the Company parties hereto, and its Subsidiaries to take into account for purposes of eligibilitythat nothing in this Agreement, benefits whether express or implied, shall create any third party beneficiary or other rights (excluding accruals under a defined benefit plani) and vesting thereunder service by such in any other Person, including any employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan former employees of the Company or its Subsidiaries, providedany participant in any Parent Plan, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of or any dependent or beneficiary thereof, or (ii) to continued employment with Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its SubsidiariesAffiliates.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Pharmion Corp), Merger Agreement (Celgene Corp /De/)
Employee Benefits. (a) Parent agrees Employees shall continue to participate in each Employee Benefit Plan maintained by Seller until such time as Buyer establishes and maintains a substantially similar Employee Benefit Plan; provided that, as of the Employment Date, an Employee shall cease to be eligible to participate in the Bridge Information Systems, Inc. 401(k) Salary Savings Plan ("Bridge Plan") and shall be eligible to participate in the Savvis Communications Co. 401(k) Plan ("Savvis Plan"), in accordance with the terms of Section 5.9(b) and subject to the terms of the Savvis Plan. During the period in which Employees are participating in Seller's Employee Benefit Plans, Buyer shall reimburse Seller for a any employer-paid amounts under such Employee Benefit Plans.
(b) As soon as practicable after the Employment Date, Seller shall cause to be transferred from the Bridge Plan to the Savvis Plan all Bridge Plan assets representing account balances of Employees under the Bridge Plan. Buyer and Seller shall take all such actions as are necessary to ensure that such transfer complies with all relevant provisions of Section 411(d)(6) of the Code and the regulations thereunder. Buyer shall amend the Savvis Plan, to the extent necessary, to provide that each Employee is credited, for all purposes under the Savvis Plan and subject to the other provisions of such plan, with all service completed prior to the Employment Date with Seller.
(c) Buyer shall assume the obligations in connection with accrued but unused vacation and shall be responsible for vacation pay at and after the Employment Date with respect to service (whether prior to or after the Employment Date) of all Employees. Buyer shall afford Employees credit for their period of one employment with Seller for purposes of determining the amount of vacation to which the Employees are entitled each year following the Effective Date, the employees and for purposes of the Company determining all other seniority based benefits.
(d) Buyer and its Subsidiaries will be provided with pension Seller acknowledge and welfare benefits under employee benefit plans agree that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or shall not constitute a termination of employment of any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its SubsidiariesEmployee.
(e) Parent agrees that No provision of this Agreement, including without limitation this Section 5.9, shall create any employee of the Company and its Subsidiaries who is terminated third-party beneficiary rights in any person or organization, including without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(elimitation employees or former employees (including any beneficiary or dependent thereof) of the Company Disclosure LetterSeller, unions or other representatives of such employees or former employees, or trustees, administrators, participants, or beneficiaries of any Employee Benefit Plan, and no provision of this Agreement, including this Section 5.9, shall create such third-party beneficiary rights in any such person or organization in respect of any benefits that may be provided, directly or indirectly, under any Employee Benefit Plan.
(f) Except to the extent it would result in a duplication of benefits, Parent Seller and Buyer shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries cooperate as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall may reasonably be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans required with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan each of the Company filings, calculations, and (ii) take into account any eligible expenses incurred other actions necessary to effect the transactions contemplated by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in this Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times 5.9 and in such manner obtaining any government approvals as are generally consistent with the past practices of the Company and its Subsidiariesmay be required hereunder.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Master Establishment and Transition Agreement (Savvis Communications Corp), Master Establishment and Transition Agreement (Savvis Communications Corp)
Employee Benefits. (a) Parent agrees that, for a period As of one year following the Effective DateTime, Parent and Merger Subsidiary shall (or shall cause the employees Surviving Corporation to) provide to each individual who was an employee of the Company or its subsidiaries immediately before the Effective Time (other than the President of the Company and employees associated with the Excluded Assets (but including employees wholly associated with the GSI Companies' assets and operations in Australia and Thailand)) and who becomes an employee of the Surviving Corporation or its Subsidiaries will be provided subsidiaries as of the Effective Time (a "Transferred Employee") with pension and welfare a level of employee benefits under employee benefit plans that at is substantially comparable in the election of Parent are either aggregate (i) substantially similar in to the aggregate benefits provided to those currently provided by the Company employees of Parent and its Subsidiaries to such employees subsidiaries in comparable positions or (ii) substantially similar to the benefits provided to such Transferred Employees immediately prior to the Effective Time.
(b) From and after the Effective Time and for all purposes (including without limitation, eligibility, vesting, and benefit accrual) under all Parent Employee Plans (including without limitation the Company Benefit Plans that become Parent Employee Plans at the Effective Time), each Transferred Employee shall receive full credit from Parent, Merger Subsidiary, in which the Transferred Employee is eligible to participate, the Surviving Corporation, and any other affiliates of Parent for all prior service properly credited under the Company Benefit Plans; provided, however, that Parent, Merger Subsidiary, the Surviving Corporation, and any other affiliates of Parent shall not be required to credit any Transferred Employee with prior service for purposes of benefit accrual or contributions under any Parent Employee Plan that is a defined benefit pension plan.
(c) The Company and its subsidiaries shall cease to participate in the aggregate Weatxxxxxxx Xxxernational, Inc. 401(k) Savings Plan (the "Weatherford 401(k) Plan") immediately prior to those provided the Effective Time. If WEUS determines (in its sole discretion) that a distribution is permissible from the Weatherford 401(k) Plan under Section 401(k) of the Code in connection with the transactions contemplated by this Agreement, Parent and Merger Subsidiary shall cause a Parent Employee Plan that is a tax-qualified defined contribution plan that is a Parent Employee Plan or that is maintained by the Surviving Corporation or a subsidiary thereof (the "Parent 401(k) Plan") to accept a direct rollover of the portion of a Transferred Employee's distribution which Parent determines (in its Subsidiaries sole discretion) constitutes an eligible rollover distribution, including without limitation, an in-kind rollover of any outstanding loans and related promissory notes. If WEUS determines in accordance with the foregoing that a distribution is not permissible under Section 401(k) of the Code, then WEUS and Parent agree to its similarly situated employeeseffect a plan-to-plan transfer of the account balances and related liabilities of the Transferred Employees from the Weatherford 401(k) Plan to the Parent 401(k) Plan, except to the extent permitted by Treasury Regulation Section 1.411(d)-4, Q&A-3(b), Transferred Employees are eligible to choose to retain their account balances in the Weatherford 401(k) Plan (and to the extent Transferred Employees elect to so retain their account balances). With Such a transfer (if any) shall occur, on or as soon as reasonably practicable after the Effective Time. To implement such a transfer (if any), WEUS shall direct the trustee of the Weatherford 401(k) Plan to transfer to the trustee or funding agent of the Parent 401(k) Plan an amount in cash equal in value to the account balances of the Transferred Employees as of the date of the transfer (other than any such employees who are permitted in accordance with the foregoing by WEUS to elect, and who so elect, to retain such account balances in the Weatherford 401(k) Plan); provided that to the extent the account balances to be transferred consist in whole or in part of outstanding participant loans, WEUS shall direct the trustee of the Weatherford 401(k) Plan to transfer to the trustee or funding agent of the Parent 401(k) Plan, in lieu of cash, the promissory notes and related documents evidencing such loans. Such plan-to-plan transfers shall be conditioned upon the receipt by each party of customary representations and warranties as to the tax-qualified status of each relevant plan and trust. In connection with such transfers, WEUS and Parent shall take all action reasonably necessary to effect any required governmental filings.
(d) Subject to the following sentence, Parent shall amend or cause to be amended each Parent Welfare Plan (including without limitation the Partnership Benefit Plans that become Parent Welfare Plans at the Effective Time) so that from and after the Effective Time (i) no such plan contains any restrictions for pre-existing conditions or requirements for evidence of insurability with respect to any bonus the Transferred Employees and (ii) for purposes of determining satisfaction of deductibles, out-of-pocket maximums, and similar limitations under such Parent Welfare Plans, Transferred Employees shall receive credit under each such plan for payments under a deductible limit made by them and for out-of-pocket maximums and similar limits applicable to them for the relevant plan year in which the Effective Time occurs under the applicable Company Welfare Plans in which they participated immediately prior to the Effective Time. Parent shall not be required to amend or longcause to be amended a Parent Welfare Plan with respect to (i) above to remove restrictions for pre-term cash incentive awards calculated based existing conditions or requirements for evidence of insurability with respect to Transferred Employees not provided such coverage under Company Benefit Plans due to restrictions for pre-existing conditions or requirements for evidence of insurability under Company Benefit Plans; in addition, in the case of an insured Parent Welfare Plan, Parent shall have met its obligation under (i) above with respect to such plan if Parent uses its reasonable best efforts to (x) amend or cause to be amended such plan accordingly, (y) obtain a waiver of such restrictions for pre-existing conditions or requirements for evidence of insurability, or (z) retain such coverage under a Company Benefit Plan that becomes a Parent Welfare Plan, regardless of whether such amendment, waiver or coverage is obtained.
(e) To the extent a Transferred Employee becomes eligible for severance benefits under an existing written plan or agreement on 2006 performance, or after the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses Effective Time or costs associated with or arising as a result of the transactions contemplated by this Agreement (whether under a Company Benefit Plan or any nonrecurring charges that would not reasonably a Parent Employee Plan), such benefits shall be expected to have been incurred had the transactions contemplated paid by the Agreement not been proposed.
(b) Prior to the Effective TimeParent, if requested by an affiliate of Parent, or a Parent in writingEmployee Plan, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it WEUS and its Subsidiaries to the extent necessary to provide that affiliates shall have no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or liability for any such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letterbenefits.
(f) Except The shares of Parent Common Stock to be issued pursuant to the extent it would result in a duplication of benefits, Parent options issued pursuant to Section 6.5(k) shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees be covered by an effective registration statement on Form S-8 or Form S-4 as of the Company and its Subsidiaries to take into account for purposes date of eligibility, benefits issuance.
(excluding accruals under a defined benefit plang) and vesting thereunder service by such employees with In the Company and its Subsidiaries as if such service were with event Parent or Merger Subsidiary or any successors and assigns of either (i) consolidates with or merges into any other Person and shall not be the continuing or surviving corporation or entity in such consolidation or merger or (ii) transfers all or substantially all of its Subsidiaries, properties and assets relating to the same extent Surviving Corporation to any Person, then, and in each case, proper provision shall be made so that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan successors and assigns of Parent or its Subsidiaries providing medicalMerger Subsidiary honor the obligations of Parent and Merger Subsidiary set forth in this Section 6.5.
(h) Nothing in this Agreement, dentalexpress or implied, prescription drug, vision, life insurance shall confer upon any Transferred Employee or disability benefits to any other employee of the Company or an affiliate thereof or upon any representative of its Subsidiariessuch employee, Parent shall cause its employee benefit plans or upon any person claiming through such employee, or upon any collective bargaining agent, any rights or remedies, including any right to (i) waive all pre-existing condition exclusions employment or continued employment for any specified period, of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductiblenature or kind whatsoever. Nothing in this Agreement, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent express or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); providedimplied, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior deemed to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(gconfer upon any individual (or any beneficiary thereof) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, any rights under or with respect to any employee of the Company plan, program, or arrangement described in or contemplated by this Agreement, and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or each individual (and any of its Subsidiaries, such program will beneficiary thereof) shall be continued throughout such course of training (not entitled to exceed two years or $1,000,000 in the aggregate) (as opposed look only to the current educational periodexpress terms of any such plan, program, or arrangement for his or her rights thereunder. Nothing in this Agreement, express or implied, shall create a third party beneficiary relationship or otherwise confer any benefit, entitlement, or right upon any person or entity other than the parties hereto. Nothing in this Agreement shall cause duplicate benefits to be paid or provided to or with respect to a Transferred Employee under any employee benefit policies, plans, arrangements, programs, practices, or agreements (including any Company Benefit Plan).
(i) From References herein to a benefit with respect to a Transferred Employee shall include, where applicable, benefits with respect to any eligible dependents and after beneficiaries of such Transferred Employee under the same employee benefit policy, plan, arrangement, program, practice, or agreement.
(j) Weatherford, WEUS, the Company, and Parent shall provide each other with such information, notices, and schedules as may be reasonably requested to effect the matters set forth in this Section 6.5. All such information and notices and schedules to be provided hereunder shall be true, correct and complete as of the date provided.
(k) As of the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees grant stock options for shares of Parent Common Stock pursuant to Parent's Incentive Stock Option Plan to each individual listed on Schedule 3.16 of the Company or any Disclosure Letter who is a Transferred Employee in an amount equal to the number of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A unvested Employee Options as of the Code.
(j) For a period of three years after Effective Time based upon the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in information set forth opposite such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices Transferred Employee's name on Schedule 3.16 of the Company Disclosure Letter, at an option price per share equal to Fair Market Value (as determined under Parent's Incentive Stock Option Plan) and its Subsidiariessubject to such other standard option terms called for under Parent's Incentive Stock Option Plan and otherwise generally applicable to stock option grants pursuant to Parent's Incentive Stock Option Plan. If an individual is listed on Schedule 3.16 of the Company Disclosure Letter but is not a Transferred Employee, such individual will not be entitled to any stock option grant pursuant to the preceding sentence.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Universal Compression Inc), Merger Agreement (Universal Compression Inc)
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the that all employees of the Company and or its Subsidiaries who continue employment with Parent, the Surviving Corporation or any Subsidiary of the Surviving Corporation after the Effective Time (“Continuing Employees”) will be provided with pension and welfare benefits under eligible to participate in: (i) Parent’s employee benefit plans that at and programs, including any equity incentive plan, pension plan, defined benefit plan, defined contribution plan, Section 401(k) plan, bonus plan, profit sharing plan, severance plan, medical plan, dental plan, life insurance plan, time-off programs and disability plan, in each case to the election same extent as similarly situated employees of Parent Parent; and (ii) such Company Employee Plans as are either (i) substantially similar in the aggregate to those currently provided continued by the Company and or any of its Subsidiaries following the Closing Date, or are assumed by Parent (for the purposes of this Section 5.3(b) only, the plans referred to such employees or in clauses “(i)” and “(ii) substantially similar in the aggregate )” of this sentence being referred to those provided by as “Specified Parent and its Subsidiaries to its similarly situated employeesBenefit Plans”). With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writingEach Continuing Employee shall, to the extent permitted by applicable Law Legal Requirements, receive full credit for purposes of eligibility, vesting and vacation (but not for purposes of benefit accrual) under the terms Specified Parent Benefit Plans in which such Continuing Employee participates for the years of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or continuous service by such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted Continuing Employee recognized by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees , provided, that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries such credit (including the Company and its SubsidiariesA) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would does not result in a duplication of benefits, compensation, incentive or otherwise and (B) does not result in an increase in the level of benefits beyond which a similarly situated employee of Parent shall cause would be entitled. With respect to any employee welfare benefit plans (including vacationmaintained by Parent for the benefit of Continuing Employees located in the United States, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits subject to any employee of the Company applicable plan provisions, contractual requirements or any of its SubsidiariesLegal Requirements, Parent shall use its commercially reasonable efforts to: (A) cause its employee benefit plans to (i) waive all be waived any eligibility requirements or pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company limitations; and (iiB) take into account give effect, in determining any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and deductible maximum out-of-pocket requirements applicable limitations, to amounts paid by such employees and their covered dependents under Continuing Employees with respect to substantially similar plans maintained by the applicable employee benefit plan of Parent Company or its SubsidiariesSubsidiaries during the plan year in which the Effective Time occurs.
(gb) The If requested by Parent at least two Business Days prior to the Closing Date, the Company may establish a retention and transaction bonus pool shall take (the “Retention Pool”); provided, that (ior cause to be taken) the aggregate amount of bonuses paid all actions pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) resolutions of the Retention Pool complies with Company Board necessary or appropriate to terminate, effective no later than the requirements set forth in day prior to the date on which the Merger becomes effective, any Company Employee Plan that contains a cash or deferred arrangement intended to qualify under Section 6.9(g401(k) of the Code (a “Company Disclosure Letter401(k) Plan”). Amounts awarded under If the Retention Pool Company is required to terminate any Company 401(k) Plan, then the Company shall provide to Parent prior to the Closing Date written evidence of the adoption by the Company Board of resolutions authorizing the termination of such Company 401(k) Plan (the form and substance of which resolutions shall be allocated subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld or delayed).
(c) To the extent any employee notification or consultation requirements are imposed by applicable Legal Requirements with respect to the Contemplated Transactions, the Company shall cooperate with Parent to ensure that such notification or consultation requirements are complied with prior to the Effective Time Time. Prior to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any shall not communicate with Continuing Employees regarding post-Closing employment matters, including post-Closing employee benefits and compensation, without the prior written approval of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeewhich shall not be unreasonably withheld.
Appears in 2 contracts
Samples: Merger Agreement (LEO Pharma a/S), Merger Agreement (Peplin Inc)
Employee Benefits. (a) Parent agrees thatIn order to further an orderly transition and integration, for Raytheon and UTC shall cooperate in good faith in reviewing, evaluating and analyzing the UTC RemainCo Benefit Plans and Raytheon Benefit Plans with a period view towards developing appropriate new benefit plans, or selecting the UTC RemainCo Benefit Plans or Raytheon Benefit Plans, as applicable, that will apply with respect to employees of one year following UTC RemainCo and its subsidiaries (including the Surviving Corporation and its subsidiaries) after the Effective DateTime (collectively, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance“New Benefit Plans”), the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writingwhich New Benefit Plans will, to the extent permitted by applicable Law Applicable Law, and the terms of the applicable plan or arrangementamong other things, the Company shall (i) cause to be amended the employee benefit plans treat similarly situated employees on a substantially equivalent basis, taking into account all relevant factors, including duties, geographic location, tenure, qualifications and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation abilities, and (ii) cause not discriminate between employees who were covered by UTC RemainCo Benefit Plans, on the Xxxxx Corporation Incentive Savings Plan one hand, and those covered by Raytheon Benefit Plans, on the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionother hand, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to at the Effective Time.
(db) Parent agrees thatFor purposes of eligibility, following the Effective Timeparticipation, decisions regarding utilization of facilities of the Company vesting and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard benefit accrual (except (i) for purposes of benefit accrual under any defined benefit pension plan, (ii) to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of benefits, Parent shall cause or (iii) under any employee benefit plans (including vacationplan that is grandfathered or frozen) under the UTC RemainCo Benefit Plans, severance Raytheon Benefit Plans and disability plans) covering the New Benefit Plans, service with or credited by UTC RemainCo, Raytheon or any of their respective subsidiaries or predecessors for continuing employees of the Company Raytheon and its Subsidiaries to take into account for purposes subsidiaries or continuing employees of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent UTC RemainCo or its Subsidiaries, subsidiaries shall be treated as service with UTC RemainCo to the same extent that such service was credited taken into account under a comparable plan of the Company analogous Raytheon Benefit Plan or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansUTC RemainCo Benefit Plan prior to the Effective Time. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits With respect to any employee Raytheon Benefit Plan, UTC RemainCo Benefit Plan or New Benefit Plan in which any employees of UTC RemainCo or Raytheon (or their subsidiaries) prior to the Company Effective Time first become eligible to participate on or any of its Subsidiariesafter the Effective Time, Parent shall cause its employee benefit plans and in which such employees did not participate prior to the Effective Time, UTC RemainCo shall: (i) waive all pre-existing condition preexisting conditions, exclusions of its employee benefit plans and waiting periods with respect to such employees participation and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket coverage requirements applicable to such employees and their covered dependents eligible dependents, except to the extent such pre-existing conditions, exclusions or waiting periods would apply under the applicable employee benefit plan of Parent analogous UTC RemainCo Benefit Plan or its Subsidiaries.
(g) The Company Raytheon Benefit Plan, as the case may establish a retention and transaction bonus pool (the “Retention Pool”); providedbe, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies provide each such employee and his or her eligible dependents with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated credit for any co-payments and deductibles paid prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject (or, if later, prior to the approval of Parent (time such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 commenced participation in the aggregateNew Benefit Plan) under a UTC RemainCo Benefit Plan or Raytheon Benefit Plan (as opposed to the current educational period).
(isame extent that such credit was given under the analogous Raytheon or UTC RemainCo Benefit Plan) From and in satisfying any applicable deductible or out-of-pocket requirements under any Raytheon Benefit Plan, UTC RemainCo Benefit Plan or New Benefit Plan in which such employee first become eligible to participate after the Effective Time.
(c) Nothing in this Agreement shall confer upon any employee, Parent shall cause any nonqualified deferred compensation plans covering any employees officer, director or consultant of the Company UTC or Raytheon or any of its Subsidiaries their subsidiaries or affiliates any right to be drafted and administered continue in a manner that complies with Section 409A the employ or service of the Code.
(j) For a period Surviving Corporation, Raytheon, UTC or any subsidiary or affiliate thereof, or shall interfere with or restrict in any way the rights of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries Corporation, Raytheon, UTC or any subsidiary or affiliate thereof to make charitable contributions discharge or terminate the services of any employee, officer, director or consultant of UTC or Raytheon or any of their subsidiaries or affiliates at any time for any reason whatsoever, with or without cause. Nothing in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall be deemed to (i) be treated as an amendment of establish, amend, or modify any particular Raytheon Benefit Plan, UTC RemainCo Benefit Plan, New Benefit Plan or any other benefit or employment plan, program, agreement or arrangement or (ii) give any third party any right to enforce alter or limit the provisions ability of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates its subsidiaries or affiliates to (x) maintain amend, modify or terminate any particular Raytheon Benefit Plan, UTC RemainCo Benefit Plan, New Benefit Plan or (y) retain any other benefit or employment plan, program, agreement or arrangement after the employment Effective Time. Without limiting the generality of Section 9.6, nothing in this Agreement, express or implied, is intended to or shall confer upon any person, including any current or former employee, officer, director or consultant of UTC or Raytheon or any of their subsidiaries or affiliates, any right, benefit or remedy of any particular employeenature whatsoever under or by reason of this Agreement.
Appears in 2 contracts
Samples: Merger Agreement (Raytheon Co/), Merger Agreement (United Technologies Corp /De/)
Employee Benefits. (a) Parent Novartis agrees thatthat it shall honor and cause the Surviving Corporation to honor, for fulfill and discharge the Company’s obligations under each Benefit Plan in accordance with its terms as in effect immediately before the Effective Time, subject to any amendment or termination thereof that may be permitted by such terms. For a period of one year following from the Effective DateTime through at least December 31, 2006, Novartis shall provide, or shall cause to be provided, to those individuals who as of the Effective Time were employees (other than employees subject to collective bargaining agreements) of the Company and its Subsidiaries will be provided with pension and welfare (the “Affected Employees”) benefits under employee benefit plans plans, programs, policies and arrangements, and compensation (including base salary, bonus and other incentive compensation, other than equity compensation (provided that at Novartis shall provide value substantially equivalent to the election Company’s proposed equity compensation for 2006 (the “Equity Replacement”) if the Effective Time occurs prior to the grant of Parent such equity compensation)) that are either (i) substantially similar no less favorable in the aggregate than the benefits and compensation provided to those currently provided by the Affected Employees immediately before the Effective Time. Notwithstanding the foregoing, nothing contained herein shall obligate Novartis, the Surviving Corporation or any of their affiliates to maintain any particular Benefit Plan (other than the severance plans and agreements referred to in Section 7.8(c)) or retain the employment of any Affected Employee.
(b) Each Affected Employee shall receive credit for his or her service with the Company and its Subsidiaries before the Effective Time under the employee benefit plans, programs, policies and arrangements of Novartis and its affiliates providing benefits to any Affected Employees after the Effective Time (the “New Plans”) for purposes of eligibility, vesting and benefit accrual (but not for purposes of benefit accrual under defined benefit pension plans or for any new program for which credit for service prior to the effective date of such program is not given to similarly situated employees of Novartis other than the Affected Employees) to the same extent as such Affected Employee was entitled, before the Effective Time, to credit for such service under any parallel Benefit Plans (except to the extent such credit would result in a duplication of accrual of benefits). In addition, and without limiting the generality of the foregoing: (i) at the Effective Time, each Affected Employee immediately shall be eligible to participate, without any waiting time, in any and all New Plans to the extent coverage under such New Plan replaces coverage under a similar or comparable Company Compensation and Benefit Plans in which such Affected Employee participated immediately before the Effective Time (each such plan, an “Old Plan”); and (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect for purposes of each New Plan providing welfare benefits to any bonus Affected Employee (a) Novartis shall cause all pre-existing condition exclusions of such New Plan to be waived for such Affected Employee and his or longher covered dependents to the extent such pre-term cash incentive awards calculated based on 2006 performance, existing condition exclusions were inapplicable to or had been satisfied by such Affected Employee and his or her covered dependants immediately prior to the Effective Time under the relevant Old Plan and (b) Novartis shall cause the Surviving Corporation and any successor thereto to give full credit for deductibles satisfied under the Company’s performance and its Subsidiaries’ Benefit Plans with respect to the current plan year toward any deductibles for calendar the remainder of the plan year 2006 during which the Closing occurs.
(c) For a period of one year from the Effective Time, Novartis shall honor and cause the Surviving Corporation and any successor thereto to continue in effect, and honor, fulfill and discharge the Company’s obligations under, all severance plans and agreements and employment agreements which are listed on Section 7.8(c) of the Company Disclosure Schedule without any change that is adverse to the Affected Employees. During the period specified above, severance benefits offered to Affected Employees shall be calculated determined without taking into account any reasonable expenses or costs associated with or arising as a result of reduction after the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected Effective Time in the compensation paid to have been incurred had the transactions contemplated by the Agreement not been proposedAffected Employees and used to determine severance benefits.
(bd) Prior Novartis acknowledges that consummation of the Merger constitutes a “change in control” for purposes of the plans and agreements listed on Section 7.8(d) of the Company Disclosure Schedule. The Company agrees to the Effective Timeadoption of a resolution substantially in the form described on Section 7.8(d) of the Company Disclosure Schedule.
(e) Novartis shall cause the Surviving Corporation to honor (i) all determinations with respect to bonus payments for the 2005 calendar year (provided, if requested that the aggregate amount of such bonuses shall not exceed $60,000,000) made by Parent the Company’s compensation committee in writingthe ordinary course of business consistent with past practice, to the extent such bonus amounts are based on performance meeting previously set targets, and (ii) to the extent permitted by applicable Law and Section 7.1, all salary increases based on merit reviews for the terms of the applicable plan or arrangement, 2006 calendar year made by the Company shall (i) cause to be amended in the employee benefit plans and arrangements ordinary course of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Timebusiness consistent with past practice, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to not in effect at the Effective Time.
(df) Parent agrees thatWithout limiting the generality of Section 10.9, following the Effective Time, decisions regarding utilization nothing herein expressed or implied shall confer upon any current or former employee of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent upon any representative of any such person, or upon any collective bargaining agent, any rights or remedies, including any third party beneficiary rights or any right to employment or continued employment for any specified period, of its Subsidiaries.
(e) Parent agrees that any employee nature or kind whatsoever under or by reason of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiariesthis Agreement.
(g) The Company may establish a retention Except with respect to employees whose primary place of employment is located in the United Kingdom or the United States, the provisions of Sections 7.8(a) – (c) (other than the first sentence of Section 7.8(a) and transaction bonus pool (provided that Novartis shall provide the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant Equity Replacement to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to all employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(gCompany) of the Company Disclosure Letter and subject to the approval of Parent (such approval shall not to be unreasonably withheld).
(h) Parent agrees that, apply with respect to any employee of the Company jurisdiction providing statutory severance and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period)benefits.
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Novartis Ag), Merger Agreement (Chiron Corp)
Employee Benefits. (a) Parent Globespan agrees that, from and after the ----------------- Effective Time, except as explicitly provided herein, Globespan and its Subsidiaries shall assume and honor all Virata Benefit Plans in accordance with their terms as in effect immediately before the Effective Time, subject to any amendment or termination thereof that may be permitted by such terms or as otherwise permitted by applicable law. For a period of not less than one year following the Effective Time, Globespan shall provide, or shall cause to be provided, to individuals who are employees of Virata and its Subsidiaries immediately before the Effective Time (other than any employees subject to collective bargaining agreements) and who continue to be employed by Globespan and its Subsidiaries after the Effective Time (the "Virata Employees") ---------------- compensation and employee benefits that are, in the aggregate, not less favorable than those provided to Virata Employees immediately before the Effective Time (it being understood that discretionary equity and equity based awards will remain discretionary), as disclosed by Virata to Globespan before the date of this Agreement; provided, that, with the approval of the Transition Committee, Globespan may provide Virata Employees with compensation and employee benefits that are, in the aggregate, not less favorable than those provided to similarly situated employees of Globespan and its Subsidiaries (it being understood that discretionary equity and equity based awards will remain discretionary). Globespan further agrees to honor the terms of all employment agreements between Globespan and Virata Employees. The foregoing shall not be construed to prevent the termination of employment of any Virata Employee or the amendment or termination of any particular Virata Benefit Plan to the extent permitted by its terms as in effect immediately before the Effective Time or as otherwise permitted by applicable law. Notwithstanding the foregoing, for a period of one year following the Effective DateTime, the employees of the Company Globespan and its Subsidiaries will be shall not reduce the compensation or benefits provided with pension and welfare benefits under to any current employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided Virata designated by the Company and its Subsidiaries to Transition Committee without the consent of such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedperson.
(b) Prior For purposes of vesting, eligibility to participate and level of benefits under the employee benefit plans of Globespan and its Subsidiaries providing benefits to any Virata Employees after the Effective Time (the "New --- Plans"), each Virata Employee shall be credited with his or her years of service ----- with Virata and its Subsidiaries and predecessor employers before the Effective Time, if requested by Parent in writingto the same extent as such Virata Employee was entitled, before the Effective Time, to credit for such service under any similar Virata Benefit Plans, except to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause such credit would result in a duplication of benefits (ii) such credit would result in benefit accruals under defined benefit pension plans or similar plans or (iii) prior service credit is not provided to Globespan employees under a plan. In addition, and without limiting the generality of the foregoing: (i) each Virata Employee shall be amended the employee benefit plans immediately eligible to participate, without any waiting time, in any and arrangements of it and its Subsidiaries all New Plans to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following coverage under such New Plan replaces coverage under a Virata Benefit Plan in which such Virata Employee participated immediately before the Effective Time unless (such plans, collectively, the Surviving Corporation or such Subsidiary explicitly authorizes such participation "Old Plans"); and (ii) for purposes of each --------- New Plan providing medical, dental, pharmaceutical and/or vision benefits to any Virata Employee, Globespan shall cause the Xxxxx Corporation Incentive Savings Plan all pre-existing condition exclusions and the Xxxxx Hourly 401(k) actively-at-work requirements of such New Plan to be terminated effective waived for such employee and his or her covered dependents, unless such conditions would not have been waived under the comparable plans of Virata and its Subsidiaries in which such Virata Employee participated immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent Globespan shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee's participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiariesyear as if such amounts had been paid in accordance with such New Plan.
(gc) The Company Boards of Directors of Globespan and Virata shall take all action reasonably necessary (including amending the Virata Stock Plans) such that, following the Effective Time, Globespan may establish a retention and transaction bonus pool grant Globespan Common Stock based equity awards under the Virata Stock Plans by converting the remaining unissued reserved shares of Virata Common Stock under the Virata Stock Plans (the “Retention Pool”); provided"Virata Reserved Shares") into reserved shares of Globespan Common Stock. ---------------------- The number of such shares of Globespan Common Stock shall equal the Virata Reserved Shares multiplied by the Exchange Ratio.
(d) The Board of Directors of Virata shall take all action to the extent necessary (including amending the Virata ESPP) such that, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated Virata ESPP will terminate immediately prior to the Effective Time and all participants will automatically exercise their purchase rights immediately prior to the termination of the plan. The Board of Directors of Globespan shall take all action to the extent necessary (including amending the Globespan ESPP) such that the employees of Virata prior to the Company and Effective Time who become employees of Globespan or one of its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g("Continuing Virata Employees") of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at after the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will Time shall be continued throughout such course of training (not eligible to exceed two years or $1,000,000 participate in the aggregate) (Globespan ESPP as opposed to the current educational period).
(i) From and soon as practicable after the Effective Time. For the avoidance of doubt, Parent shall cause any nonqualified deferred compensation plans covering any Virata agrees that Globespan may take all action necessary (including amending the Globespan ESPP) so that current Globespan employees of may be afforded the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of same benefits as afforded the CodeContinuing Virata Employees.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Virata Corp), Agreement and Plan of Merger (Virata Corp)
Employee Benefits. Except as otherwise provided herein, any employee of Anson who becomes an employee of Uwharrie at the Anson Heritage Merger Effective Time (aa "New Employee") Parent agrees thatshall become entitled to receive all employee benefits and to participate in all benefit plans provided by Uwharrie on the same basis (including costs) and subject to the same eligibility and vesting requirements, for a period of one year following and to the Effective Datesame conditions, the restrictions and limitations, as generally are in effect and applicable to other newly hired employees of the Company and its Subsidiaries will Uwharrie. However, each New Employee shall be provided given credit for his or her full years of service with pension and welfare benefits under employee benefit plans that at the election Anson for purposes of Parent are either (i) substantially entitlement to vacation and sick leave and for qualification for medical and similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or insurance plans, and, (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law under ERISA, the Code and any regulations thereunder, eligibility for participation and vesting in Uwharrie's Section 401(k) savings plan and in its Employee Stock Ownership Plan (the "Uwharrie Employee Benefit Plans"); provided, however, that no New Employee will be entitled to or be given credit for past service with Anson for purposes of the calculation or determination of benefits under the Uwharrie Employee Benefit Plans. Notwithstanding anything contained herein to the contrary, if Uwharrie shall believe in good faith, upon the advice of its legal counsel or employee benefits consultants, that the granting of any such past service credit would not be permissible under the terms and requirements of ERISA, the Code, any governmental rules, regulations and policies thereunder, or any other law or regulations applicable to the operation of any such plan or arrangementprogram, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or otherwise would expose any such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangementprogram or Uwharrie to any penalty, Parent then Uwharrie shall cause not be required to be amended the employee benefit plans give any New Employee any such credit for past service with Anson. The number of days of vacation and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees thatsick leave, following the Effective Timerespectively, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries which shall be made by Parent on a basis that reflects the best long-term business interests available to any New Employee during 1999 as an employee of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees Uwharrie shall be made reduced by Parent on a fair and equitable basis, in light the number of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment days of vacation or sick leave used by such New Employee during 1999 prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any as an employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure LetterAnson.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Uwharrie Capital Corp), Merger Agreement (Anson Bancorp Inc)
Employee Benefits. (a) Parent agrees thatPursuant to the Plan of Reorganization or otherwise, for a period the Company and EFIH shall, and shall cause their respective Subsidiaries to take all such actions within their control as may be necessary, appropriate or desirable to transfer the sponsorship, maintenance and administration of, and all liabilities (and related contracts or agreements with third parties) in respect of, the Contributed Plans to Reorganized TCEH or its Subsidiaries on or prior to the date of one year the Reorganized TCEH Spin-Off. As soon as administratively practicable following the Effective DateReorganized TCEH Spin-Off, Reorganized TCEH shall transfer the employees liabilities related to the post-retirement health, life, dental and vision benefits for participants previously employed by certain discontinued operations of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performancetheir predecessors, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall participants’ beneficiaries (iidentified by employee number) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(gon Schedule 6.6(a) of the Company Disclosure Letter (the “DiscOp OPEB Participants”) and subject the related accrued benefits liabilities (the “DiscOp OPEB Liabilities”) from the EFH Retiree Welfare Plan to a new mirror health and welfare plan established by Reorganized TCEH or another plan reasonably acceptable to Parent and the Company (the “New DiscOp OPEB Plan” which such plan shall be transferred to and assumed by the Company or one of its Subsidiaries prior to or on the Closing Date. For the avoidance of doubt, upon the transfer of the New DiscOp OPEB Plan to the approval of Parent Company or its Subsidiary, the New DiscOp OPEB Plan (such approval not to including the DiscOp OPEB Liabilities) shall be unreasonably withheld).
(h) Parent agrees thatan Assumed Plan and the Surviving Company shall indemnify, with respect defend and hold harmless Reorganized TCEH and its Subsidiaries from and against any claim, action, suit, proceeding relating to any employee modification or termination of the post-retirement health and life benefits to any DiscOp OPEB Participants on or after the Closing Date. Parent, the Company and its Subsidiaries whoReorganized TCEH shall take all actions necessary to effectuate the transfer of the New DiscOp OPEB Plan from Reorganized TCEH to Parent or Company as soon as administratively practicable following the establishment of such plan, at but in any event prior to the Effective TimeClosing Date. Notwithstanding anything in this Agreement to the contrary, during the period beginning on the Reorganized TCEH Spin-Off date and ending on the date the New DiscOp OPEB Plan is in a course of training covered in part or in whole assumed by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (Subsidiary as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained set forth in this Section 6.9 6.6, the Company, Surviving Company or this Agreement its Subsidiaries shall (i) be treated as an amendment of any particular Benefit reimburse Reorganized TCEH and its Affiliates for all claims incurred by DiscOp OPEB Participants under the EFH Retiree Welfare Plan or New DiscOp OPEB Plan, as applicable, plus any reasonable out of pocket expenses incurred by Reorganized TCEH and its Affiliates in providing such benefits. Notwithstanding the foregoing, except as otherwise provided herein (iiincluding, without limitation, the Assumed Plans) give any third party any right to enforce or in the provisions Split Participant Agreement (as defined below), none of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation any Oncor Entity or any of their Affiliates to (x) maintain shall assume or otherwise incur any particular Benefit Plan liability or (y) retain the employment obligation under any compensatory, severance or similar arrangement in respect of any particular employee.Non-Oncor Employee (as defined below), it being understood that Reorganized TCEH and Oncor shall enter into the Split Participant Agreement. For purposes of Section 6.6(a):
Appears in 2 contracts
Samples: Merger Agreement (Nextera Energy Inc), Merger Agreement (Energy Future Intermediate Holding CO LLC)
Employee Benefits. (a) Parent agrees that, For a period commencing upon the Effective Time and continuing for a period of one year seven (7) months after the Effective Time, Parent shall provide or cause to be provided to each Company Associate who is employed at the Effective Time and continues to be employed by Parent or an Affiliate of Parent following the Effective DateTime (the “Continuing Employees”) base salary or base hourly rate, as applicable, welfare and fringe benefits and annual bonus opportunities (the employees of the Company “Continuing Benefits”), excluding equity-based compensation and its Subsidiaries will be provided with pension retention and welfare benefits under employee benefit plans retirement benefits, that are at the election of Parent are either (i) least substantially similar in the aggregate to those currently the compensation and benefits provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Continuing Employees immediately prior to the Effective Time; provided that such obligation shall not apply to any Continuing Employees who voluntarily transfers to another position of employment with Parent or an Affiliate after the Effective Time or who voluntarily elects a reduced work schedule if, as a result of such change in status, the Continuing Employee’s base salary will be modified or the Continuing Employee does not meet the eligibility requirements under which such Continuing Benefits are provided. Without limiting the foregoing:
(a) At the Effective Time, with respect to any accrued but unused personal, sick or vacation time to which any Continuing Employee is entitled pursuant to the personal, sick or vacation policies applicable to such Continuing Employee immediately prior to the Effective Time, Parent shall, or shall cause the Surviving Company to and instruct its Subsidiaries to, as applicable, assume the liability for such accrued personal, sick or vacation time and allow such Continuing Employee to use such accrued personal, sick or vacation time in accordance with the practice and policies of the applicable Acquired Corporation.
(b) If requested by Parent at least ten (10) business days prior to the Effective Time, the Acquired Corporations shall terminate any and all U.S. Employee Plans intended to qualify under Section 401(k) of the Code (the “401(k) Plan(s)”), effective not later than the business day immediately preceding the Effective Time. In additionthe event that Parent requests that such 401(k) Plan(s) be terminated, the Acquired Corporations shall provide Parent with evidence that such 401(k) Plan(s) have been terminated pursuant to resolution of the Company’s Board of Directors not later than two (2) business days immediately preceding the Effective Time. The form and substance of such resolutions shall be subject to the reasonable approval of Parent. The Company shall use its commercially reasonable efforts to take such other actions in furtherance of terminating any such 401(k) Plan(s) as Parent may reasonably request. Immediately prior to such termination, the Company will make (or cause to be made) all necessary payments to fund the contributions (i) necessary or required to maintain the tax-qualified status of any such 401(k) Plan, (ii) for elective deferrals made pursuant to any such 401(k) Plan for the period prior to termination, and (iii) for employer matching contributions (if any) for the period prior to termination. If the Parent does not request that the 401(k) Plans be terminated prior to the Effective Time, then the Acquired Corporations shall amend such plans, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees the cash payments made in connection with the transactions contemplated hereby, including but not limited to, the payments made pursuant to Section 6.2 hereof, be excluded from the definition of compensation under such plans. Whether or not the Company and its Subsidiaries Parent requests that the 401(k) Plans be terminated, the Continuing Employees shall commence participation therein following be provided, for a period commencing upon the Effective Time unless Parent and continuing for a period of seven (7) months after the Effective Time, a 401(k) plan that provides substantially similar benefits to either the benefits provided under the 401(k) Plans or such Subsidiary explicitly authorizes such participationthe benefits that are provided under the Parent’s 401(k) Plan to its eligible employees (subject to the requirements of subsection (c) below).
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following after the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries all Continuing Employees shall be made by Parent on a basis eligible to continue to participate in the Surviving Company’s health and welfare benefit plans to the extent that reflects they were eligible to participate in such plans prior to the best long-term business interests of Parent and its Subsidiaries Closing; provided, however, that (including i) nothing in this Section 6.3 or elsewhere in this Agreement shall limit the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility right of Parent or a legacy facility the Surviving Company to amend or terminate any such health or welfare benefit plan at any time, and (ii) if Parent or the Surviving Company terminates any such health or welfare benefit plan, then (upon expiration of any appropriate transition period) Parent shall use reasonable best efforts to cause the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives Continuing Employees to be achievedeligible to participate in Parent’s or an Affiliate’s health and welfare benefit plans, giving consideration to previous work historysubstantially the same extent as similarly situated employees of Parent or its Affiliate (taking into account job location). To the extent that service is relevant for eligibility, job experiencevesting or allowances (including paid time off) under any benefit plan of Parent and/or the Surviving Company, qualifications and business needs without regard Parent shall use reasonable efforts to cause such benefit plan to (except to the extent affecting relevant experiencethat it would not result in any duplication of benefits), for purposes of eligibility, vesting and allowances (including paid time off) to whether employment but not for purposes of benefit accrual, credit Continuing Employees for service prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, Acquired Corporations to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated recognized prior to the Effective Time to employees under the corresponding benefit plan of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Company.
(hd) Parent agrees that, with With respect to all employees, the Acquired Corporations shall be responsible for providing any employee notices required to be given and otherwise complying with the WARN or similar statutes or regulations of any jurisdiction relating to any plant closing or mass layoff (or similar triggering event) caused by the Company and its Subsidiaries who, at Acquired Corporations prior to the Effective Time, is in a course of training covered in part . If Parent determines that an event would trigger WARN obligations (or in whole by a tuition reimbursement program of the Company obligations arising under similar statutes or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregateregulations) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any be responsible for providing notices to all employees of the Company as are required to be provided notice under WARN (or any of its Subsidiaries to be drafted and administered similar statute or regulation), in a manner form that complies is compliant with Section 409A of the Codeapplicable regulations.
(je) For Except as otherwise expressly required by any collective bargaining agreement to which an Acquired Corporation is a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner party as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained date of this Agreement, nothing in this Section 6.9 6.3 or elsewhere in this Agreement is intended nor shall be construed to (i) be treated as an amendment of to any particular Benefit Employee Plan, (ii) give prevent Parent from modifying, amending or terminating any third party of its benefit plans or, after the Effective Time, any right to enforce the provisions of this Section 6.9 or Employee Plan, (iii) obligate create a right in any Person to employment with Parent, the Surviving Corporation Company or any Subsidiary of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the Surviving Company, it being understood that the employment of each Continuing Employee shall be “at will” employment, or (iv) create any particular employeethird-party beneficiary rights in any Person, including, without limitation, any employee of the Acquired Corporations or the Surviving Company, any beneficiary or dependent thereof, or any collective bargaining representative thereof.
(f) Continuing Employees shall be eligible for severance benefits as set forth in Schedule 6.3(f) and (ii) after the Effective Time, Parent agrees to cause the Surviving Company to honor the terms, as in effect on the date of this Agreement, of each Contract set forth on Schedule 6.3(f), including by causing the Surviving Company to pay and provide all post-termination benefits required to be paid or provided to any individual pursuant to the express terms, as in effect on the date of this Agreement, of the applicable Contract in the event that such individual does not become (or ceases to be) a Continuing Employee after the Effective Time.
Appears in 2 contracts
Samples: Merger Agreement (RR Donnelley & Sons Co), Merger Agreement (COURIER Corp)
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the employees of the Company From and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to after the Effective Time, if requested by Parent in writingshall, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation Company to, honor all Benefit Plans and (ii) cause the Xxxxx Corporation Incentive Savings Plan compensation arrangements and the Xxxxx Hourly 401(k) Plan to be terminated effective agreements in accordance with their terms as in effect immediately prior to before the Effective Time. In addition, prior to Notwithstanding the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangementforegoing, Parent shall cause and Surviving Company may, upon at least 60 days notice to be amended participating employees and their employer, amend any Benefit Plan to cease providing coverage (other than COBRA continuation coverage, if applicable) to any employee who does not become an Affected Employee (as defined below). For the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following period from the Effective Time unless through December 31, 2009 (the “Benefits Continuation Period”), Parent shall, or such Subsidiary explicitly authorizes such participation.
(c) The shall cause the Surviving Company agrees to cause to, provide each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without (each, an “Affected Employee”) with continued benefits coverage under the Benefit Plans at the same level and on the same basis (and with the same costs for such Affected Employees) as provided to each such Affected Employee immediately before the Effective Time, and following the Benefits Continuation Period, Parent shall, or shall cause during the 18 months following Surviving Company to, provide each Affected Employee with benefits that are no less favorable than those provided to similarly situated employees of Parent and its Subsidiaries (other than the Surviving Company). From and after the Effective Time through the Benefits Continuation Period, Parent shall, or shall receive severance benefits in accordance cause the Surviving Company to, provide each Affected Employee with Section 6.9(e) of at least the Company Disclosure Lettersame salary or wage rate and incentive compensation opportunities as those provided to each such Affected Employee immediately before the Effective Time.
(fb) Except For purposes of vesting, eligibility to participate and benefit accrual (other than for purposes of benefit accruals under any pension plan sponsored by Parent or its Subsidiaries (other than the Surviving Company and its Subsidiaries)) under the employee benefit plans of Parent and its Subsidiaries providing benefits to any Affected Employees after the Effective Time (the “New Plans”), each Affected Employee shall be credited with his or her years of service with the Company and its Subsidiaries before the Effective Time, to the same extent as such Affected Employee was entitled, before the Effective Time, to credit for such service under any similar Company employee benefit plan in which such Affected Employee participated or was eligible to participate immediately prior to the Effective Time (and to the extent it there is no a similar Company plan, service as recognized for purposes of the Company’s 401(k) Plan), provided that the foregoing shall not apply to the extent that its application would result in a duplication of benefitsbenefits with respect to the same period of service. In addition, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees without limiting the generality of the foregoing: (i) each Company Employee shall be immediately eligible to participate, without any waiting time, in any and its Subsidiaries all New Plans to take into account the extent coverage under such New Plan is comparable to a Benefit Plan in which such Affected Employee participated immediately before the consummation of the Merger (such plans, collectively, the “Old Plans”); and (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability welfare benefits to any employee of the Company or any of its SubsidiariesAffected Employee, Parent shall, or shall cause its employee benefit plans to (i) waive the Surviving Company to, cause all pre-existing condition exclusions and actively-at-work requirements of its such New Plan to be waived for such employee benefit plans with respect to and his or her covered dependents, unless such employees and their dependents to the same extent such exclusions were conditions would not have been waived under a the comparable plan plans of the Company or its Subsidiaries in which such employee participated immediately prior to the Effective Time and (ii) take into account Parent shall, or shall cause the Surviving Company to, cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee’s participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiariesyear as if such amounts had been paid in accordance with such New Plan.
(gc) The Company shall take all actions and obtain any waivers or consents as may establish a retention be required in order to terminate and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) fully discharge without further liability of the Company Disclosure Letteror the Buying Parties, effective on the Closing Date, any stock option plans and agreements and any other equity rights plans, agreements or arrangements. Amounts awarded under the Retention Pool The Company shall be allocated take all actions necessary to ensure that, as of immediately prior to the Effective Time to employees Closing, there are no subscriptions, options, warrants, calls, commitments or other rights of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(gany kind (absolute, contingent or otherwise) of the Company Disclosure Letter and subject outstanding relating to the approval issuance, purchase or receipt of Parent any capital stock (such approval not to be unreasonably withheld).
(hincluding, without limitation, outstanding, authorized but unissued, unauthorized, treasury or other shares thereof) Parent agrees that, with respect to or other equity interest or any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part debt security or in whole by a tuition reimbursement program interest of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Gleacher & Company, Inc.), Merger Agreement (Broadpoint Securities Group, Inc.)
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, that the employees of the Company and its Subsidiaries will at the Gulf Effective Time who continue to remain employed with the Company or its Subsidiaries (the “Continuing Employees”) shall, during the period commencing at the Gulf Effective Time and ending on December 31 of the calendar year in which the Gulf Effective Time occurs (or, if earlier, the date of the Continuing Employee’s termination of employment by Parent and its Subsidiaries), be provided with base salary or base wage, target annual cash bonus opportunities, and pension and welfare benefits under employee benefit plans (including equity and long-term incentive compensation) that at the election of Parent are either (i) substantially similar no less favorable in the aggregate to than those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in immediately prior to the aggregate Gulf Effective Time; provided, however, that the requirements of this sentence shall not apply to those provided Continuing Employees who are covered by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedcollective bargaining agreement.
(b) Prior Parent shall use commercially reasonable efforts to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Parent or its Affiliates to be amended the employee benefit plans and arrangements of it and its Subsidiaries waived with respect to the extent necessary to provide that no employees of Parent Continuing Employees and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and their eligible dependents, (ii) cause give each Continuing Employee credit for the Xxxxx Corporation Incentive Savings Plan plan year in which the Gulf Effective Time occurs towards applicable deductibles and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately annual out-of-pocket limits for medical expenses incurred prior to the Gulf Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law Time for which payment has been made and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of (iii) give each Continuing Employee service credit for such Continuing Employee’s employment with the Company and its Subsidiaries shall commence participation therein following the Effective Time unless for purposes of vesting, benefit accrual and eligibility to participate under each applicable Parent benefit plan, as if such service had been performed with Parent, except for benefit accrual under defined benefit pension plans, for purposes of qualifying for subsidized early retirement benefits or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits.
(c) Prior to making any written or oral communications to the directors, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the Transactions the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication, and the Company shall consider any such comments in good faith.
(d) If the Gulf Effective Time occurs prior to December 31, 2021, then immediately prior to the Gulf Effective Time and only to the extent it will not cause an impermissible acceleration event under Section 409A of the Code, the Company will pay (i) each participant in the Company’s bonus plans and (ii) each Continuing Employee who has historically been eligible to receive a discretionary bonus in the Ordinary Course who, in each case, remains employed through the Gulf Effective Time, an annual bonus for the year in which the Gulf Effective Time occurs in an amount equal to the product of (x) the annual bonus earned by such participants and Continuing Employees for the year in which the Gulf Effective Time occurs (assuming a full year of performance) as reasonably determined by the Company (and in the Ordinary Course in the case of any discretionary bonus) and (y) a fraction, the numerator of which is the number of days elapsed in the plan year from the commencement of the plan year until the date on which the Gulf Effective Time occurs and the denominator of which is 365. Notwithstanding anything to the contrary in this Agreement, if the Gulf Effective Time occurs after December 31, 2021, the Company shall be permitted, prior to the Gulf Effective Time, (1) to pay annual bonuses for fiscal year 2021, in an amount equal to the annual bonus earned by Company Employees for the 2021 fiscal year and (2) to establish bonus targets, maximums and performance goals for fiscal year 2022 in the Ordinary Course and subject to prior consultation with Parent.
(e) Parent hereby acknowledges that the consummation of the transactions contemplated by this Agreement shall constitute a “change in control” or “change of control” for purposes of any Company Benefit Plan that contains a definition of “change in control” or “change of control” or similar term, as applicable. From and after the Gulf Effective Time, Parent and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with including the Company Gulf Surviving Corporation and its Subsidiaries as if such service were with Parent Subsidiaries) shall honor all Company Benefit Plans sponsored or its Subsidiariesmaintained, prior to the same extent that such service was credited under a comparable plan of Gulf Effective Time) by the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes any of each employee benefit plan of Parent or its Subsidiaries providing medicalin accordance with their terms as in effect immediately prior to the Gulf Effective Time.
(f) Nothing contained in this Agreement is intended to (i) be treated as an amendment of any particular Company Benefit Plan, dental(ii) prevent Parent, prescription drugthe Gulf Surviving Corporation or any of their Affiliates from amending or terminating any of their benefit plans or, visionafter the Gulf Effective Time, life insurance any Company Benefit Plan in accordance their terms, (iii) prevent Parent, the Gulf Surviving Corporation or disability benefits to any of their Affiliates, after the Gulf Effective Time, from terminating the employment of any Continuing Employee or (iv) create any third-party beneficiary rights in any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductiblebeneficiary or dependent thereof, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees thatany collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment or benefits that may be provided to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole Continuing Employee by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Gulf Surviving Corporation or any of their Affiliates to (x) maintain or under any particular Benefit Plan benefit plan which Parent, the Gulf Surviving Corporation or (y) retain the employment any of any particular employeetheir Affiliates may maintain.
Appears in 2 contracts
Samples: Merger Agreement (DraftKings Inc.), Merger Agreement (Golden Nugget Online Gaming, Inc.)
Employee Benefits. (a) Parent agrees that, for a period of one year following As promptly as reasonably practicable after the Effective DateTime, the Acquiror shall enroll those persons who were employees of the Company and or its Subsidiaries will be provided with pension immediately prior to the Effective Time and welfare benefits under who remain employees of the Surviving Corporation or its Subsidiaries or become employees of Acquiror following the Effective Time (“Continuing Employees”) in Acquiror’s employee benefit plans that at for which such employees are eligible (which could, in Acquiror’s sole discretion, include Company Benefit Arrangements continued by Acquiror after the election Effective Time) (the “Acquiror Plans”), including its medical plans, dental plans, life insurance plans and disability plans, pursuant to the terms of Parent the applicable Acquiror Plans, on substantially similar terms applicable to employees of Acquiror who are either similarly situated based on levels of responsibility. Without limiting the generality of the foregoing, Acquiror shall recognize the prior service with the Company of each of the Continuing Employees (i) substantially similar for all purposes in the aggregate to those currently provided by the Company connection with Acquiror’s PTO policy, severance policy, 401(k) plan, medical plans, dental plans, life insurance plans and its Subsidiaries to such employees or disability plans and (ii) substantially similar for all purposes in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated connection with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
all other Acquiror Plans (b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangementAcquiror Plans); it is understood that for purposes of the foregoing Acquiror Plans, even in situations where the prior service with the Company is so recognized by Acquiror, the Company shall (i) cause to be amended benefit levels under such Acquiror Plans may nevertheless depend in part on the employee benefit plans and arrangements grade or position of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionContinuing Employees with Acquiror, prior to the Effective Time, to the extent permitted by applicable Law and all as set forth under the terms of the applicable Acquiror Plans. Notwithstanding anything in this Section 6.4 to the contrary, this Section 6.4 shall not operate to (a) duplicate any benefit provided to any Continuing Employee or to fund any such benefit not previously funded, (b) require Acquiror to continue in effect any Company Benefit Arrangement or any severance plan or arrangement, Parent shall cause to be amended the other employee benefit plans and arrangements plan of it and its Subsidiaries to Acquiror (or prevent the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein amendment, modification or termination thereof) following the Effective Time unless Parent for Acquiror’s employees, including the Continuing Employees, or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees be construed to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain mean the employment of the Continuing Employees is not terminable by Acquiror at will at any particular employeetime, with or without cause, for any reason or no reason. Acquiror shall also perform the additional covenants set forth on Schedule 6.4 hereto.
Appears in 2 contracts
Samples: Merger Agreement (Symantec Corp), Merger Agreement (Symantec Corp)
Employee Benefits. (a) Parent agrees that, for a period of one year As soon as practicable following the Effective Datedate hereof, the employees SRA Board of Directors (or, if appropriate, any committee administering the Company SRA Plans) shall adopt such resolutions or take such other actions as may be required to effect the conversion of SRA Performance-Based Options, SRA Restricted Stock, SRA Vested Time-Based Options and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at SRA Unvested Time-Based Options on the election of Parent are either (i) substantially similar terms set forth in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedSection 3.7.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) Computer Sciences GS will cause to be amended the any employee benefit plans and arrangements of it Computer Sciences GS and its Subsidiaries to the extent necessary to provide that no employees in which an individual who is a current employee of Parent and SRA or one of its Subsidiaries shall commence participation therein following (including any current employee who is not actively at work on account of illness, disability or leave of absence but who has a right to return to employment) on the Effective Time unless Closing Date (the Surviving Corporation “Affected Employees”) is entitled to participate after the Closing Date to take into account for purposes of eligibility, vesting and, under any plan providing severance benefits or paid time off, level of benefits, service by such Subsidiary explicitly authorizes such participation employees credited by SRA and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the First Merger Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries Time as if such service were with CSC or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits).
(c) CSC and SRA intend that, Parent over the twelve-month period following the First Merger Effective Time, the compensation and generally applicable employee benefits of the Affected Employees shall cause be substantially the same in the aggregate (or shall have substantially the same value to the Affected Employees in the aggregate) as the compensation and generally applicable employee benefits of similarly situated current employees of the Computer Sciences GS Business (in each case other than those employees whose terms of employment are subject to a collective bargaining agreement).
(d) With respect to any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company maintained by Computer Sciences GS and its Subsidiaries for the benefit of the Affected Employees following the Closing Date (“New Plans”), Computer Sciences GS will take reasonable steps to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with cause the Company Second Merger Surviving LLC and its Subsidiaries as if such service were with Parent to: (i) cause there to be waived any eligibility requirements or its Subsidiaries, pre-existing condition limitations or waiting period requirements to the same extent that such service was credited waived under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents CSC Plans prior to the same extent such exclusions were waived time coverage under a comparable plan of the Company New Plans commences; and (ii) take into account give effect, in determining any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance co-insurance and maximum out-of-pocket requirements applicable to limitations, amounts paid by such employees and their covered dependents during the year in which coverage under the applicable employee benefit plan of Parent or its SubsidiariesNew Plans commences under comparable SRA Plans.
(ge) The Company may establish Prior to the Closing Date, SRA shall submit to the SRA Stockholders a retention and transaction bonus pool vote on the right of any “disqualified individual” (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth as defined in Section 6.9(g280G(c) of the Company Disclosure Letter. Amounts awarded under Code) to receive any and all payments (or other benefits) contingent on the Retention Pool shall be allocated prior to the Effective Time to employees consummation of the Company and its Subsidiaries designated transactions contemplated by this Agreement (within the Chief Executive Officer meaning of the Company in accordance with the guidelines set forth in Section 6.9(g280G(b)(2)(A)(i) of the Company Disclosure Letter and subject Code) to the approval of Parent (extent necessary so that no payment received by such approval not to “disqualified individual” would be unreasonably withheld).
(ha “parachute payment” under Section 280G(b) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program Code (determined without regard to Section 280G(b)(4) of the Company or any of its SubsidiariesCode), such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder. Prior to the Closing Date, SRA shall have delivered to CSC and Computer Sciences GS evidence reasonably satisfactory to CSC and Computer Sciences GS that SRA Stockholder approval was solicited in conformance with Section 409A 280G and the regulations promulgated thereunder. Such vote shall establish the “disqualified individual’s” right to the payment or other compensation. In addition, before the vote is submitted to the SRA Stockholders, SRA shall provide adequate disclosure to the SRA Stockholders of all material facts concerning all payments that, but for such vote, could be deemed “parachute payments” to a “disqualified individual” under Section 280G of the CodeCode in a manner that satisfies Section 280G(b)(5)(B)(ii) of the Code and regulations promulgated thereunder. CSC/Computer Sciences GS and its legal counsel shall be provided with a reasonable opportunity to review and comment on all documents to be delivered to the SRA Stockholders in connection with such vote.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(kf) Nothing contained in this Section 6.9 7.11, whether express or this Agreement shall implied: (i) shall be treated as an amendment of construed to establish, amend or modify any particular Benefit Planbenefit plan, program, agreement or arrangement; (ii) give is intended to confer upon any third Person (including any current or former employee, director or consultant of Computer Sciences GS or any of its Subsidiaries) any rights as a third-party any right to enforce the provisions beneficiary of this Section 6.9 Agreement; or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates shall create a right to (x) maintain any particular Benefit Plan or (y) retain the continued employment of any particular employeeas a result hereof.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Computer Sciences Corp), Agreement and Plan of Merger (Sra International, Inc.)
Employee Benefits. (a) Parent hereby agrees that, for a period of one year following the Effective Date, the to provide to officers and employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election who become or remain regular (full-time) employees of Parent are either or any of its subsidiaries (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to "Continuing Employees"), employee benefits, other than stock options, no less favorable than those provided by Parent and its Subsidiaries to its their similarly situated officers and employees. With respect to Any employee of the Company who becomes a participant in any bonus employee benefit plan, program, policy, or long-term cash incentive awards calculated based on 2006 performance, arrangement of Parent or any of its subsidiaries after the Company’s performance for calendar year 2006 Effective Time shall be calculated without taking into account any reasonable expenses given credit under such plan, program, policy, or costs associated arrangement for all service with or arising as the Company prior to becoming such a result participant for purposes of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedeligibility and vesting.
(b) Prior to The Parent shall assume, effective at the Effective Time, if requested by Parent each Company Option Plan and each Company Stock Option that remains unexercised in writing, to the extent permitted by applicable Law and the terms whole or in part as of the applicable plan or arrangementEffective Time and substitute shares of Parent Common Stock for the shares of Company Common Stock purchasable under each such assumed option ("Assumed Option"), the Company which assumption and substitution shall be effected as follows:
(i) cause the Assumed Option shall have the same terms and conditions as the Company Stock Option being assumed, subject to be amended the employee benefit plans Section 5.12(b)(ii) and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (iii) below;
(ii) cause the Xxxxx Corporation Incentive Savings Plan and number of shares of Parent Common Stock purchasable under the Xxxxx Hourly 401(kAssumed Option shall be equal to the number of shares of Parent Common Stock that the holder of the Company Stock Option being assumed would have received (without regard to any vesting schedule) Plan to be terminated effective upon consummation of the Merger had such Company Stock Option been exercised in full immediately prior to consummation of the Effective Time. In addition, prior Merger; and
(iii) the per share exercise price of such Assumed Option shall be an amount (rounded to the Effective Time, nearest cent) equal to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees per share exercise price of the Company Stock Option being assumed divided by the number of shares of Parent Common Stock issuable in the Merger for each share of Company Common Stock. If the foregoing calculation results in an Assumed Option being exercisable for a fraction of a share of Parent Common Stock, then the number of shares of Parent Common Stock subject to such Assumed Option shall be rounded down to the nearest whole number of shares, and its Subsidiaries the total exercise price for the Assumed Option shall commence participation therein following be reduced by the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationexercise price of the fractional share.
(c) The Company agrees Parent shall take all corporate action necessary to cause each reserve for issuance a sufficient number of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) shares of Parent agrees that, following the Effective Time, decisions regarding utilization of facilities Common Stock for delivery upon exercise of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its SubsidiariesAssumed Options.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (Intellicall Inc), Merger Agreement (Intellicall Inc)
Employee Benefits. (a) Parent agrees that, for a period of one year following Following the Effective Time of the Merger until the first anniversary of the Closing Date, the employees of Company may continue in the Company Employee Plans and its Subsidiaries will be provided with pension and welfare benefits under Benefit Arrangements (other than equity-based plans or arrangements) or shall become eligible for the employee benefit plans that at the election and benefit arrangements of Parent (including, without limitation, the medical, dental, short and long term disability, life insurance, cafeteria plan, paid time off and 401(k) Plan, including any matching contributions) on the same terms as such plans and arrangements are either (i) substantially similar generally offered from time to time to employees of Parent in comparable positions with Parent, it being understood that, except as otherwise provided in this Section 12.1 or under the terms of any such Company Employee Plan or Benefit Arrangement, Parent shall be entitled from time to time to modify, terminate or supplement any such employee plans or benefit arrangements or to substitute new employee plans or benefit arrangements for such employee plans or benefit arrangements in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result exercise of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedtheir business judgment.
(b) Prior With respect to the Effective Time, if requested by any employee plans and benefit arrangements of Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no which any employees of Parent and its Subsidiaries shall commence participation therein following Company first become eligible to participate on or after the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangementMerger (“New Plans”), Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition conditions, exclusions of its employee benefit plans and waiting periods with respect to participation and coverage requirements under any such employees and their dependents New Plans, except to the same extent such conditions or exclusions were waived would have been recognized under a comparable plan of the Company and Employee Plans or Benefit Arrangements, (ii) take into account any eligible expenses incurred recognize service of the employees of Company credited by such employees and their dependents Company prior to the Effective Time of the Merger for purposes of satisfying all deductibleeligibility and vesting under the New Plans, coinsurance other than retiree medical plans (and maximum not for purposes of benefit accrual under any employee defined benefit pension plans), and (iii) credit any deductibles, co-payments or other out-of-pocket requirements applicable to such employees expenses for the benefit plan year for each employee and their covered dependents dependent recognized or recognizable under the applicable employee benefit plan Company Employee Plans or Benefit Arrangements. Entitlement to Paid Time Off (PTO) of Parent or its Subsidiariesemployees of Company accrued as of the Effective Time of the Merger shall not be reduced.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) Parent agrees that as promptly as practicable (but no later than 45 days) after the aggregate amount Effective Time of bonuses paid pursuant the Merger, the Parent will cause the Surviving Corporation to such Retention Pool shall not exceed $3,000,000 pay or provide to those persons eligible to participate in the Company’s Fiscal 2007 Incentive Plan and employed by Company on the Effective Time of the Merger (iiand waiving any other employment related condition under the Incentive Plan), (A) the Retention Pool complies with cash incentive payment under Company’s Fiscal 2007 Incentive Plan determined (x) based upon eligible earnings of each employee for the requirements set forth in Section 6.9(g) fiscal year through the Effective Time of the Company Disclosure Letter. Amounts awarded under Merger, (y) as if the Retention Pool shall be allocated last day of the month prior to the Effective Time of the Merger were the last day of the performance period under such plan (“Adjusted Performance Period”) and (z) based upon the actual achievement during the Adjusted Performance Period of the following measures, as applicable: (i) net sales growth for the Adjusted Performance Period as a percentage over actual sales for the comparable period in fiscal year 2006; (ii) operating income for completed months in the Adjusted Performance Period as a percentage of the projected operating income for the same months as determined under the Company’s operating plan for fiscal year 2007; and (iii) growth pipeline objectives based on actual achievement of key milestones or actual results to the extent that the planned completion of the applicable objective is prior to the Effective Time of the Merger, and (B) the additional matching contribution to the Company’s 401(k) Plan based upon the cash incentive plan performance determined under clause (A) above. In determining the measures under the Company’s Fiscal 2007 Incentive Plan in the preceding sentence, the Company shall exclude any expenses in connection with or arising out of the transactions contemplated by this Agreement. Nothing in this Section will reduce any rights any employee may have under the employee’s Executive Employment Agreement, except that, as a condition of receiving the payment under clause (A) of this subparagraph (i), the employee must waive any rights to receive any duplicate payment of a pro-rata bonus or other payment duplicative of the payments described in clauses (A) and (B) of this subparagraph (i) otherwise payable under any Executive Employment Agreements, any Employee Plan or Benefit Arrangement, or otherwise.
(ii) Parent agrees that those persons who were employees of Company who remain as employees of Parent or the Surviving Corporation after the Effective Time of the Merger will be entitled to participate in annual cash incentive performance programs generally offered to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject Parent (to the approval of Parent (extent that such approval not programs are offered from time to be unreasonably withheld)time by Parent) on the same terms as such programs are generally offered from time to time to employees in comparable positions with Parent.
(hd) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after For a period until the first anniversary of the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall will cause the Surviving Corporation to pay and its Subsidiaries provide to make charitable contributions employees of Company whose employment terminates on or after the Effective Date of the Merger severance benefits and other required benefits under conditions and in amounts that are no less favorable to the employee than those in the communities that the Company and its Subsidiaries serve, Company’s Severance Pay Plan as in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner effect as are generally consistent with the past practices of the Company Effective Time of the Merger. Any such severance and its Subsidiariesother benefits under the Company’s Severance Pay Plan shall be in addition to, and shall not be reduced or offset by any notice pay, severance pay or pay in lieu of notice required under any federal or state statute or regulation.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 2 contracts
Samples: Merger Agreement (CNS Inc /De/), Merger Agreement (Glaxosmithkline PLC)
Employee Benefits. (a) Parent agrees that, for a subject to any necessary transition period of one year following the Effective Dateand subject to any applicable plan provisions, the contractual requirements or Legal Requirements: (i) all employees of the Company and its Subsidiaries will be provided Acquired Corporations who continue employment with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performanceParent, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such any Subsidiary explicitly authorizes such participation of the Surviving Corporation after the Effective Time (“Continuing Employees”) shall be eligible to participate in Parent’s health, welfare, severance, vacation, fringe and 401(k) plans, to substantially the same extent as similarly situated employees of Parent; (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended provide the Continuing Employees with service credit for purposes of (A) eligibility and vesting under any employee benefit plans and arrangements or compensation plan, program or arrangement adopted, maintained or contributed to by Parent or any of it and its Subsidiaries in which Continuing Employees are eligible to the extent necessary to provide that no employees of the Company participate, and its Subsidiaries shall commence participation therein following the Effective Time unless Parent (B) benefit accrual under any vacation or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility severance plan of Parent or a legacy facility any of the Company. In additionits Subsidiaries in which Continuing Employees are eligible to participate, following the Effective Time, decisions regarding promotions and retention for all periods of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries (or Parent or any of its Subsidiaries.
(etheir predecessor entities) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following prior to the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of for which service was recognized by the Company Disclosure Letter.
(f) Except immediately prior to the extent it would result in a duplication of benefits, Parent shall cause Effective Time (other than with respect to any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit newly adopted plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits for which past service credit is not granted to any employee of the Company its employees generally or any of its Subsidiaries, Parent shall cause its employee frozen plan or grandfathered benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
), (giii) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation pre-existing conditions or limitations, eligibility waiting periods or required physical examinations under any medical, health, dental or disability benefit plans covering any employees of the Company Parent or any of its Subsidiaries to be drafted waived with respect to the Continuing Employees and administered their eligible dependents to the extent waived under any similar plans of the Company immediately prior to the Effective Time and (iv) Parent shall give the Continuing Employees and their eligible dependents credit for the plan year in which the Effective Time (or commencement of participation in a manner that complies with Section 409A plan of Parent or any of its Subsidiaries) occurs for applicable deductibles, co-payments and annual out-of-pocket limits for expenses incurred prior to the Effective Time (or the date of commencement of participation in a plan of Parent or any of its Subsidiaries) to the extent such expenses were credited under any similar plans of the Code.
(j) For a period of three years after Company immediately prior to the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) . Nothing contained in this Section 6.9 5.5(a) or elsewhere in this Agreement shall (i) be treated as an amendment of construed to create a right in any particular Benefit Plan, (ii) give any third party any right Company Associate to enforce the provisions of this Section 6.9 or (iii) obligate employment with Parent, the Surviving Corporation or any Subsidiary of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the Surviving Corporation, and the employment of each Continuing Employee shall be “at will” employment. Except for Indemnified Persons (as defined in Section 5.6(a)) to the extent of their respective rights pursuant to Section 5.6, no Company Associate or Continuing Employee shall be deemed to be a third party beneficiary of this Agreement.
(b) If requested by Parent prior to the Closing, the Company shall take (or cause to be taken) all actions necessary or appropriate to terminate, effective no later than the day prior to the date on which the Merger becomes effective, any particular employeeCompany Benefit Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “Company 401(k) Plan”). If the Company is required to terminate any Company 401(k) Plan, then the Company shall provide to Parent prior to the Closing Date written evidence of the adoption by the Company’s board of directors of resolutions authorizing the termination of such Company 401(k) Plan (the form and substance of which resolutions shall be subject to the prior review and approval of Parent). The Company also shall take such other actions in furtherance of terminating such Company 401(k) Plan as Parent may reasonably request.
Appears in 2 contracts
Samples: Merger Agreement (Avalon Pharmaceuticals Inc), Merger Agreement (Clinical Data Inc)
Employee Benefits. (a) During the period commencing at the Effective Time and ending on December 31, 2009, Parent agrees thatthat it or its Subsidiaries shall, for a period of one year following or shall cause the Effective Date, Surviving Corporation to provide the employees of the Company Surviving Corporation and its Subsidiaries will be provided as of the Effective Time (other than those covered by collective bargaining agreements) with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in aggregate base salary, bonus and long-term incentive opportunities (including the value of equity-based long-term incentives) that are no less favorable than the aggregate to those currently base salary, bonus and long-term incentive opportunities (including the value of equity-based long-term incentives) provided by the Company and its Subsidiaries immediately prior to such employees or the Effective Time (ii) substantially similar in provided that, subject to the aggregate to those provided by foregoing, Parent and its Subsidiaries affiliates shall have no obligation to its similarly situated employees. With respect offer equity or equity-based compensation or benefits to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(bemployee) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause except as set forth in Section 6.9(a)(ii) of the Xxxxx Corporation Incentive Savings Plan Company Disclosure Letter, employee benefits (excluding those related to equity) that are no less favorable in the aggregate than those provided by the Company and the Xxxxx Hourly 401(k) Plan to be terminated effective its Subsidiaries immediately prior to the Effective Time. In addition, prior to Following the Effective Time, to for the extent permitted by applicable Law and the terms of the applicable plan or arrangementperiod specified therein, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no eligible employees of the Company and its Subsidiaries Surviving Corporation shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes be entitled to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth described in Section 6.9(g6.9(a) of the Company Disclosure Letter. Amounts awarded under the Retention Pool In addition, Parent shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance have entered into employment agreements with the guidelines set forth in persons listed on Section 6.9(g6.9(a) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee as of the Company and its Subsidiaries whodate hereof, at to become effective as of the Effective Time. Notwithstanding the foregoing, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent nothing contained herein shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
(b) Parent shall cause any employee benefit plans which the employees of the Surviving Corporation and its Subsidiaries are entitled to participate in (to the extent such employees are eligible and participate) to take into account for purposes of eligibility, vesting and benefit accrual thereunder, service by employees of the Company and its Subsidiaries (other than those covered by collective bargaining agreements) as if such service were with Parent, to the same extent such service was credited under a comparable plan of the Company (except to the extent it would result in (1) a duplication of benefits or (2) benefit accruals under any defined benefit pension plan), it being understood that all service of eligible employees shall be recognized for purposes of the severance benefits described in Section 6.9(a) of the Company Disclosure Letter, irrespective of participating in a comparable severance plan of the Company. For the calendar year including the Effective Time, employees of the Surviving Corporation and its Subsidiaries shall not be required to satisfy any deductible, co-payment, out-of-pocket maximum or similar requirements under any welfare benefit plans provided for the benefit of such employees following the Effective Time (“Post-Closing Welfare Plans”) to the extent of amounts previously credited for such purposes under the Benefit Plans that provide medical, dental and other welfare benefits. Any waiting periods, pre-existing condition exclusions and requirements to show evidence of good health contained in such Post-Closing Welfare Plans shall be waived with respect to the employees of the Company and its Subsidiaries.
(c) Parent shall, and shall cause the Surviving Corporation and any successor thereto to honor, fulfill and discharge in accordance with their terms all plans, contracts, agreements, arrangements and commitments of the Company and its Subsidiaries disclosed in the Company Disclosure Letter and in effect immediately prior to the Effective Time that are applicable to any current or former employees or directors of the Company or any of its Subsidiaries or any of their predecessors; provided that this shall not prevent the amendment or termination of any such plans, contracts, agreements, arrangements or commitments in accordance with their terms and, except as disclosed in Section 6.9(c) of the Company Disclosure Letter, the Surviving Corporation shall have any rights, privileges or powers under the Benefit Plans which were previously held by the Company.
(d) The Company shall be permitted, prior to the Effective Time, (I) to pay annual bonuses to each participant in the Company Incentive Compensation Plan for 2008 in the aggregate not to exceed the aggregate amount set forth in Section 6.9(d) of the Company Disclosure Letter payable for each participant for the 2007 calendar year and (II) subject to Parent’s consent (not to be unreasonably withheld); to establish bonus targets, maximums and performance goals for 2009 in the ordinary course of business consistent with past practice; provided that this shall not prevent the amendment or termination of any such plans in accordance with their terms and the Surviving Corporation shall have any rights, privileges or powers under the Company Benefit Plan which were previously held by the Company. In the event the Effective Time occurs in 2009, the Company shall be permitted to pay a pro-rata annual bonus for the 2009 calendar year. For this purpose, each employee who was designated as a participant in the Company’s Incentive Compensation Plan for 2008 shall be deemed to be a designated participant in such plan for 2009.
(e) Parent hereby acknowledges that a “change in control” or “change of control” for purposes of all applicable Benefit Plans shall be deemed to have occurred no later than the Effective Time.
(f) The provisions of this Section 6.9 are solely for the benefit of the parties to this Agreement, and no current or former employee, officer or director or any other individual associated therewith shall be regarded for any purpose as a third party beneficiary of this Agreement, and nothing herein shall be construed as an amendment to any Benefit Plan for any purpose.
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Ust Inc), Merger Agreement (Altria Group, Inc.)
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the Those employees of the Company and its Subsidiaries who will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided retained by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein Surviving Corporation following the Effective Time unless (the “Retained Employees”) shall be provided credit by Parent or the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause for all service with the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective TimeCompany, to the same extent permitted as such service was credited for such purpose by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard under (except to the extent affecting relevant experiencex) to whether employment prior to the Effective Time was with the all Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account Benefit Plans for purposes of eligibility, benefits vesting and benefit accrual (excluding accruals other than benefit accrual under a any defined benefit planPension Plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiariesunder Parent’s Benefit Plans, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (iiy) take into account any eligible expenses incurred by such employees severance plans, programs and their dependents policies for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under calculating the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant each such employee’s severance benefits under Parent’s Benefit Plans. The Surviving Corporation shall give credit to such Retention Pool shall not exceed $3,000,000 each Retained Employee for earned but unused vacation and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letteraccrued vacation. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent or the Surviving Corporation shall (i) cause any nonqualified deferred compensation plans covering pre-existing conditions or limitations, actively-at-work requirements and eligibility waiting periods (to the extent that such waiting periods would be applicable) under any employees group health plan of the Company or any of its Subsidiaries Surviving Corporation to be drafted waived with respect to Retained Employees and administered their dependents and (ii) give each Retained Employees credit for the plan year in a manner that complies with Section 409A of which the Code.
(j) Effective Time occurs towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred prior to the Effective Time for which payment has been made. For a period of three years after one year following the Closing Date, each Retained Employee shall be (i) entitled to the same base salary, and (ii) eligible to receive employee benefits that are in the aggregate no less favorable than those employee benefits provided to similarly situated active employees of the Parent and its subsidiaries; provided that nothing herein is intended to result in a duplication of benefits. At Parent’s request, the Company will use its reasonable best efforts to (i) cause any amounts expected to become payable under any designated change of control and severance agreements of the Company to be paid immediately prior to the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give cancel any third party any right to enforce the provisions of this Section 6.9 or such agreements, and (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeeensure that no additional amounts are payable thereunder.
Appears in 2 contracts
Samples: Merger Agreement (Ssa Global Technologies, Inc), Merger Agreement (E Piphany Inc)
Employee Benefits. (a) Parent agrees that, for a For the one (1) year period of one year following the Effective DateTime, Parent shall, or shall cause the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent Surviving Corporation to, provide to individuals who are either (i) substantially similar in the aggregate to those currently provided employed by the Company and its Subsidiaries immediately prior to the Effective Time who remain employed with the Surviving Corporation or any Subsidiary of the Surviving Corporation (“Affected Employees”) employee benefits (including, but not limited to, pension and welfare benefits, but excluding any equity-based or incentive compensation) that in the aggregate are no less favorable in any material respect than the employee benefits provided by the Company or the applicable Subsidiary of the Company to such employees or immediately prior to the Effective Time (ii) substantially similar except such changes as are required by Law); provided, however, that nothing contained in the aggregate this Section 6.9 shall operate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to duplicate any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedbenefit.
(b) Prior to the Effective TimeParent shall, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionto, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all prelimitations as to preexisting conditions, exclusions, waiting periods and actively-existing condition exclusions of its at-work requirements with respect to participation and coverage requirements applicable to the Affected Employees under all employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (Subsidiary of Parent, the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) Surviving Corporation or Subsidiary of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (Surviving Corporation that such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries would be eligible to be drafted and administered participate in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause other than limitations or waiting periods that were in effect with respect to such employees as of the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that Effective Time under any employee benefit plan maintained by the Company and its Subsidiaries serve, in or such amounts (not Subsidiary for the Affected Employees immediately prior to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit PlanEffective Time, (ii) give provide each Affected Employee with credit for any third party co-payments and deductibles paid prior to the Effective Time in satisfying any right applicable deductible or out-of-pocket requirements under any welfare plans that such employees are eligible to enforce participate in after the provisions of this Section 6.9 or Effective Time during the same plan year in which such co-payments and deductibles were paid, and (iii) obligate Parentgive full credit, the Surviving Corporation for all purposes under all employee benefit plans or arrangements maintained by Parent or any Subsidiary of their Affiliates Parent (to (xthe extent such Affected Employees participate in any such employee benefit plan or arrangement) maintain for such Affected Employees’ service with the Company or any particular Benefit Plan or (y) retain Subsidiary of the employment of Company to the same extent recognized by the Company immediately prior to the Effective Time; provided, however, that the crediting shall not operate to duplicate any particular employeebenefit.
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for For a period of one year following commencing upon the Effective DateTime and continuing through the end of the year in which the Effective Time occurs, Parent shall provide to each employee of the Acquired Corporations who continues to be employed by Parent, the employees of Surviving Corporation (or any Subsidiary thereof) (the Company “Continuing Employees”) total compensation (including employee benefits other than equity based compensation and its Subsidiaries will be provided with pension retention benefits and welfare benefits under employee benefit plans based on bonus opportunity rather than actual bonus payments) that is at the election of Parent are either (i) least substantially similar comparable in the aggregate to those currently the compensation provided by to such Continuing Employees immediately prior to the execution of this Agreement. In addition, notwithstanding the foregoing, Continuing Employees shall be eligible for severance benefits as set forth in Part 6.4 of the Company and its Subsidiaries to such employees or Disclosure Schedule. Without limiting the foregoing:
(iia) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus accrued but unused personal, sick or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account vacation time to which any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior Continuing Employee is entitled pursuant to the Effective Timepersonal, if requested by Parent in writing, sick or vacation policies applicable to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Continuing Employee immediately prior to the Effective Time. In addition, prior Parent shall, or shall cause the Surviving Corporation to and instruct its Subsidiaries to, as applicable, assume the Effective Timeliability for such accrued personal, sick or vacation time and allow such Continuing Employee to use such accrued personal, sick or vacation time in accordance with the extent permitted by applicable Law practice and the terms policies of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries Acquired Corporation subject to the extent necessary cap on vacation accrual set forth in Parent’s vacation policy and subject to provide applicable Legal Requirements; provided that no employees the accrued but unused personal, sick or vacation time of each such Continuing Employee in excess of 80% of such cap shall be paid by Parent, the Company and its Surviving Corporation (or any other Subsidiaries shall commence participation therein following the Effective Time unless Parent or of Parent) as soon as practicable to such Subsidiary explicitly authorizes Continuing Employee at such participation.
(c) The Company agrees to cause each employee’s compensation rate in effect as of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(db) If requested by Parent at least ten (10) business days prior to the Offer Acceptance Time, the Acquired Corporations shall terminate any and all Employee Plans intended to qualify under Section 401(k) of the Code, effective not later than the business day immediately preceding the Offer Acceptance Time. In the event that Parent requests that such 401(k) plan(s) be terminated, the Acquired Corporations shall provide Parent with evidence that such 401(k) plan(s) have been terminated pursuant to resolution of the Company’s Board of Directors (the form and substance of which shall be subject to review and approval by Parent) not later than business day immediately preceding the Offer Acceptance Time.
(c) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries that all Continuing Employees shall be made by Parent on a basis eligible to continue to participate in the Surviving Corporation’s health and welfare benefit plans to the extent that reflects they were eligible to participate in such plans prior to the best long-term business interests of Parent and its Subsidiaries Closing; provided, however, that (including i) nothing in this Section 6.4 or elsewhere in this Agreement shall limit the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility right of Parent or a legacy facility the Surviving Corporation to amend or terminate any such health or welfare benefit plan at any time, and (ii) if Parent or the Surviving Corporation terminates any such health or welfare benefit plan, then (upon expiration of any appropriate transition period) Parent shall use commercially reasonable efforts to cause the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives Continuing Employees to be achievedeligible to participate in Parent’s health and welfare benefit plans, giving consideration to previous work historysubstantially the same extent as similarly situated employees of Parent (taking into account job location). To the extent that service is relevant for eligibility, job experiencevesting or allowances (including paid time off) under any health or welfare benefit plan of Parent and/or the Surviving Corporation, qualifications and business needs without regard then Parent shall use commercially reasonable efforts to cause such health or welfare benefit plan to (except to the extent affecting relevant experiencethat it would not result in any duplication of benefits), for purposes of eligibility, vesting and allowances (including paid time off) to whether employment but not for purposes of benefit accrual or participation, credit Continuing Employees for service prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, Acquired Corporations to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated recognized prior to the Effective Time to employees under the corresponding health or welfare benefit plan of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Company.
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(kd) Nothing contained in this Section 6.9 6.4 or elsewhere in this Agreement is intended nor shall be construed to (i) be treated as an amendment of to any particular Benefit Employee Plan, (ii) give prevent Parent from amending or terminating any third party any right to enforce the provisions of this Section 6.9 or its benefit plans in accordance their terms, (iii) obligate create a right in any employee to employment with Parent, the Surviving Corporation or any other Subsidiary of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the Surviving Corporation and the employment of each Continuing Employee shall be “at will” employment or (iv) create any particular employeethird-party beneficiary rights in any employee of the Acquired Corporations or the Surviving Corporation, any beneficiary or dependent thereof, or any collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any Continuing Employee by Parent or the Company or under any benefit plan which Parent, any Acquired Corporation or the Surviving Corporation may maintain.
(e) During the Pre-Closing Period, the Acquired Corporations shall use commercially reasonable efforts not to communicate with employees of the Acquired Corporations regarding the compensation, benefits or other treatment they will receive after consummation of the Offer or the Merger, unless any such communications are consistent with those developed in consultation with Parent or this Section 6.4; provided, that, Parent shall use commercially reasonable efforts to develop such a communication plan with the Company.
Appears in 1 contract
Samples: Merger Agreement (Amgen Inc)
Employee Benefits. (a) Parent agrees that, for a period Ultra shall cause any employee benefit plans of one year following the Effective Date, the employees of the Company Ultra and its Subsidiaries will be provided with pension and welfare in which an individual who is a current employee of any Vector Entity or any Kodiak Entity (including any current employee who is not actively at work on account of illness, disability or leave of absence but who has a right to return to employment) on the Closing Date (the “Affected Employees”) is entitled to participate after the Closing Date to take into account for purposes of eligibility, vesting and, under any plan providing severance benefits under employee benefit plans that at the election or paid time off, level of Parent are either (i) substantially similar in the aggregate to those currently provided benefits, service by such employees credited by the Company and its Subsidiaries to such employees applicable Vector Entity or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionKodiak Entity, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or Times as if such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company service were with Ultra or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company for purposes of any defined benefit pension plans, if any, or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause ).
(b) With respect to any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company maintained by Ultra and its Subsidiaries for the benefit of the Affected Employees following the Closing Date (“New Plans”), Ultra will take reasonable steps to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with cause the Company Second Vector Surviving Entity and its Subsidiaries as if such service were with Parent or the Kodiak Surviving Entity and its Subsidiaries, as applicable, to: (i) cause there to be waived any eligibility requirements or pre-existing condition limitations or waiting period requirements to the same extent that such service was credited waived under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents Ultra Plans prior to the same extent such exclusions were waived time coverage under a comparable plan of the Company New Plans commences; and (ii) take into account give effect, in determining any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance co-insurance and maximum out-of-pocket requirements applicable to limitations, amounts paid by such employees and their covered dependents during the year in which coverage under the applicable employee benefit plan of Parent New Plans commences under comparable Vector Plans or its SubsidiariesKodiak Plans, as applicable.
(gc) The Company may establish Prior to the Closing Date, but in no event later than five Business Days prior to the Closing Date, Vector will (i) use commercially reasonable efforts to obtain a retention written waiver from each individual who is, or could reasonably be expected to be as of the Closing Date, a “disqualified individual” (as defined in Section 280G(c) of the Code) of the portion of any and transaction bonus pool all payments and benefits that could reasonably be deemed a “parachute payment” (as defined in Section 280G(b)(2) of the Code) and could result in the imposition of an excise tax on such individual pursuant to Section 4999 of the Code and/or a loss of any Tax deduction pursuant to Section 280G of the Code (the “Retention PoolVector Waived Payments”); provided) unless such Vector Waived Payments are approved by the Vector Stockholder in accordance with the provisions of Section 280G and the regulations thereunder, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) submit to the Retention Pool complies Vector Stockholder for a shareholder vote (in a manner in reasonably designed to comply with the requirements set forth in Section 6.9(g280G(b)(5)(B) of the Company Disclosure LetterCode and the regulations thereunder (including Treas. Amounts awarded Reg. Section 1.280G-1, Q-7/A-7(b)(3))) the right of any such disqualified individual to receive his or her respective Vector Waived Payments in a manner to reasonably be expected to cause the Waived Payments to be exempt from the definition of “parachute payment” by reason of the exemption provided under Section 280G(b)(5)(B) of the Retention Pool shall be allocated Code. Prior to the Closing Date, but in no event later than five Business Days prior to the Effective Time Closing Date, Kodiak will (i) use commercially reasonable efforts to employees obtain a written waiver from each individual who is, or could reasonably be expected to be as of the Company Closing Date, a “disqualified individual” (as defined in Section 280G(c) of the Code) of the portion of any and its Subsidiaries designated all payments and benefits that could reasonably be deemed a “parachute payment” (as defined in Section 280G(b)(2) of the Code) and could result in the imposition of an excise tax on such individual pursuant to Section 4999 of the Code and/or a loss of any Tax deduction pursuant to Section 280G of the Code (the “Kodiak Waived Payments”) unless such Kodiak Waived Payments are approved by the Chief Executive Officer of the Company Kodiak Stockholder in accordance with the guidelines set forth provisions of Section 280G and the regulations thereunder, and (ii) submit to the Kodiak Stockholder for a shareholder vote (in a manner reasonably designed to comply with Section 6.9(g280G(b)(5)(B) of the Company Disclosure Letter Code and subject the regulations thereunder (including Treas. Reg. Section 1.280G-1, Q-7/A-7(b)(3))) the right of any such disqualified individual to receive his or her respective Kodiak Waived Payments in a manner reasonably expected to cause the Kodiak Waived Payments to be exempt from the definition of “parachute payment” by reason of the exemption provided under Section 280G(b)(5)(B) of the Code. Delta, Ultra and their legal counsel shall be provided with a reasonable opportunity (consisting of at least three Business Days) to review and comment on (A) all analyses and calculations conducted by Vector, Kodiak and their respective advisors related to or otherwise in connection with the actions described in this Section 8.14(c), (B) all waivers described in this Section 8.14(c), and (C) all documents to be delivered to the approval of Parent (such approval not to be unreasonably withheld)Vector Stockholder and Kodiak Stockholder in connection with the votes described in this Section 8.14, and Vector and Kodiak shall implement all reasonable comments received from Delta, Ultra and their legal counsel.
(hd) Parent agrees thatIf requested by Delta no later than 30 days prior to the Closing Date, with respect Vector and Kodiak shall terminate any Vector Plan or Kodiak Plan, respectively, that is a defined contribution plan intended to any employee be qualified under Section 401(a) of the Company Code prior to the Closing Date (each, a “Qualified Plan Termination”). If Ultra requests a Qualified Plan Termination pursuant to this Section 8.14(d), Ultra shall maintain or establish (or cause the Second Vector Surviving Entity to maintain or establish), as of the Closing Date, a New Plan that is a defined contribution plan intended to be qualified under Section 401(a) of the Code (each, a “New DC Plan”) in which the Affected Employees shall be eligible to participate as of the Closing Date and its Subsidiaries whoto which any Affected Employee entitled to an “eligible rollover distribution” (as defined in Section 402(c)(4) of the Code) from a Vector Plan or Kodiak Plan, at the Effective Timeas applicable, is may transfer such eligible rollover distribution, including any participant loan, in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed direct rollover to the current educational period)New DC Plan and use commercially reasonable efforts to enable such direct rollovers to occur before any such participant loans become defaulted.
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(ke) Nothing contained in this Section 6.9 8.14, whether express or this Agreement shall implied: (i) shall be treated as an amendment of construed to establish, amend or modify any particular Benefit benefit plan, program, agreement or arrangement (including any Ultra Plan or New Plan, ); (ii) give is intended to confer upon any third Person (including any current or former employee, director or consultant of Delta, Ultra or any of their respective Subsidiaries) any rights as a third-party any right to enforce the provisions beneficiary of this Section 6.9 Agreement; or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates shall create a right to (x) maintain any particular Benefit Plan or (y) retain the continued employment of any particular employeeas a result hereof.
Appears in 1 contract
Samples: Merger Agreement (DXC Technology Co)
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar OBLIGATIONS OF QWEST; COMPARABILITY OF BENEFITS. Each Benefit Plan (as defined in the aggregate Section 8.11(a)) as to those currently provided by the Company and which LCI or any of its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With has any obligation with respect to any bonus current or long-term cash incentive awards calculated based on 2006 performance, former employee (the Company’s performance for calendar year 2006 "LCI EMPLOYEES")(the "LCI BENEFIT PLANS") shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result the obligations of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law Qwest and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following Surviving Corporation at the Effective Time unless and for at least two years thereafter, Qwest shall, or shall cause the Surviving Corporation or to, provide benefits, in the aggregate, that are no less favorable than the benefits provided, in the aggregate, under such Subsidiary explicitly authorizes such participation and (ii) cause Benefit Plans to the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective LCI Employees immediately prior to the Effective Time. In additionNotwithstanding the foregoing, nothing herein shall require (A) the continuation of any particular LCI Benefit Plan or prevent the amendment or termination thereof (subject to the maintenance, in the aggregate, of the benefits as provided in the preceding sentence) or (B) require Qwest or the Surviving Corporation to continue or maintain any stock purchase or other equity plan related to the equity of LCI or the Surviving Corporation.
(ii) PRE-EXISTING LIMITATIONS; DEDUCTIBLE; SERVICE CREDIT. With respect to any Benefit Plans of Qwest in which the LCI Employees participate effective as of the Closing Date, Qwest shall, or shall cause the Surviving Corporation to: (A) not impose any limitations more onerous than those currently in effect as to pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the LCI Employees under which any welfare Benefit Plan in which such employees may be eligible to participate after the Effective Time, (B) provide each LCI Employee with credit for any co-payments and deductibles paid prior to the Effective Time in satisfying any applicable deductible or out-of-pocket requirements under any welfare Benefit Plan in which such employees may be eligible to participate after the Effective Time, and (C) recognize all service of the LCI Employees with LCI for all purposes (including, without limitation, purposes of eligibility to participate, vesting credit, entitlement for benefits, and benefit accrual) in any Benefit Plan in which such employees may be eligible to participate after the Effective Time, to the same extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries taken into account under a comparable LCI Benefit Plan immediately prior to the Effective TimeClosing Date.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Samples: Merger Agreement (Qwest Communications International Inc)
Employee Benefits. (a) Parent agrees thatshall, or shall cause an Acquired Entity to, provide all of the employees of the Acquired Entities as of the Effective Time (the “Affected Employees”), for a period ending on the first anniversary of one year following the Effective DateTime, the base rate of pay that is no less than the base rate of pay for such employees set forth on Schedule 3.17(a) of the Company Disclosure Schedules and its Subsidiaries will be provided with pension and welfare employee benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, including the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising severance existing as a result of the transactions contemplated by date of this Agreement Agreement) set forth on Exhibit K. Notwithstanding the foregoing, Parent shall, or any nonrecurring charges that would not reasonably shall cause an Acquired Entity to, provide all Affected Employees as of the Effective Time, for a period ending on May 31, 2017, employee benefits set forth on Exhibit K. For the avoidance of doubt, other than the Transaction Bonuses, no performance bonuses will be expected to have been incurred had the transactions contemplated by the Agreement not been proposedpaid in 2016.
(b) Prior to Parent shall, or shall cause an Acquired Entity to, until first anniversary of the Effective Time, if requested honor all unused vacation, holiday, paid time off, sickness and personal days accrued by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company Acquired Entities under the policies and its Subsidiaries practices of the Acquired Entities. In the event of any change in the welfare benefit plan provided to any Affected Employee, Parent shall, or shall commence cause an Acquired Entity to waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes coverage requirements applicable to the Company or its Subsidiaries prior to the Effective Time.
Affected Employees (dand their eligible dependents) Parent agrees thatunder such plan, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to that such conditions, exclusions or waiting periods would apply under the Effective Time was Acquired Entities’ then-existing plans absent any change in such welfare plan coverage. Parent shall, or shall cause an Acquired Entity to, provide each Affected Employee with credit for all service with the Company Acquired Entities and their respective ERISA Affiliates under each employee benefit plan, policy, program or arrangement in which such Affected Employee is eligible to participate, except for any plan subject to Title IV of ERISA or any of its Subsidiaries plan, program or Parent policy providing retiree health or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except life benefits, or except to the extent that it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, respect to the same extent that such service was credited under a comparable plan period of the Company or its Subsidiariesservices.
(c) Except as provided in Section 6.1(a), provided, that no credit nothing contained herein shall be given under frozen benefit plans. For purposes of each construed as (i) requiring Parent or the Surviving Corporation to continue any specific employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of continue the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment employment of any particular Benefit Planspecific Person, (ii) give any third party any right altering or limiting Parent’s ability to enforce amend, modify or terminate a particular benefit plan program or arrangement that the provisions of this Section 6.9 Acquired Entities maintain or contribute to, or (iii) obligate Parentconferring upon any individual any right as a third party beneficiary of this Agreement.
(d) Nothing in this Section 6.1 is intended to, the Surviving Corporation or and nothing shall, constitute an amendment to any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeeEmployee Plan.
Appears in 1 contract
Employee Benefits. (a) Following the KSL Effective Time until the first anniversary of the KSL Effective Time, Parent agrees thatGP shall provide, for a period of one year following the Effective Dateor shall cause to be provided, the to individuals who are employees of the Company KSL and its Subsidiaries will immediately before the KSL Effective Time and who continue to be employed by any of the VLI Entities after the KSL Effective Time (the "KANEB EMPLOYEES") employee benefits (other than any equity-based benefits) that are, in the aggregate, not less favorable than those generally provided to Kaneb Employees as of the date of this Agreement, as disclosed by KSL to VLI immediately prior to the date of this Agreement. Notwithstanding anything contained herein to the contrary, Kaneb Employees who are covered under a collective bargaining agreement shall be provided with pension and welfare the benefits under employee benefit plans that at the election of Parent are either required by such collective bargaining agreement from time to time.
(i) substantially similar in the aggregate to those currently provided by the Company For purposes of eligibility and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended vesting under the employee benefit plans of the VLI Entities and arrangements of it and its their respective Subsidiaries providing benefits to any Kaneb Employee after the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the KSL Effective Time unless (the Surviving Corporation or such Subsidiary explicitly authorizes such participation "NEW PLANS") and (ii) cause solely for purposes of levels of vacation and severance benefits under the Xxxxx Corporation Incentive Savings Plan severance and vacation benefit plans providing benefits to any Kaneb Employee after the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the KSL Effective Time. In addition, prior to each Kaneb Employee shall be credited with his or her years of service with KSL and its Subsidiaries and predecessor employers before the KSL Effective Time, to the same extent permitted by applicable Law and as such Kaneb Employee was entitled, before the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the KSL Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In additioncredit for such service under any similar Kaneb Benefit Plans, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it such credit would result in a duplication of benefits. In addition, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees without limiting the generality of the Company foregoing: (i) each Kaneb Employee shall be immediately eligible to participate, without any waiting time, in any and its Subsidiaries all New Plans to take into account the extent coverage under such New Plan replaces coverage under a Kaneb Benefit Plan in which such Kaneb Employee participated immediately prior to the KSL Effective Time (such plans, collectively, the "OLD PLANS"); and (ii) for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesKaneb Employee, Parent GP or the other applicable VLI Entity shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of its such New Plan to be waived for such employee benefit plans with respect to such employees and their dependents to his or her covered dependents, and Parent GP or the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account other applicable VLI Entity shall cause any eligible expenses incurred by such employees employee and their his or her covered dependents - during the portion of the plan year of the Old Plan ending on the date such employee's participation in the corresponding New Plan begins - to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiariesyear as if such amounts had been paid in accordance with such New Plan.
(gc) The Company may establish a retention Parent GP or the other applicable VLI Entity will honor, in accordance with their terms, all vested and transaction bonus pool (the “Retention Pool”); providedaccrued benefit obligations to, that (i) the aggregate amount and contractual rights of, current and former employees of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 KSL and (ii) the Retention Pool complies with the requirements set forth its Subsidiaries which are disclosed in Section 6.9(g4.1(m)(i) of the Company Kaneb Disclosure LetterSchedules. Amounts awarded under the Retention Pool Nothing in this Agreement shall be allocated prior interpreted as preventing Parent GP or the other applicable VLI Entity from amending, modifying or terminating any Kaneb Benefit Plan or other contract, arrangement, commitment or understanding, in accordance with their terms and applicable law. This Agreement is not intended, and it shall not be construed, to the Effective Time to create third party beneficiary rights for any current or former employees of the Company and KSL or its Subsidiaries designated (including any beneficiaries or dependents thereof) under or with respect to any plan, program, or arrangement described or contemplated by this Agreement.
(d) VLI and the Chief Executive Officer Kaneb Entities will take all actions necessary to satisfy the obligations set forth on Section 6.7(d) of the Company Kaneb Disclosure Schedule in accordance with the guidelines procedure set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) therein. Nothing contained in this Section 6.9 6.7 shall provide, or this Agreement shall (i) be treated interpreted as an amendment providing, any individual with rights or benefits that are duplicative of those that may be provided under any particular Benefit Plan, (ii) give any third party any right to enforce the similar provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeeKPP Merger Agreement.
Appears in 1 contract
Samples: Merger Agreement (Valero L P)
Employee Benefits. (a) Parent agrees thatthat the Continuing Employees shall, for a during the period of one year following commencing at the Effective Date, Time and ending on the employees one-year anniversary of the Company and its Subsidiaries will Effective Time (the “Continuation Period”), be provided with (i) base salary or base wage and target annual cash bonus opportunities that are, in each case, no less favorable than those provided to each such Continuing Employee immediately prior to the Effective Time and (ii) employee benefits, including pension and welfare benefits under employee benefit plans (but excluding equity and long-term incentive compensation and any retention or transaction bonus payments) that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar no less favorable in the aggregate to those provided by to the Continuing Employees immediately prior to the Effective Time or, in Parent’s discretion, are substantially comparable to those made available to similarly situated employees of Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedSubsidiaries.
(b) Parent shall (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any welfare plans of Parent or its Affiliates to be waived with respect to the Continuing Employees and their eligible dependents, (ii) give each Continuing Employee credit for the plan year in which the Continuing Employee is first eligible to enroll in a Parent plan providing welfare benefits towards applicable deductibles and annual out-of-pocket limits for expenses incurred prior to the Effective Time for which payment has been made in respect of such Continuing Employee and their eligible dependents to the same extent such credit was given under the analogous Company Benefit Plan during the calendar year in which the Continuing Employee first becomes eligible to enroll in such Parent plan and (iii) give each Continuing Employee service credit for such Continuing Employee’s employment with the Company and its Subsidiaries for purposes of vesting, benefit accrual and eligibility to participate under each applicable Parent benefit plan, as if such service had been performed with Parent, except for benefit accrual under defined benefit pension plans, for purposes of qualifying for subsidized early retirement benefits or to the extent it would result in a duplication of benefits. For the avoidance of doubt, such service shall not be recognized for purposes of eligibility for retirement vesting under equity plans of Parent.
(c) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries Company Benefit Plans to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly Company 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionthe event that Parent requests that the Company 401(k) Plan be terminated, the Company shall provide Parent with evidence that such plan has been terminated not later than the Effective Time. All resolutions adopted or executed in connection with the termination of the Company 401(k) Plan shall be subject to Parent’s reasonable prior review and comment, and the Company shall consider any such comments in good faith.
(d) If requested by Parent in writing delivered to the Company not less than 10 Business Days prior to the Effective Time (with such request to be made only in the event Parent does not request that the Company 401(k) Plan be terminated pursuant to Section 7.11(c)), the Company Board shall take any actions (including, if applicable, adopting resolutions) as is reasonably necessary to delegate plan administration authority for any Company Benefit Plans that are qualified or non-qualified retirement plans to Parent’s Employee Benefits Plans Administrative Committee and to delegate investment authority for such plans to Parent’s Employee Benefit Plans Investment Committee, with such delegation to be effective as of the Effective Time and contingent upon the occurrence of the Effective Time. To the extent such delegation of authority described in the preceding sentence is requested by Parent, the Company shall provide Parent with evidence of such delegation not later than the Effective Time. All resolutions adopted or executed in connection with the delegation described herein shall be subject to Parent’s reasonable prior review and comment.
(e) Prior to making any written communications intended for broad based distribution to any Company Employee pertaining to compensation or benefits matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent with a copy of the intended communication, Parent shall have a reasonable period of time to review and comment on the communication and the Company shall consider any such comments in good faith.
(f) Without limiting the generality of Section 7.11(a), from and after the Effective Time, Parent shall, or shall cause its Subsidiaries, including the Surviving Corporation, to, assume and honor the Company’s and its Subsidiaries’ employment, severance, retention, cash incentive compensation and termination plans, policies, programs, agreements and arrangements in effect as of immediately prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause in each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basiscase, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment accordance with their terms as in effect immediately prior to the Effective Time was (including those terms with respect to a “qualifying termination” in the Company’s then-applicable annual incentive bonus plan); provided, however, that, notwithstanding the foregoing, to the extent elected by the Company prior to the Closing Date, Parent shall provide Continuing Employees with severance payments and benefits under the general severance plans, policies or programs of Parent during the Continuation Period.
(g) The Company shall be permitted to determine in good faith the amounts payable under its annual cash incentive program for the fiscal year in which the Closing Date occurs based on actual performance through the Closing Date, and Parent shall cause such amounts to be paid to the Continuing Employees on the earliest of (i) the date the Company has historically paid such amounts in the Ordinary Course of Business; (ii) the date Parent pays annual cash bonuses in the Ordinary Course of Business; and (iii) the date on which the applicable Continuing Employee is otherwise entitled to receive payment under the applicable annual cash incentive program; provided that the aggregate amount of such bonus payments shall not exceed the amount accrued by the Company for accounting purposes through the Closing Date. For the balance of the calendar year in which the Closing Date occurs, Continuing Employees shall participate in an annual cash incentive program sponsored by Parent, and such bonuses will be paid to the Continuing Employees in accordance with the terms of Parent’s program on the date Parent pays annual cash bonuses in the Ordinary Course of Business, pro-rated to reflect the portion of the calendar year following the Closing Date during which the Continuing Employees participated in such program.
(h) Nothing set forth in this Agreement is intended to (i) be treated as an amendment of any particular Company Benefit Plan, (ii) prevent Parent, the Surviving Corporation or any of its Subsidiaries their Affiliates from amending or Parent terminating any of their benefit plans or, after the Effective Time, any Company Benefit Plan in accordance with their terms, (iii) prevent Parent, the Surviving Corporation or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following their Affiliates, after the Effective Time shall receive severance benefits Time, from terminating the employment of any Continuing Employee, or (iv) without limiting the generality of Section 10.8, create any third-party beneficiary rights in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductiblebeneficiary or dependent thereof, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees thatany collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment or benefits that may be provided to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole Continuing Employee by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain or under any particular Benefit Plan benefit plan which Parent, the Surviving Corporation or (y) retain the employment any of any particular employeetheir Affiliates may maintain.
Appears in 1 contract
Employee Benefits. Without limiting the generality of Section 7.2 above:
(a) Parent agrees that, for a period of one year following the Effective Date, the employees as of the Company Time of Distribution, New Gaylxxx xxxll assume sponsorship of the Retirement Plan for Employees of New Gaylxxx xxx Affiliated and its Subsidiaries will be provided with pension Adopting Corporations (the "New Gaylxxx Xxxsion Plan") and welfare benefits under employee benefit plans that at the election trust related thereto. As of Parent are either (i) substantially similar the Time of Distribution, Retained Employees shall cease to participate in the aggregate to those currently provided by the Company New Gaylxxx Xxxsion Plan and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising fully vested in their benefits accrued thereunder as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably Time of Distribution, and the accrued benefits of Retained Employees shall be expected to have been incurred had maintained under the transactions contemplated by New Gaylxxx Xxxsion Plan until distributed in accordance with the Agreement not been proposedterms of the New Gaylxxx Xxxsion Plan.
(b) Prior Effective as of the Time of Distribution, New Gaylxxx xxxll assume sponsorship of the GEC 401(k) Savings Plan (the "New Gaylxxx Xxxings Plan") and the trust related thereto. As of the Time of Distribution, Retained Employees shall cease to participate in the Effective TimeNew Gaylxxx Xxxing Plan, if requested by Parent and shall be fully vested in writingtheir account balances thereunder as of the Time of Distribution, to and the extent permitted by applicable Law and account balances of Retained Employees shall be maintained under the New Gaylxxx Xxxings Plan until distributed in accordance with the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationNew Gaylxxx Xxxings Plan.
(c) The Company agrees to cause each Effective as of its officers and directors to repay any outstanding loans the Time of Distribution, New Gaylxxx xxxll assume sponsorship of the employee welfare benefit plans (as such term is defined in ERISA) maintained or notes that such officer or director owes to sponsored by the Company or its Subsidiaries immediately prior to the Effective Time.
Time of Distribution (d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities "New Gaylxxx Xxxfare Plans"). As of the Company and its Subsidiaries or Time of Distribution, Retained Employees shall cease to participate in the New Gaylxxx Xxxfare Plans and, unless allowed to participate in Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee welfare plans, shall commence to participate in welfare benefit plans of the Company and (the "Replacement Welfare Plans"). The Company will, or shall use its Subsidiaries who is terminated without best efforts to cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
Parent (f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries) to, Parent shall cause its employee benefit plans to (i) waive all limitations as to pre-existing condition exclusions of its employee benefit plans and waiting periods with respect to participation and coverage requirements applicable to Retained Employees under the Replacement Welfare Plans, other than limitations or waiting periods that were in effect with respect to such employees under the New Gaylxxx Xxxfare Plans and their dependents to the same extent such exclusions were waived under a comparable plan that have not been satisfied as of the Company Time of Distribution, and (ii) take into account provide each Retained Employee with credit for any eligible expenses incurred by such employees co-payments and their dependents for purposes deductibles paid prior to the Time of Distribution in satisfying all deductible, coinsurance and maximum any deductible or out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan Replacement Welfare Plans. Effective as of Parent or its Subsidiariesthe Time of Distribution, New Gaylxxx xxxll assume sponsorship of the Company VEBA.
(gd) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) Effective as of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees thatDistribution, with respect to those collective bargaining agreements to which any employee of the Company Retained Companies or the New Gaylxxx Xxxpanies is a party and its Subsidiaries whowhich cover New Gaylxxx Xxxloyees, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program New Gaylxxx xxxll assume liabilities and obligations of the Company or any of its SubsidiariesRetained Companies and the New Gaylxxx Xxxpanies thereunder, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period)extent that such liabilities and obligations relate to New Gaylxxx Xxxloyees and the Entertainment Business.
(ie) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees as of the Company or any Time of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A Distribution, New Gaylxxx xxxl assume sponsorship of the Code.
Company's Opryland USA, Inc. Supplemental Deferred Compensation Plan (j) For a period "SUDCOMP Plan"), NLT Supplemental Executive Retirement Plan, GEC Benefit Restoration Plan and the GEC Supplemental Executive Retirement Plan (collectively, the "Nonqualified Plans"). As of three years after the Effective Timetime of Distribution, Parent Retained Employees shall cause the Surviving Corporation and its Subsidiaries cease to make charitable contributions participate in the communities that the Company Nonqualified Plans and its Subsidiaries serveshall be fully vested in their benefits accrued thereunder or account balances thereunder, in such amounts (not to exceed $1.5 million in the aggregate)as applicable, at such times and in such manner as are generally consistent with the past practices of the Company and its SubsidiariesTime of Distribution.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Samples: Distribution Agreement (Gaylord Entertainment Co /De)
Employee Benefits. (a) Parent agrees that, for For a period of one year following the Effective DateTime, Parent shall provide, or cause to be provided, to each employee of an Acquired Company who is employed by an Acquired Company as of immediately prior to the employees of Effective Time and who continues to be employed by the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either Surviving Corporation (or any Affiliate thereof) during such period (each, a “Continuing Employee”) (i) substantially similar in base salary (or base wages, as the aggregate to those currently case may be), annual cash incentive target amount and commission opportunities, each of which is no less favorable than the base salary (or base wages, as the case may be), annual incentive target amount and commission opportunities provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Continuing Employee immediately prior to the Effective Time, and (ii) employee benefits (including vacation and related benefits and excluding equity or equity-based compensation, long-term incentives, defined benefit pension, nonqualified deferred compensation and retiree or post-termination welfare benefits or compensation, severance payments and severance benefits, collectively, the “Excluded Benefits”) that are substantially comparable in the aggregate to the employee benefits (excluding the Excluded Benefits) provided to such Continuing Employees immediately prior to the Effective Time pursuant to the Employee Plans. In additionWithout limiting the foregoing:
(b) Parent shall provide each Continuing Employee with service credit for eligibility to participate, benefit levels (including levels of benefits under Parent’s or the Surviving Corporation’s vacation policy) and eligibility for vesting under Parent or the Surviving Corporation’s employee benefit plans and arrangements (other than any equity or equity-based plan or arrangement) with respect to his or her length of service with the Company (and its Subsidiaries and predecessors) prior to the Closing Date, but not for purposes of benefit accruals, provided that the foregoing shall not result in the duplication of benefits for the same period of service.
(c) With respect to any accrued but unused personal, sick or vacation time to which any Continuing Employee is entitled pursuant to the personal, sick or vacation policies applicable to such Continuing Employee immediately prior to the Effective Time, Parent shall, or shall cause the Surviving Corporation to and instruct its Affiliates to, as applicable (and without duplication of benefits), assume, as of the extent permitted by applicable Law Effective Time, the liability for such accrued personal, sick or vacation time and allow such Continuing Employee to use such accrued personal, sick or vacation time in accordance with the practice and policies of the Company, as may be amended in accordance with the terms of the applicable existing practices and policies.
(d) To the extent that service is relevant for eligibility, vesting or allowances (including paid time off) under any health or welfare benefit plan of Parent or arrangementthe Surviving Corporation, then Parent shall, and shall cause its Affiliates to, use commercially reasonable efforts to be amended (i) waive all limitations as to pre-existing conditions, exclusions, actively-at-work requirements and waiting periods with respect to participation and coverage requirements applicable to the employee benefit plans Continuing Employees (and arrangements of it and its Subsidiaries their eligible dependents), to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries conditions, exclusions and waiting periods would not apply under a similar employee benefit plan in which such employees participated immediately prior to the Effective Time.
, (dii) Parent agrees thatensure that such health or welfare benefit plan shall, following the Effective Timefor purposes of eligibility, decisions regarding utilization of facilities of the Company vesting, deductibles, co-payments and its Subsidiaries or Parent out-of-pocket maximums and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries allowances (including the Company paid time off), credit Continuing Employees (and its Subsidiariestheir eligible dependents) for service and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment amounts paid prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service and amounts paid was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents recognized prior to the same extent such exclusions were waived Effective Time under a comparable the corresponding health or welfare benefit plan of the Company and (iiiii) take into account as applicable, credit each Continuing Employee with his or her contribution balances, if any, under the health savings accounts, flexible spending accounts and dependent care spending accounts administered under Employee Plans which contributions are made during the Employee Plan year in which the Closing occurs.
(e) The provisions of Section 5.4(a) through (d) are solely for the benefit of the Parties to this Agreement, and no provision of this Section 5.4(a) through (d) is intended to, or shall, constitute the establishment or adoption of or an amendment to any eligible expenses incurred by such employees and their dependents employee benefit plan for purposes of satisfying all deductibleERISA or otherwise and no current or former employee or any other individual associated therewith shall be regarded for any purpose as a third party beneficiary of this Agreement or have the right to enforce the provisions hereof. Furthermore, coinsurance nothing in Section 5.4(a) through (d) or elsewhere shall (i) establish or constitute an amendment, termination or modification of, or an undertaking to establish, amend, terminate or modify, any benefit plan, program, agreement or arrangement or (ii) alter or limit the ability of Parent, its Affiliates or the Surviving Corporation to amend, modify or terminate, in accordance with its terms, any benefit or compensation plan, policy, program, agreement, Contract or arrangement at any time assumed, established, sponsored or maintained by any of them or (iii) be construed to create a right in any Person to employment, engagement or service or any right to continued employment, engagement or service with Parent, the Surviving Corporation or any other Affiliate of the Surviving Corporation and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan employment of Parent or its Subsidiarieseach Continuing Employee shall be “at will” employment.
(gf) The On February 3, 2025 (whether such date occurs prior to, on or after the Closing Date), the Company may establish a retention and transaction bonus pool (shall pay annual cash bonuses under the “Retention Pool”); provided, that (i) Company’s short-term incentive plan program as approved by the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) Compensation Committee of the Company Disclosure Letter. Amounts awarded under Board on February 22, 2024 and amended on May 1, 2024 to the Retention Pool shall be allocated applicable employees of the Acquired Companies as of immediately prior to the Effective Time to employees (the “Company Employees”) based on achievement in respect of the Company 2024 performance year (it being understood and its Subsidiaries designated agreed that costs and expenses incurred by the Chief Executive Officer of the Company in accordance connection with the guidelines set forth transactions contemplated by this Agreement and the matters disclosed in Section 6.9(g) Part B of the Company Disclosure Letter and subject to the approval of Parent (such approval shall not to be unreasonably withheld).
(htaken into account for this purpose) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (maximum aggregate amount not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) 12.1 million. From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of to satisfy its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in obligations under this Section 6.9 or this Agreement 5.4(f) and shall (i) be treated as an amendment of not take any particular Benefit Plan, (ii) give any third party any right to enforce the actions inconsistent therewith. The provisions of this Section 6.9 5.4(f) shall survive the Merger and are (i) intended to be for the benefit of, and shall be enforceable by, each of the Company Employees and their successors, assigns and heirs and (ii) in addition to, and not in substitution for, any other rights that any such Person may have by contract, under applicable Legal Requirements or (iiiotherwise. This Section 5.4(f) obligate Parentmay not be amended, altered or repealed after the Surviving Corporation Effective Time in such a manner as to adversely affect the rights of any Company Employee or any of their Affiliates to (x) maintain any particular Benefit Plan successors, assigns or (y) retain heirs without the employment prior written consent of any particular employeethe affected Company Employee.
Appears in 1 contract
Samples: Merger Agreement (PetIQ, Inc.)
Employee Benefits. (a) Parent agrees that, for a period CP.cxx xxx agreed to permit certain employees of one year following Driveoff continued employment with Driveoff after the Effective DateTime; however, such agreement does not obligate CP.cxx xx employ any persons, or Driveoff to continue the employees employment of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employeesany persons, other than Required Employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law Navidec and the terms of the applicable plan or arrangement, the Company Driveoff shall either (i) cause to be amended the establish employee benefit plans that are sponsored solely by Driveoff and provide the Driveoff employees with the same aggregate level of benefits currently received by Driveoff employees at an aggregate cost to Navidec, Driveoff and the employees that is not significantly higher than the cost of the Benefit Plans currently covering the Driveoff employees, (ii) make arrangements of it and its Subsidiaries to the extent necessary have Driveoff employees be (or continue to provide that no be) covered by plans sponsored by Navidec while they are Driveoff employees of Parent and its Subsidiaries shall commence participation therein following after the Effective Time unless and until such time as Driveoff or CPI informs Navidec that it no longer wishes to have Driveoff participate in the Surviving Corporation Navidec plans nor have Driveoff's employees covered by such plans, or such Subsidiary explicitly authorizes such participation (iii) a combination of (i) and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan ). Prior to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility as soon as is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and practicable after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees the account balances of Driveoff Employees under the Navidec 401(k) plan will be transferred to a new 401(k) plan of Driveoff in a far market value plan-to-plan transfer conforming to all applicable requirements of the Company or any of its Subsidiaries Code and ERISA. If the Driveoff employees are to be drafted and administered participate in a manner that complies with Section 409A of the Code.
(j) For a period of three years Navidec plans after the Effective Time, Parent CP.cxx, Xxiveoff and Navidec shall cause negotiate a benefits services agreement which shall be executed at (and a condition to) Closing and shall contain the Surviving Corporation terms of such benefits arrangement and its Subsidiaries to make charitable contributions provide each party with the appropriate representations, warranties and covenants about their respective plans. Nothing contained herein or in the communities that offer letters shall be considered as requiring, after the Company and its Subsidiaries serveEffective Time, in CPI or Driveoff to offer or continue any specific plan or benefit, or to confer upon any employee, beneficiary, dependent, legal representative or collective bargaining agent of such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 employee any right or this Agreement shall (i) be treated as an amendment remedy of any particular Benefit Plannature or kind whatsoever under or by reason of this Agreement, (ii) give any third party including any right to enforce the provisions employment or to continued employment for any specified period, at any specified location or under any specified job category, except as specifically provided for in an offer letter or other agreement of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeeemployment.
Appears in 1 contract
Samples: Agreement and Plan of Contribution and Reorganization (Navidec Inc)
Employee Benefits. (a) Parent agrees thatThe Purchaser shall, for a period and shall cause its relevant Affiliates to, recognize the service date of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar each Transferring Employee as set out in the aggregate to those currently provided by the Company Employee Information for all purposes other than benefit accrual under any defined benefit pension plan and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising except as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits.
(b) Without limiting the generality of the foregoing, Parent the following shall apply to Transferring Employees:
(i) For the period beginning on the Closing Date and ending on the date that is twelve (12) months from the Closing Date, the Purchaser shall, or shall cause any employee benefit plans its relevant Affiliates to, provide Transferring Employees with at least the severance payments and benefits to which the Transferring Employee would have been entitled under the applicable severance plan covering the Transferring Employee immediately prior to the Employee Transfer Date.
(including vacationii) Following the Employee Transfer Date the Sellers shall pay to the Transferring Employees the amount of compensation with respect to the accrued and unused vacation days that is due and owing to such Transferred Employees by the date required under applicable Law. The Purchaser will, severance and disability will cause its Affiliates to, make commercially reasonable efforts to accommodate requests for unpaid time off of such Transferring Employees until such time as they accrue sufficient paid time off under the Purchaser Employee Plans to address their vacation plans.
(iii) covering Under the vacation policy of the Purchaser or an Affiliate of the Purchaser, the vacation accrual rate of each Transferring Employee on and after the Employee Transfer Date shall be the greater of such Transferring Employee’s vacation accrual rate (i) as reflected in the Employee Information, or (ii) under the vacation policy of the Purchaser or its Affiliates following the crediting of such Transferring Employee with service as provided in Section 7.2(a).
(iv) Each Transferring Employee (and their eligible dependents, as applicable), shall be eligible, effective as of the relevant Employee Transfer Date, to participate in and accrue benefits under the Purchaser Employee Plans that the Purchaser or its Affiliates extends to similarly situated employees of the Company Purchaser. With respect to each Transferring Employee (and its Subsidiaries to take into account for purposes of eligibilitytheir eligible dependents, benefits (excluding accruals under a defined benefit planas applicable) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent Purchaser shall or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to Affiliates to, (ix) waive all any eligibility periods, evidence of insurability or pre-existing condition exclusions of its employee limitations under any health benefit plans with respect plan to the extent such limitations no longer apply to such employees and their dependents to the same extent such exclusions were waived Transferring Employees under a comparable plan of the Company Seller Employee Plan and (iiy) take into account honor any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductibledeductibles, coinsurance and maximum co-payments, co- insurance or out-of-pocket requirements applicable expenses paid or incurred by such employees, including with respect to their dependents, under any such employees and their covered dependents under Seller Employee Plans during the applicable employee benefit plan of Parent or its Subsidiariesyear in which the relevant Employee Transfer Date occurs.
(gc) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool Sellers shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded be solely responsible for any required notice under the Retention Pool shall be allocated WARN Act with respect to terminations of employment of Employees that occur on or prior to the Effective Time to employees of Closing Date provided that the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines Purchaser has satisfied their obligations set forth out in Section 6.9(g) of 7.1 and Section 7.2. The Purchaser shall be solely responsible for any required notice under the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, WARN Act with respect to any employee terminations of the Company and its Subsidiaries who, at the Effective Time, is in a course employment of training covered in part Transferring Employees that occur on or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the CodeClosing Date.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Samples: Transaction Agreement
Employee Benefits. (a) Parent agrees that, for a period of one year following Following the Effective DateTime of the Merger, the current employees of Company shall continue in the Company Employee Plans and its Subsidiaries will be provided with pension and welfare benefits under Benefit Arrangements (other than equity-based plans or arrangements) or, in Parent’s sole discretion, shall become eligible for the employee benefit plans that at the election and benefit arrangements of Parent are either (iincluding, without limitation, the medical, dental, short and long term disability, life insurance, cafeteria plan, paid time off and 401(k) Plan, including any matching contributions) on substantially similar terms as such plans and arrangements are generally offered from time to time to employees of Parent in comparable positions with Parent, it being understood that, except as otherwise provided under the terms of any such Company Employee Plan or Benefit Arrangement, Parent shall be entitled from time to time to modify, terminate or supplement any such employee plans or benefit arrangements or to substitute new employee plans or benefit arrangements for such employee plans or benefit arrangements in the aggregate to those currently provided by the Company and exercise of its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedbusiness judgment.
(b) Prior With respect to any employee plans and benefit arrangements of Parent in which any current employees of Company first become eligible to participate on or after the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms Time of the applicable plan or arrangementMerger (“New Plans”), the Company Parent shall (i) take commercially reasonable steps to cause the waiver of all pre-existing conditions, exclusions and waiting periods with respect to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and coverage requirements under any such New Plans, (ii) cause recognize service of the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately employees of Company credited by Company prior to the Effective Time. In additionTime of the Merger for purposes of eligibility and vesting under the New Plans (and not for purposes of benefit accrual under any employee defined benefit pension or retiree medical plans), prior to the Effective Time, and to the extent permitted by applicable Law permissible under such New Plans, and (iii) credit any deductibles, co-payments or other out-of-pocket expenses for the terms benefit plan year for each employee and dependent recognized or recognizable under the Company Employee Plans or Benefit Arrangements. Entitlement to Paid Time Off (PTO) of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following accrued as of the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationof the Merger shall not be reduced.
(c) The Parent agrees that immediately (but no later than 5 business days) after the Effective Time of the Merger, the Parent will cause the Surviving Corporation to pay or provide to those persons eligible to participate in the Company’s 2007 Profit Sharing Plan (the “2007 Profit Sharing Plan”) and employed by Company agrees on the Effective Time of the Merger (and waiving any other employment related condition under the 2007 Profit Sharing Plan), (A) the cash incentive payment under Company’s 2007 Profit Sharing Plan payable to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to employee as if the Company or its Subsidiaries last day prior to the Effective TimeTime of the Merger were the last day of the performance period for purposes of calculating the amounts payable to eligible employees under the 2007 Profit Sharing Plan (“Adjusted Performance Period”) and based upon the actual achievement of each measure of the 2007 Profit Sharing Plan for the Adjusted Performance Period compared to the respective fiscal year goals, such goals to be pro-rated based on the number of completed months in the Adjusted Performance Period.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization that those persons who were employees of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility who remain as employees of Parent or a legacy facility the Surviving Corporation after the Effective Time of the Company. In additionMerger, following the Effective Time, decisions regarding promotions and retention of employees shall be made on such date as determined by Parent on a fair and equitable basisin its sole discretion, will be entitled to participate in light annual cash incentive performance programs generally offered to employees of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard Parent (except to the extent affecting relevant experiencethat such programs are offered from time to time by Parent) on the same terms as such programs are generally offered from time to whether employment prior time to the Effective Time was employees in comparable positions with the Company or any of its Subsidiaries or Parent or any of its SubsidiariesParent.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 For a period until six months following after the Effective Time shall receive of the Merger, Parent will cause the Surviving Corporation to pay and provide to employees of Company whose employment terminates on or after the Effective Time of the Merger severance benefits and other required benefits under conditions and in accordance with Section 6.9(e) amounts that are no less favorable to the employee than those provided for under the Company’s severance programs as in effect as of the Company Disclosure LetterEffective Time of the Merger. Any such severance and other benefits under the Company’s severance programs shall be in addition to, and shall not be reduced or offset by any notice pay, severance pay or pay in lieu of notice required under any federal or state statute or regulation.
(f) Except Parent will cause the Surviving Corporation to assume and perform all of the extent it would result in a duplication obligations of benefitsCompany under the terms of any Executive Employment Agreement with any of the Company’s executive officers, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees to pay and provide to Employees of the Company whose employment terminates on or after the Effective Time if the Merger and its Subsidiaries to take into account who, as a result, become eligible for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable terms of any Executive Employment Agreement, each and every benefit to which the employee benefit plan is entitled under the terms of Parent or its Subsidiariessuch agreements.
(g) The Company may establish a retention and transaction bonus pool (In the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in event Section 6.9(g409A(a)(1)(B) of the Company Disclosure Letter. Amounts awarded under the Retention Pool Code requires a deferral of any payment to an employee who is a “specified employee” as that term is defined in Code 409A, such payment shall be allocated prior to the Effective Time to employees of the Company accumulated and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is paid in a course of training covered in part or in whole single lump sum on the earliest date permitted by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.Code 409A.
Appears in 1 contract
Samples: Merger Agreement (RTW Inc /Mn/)
Employee Benefits. (a) Parent agrees thatExcept as otherwise provided in this Agreement, Xxxxxxxx Bancorp will review all the FCB Compensation and Benefit Plans to determine whether to maintain, terminate or continue such plans after the Effective Time. In the event that any FCB Compensation and Benefit Plan is frozen or terminated by Xxxxxxxx Bancorp, Xxxxxxxx Bancorp will use best efforts so that the former employees of FCB or any FCB Subsidiary who become employees of Xxxxxxxx Bancorp or Xxxxxxxx Bank after the Effective Time (“Continuing Employees”) will become eligible to participate in any benefit plan or policy of the Xxxxxxxx Bancorp or Xxxxxxxx Bancorp Subsidiary (the “Xxxxxxxx Bancorp Compensation and Benefit Plans”) of similar character (to the extent that one exists, other than any Xxxxxxxx Bancorp or Xxxxxxxx Bancorp Subsidiary non-qualified deferred compensation plan, employment agreement, change in control agreement or equity incentive plan or other similar-type of arrangement). Continuing Employees who become participants in a Xxxxxxxx Bancorp Compensation and Benefit Plan shall, for a period purposes of one year following the Effective Date, the employees determining eligibility for and any applicable vesting periods of the Company such employee benefits only (and its Subsidiaries will not for benefit accrual purposes) be provided with pension given credit for meeting eligibility and welfare benefits under vesting requirements in such plans for service as an employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement FCB or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior FCB Subsidiary prior to the Effective Time, if requested provided, however, that credit for prior years of service shall be given under the Xxxxxxxx Bank Employee Stock Ownership Plan only for purposes of determining eligibility to participate in such plan and not for vesting purposes, and provided further, that credit for prior service shall not be given under any retiree health plan or program. Xxxxxxxx Bancorp shall credit each Continuing Employee and his or her eligible dependents for the plan year during which health coverage under the Xxxxxxxx Bancorp group health insurance plan begins with any deductible, co-pays or out-of-pocket payments already incurred by Parent in writingthe Continuing Employee and his or her dependents during such year under the applicable FCB group health insurance plan upon delivery to Xxxxxxxx Bancorp of appropriate documentation, subject to the extent permitted by applicable Law terms and the terms conditions of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective TimeXxxxxxxx Bancorp group health insurance plan. In addition, prior to the Effective TimeClosing, Xxxxxxxx Bancorp shall amend its tax-qualified retirement plans to provide credit for prior years of service for Continuing Employees in accordance with this Section 6.08(a). This Agreement shall not be construed to limit the ability of Xxxxxxxx Bancorp or Xxxxxxxx Bank to terminate the employment of any employee of FCB or FCB Subsidiary or to review any FCB Compensation and Benefit Plan from time to time and to make such changes (including terminating any such plan) as they deem appropriate. Except to the extent permitted of commitments herein or other contractual commitments, if any, specifically made or assumed by applicable Law FCB hereunder or by operation of law, Xxxxxxxx Bancorp or any Xxxxxxxx Bancorp Subsidiary shall have no obligation arising from and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following after the Effective Time unless Parent to continue in its employ or such in any specific job or to provide to any specified level of compensation or any incentive payments, benefits or perquisites to any Person who is an employee of FCB or any FCB Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each as of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(db) Parent agrees Xxxxxxxx Bancorp shall honor the terms of all employment and change in control agreements set forth on FCB Disclosure Schedule 3.12(a), unless superseded by an agreement entered into with Xxxxxxxx Bancorp or any Xxxxxxxx Bancorp Subsidiary, provided, however that, following : (i) the Effective Time, decisions regarding utilization of facilities Chief Executive Officer and Chairman of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests Board of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility Directors of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances FCB and the objectives President and Chief Operating Officer of FCB receiving a payment thereunder enters into a release of claims with Xxxxxxxx Bancorp and Xxxxxxxx Bancorp Subsidiary; and (ii) FCB shall use commercially reasonable efforts to be achieved, giving consideration cause any other executive of FCB or FCB Subsidiary receiving a payment thereunder to previous work history, job experience, qualifications enter into a release of claims with Xxxxxxxx Bancorp and business needs without regard (except to Xxxxxxxx Bancorp Subsidiary. The estimated amounts payable under such employment and change in control agreements are provided in the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its SubsidiariesBenefits Schedule.
(ec) Parent agrees that In the event of any employee termination or consolidation of the Company any FCB health plan with any Xxxxxxxx Bancorp health plan, Xxxxxxxx Bancorp shall make available to Continuing Employees and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans their dependents employer-provided health coverage (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drugand vision benefits) on the same basis as it provides such coverage to Xxxxxxxx Bancorp employees. Unless a Continuing Employee affirmatively terminates coverage under an FCB health plan prior to the time that such Continuing Employee becomes eligible to participate in the Xxxxxxxx Bancorp health plan, vision, life insurance or disability benefits to no coverage of any employee of the Company Continuing Employees or their dependents shall terminate under any of its Subsidiaries, Parent shall cause its employee benefit the FCB health plans prior to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to the time such employees Continuing Employees and their dependents become eligible to participate in the health plans, programs and benefits common to all employees of Xxxxxxxx Bancorp and their dependents. In the event of a termination or consolidation of any FCB health plan, terminated FCB employees and qualified beneficiaries will have the right to continued coverage under group health plans of Xxxxxxxx Bancorp to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred required by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its SubsidiariesCOBRA.
(gd) Xxxxxxxx Bancorp shall honor the terms of the FCB Severance Plan. The Company may establish a retention and transaction bonus pool (estimated amounts payable under the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements FCB Severance Plan are set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Benefits Schedule.
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Employee Benefits. (a) Subject to this Section 6.13.(b), Parent agrees that, for a period of one year following the Effective Date, the that all employees of the Company and its Subsidiaries will be who are provided with pension and welfare benefits under employee benefit plans that at of the election Company (other than plans involving the issuance of Shares) (the "Company Benefit Plans") shall continue to be covered under the Company Benefit Plans after the Effective Time. Notwithstanding the foregoing, Parent are either may terminate all of the Company Benefit Plans, provided that: (i) substantially similar in each Company employee and each employee of the aggregate to those currently Company's Subsidiaries is provided by coverage under Parent employee benefit plans (other than plans involving the issuance of shares) (the "Parent Benefit Plans") on the same terms and conditions as similarly situated Parent employees; (ii) Parent causes each Parent Benefit Plan covering employees of the Company and or its Subsidiaries to recognize prior service and accrued vacation of such employees with the Company or (ii) substantially similar in the aggregate to those provided by its Subsidiaries as service and accrued vacation with Parent and its Subsidiaries to its similarly situated employees. With respect to (A) for purposes of any bonus or long-term cash incentive awards calculated based on 2006 performancewaiting period, the Company’s performance eligibility requirements and benefit accruals under any Parent Benefit Plan that is not a "pension plan" (as defined in Section 3(2) of ERISA), and (B) for calendar year 2006 shall be calculated without taking into account purposes of eligibility (including eligibility for early retirement benefits) and vesting (but not benefit accrual) under any reasonable expenses or costs associated with or arising Parent Benefit Plan that is a "pension plan" (as a result defined in Section 3(2) of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
ERISA); (biii) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause causes coverage to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no available for employees of the Company and its Subsidiaries shall commence participation therein following under the Effective Time unless comparable Parent or such Subsidiary explicitly authorizes such participation.
(c) The Benefit Plan, if any, at the time coverage ceases under any Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives Benefit Plan sought to be achieved, giving consideration to previous work history, job experience, qualifications terminated; and business needs without regard (except iv) to the extent affecting relevant experience) Parent elects to whether employment prior terminate any Company Benefit Plan, it will terminate the other Company Benefit Plans in accordance herewith as soon as practicable after the termination of such Company Benefit Plan. Notwithstanding the foregoing, nothing herein shall require Parent to offer benefits under the Effective Time was with Parent Benefit Plans comparable to those offered under the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansBenefit Plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after Following the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company honor, or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries Company to make charitable contributions honor, all individual employment or severance agreements in the communities that the Company and its Subsidiaries serve, in such amounts effect for employees (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices or former employees) of the Company and as of the date hereof to the extent that such individual agreements are listed in Section 4.14.(b) of the Company Disclosure Schedule; provided, however, that nothing contained herein shall prevent Parent from amending or terminating any such agreement in accordance with its Subsidiariesterms.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Employee Benefits. (a) Parent agrees thatThe Purchaser or a Designated Purchaser shall, and shall cause its relevant Affiliates to, except as otherwise provided herein, recognize the service date of each Transferred Employee as set out in the Employee Information for all purposes, other than (x) benefit accrual or (y) otherwise for determination of the amount or duration of benefits under any defined benefit pension plan or equity incentive plan, to the extent that each such Transferred Employee was entitled to recognition of such service date under the corresponding Seller Employee Plan in which such Transferred Employee participated or was eligible to participate (including any Seller Employee Plan that is suspended or the benefits of which are suspended), and to the extent that such recognition would not result in a duplication of benefits or the funding thereof.
(b) After the date hereof, the Sellers and the Purchaser shall cooperate promptly and in good faith in preparing the transition of the Transferred Employees (and their eligible dependents, as applicable) from coverage under the Seller Employee Plans to coverage under the Purchaser Employee Plans effective as of the Transferred Employee’s Effective Hire Date. Except with respect to any Employee whose benefits are specified by applicable Law, the Purchaser or the relevant Purchaser’s Affiliates shall use reasonable best efforts to cause each Transferred Employee (and their eligible dependents, as applicable) to be eligible as of the relevant Effective Hire Date to participate in and accrue benefits under the Purchaser Employee Plans, in each case under the terms of such Purchaser Employee Plans. Notwithstanding the foregoing, for a period of one year twelve (12) months following the Effective Closing Date, Purchaser shall, or cause its relevant Affiliate to, provide Transferred Employees with employee benefits substantially comparable, in the aggregate, to the employee benefits (other than benefits under (i) the KXXX, (ii) the KERP or (iii) the Nortel Special Incentive Plan, retiree medical benefits, equity based compensation or defined pension benefits) provided to such Transferred Employees under Seller Employee Plans set forth on Section 4.11(a) of the Sellers Disclosure Schedule and as required by applicable Law prior to the Closing.
(c) Without limiting the generality of the foregoing, the Purchaser shall, or shall cause its relevant Affiliates to, provide the following benefits to Transferred Employees:
(i) For the period beginning on the Closing Date and ending on the date that is nine (9) months from the Closing Date, the employees of Purchaser shall, or shall cause its relevant Affiliates to, provide Transferred Employees with the Company and its Subsidiaries will be provided with pension and welfare benefits severance payments to which the Transferred Employee would have been entitled to under employee benefit plans that at the election of Parent are either (i) substantially similar applicable Seller Employee Plan covering the Transferred Employee in effect immediately prior to the aggregate to those currently provided by the Company and its Subsidiaries to such employees or Effective Hire Date.
(ii) substantially similar Section 7.1.2(c)(ii) of the Sellers Disclosure Schedule will set forth the amount of accrued and unused vacation days that are due and owing to the Transferred Employees as of the date hereof and such amount shall be updated by the Sellers as of the Closing Date. The Purchaser shall, or shall cause its relevant Affiliates to, grant each Transferred Employee paid time off in an amount equal to such accrued unused vacation days set forth for such Transferred Employee in the aggregate applicable Section of the Sellers Disclosure Schedule. If such Transferred Employee terminates employment with the Purchaser or an Affiliate of the Purchaser prior to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect receiving such paid time off, as described above, the Purchaser shall pay such Transferred Employee an amount equal to any bonus or long-term cash incentive awards calculated based such unused paid time off upon such employment termination.
(iii) The vacation accrual rate and maximum accrual of each Transferred Employee on 2006 performance, and after the Company’s performance for calendar year 2006 Effective Hire Date shall be calculated without taking into account any reasonable expenses determined under the vacation policy of the Purchaser or costs associated its relevant Affiliate following the crediting of such Transferred Employee with service as provided in Section 7.1.2(a). For the avoidance of doubt, such vacation accrual rate and maximum accrual applicable to Transferred Employees whose accrued vacation is specified in Section 7.1.2(c)(ii) of the Sellers Disclosure Schedule shall not be decreased prior to the date which is twelve (12) months following the Closing Date, or arising later if required by applicable Law, by the Purchaser or its Affiliates as a result of the transactions contemplated by this Agreement obligation in Section 7.1.2(c)(ii) that Purchaser or any nonrecurring charges that would not reasonably be expected its Affiliates grant or compensate such Employees with respect to have been incurred had accrued and unused vacation days due and owing as of the transactions contemplated by the Agreement not been proposedEffective Hire Date.
(biv) Prior The Purchaser or Designated Purchaser shall provide each Transferred Employee employed in Australia with the benefit of the amount set forth on Section 7.1.2(c)(iv) of the Sellers Disclosure Schedule of long service leave and sick leave, at such time, if any, as payment of such amount is due and owing to each such Transferred Employee under applicable Law, taking into account in the calculation of such payment the service of such Transferred Employee as set forth in the Employee Information and such Transferred Employee’s service with the Purchaser on and after the Closing Date. Section 7.1.2(c)(iv) of the Sellers Disclosure Schedule shall be updated as of the Closing Date to reflect employee hiring, promotions, demotions, transfers or other status changes and attrition, and further accruals or reductions or other changes from the date hereof to the Effective TimeClosing Date, in each case if requested by Parent in writing, and only to the extent permitted under Section 5.9.
(v) For the avoidance of doubt, Inactive Employees and Loaned Employees, as of the Closing Date will be listed on Section 7.1.2(c)(ii) of the Sellers Disclosure Schedule and Section 7.1.2(c)(iv) of the Sellers Disclosure Schedule, as applicable; provided, however, that unless and until such Inactive Employees and Loaned Employees become Transferred Employees, the Purchaser shall have no obligation with respect to Inactive Employees and Loaned Employees under this Section 7.1.2(c).
(d) With respect to each Transferred Employee (and their eligible dependents, as applicable), the Purchaser or the relevant Purchaser’s Affiliates shall use reasonable best efforts to cause the Purchaser Employee Plans to (i) waive any eligibility periods, evidence of insurability or pre-existing condition limitations and (ii) honor any deductibles, co-payments, co-insurance or out-of-pocket expenses paid or incurred by such employees, including with respect to their dependents, under comparable Seller Employee Plans during the Purchaser Employee Plan year in which the relevant Effective Hire Date occurs, in each case to the extent waived, inapplicable to such Transferred Employee, or honored under the Seller Employee Plans in which such Transferred Employee participated immediately prior to the Closing and to the extent doing so will not result in the duplication of benefits; provided, that such Transferred Employee provides an explanation of benefits or similar documentation, as reasonably required by the Purchaser, of any expenses paid or incurred to the Purchaser or its Affiliates. Nothing in this paragraph or otherwise in this Article VII shall be construed as constituting an amendment of any employee benefit plan.
(e) As of the Closing Date, the Purchaser or a Designated Purchaser shall establish or otherwise provide a registered pension plan for Transferred Employees employed in Canada and maintain such plan for a period of at least five (5) years following the Closing Date, or such period as may be required by applicable Law and each such Transferred Employee’s participation shall commence on such Transferred Employee’s Employee Transfer Date.
(f) The Sellers shall be solely responsible for any required notice under the WARN Act with respect to terminations of employment of Employees that occur on or prior to the Closing Date and for any individual who does not become a Transferred Employee regardless of the date of termination; provided, that the Purchaser or Designated Purchaser, as applicable, has satisfied its obligations as set out in this Article VII. The Purchaser shall be solely responsible for any required notice under the WARN Act with respect to terminations of employment of Transferred Employees that occur after the Closing Date. On the Closing Date, the Sellers shall provide to the Purchaser, in writing, the number of Employees, by facility and operating unit, who have experienced an “employment loss” (as defined under the WARN Act) during the ninety (90) days prior to Closing.
(g) Nothing express or implied in this Agreement (including anything set forth in this Section 7.1) restricts the right of the Purchaser or any Designated Purchaser to terminate the employment of any Transferred Employee after the Closing, to modify the compensation or employee benefits of any Transferred Employee or relocate any Transferred Employee’s principal place of employment; provided any such termination, modification or relocation is effected in accordance with applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions conditions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee7.1.
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the employees of the Company and Seller or its Subsidiaries Affiliates will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees pay or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries paid to the extent necessary all Transferred Employees all compensation to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation which such Transferred Employees are entitled upon or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, including all vacation days that are accrued but unused as of the Effective Time. Seller shall be responsible for all liabilities and obligations associated with or arising with respect to employee benefits provided by Seller to the extent permitted by applicable Law and Transferred Employees upon or prior to the terms Closing, regardless of whether such liabilities or obligations must be satisfied before or after the Effective Time. In no event shall Buyer be responsible for the payment of any severance benefits as a result of the applicable plan termination of employment of Transferred Employees or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements any other Person by Seller or any of it and its Subsidiaries to the extent necessary to provide that no employees Affiliates.
(b) As of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationand for a period expiring at the end of the first full calendar year following Closing (the “Continuation Period”), Buyer will cause the Transferred Employees to be covered by Buyer-sponsored benefit plans that provide benefits which, together with wages, are in the aggregate substantially comparable to the benefits and wages in effect for the Transferred Employees immediately prior to the Closing Date, including pension and other post-employment benefits that, in the aggregate, are materially similar to the pension and other post-retirement benefits in effect for the Transferred Employees immediately prior to the Closing Date. The form and terms of any particular benefit plan offered by Buyer shall be as determined by Buyer, subject to the foregoing and the other provisions of this Section 7.10.
(c) The Company agrees to cause Buyer will recognize the service and seniority of each of its officers the Transferred Employees recognized by Seller for all benefits purposes, including eligibility for, vesting and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees thataccrual of, following the Effective Time, decisions regarding utilization of facilities and determination of the Company and its Subsidiaries or Parent and its Subsidiaries shall levels of such benefits. However, service will not be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except recognized to the extent it would result in a duplication of benefits for the same period of service.
(d) As soon as practicable after, and in any event within ninety (90) days after, and effective as of, the Closing Date (i) Buyer shall establish or designate, or cause to be established or designated, a defined benefit pension plan and trust intended to qualify under Section 401(a) and Section 501(a) of the Code (the “Buyer’s Pension Plan”) and (ii) upon receipt by Seller of written evidence of the adoption or designation of Buyer’s Pension Plan and the trust thereunder by Buyer and either (A) the receipt by Buyer of a copy of a favorable determination letter issued by the IRS with respect to Buyer’s Pension Plan or (B) other evidence reasonably satisfactory to Seller that the terms of Buyer’s Pension Plan and its related trust qualify under Section 401(a) and Section 501(a) of the Code, Seller shall direct the trustees of Seller’s Pension Account Plan (the “Seller’s Pension Plan”) to transfer assets having a value as of the actual date of such transfer (the “Actual Transfer Date”) equal to the amount with respect to all Transferred Employees, determined as of the Closing Date by the enrolled actuary of Seller’s Pension Plan (the “Seller’s Actuary”), in accordance with Section 4044 of ERISA, Treasury Regulation Section 1.414(1)-1(h) governing de minimus transfers and the other requirements of Section 414(1) of the Code and the regulations thereunder, and interest and other assumptions mutually agreed upon by Seller’s Actuary and Buyer’s actuary (the “Pension Plan Assumptions”), with any disputes to be resolved by an actuary mutually agreed upon by Seller’s Actuary and Buyer’s actuary (such amount, the “Asset Transfer Amount”) from the trust(s) under Seller’s Pension Plan to the trust under Buyer’s Pension Plan. Buyer’s actuary shall have the right to review all such determinations and related work papers. For illustrative purposes, as of the date hereof, Seller’s Actuary believes that the Pension Plan Assumptions should be as set forth in Schedule 7.10(d). The Asset Transfer Amount shall be adjusted to reflect benefit payments to Transferred Employee-Participants and assumed investment return (based upon the Pension Plan Assumptions), with respect to the period between the Closing Date and the Actual Transfer Date. All determinations by Seller’s Actuary under this Section 7.10(d) shall be final and binding, absent manifest error. At the time of transfer of the Asset Transfer Amount in accordance with this Section 7.10(d), Buyer and Buyer’s Pension Plan shall assume all liabilities for all accrued benefits as of the Closing Date, including all ancillary benefits, Parent under Seller’s Pension Plan in respect of all Transferred Employees, and each of Seller and Seller’s Pension Plan shall be relieved of all liabilities for such benefits. Upon the transfer of the Asset Transfer Amount in accordance with this Section 7.10(d), Buyer agrees to indemnify and hold harmless Seller, its Affiliates and their respective Affiliates and Representatives from and against any and all costs, damages, losses, expenses, or other liabilities arising out of or related to Buyer’s Pension Plan, in respect of all Transferred Employees, including benefits accrued by such Transferred Employees prior to the Closing Date that are provided by Buyer’s Pension Plan, and Seller shall have no further obligation with respect to such assumed obligations. Buyer and Seller shall provide each other such records and information as may be necessary or appropriate to carry out their obligations under this Section 7.10(d) or for the purposes of administration of Buyer’s Pension Plan, and they shall cooperate in the filing of documents required by the transfer of assets and liabilities described herein. Notwithstanding anything contained herein to the contrary, no such transfer shall take place until the 31st day following the filing of all required Forms 5310 in connection therewith.
(e) Seller shall fully vest all Transferred Employees in their account balances under Seller’s Retirement Savings Plan (the “Seller’s 401(k) Plan”), effective as of the Closing Date. Effective as of the Closing Date, Buyer shall maintain or designate, or cause to be maintained or designated, a defined contribution plan and related trust intended to be qualified under Sections 401(a), 401(k) and 501(a) of the Code (the “Buyer’s 401(k) Plan”). Effective as of the Closing Date, the Transferred Employees shall cease participation in Seller’s 401(k) Plan, and shall commence participation in Buyer’s 401(k) Plan. As soon as practicable after the Closing Date (but in any event not before any required filings with the IRS have become effective), Seller shall cause the trustee of the trust established under Seller’s 401(k) Plan to transfer to the trustee of the trust established under the Buyer’s 401(k) Plan all assets and liabilities attributable to the accounts of the Transferred Employees under Seller’s 401 (k) Plan as of the date of such transfer (including all applicable plan loans), and Buyer shall cause the trustee of the trust established under Buyer’s 401(k) Plan to accept such transfer. Until such time as assets are transferred from Seller’s 401(k) Plan to Buyer’s 401 (k) Plan as contemplated in the foregoing provisions of this Section 7.10(e), Seller and Buyer shall cooperate to take such steps as may be necessary to permit any employee Transferred Employee with an outstanding plan loan under Seller’s 401 (k) Plan as of the Closing Date to make timely loan service payments to Seller’s 401(k) Plan through Buyer’s (or its applicable Affiliate’s) payroll deductions.
(f) As of the Closing Date, the Transferred Employees shall cease to be eligible to participate in Seller’s post-retirement health and welfare benefit plans, and Buyer shall assume, or cause to be assumed, all obligations and liabilities for post-retirement health and life insurance benefits under the applicable post-retirement health or welfare benefit plan of Seller (the “Seller’s Retiree Plan”) as of the Closing Date with respect to each Transferred Employee. During the Continuation Period (i) the eligibility criteria under such benefit plan of Buyer shall be the same as the eligibility criteria under Seller’s Retiree Plan immediately prior to the Closing Date and (ii) such benefits (including cost of coverage) provided under the benefit plan of Buyer shall be substantially equivalent to those provided under Seller’s Retiree Plan immediately prior to the Closing Date. As soon as reasonably practicable on or after the Closing, (1) Buyer shall establish, or cause to be established, or designate, or cause to be designated, a trust or trusts intended to qualify under Section 501(c)(9) of the Code (the “Buyer’s Trust”) and (2) upon receipt by Seller of written evidence of the adoption or designation of Buyer’s Trust by Buyer, Seller shall cause Seller’s trust or trusts qualifying under Section 501(c)(9) of the Code which were established in respect of such post-retirement health and welfare benefits for Transferred Employees (the “Seller’s Trust”) to transfer to Buyer’s Trust an amount equal to the fair market value as of the Closing Date of the assets held in Seller’s Trust with respect to all Transferred Employees, which amount shall be reflected in the calculation of the OPEB Adjustment Amount pursuant to Appendix A. The accumulated benefit obligation of Seller with respect to the Transferred Employees under the Seller’s Retiree Plan shall be calculated in accordance with assumptions mutually agreed upon by Seller’s Actuary and Buyer’s actuary (the “Retiree Plan Assumptions”), with any disputes to be resolved by an actuary mutually agreed upon by Seller’s Actuary and Buyer’s actuary. For illustrative purposes, as of the date hereof, Seller’s Actuary believes that the Retiree Plan Assumptions should be as set forth in Schedule 7.10(f).
(g) Buyer will waive or cause the waiver of all limitations under its health and life insurance welfare benefit plans (as to pre-existing conditions and actively-at-work exclusions and waiting periods for the Transferred Employees. All health care expenses incurred by Transferred Employees or any eligible dependent thereof, including vacationany alternate recipient pursuant to qualified medical child support orders, severance and disability plans) covering employees in the portion of the Company and its Subsidiaries calendar year preceding the Closing Date that were qualified to take be taken into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent satisfying any deductible or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents limit under any Seller health care plans will be taken into account for purposes of satisfying any deductible or out-of-pocket limit under the applicable employee benefit health care plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, Buyer for such calendar year. Seller’s Benefit Plans that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool are welfare plans shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated retain all liabilities for claims incurred prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Closing Date.
(h) Parent agrees that, with respect to any employee Effective as of the Company and its Subsidiaries whoClosing Date, at Buyer shall have in effect, or cause to be in effect, flexible spending reimbursement accounts under a cafeteria plan qualified under Section 125 of the Effective TimeCode (the “Buyer’s Cafeteria Plan”). Each Transferred Employee who participated as of the Closing Date (collectively, is the “Cafeteria Plan Participants”) in a course of training covered in part or in whole plan maintained by a tuition reimbursement program Seller that is qualified under Section 125 of the Company or any Code (the “Seller’s Cafeteria Plan”) shall participate in Buyer’s Cafeteria Plan effective as of its Subsidiaries, such program will be continued throughout such course the Closing Date. During the period from the Closing Date until the last day of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed plan year of Seller’s Cafeteria Plan that commenced immediately prior to the current educational Closing Date, Buyer shall continue, or shall cause to be continued, the salary reduction elections made by the Cafeteria Plan Participants as in effect as of the Closing Date, and each Cafeteria Plan Participant shall be entitled to reimbursement from such participant’s flexible spending reimbursement accounts under Buyer’s Cafeteria Plan on the same terms and conditions as would have been applicable to such participant had such participant continued to be employed by Seller during such period). As soon as practicable following the Closing Date, Seller shall cause to be transferred from Seller’s Cafeteria Plan to Buyer’s Cafeteria Plan the excess, if any, of the aggregate accumulated contributions to the flexible spending reimbursement accounts made by Cafeteria Plan Participants prior to the Closing during the year in which the Closing occurs over the aggregate reimbursement payouts paid to the Cafeteria Plan Participants for such year from such accounts. From and after the Closing, Buyer shall assume, or cause to be assumed, and be solely responsible for all unreimbursed claims made by the Cafeteria Plan Participants under Seller’s Cafeteria Plan that were incurred for the plan year of Seller’s Cafeteria Plan that commenced prior to the Closing, or that are incurred anytime thereafter.
(i) From and after If Buyer terminates the Effective Timeemployment of any Transferred Employee within the Continuation Period for any reason other than misconduct, Parent shall cause any nonqualified deferred compensation plans covering any employees Buyer will provide such Transferred Employee with severance benefits that are at least as generous to such Transferred Employee as the severance benefits to which such Transferred Employee would have been entitled had the employee remained covered under Seller’s severance arrangement in effect as of the Company or any date hereof and terminated employment without reemployment by a successor employer. The terms of its Subsidiaries to be drafted and administered Seller’s severance arrangement in a manner that complies with Section 409A effect as of the Codedate hereof are set forth in Schedule 7.10(i).
(j) For a period Seller will be responsible, with respect to the Business, for performing and discharging all requirements under the WARN Act and under applicable Law for the notification of three years after its employees of any “employment loss” within the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices meaning of the Company and its SubsidiariesWARN Act which occurs on or prior to the Closing.
(k) Nothing contained in this Section 6.9 Seller will be responsible for providing COBRA Continuation Coverage to any current and former employees of Seller, or this Agreement shall to any qualified beneficiaries of such employees, who become entitled to COBRA Continuation Coverage on or before the Closing, including those for whom the Closing occurs during the COBRA election period. Buyer will be responsible for extending and continuing to extend COBRA Continuation Coverage to all Transferred Employees (iand their qualified beneficiaries) who become entitled to such COBRA Continuation Coverage following the Closing.
(1) Individuals who would otherwise be Transferred Employees but who on the Closing Date are not actively at work due to a short term leave of absence covered by the Family and Medical Leave Act or are not actively at work due to military leave or other authorized leave of absence of a period of less than one year from the date hereof, including short-term disability, will be treated as an amendment of any particular Benefit Plan, Transferred Employees on the date that they are able to return to work (ii) give any third party any right provided that such return to enforce work occurs within the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any authorized period of their Affiliates leaves following the Closing Date or otherwise within the period prescribed by the applicable statute for such leave) and perform the essential functions of their jobs with or without reasonable accommodation. In no event shall an individual on long term disability as of the Effective Time or an authorized leave of absence for a period exceeding one year from the Effective Time (other than applicable military leave) be eligible to (x) maintain become a Transferred Employee, and Buyer shall not be liable for any particular Benefit Plan costs or (y) retain the employment of any particular employeeresponsibilities associated with respect to such individual.
Appears in 1 contract
Samples: Asset Purchase Agreement (Algonquin Power & Utilities Corp.)
Employee Benefits. (a) Parent agrees thatPursuant to the Merger Agreement, Hostopia will cause any Employee Plans that it may maintain to be amended for a period the purpose of one year following permitting the Effective DateEmployee Plans to continue to operate in conformity with tax, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that other applicable laws in effect on or before the Merger, subject to approval of any such amendment by Deluxe. Hostopia will take any actions necessary to terminate effective at or, at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performanceDeluxe, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to immediately before the Effective Time, any Employee Plans that Deluxe requests to be terminated. Deluxe will take such actions as are necessary to provide each employee of Hostopia and its subsidiaries with credit for service for Hostopia and certain of its subsidiaries for purposes of vesting, eligibility and participation (but not benefit accruals under any defined benefit plan or eligibility for post-retirement medical benefits) under any benefit plan or arrangement of Deluxe in which such employee of Hostopia and its subsidiaries may participate on or after the Effective Time in the same manner as if requested by Parent in writing, such service had been service for Deluxe; provided that (a) service will only be required to be credited to the extent permitted such service was recognized by applicable Law Hostopia and the terms certain of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, subsidiaries prior to the Effective Time, and (b) no such credit will be required to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it credit would result in a duplication of benefitsbenefits for the same period of service. Subject to the requirements of applicable law, Parent shall Deluxe will take such actions as are necessary to cause the group health plan maintained by Deluxe, and applicable insurance carriers, third-party administrators, and any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiariesother third parties, to the same extent such group health plan is made available to employees of Hostopia and its subsidiaries, to (a) waive any evidence-of-insurability requirements, waiting periods, and limitations as to pre-existing medical conditions under the group health plan that are applicable to employees of Hostopia and its subsidiaries and their spouses and eligible dependents (but only to the extent that such service was credited requirements, waiting periods, and pre-existing condition limitations did not apply or were satisfied under a comparable the group health plan maintained by Hostopia or certain of its subsidiaries before the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of Effective Time) and (b) provide each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company Hostopia or any of its Subsidiariessubsidiaries with credit, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions for the calendar year in which the Effective Time occurs, for the amount of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable expenses that are paid by such employee before the Effective Time under the group health plan maintained by Hostopia or certain of its subsidiaries during such calendar year toward any annual deductible or annual out-of-pocket maximum that applies under the group health plan maintained by Deluxe that may be extended to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid during such calendar year. If Deluxe directs pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Merger Agreement that an Employee Plan qualified under Section 6.9(g401(a) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall Code be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at terminated before the Effective Time, Deluxe shall take such actions as are necessary to cause a retirement plan maintained by it or one of its affiliates that is in a course of training covered in part or in whole by a tuition reimbursement program qualified under Section 401(a) of the Company or any Code to accept direct and indirect rollover distributions from such Employee Plan, by the employees of Hostopia and its Subsidiariessubsidiaries who continue employment following the Closing, of account balances maintained by them under such program will be continued throughout such course of training Employee Plan, including promissory notes evidencing outstanding plan loans (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational periodif any).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Samples: Merger Agreement (Hostopia.com Inc.)
Employee Benefits. (a) Parent agrees that, for a period Effective as of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company Target Companies shall (i) cause cease to be amended participating employers in all Stockholder Plans. The benefits of (a) those individuals actively employed by the employee benefit plans and arrangements Target Companies as of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (iib) cause those individuals who are on a leave of absence from the Xxxxx Corporation Incentive Savings Plan and Target Companies as of the Xxxxx Hourly 401(k) Plan to Effective Time (collectively, “Transferred Employees”), shall be terminated effective immediately prior to discontinued as of the Effective Time. In addition, prior to From and after the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan Parent shall, or arrangement, Parent shall cause the Surviving Corporation to, provide to be amended the “Transferred Employees” and their eligible dependents, employee benefit plans benefits and compensation plans, programs and arrangements of it and its Subsidiaries that are substantially equivalent to the extent necessary those provided to provide that no similarly situated employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool Companies (the “Retention PoolParent Benefits”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause (i) provide all Transferred Employees with credit for purposes of eligibility, vesting, and benefit accrual under the Parent Benefits plans (in which service is relevant for purposes of eligibility, vesting and benefit accrual) for service with the Target Companies (and any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries Related Entity as defined in Section 4.11.5) prior to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give cause any third party pre-existing conditions or limitations, eligibility waiting periods (including actively-at-work requirements) or required physical examinations or other evidence of insurability requirements under any right Parent Benefits plan that is a welfare benefit plan to enforce be waived with respect to the provisions of this Section 6.9 Transferred Employees and their eligible dependents, to the extent waived or previously met under the corresponding plan in which the applicable Transferred Employee participated immediately prior to the Effective Time, and (iii) obligate Parentgive the Transferred Employees and their eligible dependents credit for the plan year in which the Effective Time (or commencement of participation in a Parent Benefit plan) occurs towards applicable deductibles and annual out-of-pocket limits for expenses incurred prior to the Effective Time (or the date of commencement of participation in a Parent Benefit plan). Further, the Parent agrees to take all actions necessary to ensure that a qualified retirement plan sponsored by Parent or Surviving Corporation or any following the Effective Time shall accept direct rollovers of their Affiliates distributions made to (xthe Transferred Employees from the DST Systems, Inc. 401(k) maintain any particular Benefit Profit Sharing and the Employee Stock Ownership Plan or (y) retain and Trust Agreement of DST Systems, Inc., including rollovers of participant loans and related promissory notes, and shall continue to accept loan repayments from the employment Transferred Employees by payroll deduction per the term of any particular employeesuch promissory notes.
Appears in 1 contract
Samples: Merger Agreement (DST Systems Inc)
Employee Benefits. (a) Parent agrees that, for For a period of one year following the Effective DateTime, the employees Parent shall provide, or cause to be provided, to each employee of the Company who is employed by the Company as of immediately prior to the Effective Time and its Subsidiaries will who continues to be provided with pension employed by the Surviving Corporation (or any Affiliate thereof) (each, a “Continuing Employee”), during such one year period, (1) a base salary (or base wages, as the case may be) and welfare benefits under employee benefit plans that at the election of Parent a target annual cash bonus opportunity, which are either (i) substantially similar no less favorable in the aggregate to those currently than the base salary (or base wages, as the case may be) and target annual cash bonus opportunity provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Continuing Employee immediately prior to the Effective Time, and (2) benefits (excluding defined benefit pension, nonqualified deferred compensation, retiree or post-termination health or welfare benefit, equity or equity based compensation, retention or change in control-related compensation or benefits, long-term incentive or nonqualified deferred compensation and employee stock purchase plans (collectively, the “Specified Arrangements”)) that are substantially comparable in the aggregate to the benefits (excluding the Specified Arrangements) provided to either such Continuing Employee immediately prior to the Effective Time under the Employee Plans set forth on Part 3.17(a) of the Company Disclosure Schedule or similarly situated employees of Parent, as reasonably determined in good faith by Parent. In additionWithout limiting the foregoing:
(a) Each Continuing Employee shall be given service credit for all purposes of eligibility to participate, level of benefits under Parent’s and/or the Surviving Corporation’s vacation policy, and eligibility for vesting under Parent and/or the Surviving Corporation’s health and welfare benefit plans and arrangements (including, without limitation, any severance plans and arrangements and paid time off) in which the Continuing Employee may participate following the Closing (the “Parent Plans”) with respect to his or her length of service with the Company (and its predecessors) prior to the Closing Date to the same extent such Continuing Employee was entitled to such service credit under the corresponding Employee Plan in which such Continuing Employee participated immediately prior to the Closing, provided that the foregoing shall not result in the duplication of benefits or to benefit accrual under any pension plan.
(b) With respect to any accrued but unused personal, sick or vacation time to which any Continuing Employee is entitled pursuant to the personal, sick or vacation policies applicable to such Continuing Employee immediately prior to the Effective Time, Parent shall, or shall cause the Surviving Corporation to the extent permitted by and instruct its Affiliates to, as applicable Law (and the terms without duplication of benefits), assume, as of the applicable plan Effective Time, the liability for such accrued personal, sick or arrangementvacation time and allow such Continuing Employee to use such accrued personal, Parent shall cause to be amended sick or vacation time in accordance with the employee benefit plans practice and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees policies of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationCompany.
(c) The Company agrees To the extent that service is relevant for eligibility, vesting or allowances (including paid time off) under any health or welfare benefit plan of Parent and/or the Surviving Corporation, then Parent shall use commercially reasonable efforts to cause each of its officers (i) waive all limitations as to pre-existing conditions, exclusions and directors waiting periods with respect to repay any outstanding loans or notes that such officer or director owes participation and coverage requirements applicable to the Company or its Subsidiaries prior to Continuing Employees under the Effective Time.
(d) Parent agrees thatPlans, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment that such conditions, exclusions and waiting periods would not apply under the corresponding Employee Plan in which such Continuing Employees participated prior to the Effective Time was and (ii) during the plan year in which the Closing occurs, for purposes of satisfying deductibles, coinsurance and out-of-pocket maximums, credit Continuing Employees for amounts paid prior to the Effective Time with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during predecessors) under the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, applicable Employee Plan to the same extent that such service amounts paid was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated recognized prior to the Effective Time to employees under the corresponding Employee Plan that is a health or welfare benefit plan of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Company.
(hd) Parent agrees that, with If annual bonuses in respect to any employee of either the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part Company’s 2023 or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (2024 fiscal year have not to exceed two years or $1,000,000 in the aggregate) (as opposed been paid prior to the current educational period).
(i) From and after Closing Date, as the Effective Timecase may be, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company shall, or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation to and instruct its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serveAffiliates to, pay each Continuing Employee a 2023 or pro-rata 2024 annual bonus, as applicable, in an amount equal to the greater of the Continuing Employee’s target annual bonus and the annual bonus to which such amounts (not to exceed $1.5 million in Continuing Employee would be entitled based on the aggregate), at such times and in such manner as are generally consistent with Company’s actual performance under the past practices applicable bonus arrangements of the Company and its Subsidiariesin effect as of the date of this Agreement, with such bonus payments to be made at the same time as annual bonuses are typically paid by the Company.
(ke) Nothing contained in Unless otherwise requested by Parent at least five (5) days prior to the Closing Date, the Company shall, no later than one (1) business day prior to the Closing Date, cease contributions to, and adopt a written consent or resolution and take other necessary and appropriate action to terminate the Company’s 401(k) plan, with such termination to be effective no later than the business day immediately prior to the Closing Date; provided that such cessation of contributions and termination may be made contingent upon the Closing. The Company shall provide Parent with an advance copy of such proposed consent or resolutions (and any related documents) and a reasonable opportunity to comment thereon prior to its adoption or execution.
(f) The provisions of this Section 6.9 6.4 are solely for the benefit of the Parties to this Agreement, and no provision of this Section 6.4 is intended to, or shall, constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise, nor limit or prohibit the ability of Parent or the Surviving Corporation from adoption, modifying, amending, or terminating any employee benefit plan, or other benefit or compensation plan at any time, and no current or former employee or any other Person shall be regarded for any purpose as a third party beneficiary of this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any or have the right to enforce the provisions hereof. Nothing in this Agreement shall confer upon any director, employee or service provider of this Section 6.9 the Company any right to continue in the employ or (iii) obligate Parent, service of the Surviving Corporation Corporation, Parent or any Subsidiary or Affiliate thereof, or shall interfere with or restrict in any way the rights of their Affiliates the Surviving Corporation, Parent or any Subsidiary or Affiliate thereof to (x) maintain any particular Benefit Plan discharge or (y) retain terminate the employment services of any particular employeedirector, employee or individual service provider of the Company at any time for any reason whatsoever, with or without cause.
Appears in 1 contract
Samples: Merger Agreement (RayzeBio, Inc.)
Employee Benefits. (a) Parent agrees that, For a period commencing upon the Effective Time and continuing for a period of one year seven (7) months after the Effective Time, Parent shall provide or cause to be provided to each Company Associate who is employed at the Effective Time and continues to be employed by Parent or an Affiliate of Parent following the Effective DateTime (the “Continuing Employees”) base salary or base hourly rate, as applicable, welfare and fringe benefits and annual bonus opportunities (the employees of the Company “Continuing Benefits”), excluding equity-based compensation and its Subsidiaries will be provided with pension retention and welfare benefits under employee benefit plans retirement benefits, that are at the election of Parent are either (i) least substantially similar in the aggregate to those currently the compensation and benefits provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Continuing Employees immediately prior to the Effective Time; provided that such obligation shall not apply to any Continuing Employees who voluntarily transfers to another position of employment with Parent or an Affiliate after the Effective Time or who voluntarily elects a reduced work schedule if, as a result of such change in status, the Continuing Employee’s base salary will be modified or the Continuing Employee does not meet the eligibility requirements under which such Continuing Benefits are provided. Without limiting the foregoing:
(a) At the Effective Time, with respect to any accrued but unused personal, sick or vacation time to which any Continuing Employee is entitled pursuant to the personal, sick or vacation policies applicable to such Continuing Employee immediately prior to the Effective Time, Parent shall, or shall cause the Surviving Company to and instruct its Subsidiaries to, as applicable, assume the liability for such accrued personal, sick or vacation time and allow such Continuing Employee to use such accrued personal, sick or vacation time in accordance with the practice and policies of the applicable Acquired Corporation.
(b) If requested by Parent at least ten (10) business days prior to the Effective Time, the Acquired Corporations shall terminate any and all U.S. Employee Plans intended to qualify under Section 401(k) of the Code (the “401(k) Plan(s)”), effective not later than the business day immediately preceding the Effective Time. In additionthe event that Parent requests that such 401(k) Plan(s) be terminated, the Acquired Corporations shall provide Parent with evidence that such 401(k) Plan(s) have been terminated pursuant to resolution of the Company’s Board of Directors not later than two (2) business days immediately preceding the Effective Time. The form and substance of such resolutions shall be subject to the reasonable approval of Parent. The Company shall use its commercially reasonable efforts to take such other actions in furtherance of terminating any such 401(k) Plan(s) as Parent may reasonably request. Immediately prior to such termination, the Company will make (or cause to be made) all necessary payments to fund the contributions (i) necessary or required to maintain the tax-qualified status of any such 401(k) Plan, (ii) for elective deferrals made pursuant to any such 401(k) Plan for the period prior to termination, and (iii) for employer matching contributions (if any) for the period prior to termination. If the Parent does not request that the 401(k) Plans be terminated prior to the Effective Time, then the Acquired Corporations shall amend such plans, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees the cash payments made in connection with the transactions contemplated hereby, including but not limited to, the payments made pursuant to Section 6.2 hereof, be excluded from the definition of compensation under such plans. Whether or not the Company and its Subsidiaries Parent requests that the 401(k) Plans be terminated, the Continuing Employees shall commence participation therein following be provided, for a period commencing upon the Effective Time unless Parent and continuing for a period of seven (7) months after the Effective Time, a 401(k) plan that provides substantially similar benefits to either the benefits provided under the 401(k) Plans or such Subsidiary explicitly authorizes such participationthe benefits that are provided under the Parent’s 401(k) Plan to its eligible employees (subject to the requirements of subsection (c) below).
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following after the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries all Continuing Employees shall be made by Parent on a basis eligible to continue to participate in the Surviving Company’s health and welfare benefit plans to the extent that reflects they were eligible to participate in such plans prior to the best long-term business interests of Parent and its Subsidiaries Closing; provided, however, that (including i) nothing in this Section 6.3 or elsewhere in this Agreement shall limit the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility right 54 of Parent or a legacy facility the Surviving Company to amend or terminate any such health or welfare benefit plan at any time, and (ii) if Parent or the Surviving Company terminates any such health or welfare benefit plan, then (upon expiration of any appropriate transition period) Parent shall use reasonable best efforts to cause the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives Continuing Employees to be achievedeligible to participate in Parent’s or an Affiliate’s health and welfare benefit plans, giving consideration to previous work historysubstantially the same extent as similarly situated employees of Parent or its Affiliate (taking into account job location). To the extent that service is relevant for eligibility, job experiencevesting or allowances (including paid time off) under any benefit plan of Parent and/or the Surviving Company, qualifications and business needs without regard Parent shall use reasonable efforts to cause such benefit plan to (except to the extent affecting relevant experiencethat it would not result in any duplication of benefits), for purposes of eligibility, vesting and allowances (including paid time off) to whether employment but not for purposes of benefit accrual, credit Continuing Employees for service prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, Acquired Corporations to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated recognized prior to the Effective Time to employees under the corresponding benefit plan of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Company.
(hd) Parent agrees that, with With respect to all employees, the Acquired Corporations shall be responsible for providing any employee notices required to be given and otherwise complying with the WARN or similar statutes or regulations of any jurisdiction relating to any plant closing or mass layoff (or similar triggering event) caused by the Company and its Subsidiaries who, at Acquired Corporations prior to the Effective Time, is in a course of training covered in part . If Parent determines that an event would trigger WARN obligations (or in whole by a tuition reimbursement program of the Company obligations arising under similar statutes or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregateregulations) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any be responsible for providing notices to all employees of the Company as are required to be provided notice under WARN (or any of its Subsidiaries to be drafted and administered similar statute or regulation), in a manner form that complies is compliant with Section 409A of the Codeapplicable regulations.
(je) For Except as otherwise expressly required by any collective bargaining agreement to which an Acquired Corporation is a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner party as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained date of this Agreement, nothing in this Section 6.9 6.3 or elsewhere in this Agreement is intended nor shall be construed to (i) be treated as an amendment of to any particular Benefit Employee Plan, (ii) give prevent Parent from modifying, amending or terminating any third party of its benefit plans or, after the Effective Time, any right to enforce the provisions of this Section 6.9 or Employee Plan, (iii) obligate create a right in any Person to employment with Parent, the Surviving Corporation Company or any Subsidiary of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the Surviving Company, it being understood that the employment of each Continuing Employee shall be “at will” employment, or (iv) create any particular employeethird-party beneficiary rights in any Person, including, without limitation, any employee of the Acquired Corporations or the Surviving Company, any beneficiary or dependent thereof, or any collective bargaining representative thereof.
(f) Continuing Employees shall be eligible for severance benefits as set forth in Schedule 6.3(f) and (ii) after the Effective Time, Parent agrees to cause the Surviving Company to honor the terms, as in effect on the date of this Agreement, of each Contract set forth on Schedule 6.3(f), including by causing the Surviving Company to pay and provide all post-termination benefits required to be paid or provided to any individual pursuant to the express terms, as in effect on the date of this Agreement, of the applicable Contract in the event that such individual does not become (or ceases to be) a Continuing Employee after the Effective Time.
Appears in 1 contract
Samples: Merger Agreement
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the 7.9.1 All employees of the Company Sandwich and its Subsidiaries will as of the Effective Time shall become employees of 1855 Bancorp or an 1855 Bancorp Subsidiary as of the Effective Time. Nothing in this Agreement shall give any employee of Sandwich or its Subsidiaries a right to continuing employment with 1855 Bancorp or any Subsidiary thereof after the Effective Time. Any employee of Sandwich or any Sandwich Subsidiary whose employment with 1855 Bancorp or any 1855 Bancorp Subsidiary is terminated by 1855 Bancorp within one year after the Effective Time shall be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either entitled to receive (i) substantially similar a lump-sum severance benefit in an amount equal to two-weeks' pay for each year of employment (with partial years of service included in the aggregate calculation on a pro-rated basis), up to those currently provided by the Company a maximum of 26 weeks' pay, and its Subsidiaries to such employees or (ii) substantially similar in continuation of health benefits, on the aggregate same terms and conditions applicable to those provided by Parent 1855 Bancorp's active employees, for the same number of weeks factored into the calculation of severance payments, and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, thereafter COBRA benefits for an additional period of time determined as though the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result Sandwich employee terminates employment upon expiration of the transactions contemplated period covered by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedsaid continued health benefits.
(b) Prior to 7.9.2 As soon as practicable after the Effective Time, if requested 1855 Bancorp shall provide or cause to be provided to all employees of Sandwich and any Sandwich Subsidiary who remain employed by Parent 1855 Bancorp or any 1855 Bancorp Subsidiary after the Effective Time with employee benefits which, in writingthe aggregate, are no less favorable than those generally afforded to other employees of 1855 Bancorp or the 1855 Bancorp Subsidiaries holding similar positions, subject to the extent permitted by applicable Law terms and the terms of the applicable plan or arrangementconditions under which those employee benefits are made available to such employees, the Company shall provided, however, that (i) cause to be amended the for purposes of determining eligibility for and vesting of such employee benefits only (and not for pension benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation accrual purposes), service with Sandwich or such any Sandwich Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was shall be treated as service with an "employer" as if such persons had been employees of 1855 Bancorp, to the Company or any extent permissible under the terms of its Subsidiaries or Parent or any 1855 Bancorp's Employee Plans, (ii) this Section 7.9 shall not be construed to limit the ability of its Subsidiaries.
(e) Parent agrees that any employee of the Company 1855 Bancorp and its Subsidiaries to terminate the employment of any employee or to review employee benefits programs from time to time and to make such changes as they deem appropriate, and (iii) 1855 Bancorp or a Subsidiary shall continue to provide post-retirement medical benefits to former employees of Sandwich who is terminated without cause during the 18 months following as of the Effective Time shall receive severance are receiving post-retirement medical benefits in accordance with Section 6.9(eSandwich's Previously Disclosed retiree health care Plans I, II, and III, (iv) of the Company Disclosure Letter.
1855 Bancorp shall honor any and all vacation leave (fbut not sick leave) Except accrued by Sandwich's employees, except to the extent it would result in a of any duplication of benefits, Parent and (v) no preexisting condition exclusion that is currently inapplicable to a Sandwich employee and/or the employee's covered dependents shall affect their rights to health benefits or coverage under 1855 Bancorp's plans, to the extent permissible under such plans.
7.9.3 Sandwich has Previously Disclosed to 1855 Bancorp certain employment and change of control agreements, deferred compensation plans, Grantor Trust Agreement, Supplemental Retirement Plans and Split Dollar Insurance Agreements (collectively, "Benefit Agreements"). Following the Effective Time, 1855 Bancorp shall honor or cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) honor in accordance with their terms all such Previously Disclosed Benefit Agreements and vesting thereunder service by such employees with the Company and assume or cause its Subsidiaries as if to assume all duties, liabilities and obligations under such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansagreements and arrangements. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, 1855 Bancorp agrees that (i) the aggregate amount consummation of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 the transactions contemplated hereby constitutes a "Change in Control" as defined in the Benefit Agreements, and (ii) the Retention Pool complies each of Sandwich's officers who is party to an employment agreement with the requirements set forth Sandwich will be deemed to have suffered a material change in Section 6.9(g) their responsibilities and supervision as of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course it being understood that the President of training covered in part or in whole by a tuition reimbursement program Sandwich shall terminate employment as of the Company or Effective Time and receive payments under Section 11(a) of his Employment at such time.
7.9.4 The allocated assets of Sandwich's Employee Stock Ownership Plan shall be distributed as soon as administratively practicable after the later of the Effective Time and the receipt of a favorable determination letter, which Sandwich may request at any time after the date of its Subsidiariesthis Agreement, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in from the aggregate) (Internal Revenue Service as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees effect of the Company or any of plan's termination on its Subsidiaries to be drafted tax-qualified status under sections 401, 409, and administered in a manner that complies with Section 409A 4975 of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions . Participants in the communities that Employee Stock Ownership Plan shall have the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce transfer their distributions into any tax-qualified defined contribution plan that 1855 Bancorp maintains, but only if and to the provisions of this Section 6.9 extent that such plan accepts rollover contributions or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeetrustee-to- trustee transfers from other tax-qualified plans.
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the IAB shall cooperate and work with BCB to help BCB identify employees of the Company IAB and its Subsidiaries will to whom BCB may elect to offer employment with BCB or one of its Subsidiaries. With respect to any employee of IAB or its Subsidiaries who receives an offer of employment from BCB, IAB shall assist BCB with its efforts to enter into an offer letter and any related documents (collectively, the "Offer Letter") with such employees, the effectiveness of which would be provided with pension contingent upon the Closing. Following the Effective Time, except as contemplated by this Agreement, BCB shall provide generally to officers and welfare employees (as a group) who are actively employed by an IAB Entity on the Closing Date ("Covered Employees") while employed by any BCB Entity following the Closing Date employee benefits under employee benefit plans that at the election of Parent Employee Benefit Plans, on terms and conditions which when taken as a whole are either (i) substantially similar in the aggregate comparable to those currently provided by BCB Entities to their similarly situated officers and employees; provided, that in no event shall any Covered Employee be eligible to participate in any closed or frozen plan of any BCB Entity. Until such time as BCB shall cause the Company and its Subsidiaries Covered Employees to such employees or (ii) substantially similar participate in the aggregate applicable BCB Employee Benefit Plans, the continued participation of the Covered Employees in the IAB Benefit Plans shall be deemed to those provided by Parent and its Subsidiaries to its similarly situated employees. With satisfy the foregoing provisions of this clause (it being understood that participation in BCB's Employee Benefit Plans may commence at different times with respect to any bonus or long-term cash incentive awards calculated based on 2006 performanceeach of BCB's Employee Benefit Plans). For purposes of participation and vesting (but not for purposes of benefit accrual) under BCB's Employee Benefit Plans, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result service of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment Covered Employees prior to the Effective Time was shall be treated as service with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits a BCB Entity participating in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any such employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under recognized by the IAB Entities for purposes of a comparable plan of the Company or its Subsidiaries, similar benefit plan; provided, that no credit such recognition of service shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to not: (i) waive all pre-existing condition exclusions operate to duplicate any benefits of its employee benefit plans a Covered Employee with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan period of the Company and service; (ii) take into account apply for purposes of any plan, program or arrangement that is grandfathered or frozen, either with respect to level of benefits or participation; or, (iii) apply for purposes of retiree medical benefits or level of benefits under a defined benefit pension plan. Covered Employees who are employed by any BCB Entity shall retain their vacation and sick leave accrual under the IAB Benefit Plans as of the Effective Time, provided that any future accrual of benefits under leave policies shall be in accordance with the BCB Employee Benefit Plans, subject to carryover limitations applicable to such future accruals. BCB agrees to amend the BCB Employee Benefit Plans to the extent necessary to provide for the past service credits applicable to the Covered Employees referenced herein if permitted under the applicable BCB Employee Benefit Plan.
(b) Covered Employees who are employed by any BCB Entity and who become eligible to participate in any insurance policy, plan or program offered by the BCB Entities following the Effective Time shall receive full credit under such policy, plan or program for any deductibles, co-payments and out-of-pocket expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered respective dependents under the corresponding IAB Benefit Plan during the portion of the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”)year prior to such participation; provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool that, BCB Entities shall not exceed $3,000,000 be required to take any action to the extent the BCB Entity determines that such action could make a Covered Employee (or dependent) ineligible for a benefit (for example, if credit for past contributions would make the Covered Employee ineligible for health savings account contributions). In addition, the Covered Employees and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded their respective dependents shall not be subject to any exclusion or penalty for pre-existing conditions that were covered under the Retention Pool shall be allocated corresponding IAB Benefit Plan immediately prior to the Effective Time Time, or to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject any waiting period relating to the approval of Parent (such approval not to be unreasonably withheld)coverage.
(hc) Parent agrees thatIf requested by BCB in a writing delivered to IAB following the date hereof and prior to the Closing Date, with respect the IAB Entities shall take all necessary action (including without limitation the adoption of resolutions and plan amendments, vesting of account balances, and the delivery of any required notices) to any employee of the Company and its Subsidiaries whoterminate, at effective immediately prior to the Effective Time, any IAB Benefit Plan that is in intended to constitute a course of training covered in part or in whole by tax-qualified defined contribution plan under Internal Revenue Code Section 401(k) (a tuition reimbursement program "401(k) Plan"). IAB shall provide BCB with a copy of the Company or any resolutions, plan amendments, notices and other documents prepared to effectuate the termination of its Subsidiariesthe 401(k) Plans in advance and give BCB a reasonable opportunity to comment on such documents (which comments shall be considered in good faith by IAB), such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed and prior to the current educational period).
(i) From and after Closing Date, IAB shall provide BCB with the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees final documentation evidencing the termination of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate401(k), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (BCB Bancorp Inc)
Employee Benefits. (a) Parent Unless otherwise provided herein, with respect to the employees and former employees of the Company and its Subsidiaries, Buyer agrees that the Company shall honor in accordance with their respective terms and, on and after the Effective Time, Buyer shall cause the Surviving Corporation and its Subsidiaries to honor, all Employee Plans, Benefit Arrangements and all other written employment, severance, termination and retirement agreements to which the Company or any of its Subsidiaries is a party as of the Effective Time, including those Employee Plans and Benefit Arrangements set forth in Schedule 3.16 to the extent such plans and arrangements are maintained and sponsored by the Company or its Subsidiaries.
(b) Buyer agrees that, for a period of one year following no less than three months after the Effective DateTime, it shall, or shall cause the Surviving Corporation and its Subsidiaries to, provide employee pension and welfare plans for the benefit of employees and former employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar Subsidiaries, that, in the aggregate to those currently provided by aggregate, are not materially less favorable than the Company Employee Plans and its Subsidiaries to such employees or (ii) substantially similar Benefit Arrangements in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective effect immediately prior to the Effective Time. In addition, prior to the Effective Time, to To the extent permitted by applicable Law and the terms any benefit plan of Buyer (or any plan of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent Surviving Corporation or any of its Subsidiaries.
(e) Parent agrees that shall be made applicable to any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any former employee of the Company or any of its Subsidiaries, Parent Buyer shall, or shall cause the Surviving Corporation and its employee benefit plans Subsidiaries to, grant to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to former employees of the Company and its Subsidiaries designated credit for service with the Company or any of its Subsidiaries prior to the Effective Time for the purposes of determining eligibility to participate and the employee's nonforfeitable interest in benefits thereunder and, unless a duplication of benefits would thereby result, for calculating benefits (including benefits the amount or level of which is determined by reference to an employee's vesting service) thereunder. In addition, to the Chief Executive Officer extent any Buyer plan (or any plan of the Company in accordance with the guidelines set forth Surviving Corporation or any of its Subsidiaries) that constitutes an "employee welfare benefit plan," as defined in Section 6.9(g3(3) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to ERISA, shall be unreasonably withheld).
(h) Parent agrees that, with respect made applicable to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program former employee of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years Buyer shall, or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to, waive all preexisting condition exclusions and waiting periods otherwise applicable to make charitable contributions in the communities that the Company employees and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices former employees of the Company and its Subsidiaries.
(k) , except to the extent any such limitations or waiting periods in effect under comparable plans of the Company and its Subsidiaries have not been satisfied as of the date such plan is made so applicable. Nothing contained in this Section 6.9 or this Agreement shall (i) be treated interpreted as an amendment limiting the power of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates its Subsidiaries to amend or terminate any Employee Plan, Benefit Arrangement or any other employee benefit plan, program, agreement or policy or as requiring the Surviving Corporation or any of its Subsidiaries or Buyer to offer to continue (xother than as required by its terms) maintain any particular Benefit Plan written employment contract or (y) retain to continue the employment of any particular given employee.
Appears in 1 contract
Samples: Merger Agreement (Avalon Cable of Michigan Holdings Inc)
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following employed at the Effective Time shall receive (a “Continuing Employee”) shall, during the period commencing at the Effective Time and ending on the first anniversary of the Effective Time (or if earlier, the date of the Continuing Employee’s termination of employment with the Company or the applicable Subsidiary), be provided with (i) base salary or wage rates, as applicable, which are no less than the base salary or wage rates, as applicable, provided by the Company or its Subsidiaries to such Continuing Employee immediately prior to the Effective Time; (ii) target cash incentive or bonus opportunities (excluding equity-based compensation), if any, which are no less than the target incentive or bonus opportunities (excluding equity-based compensation) provided by the Company or its Subsidiaries to such Continuing Employee immediately prior to the Effective Time; (iii) defined contribution retirement benefits and welfare benefits that are substantially comparable, in the aggregate, to the defined contribution retirement benefits and welfare benefits provided by the Company or its Subsidiaries to such Continuing Employee immediately prior to the Effective Time and (iv) severance benefits that are no less favorable than the practice, plan or policy in accordance with Section 6.9(eeffect for such Continuing Employee immediately prior to the Closing. Parent hereby acknowledges that a “change of control” (or similar term) within the meaning of the Company Disclosure LetterBenefit Plans shall occur at or prior to the Effective Time.
(fb) Except Parent shall (i) cause any pre-existing conditions or limitations. actively-at-work requirements and eligibility waiting periods under any group health, dental, pharmaceutical and vision plans of Parent or its Affiliates to be waived with respect to the Continuing Employees and their eligible dependents, (ii) for purposes of each group health, dental, pharmaceutical and vision plan of Parent or its Affiliates, give each Continuing Employee credit for the plan year in which the Effective Time occurs (or, if later, the plan year in which the Continuing Employee becomes eligible to participate in the applicable benefit plan) towards applicable deductibles. coinsurance and annual out-of-pocket limits for expenses incurred prior to the Effective Time for which payment has been made and (iii) give each Continuing Employee service credit for such Continuing Employee’s employment with the Company and its Subsidiaries (and their respective predecessors) for all purposes under each applicable Parent benefit plan, as if such service had been performed with Parent, except for benefit accrual under defined benefit pension plans or to the extent it would result in a duplication of benefits, Parent shall cause .
(c) Notwithstanding any employee benefit plans (including vacation, severance and disability plans) covering employees permitted disclosures under the Confidentiality Agreements but subject to the last sentence of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its SubsidiariesSection 7.8, to the same extent that such service was credited under a comparable plan of the Company reasonably practicable, prior to making any broad-based written or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents oral communications to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductibledirectors, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent officers or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries pertaining to be drafted and administered in compensation or benefit matters that are affected by the Merger or the other transactions contemplated by this Agreement, the Company shall provide Parent with a manner that complies with Section 409A copy of the Codeintended communication, Parent shall have a reasonable period of time to review and comment on the communication, and Parent and the Company shall cooperate in providing any such mutually agreeable communication.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(kd) Nothing contained in this Section 6.9 or this Agreement shall is intended to (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate prevent Parent, the Surviving Corporation or any of their Affiliates to (x) maintain from amending or terminating any particular of their benefit plans or, after the Effective Time, any Benefit Plan in accordance with their terms, (iii) prevent Parent, the Surviving Corporation or (y) retain any of their Affiliates, after the Effective Time, from terminating the employment of any particular employeeContinuing Employee, or (iv) create any third-party beneficiary rights in any employee of the Company or any of its Subsidiaries, any beneficiary or dependent thereof, or any collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any Continuing Employee by Parent, the Surviving Corporation or any of their Affiliates or under any benefit plan which Parent, the Surviving Corporation or any of their Affiliates may maintain.
Appears in 1 contract
Employee Benefits. (a) Parent agrees thatUntil December 31, for a period of one year following the Effective Date2016, the Surviving Corporation shall provide all individuals who are employees of the Company and its Subsidiaries will be provided on the Closing Date (the “Affected Employees”), while employed by the Company or its Subsidiaries, with pension compensation and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar comparable in the aggregate to those currently provided the compensation and benefits (including target bonus and commission opportunities, but excluding equity compensation incentives, severance payments and any compensation or benefits triggered in whole or in part by the Company and its Subsidiaries consummation of the transactions contemplated hereby) provided to such employees the Affected Employees immediately prior to the date hereof. Nothing contained in this Section 6.9 shall be deemed to (i) grant any Affected Employee any right to continued employment after the Closing Date or (ii) substantially similar in the aggregate to those provided by restrict or limit Parent and its Subsidiaries the Surviving Corporation’s right to its similarly situated employees. With respect to terminate any bonus or long-term cash incentive awards calculated based on 2006 performanceAffected Employee for any reason, the Company’s performance for calendar year 2006 shall be calculated including without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedcause.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company Parent and its Subsidiaries (other than the Surviving Corporation and its Subsidiaries) in which the Affected Employees are entitled to participate after the Closing Date to take into account for purposes of eligibility, vesting, level of benefits (excluding accruals but not for any purpose under a any defined benefit plan) and vesting thereunder pension plans or plans providing for post-termination medical benefits), service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under an analogous Benefit Plan (except to the extent that it would result in a comparable plan duplication of benefits with respect to the Company or its Subsidiariessame period of service).
(c) Following the Closing Date, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits with respect to any employee of the Company or any of its SubsidiariesAffected Employees and their eligible dependents, Parent shall, or shall cause its employee benefit plans the Surviving Corporation, to the extent commercially reasonable, to: (i) waive all any pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents conditions to the same extent required by Law and to the extent such exclusions pre-existing conditions were waived under a comparable plan the existing plans of the Company and as of the date of this Agreement, (ii) take into account any eligible expenses incurred by such employees provide credit for prior service with the Company and their dependents its Affiliates as of the Closing Date for purposes of satisfying all deductibleany applicable waiting periods to the extent such credit would be recognized for this purpose under the existing plans of the Company as of the date of this Agreement, coinsurance and maximum (iii) give credit in the year in which the Closing Date occurs for any copayments, deductibles and out-of-pocket requirements applicable limits paid by the Affected Employee and eligible dependents in such year prior to the Closing Date to the extent such employees and their covered dependents amounts would be recognized for such purposes under the applicable employee benefit plan existing plans of Parent or its Subsidiariesthe Company as of the date of this Agreement.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(kd) Nothing contained in this Section 6.9 6.9, express or this Agreement shall implied (i) shall be treated as an amendment of construed to establish, amend, or modify any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (yii) retain the employment is intended to confer upon any Person (including current or former Service Providers, or dependents or beneficiaries of Service Providers) any particular employeerights as a third-party beneficiary of this Agreement.
Appears in 1 contract
Samples: Merger Agreement (Sciquest Inc)
Employee Benefits. (a) Parent agrees thatNothing contained herein will be considered ----------------- as requiring Alacrity or TranSwitch to continue any specific plan or benefit, or to confer upon any employee, beneficiary, dependent, legal representative or collective bargaining agent of such employee any right or remedy of any nature or kind whatsoever under or by reason of this Agreement, including without limitation any right to employment or to continued employment for a period any specified period, at any specified location or under any specified job category, except as specifically provided for in an offer letter or other agreement of one year following the Effective Date, the employment. It is specifically understood that continued employment with Alacrity or employment with TranSwitch is not offered or implied for any other employees of Alacrity and any continuation of employment with Alacrity after the Company and its Subsidiaries Closing will be at will except as specifically provided with pension and welfare benefits under employee benefit plans that at the election otherwise in an offer letter or other agreement of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedemployment.
(b) Prior Following the Effective Time, TranSwitch, in its discretion, shall either: (i) continue (or cause Alacrity to continue) to maintain the Alacrity Employee Plans as in effect immediately prior to the Effective Time, if requested or (ii) arrange for each participant in Alacrity Employee Plans ("Alacrity -------- Participants") to participate in any similar plans of TranSwitch ("TranSwitch ------------ ---------- Plans") in which similarly situated employees of TranSwitch participate, or ----- (iii) a combination of clauses (i) and (ii). Each Alacrity Participant who continues to be employed by Parent in writingTranSwitch or any of its subsidiaries immediately following the Effective Time shall, to the extent permitted by law and applicable Law tax qualification requirements, and the terms subject to any generally applicable break in service or similar rule, receive credit for purposes of the applicable plan eligibility to participate and vesting under TranSwitch Plans for years of service with Alacrity or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately subsidiaries prior to the Effective Time. In addition, prior to the Effective Time, to To the extent permitted by applicable Law and the terms insurers of the applicable plan or arrangementTranSwitch Plans, Parent TranSwitch shall cause any and all pre-existing condition limitation eligibility waiting periods and evidence of insurability requirements under any group health plans to be amended the employee benefit plans waived with respect to so such Alacrity Participants and arrangements of it their eligible dependants and its Subsidiaries to the extent necessary to shall provide that no employees of the Company them with credit for any co-payments and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment deductibles prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibilitysatisfying any applicable deductible, benefits (excluding accruals out-of- pocket, or similar requirements under a defined benefit plan) and vesting thereunder service by such employees with any TranSwitch Plans in which they are eligible to participate immediately after the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, Effective Time. Notwithstanding any of the foregoing to the same extent that such service was credited under a comparable plan contrary, none of the Company or its Subsidiaries, provided, that no credit provisions contained herein shall be given under frozen operate to duplicate nay benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits provided to any employee of Alacrity or the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment funding of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeesuch benefit.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Transwitch Corp /De)
Employee Benefits. (a) Parent agrees that, for For a period commencing upon the Effective Time and continuing through the first anniversary of one year the Effective Time, Parent shall, or shall cause its Subsidiaries to, provide to each Company Associate who continues to be employed by Parent or its Subsidiaries following the Effective DateTime (the “Continuing Employees”) total compensation and benefits (including base salary or base hourly rate, the employees of the Company as applicable, employee benefits and its Subsidiaries will be provided with pension annual bonus opportunities, other than severance benefits, equity-based compensation and welfare benefits under employee benefit plans retention benefits) that are at the election of Parent are either (i) least substantially similar comparable in the aggregate to those currently the compensation and benefits (other than severance benefits, equity-based compensation and retention benefits) provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Continuing Employees immediately prior to the Effective Time. In addition, notwithstanding the foregoing, (i) the Continuing Employees shall be eligible for severance benefits as set forth in Part 6.3 of the Company Disclosure Letter and (ii) Parent shall assume and honor the terms of the agreements set forth in Part 6.3 of the Company Disclosure Letter in accordance with the terms thereof as of the date hereof. Without limiting the foregoing:
(a) With respect to any accrued but unused personal, sick or vacation time to which any Continuing Employee is entitled pursuant to the personal, sick or vacation policies applicable to such Continuing Employee immediately prior to the Effective Time, Parent shall, or shall cause the Surviving Corporation to and instruct its Subsidiaries to, as applicable, assume the extent permitted by applicable Law liability for such accrued personal, sick or vacation time and allow such Continuing Employee to use such accrued personal, sick or vacation time in accordance with the terms practice and policies of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participationAcquired Corporation.
(cb) The Company agrees If requested by Parent at least five (5) business days prior to cause each the Effective Time, the Acquired Corporations shall terminate any and all U.S. Employee Plans intended to qualify under Section 401(k) of its officers and directors to repay any outstanding loans or notes the Code (the “401(k) Plan(s)”), effective not later than the business day immediately preceding the Effective Time. In the event that Parent requests that such officer or director owes 401(k) plan(s) be terminated, the Acquired Corporations shall provide Parent with evidence that such 401(k) plan(s) have been terminated pursuant to resolution of the Company or its Subsidiaries prior to Company’s Board of Directors not later than two (2) business days immediately preceding the Effective Time.
(dc) Parent agrees thatTo the extent that service is relevant for eligibility, following the Effective Timevesting or allowances (including paid time off) under any employee benefit plan of Parent, decisions regarding utilization of facilities of the Company and its Subsidiaries or the Surviving Corporation in which a Continuing Employee may be eligible to participate, then Parent and its Subsidiaries shall be made by Parent on a basis that reflects the use reasonable best long-term business interests of Parent and its Subsidiaries efforts to cause such employee benefit plan (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) that it would not result in any duplication of benefits), for purposes of eligibility, vesting and allowances (including paid time off), but not for purposes of benefit accrual, to whether employment credit Continuing Employees for service prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, Acquired Corporations to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated recognized prior to the Effective Time to employees under the corresponding employee benefit plan of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Company.
(hd) Parent agrees that, with With respect to all employees, the Acquired Corporations shall be responsible for providing any employee notices required to be given and otherwise complying with the WARN or similar statutes or regulations of the Company and its Subsidiaries who, at any jurisdiction relating to any plant closing or mass layoff (or similar triggering event) prior to the Effective Time, is in a course of training covered in part . If Parent determines that an event would trigger WARN obligations (or in whole by a tuition reimbursement program of the Company obligations arising under similar statutes or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years regulations) on or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any be responsible for providing notices to all employees of the Company as are required to be provided notice under WARN (or any of its Subsidiaries to be drafted and administered similar statute or regulation), in a manner form that complies is compliant with Section 409A of the Codeapplicable regulations.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(ke) Nothing contained in this Section 6.9 6.3 or elsewhere in this Agreement is intended nor shall be construed to (i) be treated as an amendment of to any particular Benefit Employee Plan, (ii) give prevent Parent from amending or terminating any third party any right to enforce the provisions of this Section 6.9 or its employee benefit plans in accordance their terms, (iii) obligate create a right in any Company Associate to employment with Parent, its Subsidiaries, the Surviving Corporation or any other Subsidiary of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the Surviving Corporation, and the employment of each Continuing Employee shall be “at will” employment, or (iv) create any particular employeethird-party beneficiary rights in any employee of the Acquired Corporations or the Surviving Corporation, any beneficiary or dependent thereof, or any collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any Continuing Employee by Parent or the Company or under any benefit plan which Parent, any Acquired Corporation or the Surviving Corporation may maintain.
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the 7.9.1 All employees of the Company Sandwich and its Subsidiaries will as of the Effective Time shall become employees of 1855 Bancorp or an 1855 Bancorp Subsidiary as of the Effective Time. Nothing in this Agreement shall give any employee of Sandwich or its Subsidiaries a right to continuing employment with 1855 Bancorp or any Subsidiary thereof after the Effective Time. Any employee of Sandwich or any Sandwich Subsidiary whose employment with 1855 Bancorp or any 1855 Bancorp Subsidiary is terminated by 1855 Bancorp within one year after the Effective Time shall be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either entitled to receive (i) substantially similar a lump-sum severance benefit in an amount equal to two-weeks' pay for each year of employment (with partial years of service included in the aggregate calculation on a pro-rated basis), up to those currently provided by the Company a maximum of 26 weeks' pay, and its Subsidiaries to such employees or (ii) substantially similar in continuation of health benefits, on the aggregate same terms and conditions applicable to those provided by Parent 1855 Bancorp's active employees, for the same number of weeks factored into the calculation of severance payments, and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, thereafter COBRA benefits for an additional period of time determined as though the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result Sandwich employee terminates employment upon expiration of the transactions contemplated period covered by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedsaid continued health benefits.
(b) Prior to 7.9.2 As soon as practicable after the Effective Time, if requested 1855 Bancorp shall provide or cause to be provided to all employees of Sandwich and any Sandwich Subsidiary who remain employed by Parent 1855 Bancorp or any 1855 Bancorp Subsidiary after the Effective Time with employee benefits which, in writingthe aggregate, are no less favorable than those generally afforded to other em ployees of 1855 Bancorp or the 1855 Bancorp Subsidiaries holding similar positions, subject to the extent permitted by applicable Law terms and the terms of the applicable plan or arrangementconditions under which those employee benefits are made available to such employees, the Company shall provided, however, that (i) cause to be amended the for purposes of determining eligibility for and vesting of such employee benefits only (and not for pension benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation accrual purposes), service with Sandwich or such any Sandwich Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was shall be treated as service with an "employer" as if such persons had been employees of 1855 Bancorp, to the Company or any extent permissible under the terms of its Subsidiaries or Parent or any 1855 Bancorp's Employee Plans, (ii) this Section 7.9 shall not be construed to limit the ability of its Subsidiaries.
(e) Parent agrees that any employee of the Company 1855 Bancorp and its Subsidiaries to terminate the employment of any employee or to review employee benefits programs from time to time and to make such changes as they deem appropriate, and (iii) 1855 Bancorp or a Subsidiary shall continue to provide post-retirement medical benefits to former employees of Sandwich who is terminated without cause during the 18 months following as of the Effective Time shall receive severance are receiving post- retirement medical benefits in accordance with Section 6.9(eSandwich's Previously Disclosed retiree health care Plans I, II, and III, (iv) of the Company Disclosure Letter.
1855 Bancorp shall honor any and all vacation leave (fbut not sick leave) Except accrued by Sandwich's employees, except to the extent it would result in a of any duplication of benefits, Parent and (v) no preexisting condition exclusion that is currently inapplicable to a Sandwich employee and/or the employee's covered dependents shall affect their rights to health benefits or coverage under 1855 Bancorp's plans, to the extent permissible under such plans.
7.9.3 Sandwich has Previously Disclosed to 1855 Bancorp certain employment and change of control agreements, deferred compensation plans, Grantor Trust Agreement, Supplemental Retirement Plans and Split Dollar Insurance Agreements (collectively, "Benefit Agreements") and the Sandwich Employee Stock Ownership Plan (the "ESOP"). Following the Effective Time, 1855 Bancorp shall honor or cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) honor in accordance with their terms all such Previously Disclosed Benefit Agreements and vesting thereunder service by such employees with the Company ESOP and assume or cause its Subsidiaries as if to assume all duties, liabilities and obligations under such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansagreements and arrangements. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, 1855 Bancorp agrees that (i) the aggregate amount consummation of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 the transactions contemplated hereby constitutes a "Change in Control" as defined in the Benefit Agreements, and (ii) the Retention Pool complies each of Sandwich's officers who is party to an employment agreement with the requirements set forth Sandwich will be deemed to have suffered a material change in Section 6.9(g) their responsibilities and supervision as of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course it being understood that the President of training covered in part or in whole by a tuition reimbursement program Sandwich shall terminate employment as of the Company or any Effective Time and receive payments under Section 11(a) of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), his Employment at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiariestime.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for For a period of one year not less than twelve (12) months following the Effective Closing Date, the employees with respect to each employee of the Company and or its Subsidiaries will be provided who continues their employment with pension and welfare benefits under the Surviving Corporation or becomes an employee benefit plans that at the election of Parent or any Affiliate of Parent as of the Closing and remains so employed during such period (collectively, the “Continuing Employees”), Parent shall, or shall cause the Surviving Corporation to, provide each such Continuing Employee with compensation and employee benefits that, taken as a whole, are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar comparable in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective Continuing Employee immediately prior to the Effective Time. In additionClosing Date, prior to the Effective Time, to the extent permitted by applicable Law but excluding from such comparability requirement all equity-based compensation and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance change in control arrangements and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit executive bonus plans. For purposes of determining eligibility to participate and vesting under any 401(k) plan in which Continuing Employees become eligible to participate and level of benefits under any paid-time off or severance pay program, each Continuing Employee shall be credited with his or her years of service with the Company (and any predecessor entities thereof) before the Closing Date under the parallel employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents Affiliates to the same extent as such exclusions were waived Continuing Employee was entitled, prior to the Closing Date, to credit for such service under the respective Employee Benefit Plan (except to the extent such credit would result in the duplication of benefits or compensation and except with respect to benefit accrual under a comparable defined benefit plan).
(b) To the extent permitted by applicable Law, Parent shall use commercially reasonable efforts to, in the plan year in which the Effective Time occurs, waive all limitations as to preexisting conditions, exclusions, actively-at-work requirements and waiting periods with respect to participation and coverage requirements applicable to the Continuing Employees under any health benefit plans that such employees may be eligible to participate in after the Effective Time and in the plan year in which the Effective Time occurs, other than limitations or waiting periods that would apply under any analogous Employee Benefit Plan if such Continuing Employee had been employed by Parent for the period of the Company Continuing Employee’s employment with the Company. To the extent permitted by applicable Law, Parent shall provide each Continuing Employee with credit for any co-payments and (ii) take into account deductibles paid prior to the Effective Time in the plan year in which the Effective Time occurs in satisfying any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum applicable deductible or out-of-pocket requirements applicable in the plan year in which the Effective Time occurs, under any health benefit plans in which such Continuing Employee is eligible to such employees participate after the Effective Time and their covered dependents under in the applicable employee benefit plan year in which the Effective Time occurs.
(c) For a period of six (6) months from the Closing Date, in the event that a Continuing Employee’s employment with the Surviving Company, Parent or its SubsidiariesAffiliates or Subsidiaries is involuntarily terminated by such Person for any reason other than cause or such Person takes any other action that would have entitled such Continuing Employee to receive severance payments and benefits consistent with the Company’s practices as in effect as of the date of this Agreement and set forth on Schedule 6.9(c) (the “Company Severance Practice”), the Surviving Company, Parent or its Affiliates or Subsidiaries shall provide such Continuing Employee with severance payments and benefits pursuant to the Company Severance Practice or the applicable Parent severance plan or policy, whichever would provide the greatest amount of benefits to such Continuing Employee.
(gd) The Company may establish a retention This Section 6.9 shall be binding upon and transaction bonus pool (inure solely to the “Retention Pool”); provided, that (i) the aggregate amount benefit of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) each of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior parties to the Effective Time to employees of the Company this Agreement, and its Subsidiaries designated by the Chief Executive Officer of the Company nothing in accordance with the guidelines set forth in this Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that6.9, with respect to any employee of the Company and its Subsidiaries who, at the Effective Timeexpressed or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever (including any third-party beneficiary rights) under or by reason of this Section 6.9. No provision of this Section 6.9 shall create any third party beneficiary rights in a course of training covered in part or in whole by a tuition reimbursement program of the Company any Continuing Employee or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years current or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees former director or consultant of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A respect of the Code.
continued employment (jor resumed employment) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) or any other matter. Nothing contained in this Section 6.9 or any other provision of this Agreement shall (i) be treated as an amendment of Agreement, express or implied, is intended to confer upon any particular Benefit Plan, (ii) give any third party Continuing Employee any right to enforce employment or continued employment for any period or continued receipt of any specific benefit or compensation, shall constitute an establishment of or amendment to or any other modification of, or shall limit the provisions ability of this Section 6.9 Parent or any of its Affiliates (iii) obligate Parentincluding, following the Closing, the Surviving Corporation Corporation) from amending of terminating, any benefit or compensation plan, program, agreement, contract or arrangement. Nothing contained in this Section 6.9, or any other provision of their Affiliates to (x) maintain any particular Benefit Plan this Agreement except as specifically provided, shall be deemed a termination, amendment or (y) retain the employment modification of any particular employeeexisting employment, change of control or severance agreement or similar Contract the Company has entered into with any of the officers or employees of the Company.
Appears in 1 contract
Samples: Merger Agreement (Mediware Information Systems Inc)
Employee Benefits. (a) Parent agrees thatThe Purchaser or a Designated Purchaser shall, and shall cause its relevant Affiliates to, except as otherwise provided herein, recognize the service date of each Transferred Employee as set out in the Employee Information for all purposes, other than (x) benefit accrual or (y) otherwise for determination of the amount or duration of benefits under any defined benefit pension plan or equity incentive plan, to the extent that each such Transferred Employee was entitled to recognition of such service date under the corresponding Seller Employee Plan in which such Transferred Employee participated or was eligible to participate (including any Seller Employee Plan that is suspended or the benefits of which are suspended), and to the extent that such recognition would not result in a duplication of benefits or the funding thereof.
(b) After the date hereof, the Sellers and the Purchaser shall cooperate promptly and in good faith in preparing the transition of the Transferred Employees (and their eligible dependents, as applicable) from coverage under the Seller Employee Plans to coverage under the Purchaser Employee Plans effective as of the Transferred Employee’s Effective Hire Date. Except with respect to any Employee whose benefits are specified by applicable Law, the Purchaser or the relevant Purchaser’s Affiliates shall use reasonable best efforts to cause each Transferred Employee (and their eligible dependents, as applicable) to be eligible as of the relevant Effective Hire Date to participate in and accrue benefits under the Purchaser Employee Plans, in each case under the terms of such Purchaser Employee Plans. Notwithstanding the foregoing, for a period of one year twelve (12) months following the Effective Closing Date, Purchaser shall, or cause its relevant Affiliate to, provide Transferred Employees with employee benefits substantially comparable, in the aggregate, to the employee benefits (other than benefits under (i) the KXXX, (ii) the KERP or (iii) the Nortel Special Incentive Plan, retiree medical benefits, equity based compensation or defined benefit pension benefits) provided to such Transferred Employees under Seller Employee Plans set forth on Section 4.11(a) of the Sellers Disclosure Schedule and as required by applicable Law prior to the Closing.
(c) Without limiting the generality of the foregoing, the Purchaser shall, or shall cause its relevant Affiliates to, provide the following benefits to Transferred Employees:
(i) For the period beginning on the Closing Date and ending on the date that is nine (9) months from the Closing Date, the employees of Purchaser shall, or shall cause its relevant Affiliates to, provide Transferred Employees with the Company and its Subsidiaries will be provided with pension and welfare benefits severance payments to which the Transferred Employee would have been entitled to under employee benefit plans that at the election of Parent are either (i) substantially similar applicable Seller Employee Plan covering the Transferred Employee in effect immediately prior to the aggregate to those currently provided by the Company and its Subsidiaries to such employees or Effective Hire Date.
(ii) substantially similar Section 7.1.2(c)(ii) of the Sellers Disclosure Schedule will set forth the amount of accrued and unused vacation days that are due and owing to the Transferred Employees as of the date hereof and such amount shall be updated by the Sellers as of the Closing Date. The Purchaser shall, or shall cause its relevant Affiliates to, grant each Transferred Employee paid time off in an amount equal to such accrued unused vacation days set forth for such Transferred Employee in the aggregate applicable Section of the Sellers Disclosure Schedule. If such Transferred Employee terminates employment with the Purchaser or an Affiliate of the Purchaser prior to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect receiving such paid time off, as described above, the Purchaser shall pay such Transferred Employee an amount equal to any bonus or long-term cash incentive awards calculated based such unused paid time off upon such employment termination.
(iii) The vacation accrual rate and maximum accrual of each Transferred Employee on 2006 performance, and after the Company’s performance for calendar year 2006 Effective Hire Date shall be calculated without taking into account any reasonable expenses determined under the vacation policy of the Purchaser or costs associated its relevant Affiliate following the crediting of such Transferred Employee with service as provided in Section 7.1.2(a). For the avoidance of doubt, such vacation accrual rate and maximum accrual applicable to Transferred Employees whose accrued vacation is specified in Section 7.1.2(c)(ii) of the Sellers Disclosure Schedule shall not be decreased prior to the date which is twelve (12) months following the Closing Date, or arising later if required by applicable Law, by the Purchaser or its Affiliates as a result of the transactions contemplated by this Agreement obligation in Section 7.1.2(c)(ii) that Purchaser or any nonrecurring charges that would not reasonably be expected its Affiliates grant or compensate such Employees with respect to have been incurred had accrued and unused vacation days due and owing as of the transactions contemplated by the Agreement not been proposedEffective Hire Date.
(biv) Prior The Purchaser or Designated Purchaser shall provide each Transferred Employee employed in Australia with the benefit of the amount set forth on Section 7.1.2(c)(iv) of the Sellers Disclosure Schedule of long service leave and sick leave, at such time, if any, as payment of such amount is due and owing to each such Transferred Employee under applicable Law, taking into account in the calculation of such payment the service of such Transferred Employee as set forth in the Employee Information and such Transferred Employee’s service with the Purchaser on and after the Closing Date. Section 7.1.2(c)(iv) of the Sellers Disclosure Schedule shall be updated as of the Closing Date to reflect employee hiring, promotions, demotions, transfers or other status changes and attrition, and further accruals or reductions or other changes from the date hereof to the Effective TimeClosing Date, in each case if requested by Parent in writing, and only to the extent permitted under Section 5.9.
(v) For the avoidance of doubt, Inactive Employees, as of the Closing Date will be listed on Section 7.1.2(c)(ii) of the Sellers Disclosure Schedule and Section 7.1.2(c)(iv) of the Sellers Disclosure Schedule, as applicable; provided, however, that unless and until such Inactive Employees become Transferred Employees, the Purchaser shall have no obligation with respect to Inactive Employees under this Section 7.1.2(c).
(d) With respect to each Transferred Employee (and their eligible dependents, as applicable), the Purchaser or the relevant Purchaser’s Affiliates shall use reasonable best efforts to cause the Purchaser Employee Plans to (i) waive any eligibility periods, evidence of insurability or pre-existing condition limitations and (ii) honor any deductibles, co-payments, co-insurance or out-of-pocket expenses paid or incurred by such employees, including with respect to their dependents, under comparable Seller Employee Plans during the Purchaser Employee Plan year in which the relevant Effective Hire Date occurs, in each case to the extent waived, inapplicable to such Transferred Employee, or honored under the Seller Employee Plans in which such Transferred Employee participated immediately prior to the Closing and to the extent doing so will not result in the duplication of benefits; provided, that such Transferred Employee provides an explanation of benefits or similar documentation, as reasonably required by the Purchaser, of any expenses paid or incurred to the Purchaser or its Affiliates. Nothing in this paragraph or otherwise in this Article VII shall be construed as constituting an amendment of any employee benefit plan.
(e) As of the Closing Date, the Purchaser or a Designated Purchaser shall establish or otherwise provide a registered pension plan for Transferred Employees employed in Canada and maintain such plan for a period of at least five (5) years following the Closing Date, or such shorter period as may be required or dictated by applicable Law and each such Transferred Employee’s participation shall commence on such Transferred Employee’s Employee Transfer Date.
(f) The Sellers shall be solely responsible for any required notice under the WARN Act with respect to terminations of employment of Employees that occur on or prior to the Closing Date and for any individual who does not become a Transferred Employee regardless of the date of termination; provided, that the Purchaser or Designated Purchaser, as applicable, has satisfied its obligations as set out in this Article VII. The Purchaser shall be solely responsible for any required notice under the WARN Act with respect to terminations of employment of Transferred Employees that occur after the Closing Date. On the Closing Date, the Sellers shall provide to the Purchaser, in writing, the number of Employees, by facility and operating unit, who have experienced an “employment loss” (as defined under the WARN Act) during the ninety (90) days prior to Closing.
(g) Nothing express or implied in this Agreement (including anything set forth in this Section 7.1) restricts the right of the Purchaser or any Designated Purchaser to terminate the employment of any Transferred Employee after the Closing, to modify the compensation or employee benefits of any Transferred Employee or relocate any Transferred Employee’s principal place of employment; provided any such termination, modification or relocation is effected in accordance with applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions conditions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee7.1.
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for a For the one (1) year period of one year following the Effective DateTime, Parent shall, or shall cause the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent Surviving Corporation to, provide to individuals who are either (i) substantially similar in the aggregate to those currently provided employed by the Company and its Subsidiaries immediately prior to the Effective Time who remain employed with the Surviving Corporation or any Subsidiary of the Surviving Corporation ("Affected Employees") employee benefits (including, but not limited to, pension and welfare benefits, but excluding any equity-based or incentive compensation) that in the aggregate are no less favorable in any material respect than the employee benefits provided by the Company or the applicable Subsidiary of the Company to such employees or immediately prior to the Effective Time (ii) substantially similar except such changes as are required by Law); provided, however, that nothing contained in the aggregate this Section 6.9 shall operate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to duplicate any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedbenefit.
(b) Prior to the Effective TimeParent shall, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In additionto, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all prelimitations as to preexisting conditions, exclusions, waiting periods and actively-existing condition exclusions of its at-work requirements with respect to participation and coverage requirements applicable to the Affected Employees under all employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (Subsidiary of Parent, the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) Surviving Corporation or Subsidiary of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (Surviving Corporation that such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries would be eligible to be drafted and administered participate in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause other than limitations or waiting periods that were in effect with respect to such employees as of the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that Effective Time under any employee benefit plan maintained by the Company and its Subsidiaries serve, in or such amounts (not Subsidiary for the Affected Employees immediately prior to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit PlanEffective Time, (ii) give provide each Affected Employee with credit for any third party co-payments and deductibles paid prior to the Effective Time in satisfying any right applicable deductible or out-of-pocket requirements under any welfare plans that such employees are eligible to enforce participate in after the provisions of this Section 6.9 or Effective Time during the same plan year in which such co-payments and deductibles were paid, and (iii) obligate Parentgive full credit, the Surviving Corporation for all purposes under all employee benefit plans or arrangements maintained by Parent or any Subsidiary of their Affiliates Parent (to (xthe extent such Affected Employees participate in any such employee benefit plan or arrangement) maintain for such Affected Employees' service with the Company or any particular Benefit Plan or (y) retain Subsidiary of the employment of Company to the same extent recognized by the Company immediately prior to the Effective Time; provided, however, that the crediting shall not operate to duplicate any particular employeebenefit.
Appears in 1 contract
Employee Benefits. (a) Subject to the terms of any collective bargaining agreement, Parent agrees that, for a period of one year twelve (12) months following the Effective DateTime, Parent will cause the Company or the Surviving Corporation, as applicable, to provide the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar a base salary or regular hourly wage, as applicable, that is not less than the base salary or regular hourly wage provided to such employee by the Company and its Subsidiaries immediately prior to the Effective Time, (ii) cash target bonus opportunities (including annual and quarterly bonus opportunities that are no less favorable to such employees than those provided to such employees by the Company and its Subsidiaries immediately prior to the Effective Time, (iii) employee benefits that are no less favorable in the aggregate to than those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law Time and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(civ) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits that are no less favorable than those set forth in accordance with Section 6.9(e4.9(a) of the Company Disclosure Letter.
(fb) Except With respect to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service plan maintained by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiariesany Subsidiary of Parent (collectively, to the same extent that such service was credited under a comparable plan “Parent Benefit Plan”) in which any employee of the Company or its SubsidiariesSubsidiaries or the beneficiaries and dependents thereof is otherwise eligible to participate effective as of the Effective Time, providedParent shall, that no credit or shall be given under frozen benefit plans. For purposes cause the Surviving Corporation to, (i) recognize all service of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of such employees with the Company or any of its Subsidiaries, Parent shall cause its employee as the case may be, for purposes of determining eligibility to participate, vesting, accruals, and entitlement to benefits where length of service is relevant, other than benefit plans accruals under a defined benefit pension plan, to the extent credited under the corresponding Benefit Plan, (iii) use commercially reasonable efforts to seek to waive all any pre-existing condition exclusions limitations, eligibility waiting periods and evidence of its employee benefit plans with respect insurability requirements and (iii) use commercially reasonable efforts to such employees provide credit for any co-payments and their dependents deductibles incurred prior to the same extent such exclusions were waived under a comparable Effective Time in the plan of year in which the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents Effective Time occurs for purposes of satisfying all any applicable deductible, coinsurance and maximum out-of-pocket or similar requirements applicable to under any such employees and their covered dependents under Parent Benefit Plans that may apply as of or following the applicable employee benefit plan of Parent or its SubsidiariesEffective Time.
(gc) The Company may establish a retention From and transaction bonus pool (after the “Retention Pool”); providedEffective Time, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under or the Retention Pool shall be allocated prior to Surviving Corporation, as applicable, will, and Parent will cause the Effective Time to employees Company or the Surviving Corporation, as applicable, to, honor, in accordance with their terms, all employment, severance, income continuity and change of control programs, plans or agreements between the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries whoincluding bonuses, incentives, severance payments or deferred compensation in existence on the date hereof; provided, that nothing herein shall be deemed to prohibit the Company or the Surviving Corporation from amending or terminating any such program, plan or agreement in accordance with its terms.
(d) Parent hereby acknowledges that a “change in control” or “change of control” within the meaning of each Stock Plan and Benefit Plan, as applicable, will occur at the Effective Time
(e) Notwithstanding anything to the contrary set forth in this Agreement, is in a course no provision of training covered in part this Agreement shall be deemed to (i) guarantee employment for any period of time for, or in whole by a tuition reimbursement program preclude the ability of the Company or the Surviving Corporation to terminate, any of its Subsidiariesemployee for any reason, such program will be continued throughout such course of training (not ii) require the Company or the Surviving Corporation to exceed two years continue any Benefit Plan or $1,000,000 in prevent the aggregate) (as opposed to the current educational period).
(i) From and amendment, modification or termination thereof after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parentamend any Benefit Plan or any other employee benefit plan, program or arrangement.
(f) No provision of this Agreement shall create any third party beneficiary rights in any employee, any beneficiary or dependents thereof, or any collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and benefits that may be provided to any employee by the Company, Parent or the Surviving Corporation or under any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain any other employee benefit plan which the employment of any particular employeeCompany, Parent or the Surviving Corporation may maintain.
Appears in 1 contract
Employee Benefits. (a) Parent ConocoPhillips agrees that, for a period of one year following from and after the Effective DateTime, the employees of the Company ConocoPhillips and its Subsidiaries will be provided shall assume and honor all Burlington Benefit Plans in accordance with pension and welfare benefits under employee benefit plans that at their terms as in effect immediately before the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect Effective Time, subject to any permitted amendment or termination thereof. Burlington and ConocoPhillips hereby agree that the consummation of the Merger shall constitute a "Change in Control" for purposes of all Burlington Benefit Plans, pursuant to the terms of such plans in effect on the date hereof. No provision of this Section 6.8(a) shall be construed as a limitation on the right of ConocoPhillips to amend or terminate any Burlington Benefit Plan which Burlington would otherwise have under the terms of such Burlington Benefit Plan, and no provision of this Section 6.8(a) shall be construed to create a right in any employee or beneficiary of such employee under a Burlington Benefit Plan that such employee or beneficiary would not otherwise have under the terms of such plan; provided, however, that ConocoPhillips agrees that it will respect deferrals of salary, bonus or long-term cash incentive awards calculated based on 2006 performance, other compensation in place prior to the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of Effective Time pursuant to the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedBurlington Benefit Plans.
(b) Prior For at least 18 months following the Effective Time, ConocoPhillips shall provide, or cause to be provided, to individuals who are employed by Burlington or any of its Subsidiaries immediately prior to the Effective Time (other than any such employees whose terms of employment are governed by a collective bargaining agreement) who remain employed with ConocoPhillips or any Subsidiary of ConocoPhillips (the "Burlington Employees"), for so long as such Burlington Employees remain so employed, compensation (it being understood that discretionary incentive and equity-based awards will remain discretionary) and employee benefits (i) pursuant to Burlington's or Burlington's Subsidiaries' compensation and employee benefit plans, programs, policies and arrangements as provided to such employees immediately prior to the Effective Time or (ii) pursuant to compensation and employee benefit plans, programs, policies or arrangements maintained by ConocoPhillips or any Subsidiary of ConocoPhillips providing coverage and benefits, which, in the aggregate, are no less favorable than those provided pursuant to Burlington's and Burlington's Subsidiaries' plans, programs, policies and arrangements to such employees immediately prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall .
(ic) cause to be amended For all purposes under the employee benefit plans and arrangements of it ConocoPhillips and its Subsidiaries providing benefits to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following any Burlington Employees after the Effective Time unless (the Surviving Corporation "New Plans"), ConocoPhillips will, or will cause its Subsidiaries to, give Burlington Employees full credit with his or her years of service for purposes of eligibility, vesting and benefit accrual (excluding benefit accrual under any defined benefit pension plans) under any employee benefit plans or arrangements maintained by ConocoPhillips or any of its Subsidiaries for such Burlington employee's service with Burlington or any Burlington Subsidiary explicitly authorizes such participation and (ii) cause to the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective same extent recognized by Burlington immediately prior to the Effective Time. In addition, prior and without limiting the generality of the foregoing: (i) each Burlington Employee shall be immediately eligible to the Effective Timeparticipate, without any waiting time, in any and all New Plans to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following coverage under such New Plan replaces coverage under a Burlington Benefit Plan in which such Burlington Employee participated immediately before the Effective Time unless Parent or (such Subsidiary explicitly authorizes such participation.
plans, collectively, the "Old Plans"); and (cii) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries New Plan providing medical, dental, prescription drug, vision, life insurance or disability pharmaceutical and/or vision benefits to any employee of the Company or any of its SubsidiariesBurlington Employee, Parent ConocoPhillips shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions and actively-at-work requirements of its such New Plan to be waived for such employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company his or her covered dependents, and (ii) take into account ConocoPhillips shall cause any eligible expenses incurred by such employees employee and their his or her covered dependents during the portion of the plan year of the Old Plan ending on the date such employee's participation in the corresponding New Plan begins to be taken into account under such New Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees employee and their his or her covered dependents under for the applicable employee benefit plan of Parent or its Subsidiariesyear as if such amounts had been paid in accordance with such New Plan.
(gd) The Company may establish a retention Without limiting the generality of this Section 6.8, ConocoPhillips and transaction bonus pool (Burlington agree to the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements employee matters set forth in Section 6.9(g6.8(d) of the Company Burlington Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld)Schedule.
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for a period of one year following Following the Effective DateTime, the employees of the Company and its Subsidiaries who are employed by Parent or one of its Subsidiaries as of the Effective Time (the “Covered Employees”) and who remain employed with Parent or one of its Subsidiaries during such period will be provided with pension offered participation and welfare benefits coverage under employee benefit plans that at the election of Parent are either (i) substantially similar in the comparable, on an aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writingbasis, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no generally in effect for similarly situated employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition“Parent Benefit Plans”); provided, prior to the Effective Time, to the extent permitted by applicable Law and the terms that for purposes of the applicable plan or arrangement, Parent shall cause to be amended foregoing sentence the employee benefit plans and arrangements of it and its Subsidiaries provided to the extent necessary to provide that no employees of the Company and its Subsidiaries as of immediately prior to the Effective Time shall be deemed to be comparable, on an aggregate basis, to those provided to similarly situated employees of Parent and its Subsidiaries for purposes of this sentence, it being understood that the Covered Employees may commence participation therein participating in the Parent Benefit Plans on different dates following the Effective Time unless with respect to different Parent Benefit Plans. Nothing herein shall limit the right of Parent or any of its Subsidiaries to (i) terminate the employment of any Covered Employee at any time or (ii) amend or terminate any of the Company Benefit Plans or Parent Benefits Plans in accordance with their terms. Notwithstanding the foregoing, if, during the period of one year following the Effective Time, the employment of a Covered Employee is terminated by Parent or any of its Subsidiaries other than for “cause,” subject to the execution, delivery and non-revocation of a general release of claims in favor of Parent, the Company and their respective Subsidiaries, such Subsidiary explicitly authorizes such participationterminated Covered Employee shall be entitled to severance pay as described on Schedule 5.12(a) of the Parent Disclosure Schedule which shall be calculated taking into account the Covered Employee’s past service in accordance with this SECTION 5.12(b).
(cb) The Company agrees To the extent that a Covered Employee becomes eligible to cause each participate in an employee benefit plan maintained by Parent or any of its officers and directors Subsidiaries, other than the Company or its Subsidiaries, Parent shall cause such employee benefit plan to repay any outstanding loans or notes that (i) recognize the service of such officer or director owes to Covered Employee with the Company or its Subsidiaries prior for purposes of eligibility, vesting and benefit accruals under the Parent Benefit Plans, to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of same extent as such service was credited for such purpose by the Company and its Subsidiaries Subsidiaries, provided, however, that such service shall not be recognized (A) for purposes of benefit accruals or Parent levels of benefits under any retirement plan, (B) to the extent that such recognition would result in a duplication of benefits with respect to the same period of service or (C) with respect to newly implemented plans for which prior service is not taken into account, and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests (ii) with respect to any health, dental or vision plan of Parent and or any of its Subsidiaries (including other than the Company and its Subsidiaries) and without regard in which any Covered Employee is eligible to whether participate in the facility plan year that includes the year in which such Covered Employee is a legacy facility of eligible to participate, (x) cause any pre-existing condition limitations under such Parent or a legacy facility of Subsidiary plan to be waived with respect to such Covered Employee to the Company. In addition, following extent such limitation would have been waived or satisfied under the Company Benefit Plan in which such Covered Employee participated immediately prior to the Effective Time, decisions regarding promotions and retention (y) subject to either the Company (through its service providers) on behalf of employees shall be made by all Covered Employees or each Covered Employee providing Parent on a fair and equitable basiswith such Covered Employee’s explanation of benefits with respect to the health, dental or vision plans of the Company in which such Covered Employee participates, in light a form and manner that Parent reasonably determines is administratively feasible to take into account under its plans, recognize any medical or other health expenses incurred by such Covered Employee in the year that includes the Closing Date for purposes of the circumstances any applicable deductible and the objectives to be achievedannual out-of-pocket expense requirements under any such health, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company dental or any vision plan of its Subsidiaries or Parent or any of its Subsidiaries.
(ec) Nothing contained herein is intended to provide, or shall be construed or interpreted as providing, any Covered Employee any right to continued employment or restrict Parent agrees that from amending or terminating any employee of benefit plan, program or policy of, or any agreement with, Parent, the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits or any of their respective Subsidiaries, in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent terms thereof. This Agreement is not intended, and it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiariesnot be construed, to the same extent that such service was credited under a comparable plan create third party beneficiary rights for any current or former employees of the Company or its Subsidiaries (including any beneficiaries or dependents thereof) under or with respect to any plan, program, or arrangement described in or contemplated by this Agreement.
(d) No provision of this SECTION 5.12 shall create any third party beneficiary rights in any current or former employee (including any beneficiary or dependent thereof) of the Company or any of its Subsidiaries, provided, that no credit . Nothing contained herein shall be given under frozen benefit plans. For purposes prevent Parent from terminating the employment of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions Subsidiaries or amending the terms of its employee benefit plans with respect to such employees and their dependents or terminating any Plan or Employment Agreement to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated permitted by the Chief Executive Officer terms of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part plan or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employee.agreement..
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the that all employees of the Company and or its Subsidiaries who continue employment with Parent, the Surviving Corporation or any Subsidiary of the Surviving Corporation after the Effective Time (“Continuing Employees”) will be provided with pension and welfare benefits under eligible to participate in either, at the sole discretion of Parent: (i) Parent’s employee benefit plans that at and programs, including any equity incentive plan, pension plan, defined benefit plan, defined contribution plan, Section 401(k) plan, bonus plan, profit sharing plan, severance plan, medical plan, dental plan, life insurance plan, time-off programs and disability plan, in each case to the election same extent as similarly situated employees of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees Parent; or (ii) substantially similar in such Company Employee Plans as are continued by the aggregate to those provided Company or any of its Subsidiaries following the Closing Date, or are assumed by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance(for the purposes of this Section 5.4 only, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising plans referred to in clauses “(i)” and “(ii)” of this sentence being referred to as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed“Specified Parent Benefit Plans”).
(b) Prior to the Effective Time, if requested by Parent in writingEach Continuing Employee shall, to the extent permitted by applicable Law and Legal Requirements, receive full credit for the terms years of the applicable plan or arrangement, continuous service by such Continuing Employee recognized by the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and or its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective TimeTime for purposes of (i) satisfying the service requirements for participation in each Specified Parent Benefit Plan, (ii) vesting in any benefits under such plans, and (iii) calculating the level of benefits with respect to severance, vacation, personal days off and any other welfare-type benefits where service is a factor in calculating benefits, except where such credit would result in a duplication of benefits. In additionWith respect to any welfare benefit plans maintained by Parent for the benefit of Continuing Employees located in the United States, prior subject to the Effective Timeany applicable plan provisions, contractual requirements or Legal Requirements, Parent shall (to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes limitation would not apply with respect to substantially similar plans maintained by the Company or its Subsidiaries prior to the Effective Time), (A) cause to be waived any eligibility requirements or pre-existing condition limitations, and (B) give effect, in determining any deductible maximum out of pocket limitations, to amounts paid by such Continuing Employees during the plan year in which the Effective Time occurs.
(c) If requested by Parent at least five business days prior to the Closing Date, the Company shall take (or cause to be taken) all actions reasonably necessary pursuant to resolutions of the Company’s board of directors necessary or appropriate to terminate, effective no later than the day prior to the date on which the Merger becomes effective, any Company Employee Plan that contains a cash or deferred arrangement intended to qualify under Section 401(k) of the Code (a “Company 401(k) Plan”). If the Company is required to terminate any Company 401(k) Plan, then the Company shall provide to Parent prior to the Closing Date written evidence of the adoption by the Company’s board of directors of resolutions authorizing the termination of such Company 401(k) Plan (the form and substance of which resolutions shall be subject to the prior review and approval of Parent, which approval shall not be unreasonably withheld or delayed).
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, Nothing in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment limit or restrict the right of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates respective Subsidiaries to modify, amend, terminate, or establish employee benefit plans or arrangements, in whole or in part, at any time after the Effective Time, except to the extent any such actions would adversely effect the Continuing Employees as compared to the employees of Parent and its Subsidiaries (x) maintain any particular Benefit Plan or (y) retain other than the employment of any particular employeeSurviving Corporation).
Appears in 1 contract
Samples: Merger Agreement (Connetics Corp)
Employee Benefits. (a) Parent agrees that, for a period Until the first anniversary of one year following the Effective Date, the employees Time (or an earlier termination of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either relevant employee’s employment), (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result each employee of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries who continues to be employed by the Surviving Corporation or any of its Subsidiaries following the Effective Time (a “Continuing Employee”) will be provided an annual base salary or wage rate and annual cash bonus opportunity that are, in each case, no less favorable than the annual base salary or wage rate and annual cash bonus opportunity provided to such Continuing Employee as of immediately prior to the Effective Time, (ii) Continuing Employees will be provided long-term cash and equity-based incentive compensation opportunities (excluding the Company ESPP) that are substantially comparable to the long-term cash and equity-based incentive compensation opportunities provided to similarly situated Parent employees based on levels of responsibility and seniority as determined by Parent and (iii) Continuing Employees will be provided employee benefits that are no less favorable in the aggregate than the employee benefits (excluding equity compensation, change in control, transaction or retention payments, defined benefit, nonqualified deferred compensation, severance benefits, post-retirement or retiree medical benefits (the “Excluded Benefits”)) that (A) are in effect immediately prior to the Effective Time or (B) that are substantially comparable in the aggregate to the employee benefits provided to similarly situated Parent employees based on levels of responsibility and seniority (excluding the Excluded Benefits). Nothing herein is intended to result in a duplication of benefits.
(b) Parent shall provide, or shall cause its Affiliates to provide, each Continuing Employee who experiences a termination of employment from Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause their respective Affiliates during the 18 months twenty-four (24)-month period following the Effective Time shall receive with the severance payments and benefits in accordance with under the applicable severance plans set forth on Section 6.9(e6.8(b) of the Company Disclosure Letter.
(fc) Except to To the maximum extent it would result permitted in a duplication of benefits, Parent shall cause any employee accordance with applicable benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medicalAffiliates (other than with respect to Excluded Benefits), dental, prescription drug, vision, life insurance or disability benefits to each Continuing Employee who participates in any employee such plan will receive service credit for all periods of employment with the Company or any of its Subsidiaries, Parent shall cause its employee as applicable, prior to the Effective Time for purposes of vesting and eligibility under Parent’s or any of Affiliate’s vacation program and any health and welfare plan (other than any severance benefit plans plan), in each case, in accordance with the terms of such plans, to the same extent and for the same purposes thereunder as such service was recognized under an analogous Benefit Plan in effect on the date of this Agreement; provided, that the foregoing will not apply (i) waive all to the extent that its application would result in a duplication of benefits with respect to the same period of service or (ii) for purposes of (x) any “retirement savings contribution” under any Parent employee plan providing 401(k) plan benefits (y) any retiree medical plan or defined benefit plan or (z) any benefit plan, program or policy of Parent or the Surviving Corporation that is a frozen plan or that provides benefits to a grandfathered employee population, either with respect to level of benefits or participation; provided, further, that the Corporation has made available to Parent such information as is reasonably requested by Parent to satisfy its obligations under this Section 6.8(c). If, on or after the Effective Time, any Continuing Employee becomes covered by any benefit plan providing medical, dental, health, pharmaceutical or vision benefits (a “Successor Plan”), other than the plan in which he or she participated immediately prior to the Effective Time (a “Prior Plan”), Parent will use commercially reasonable efforts to (1) cause any restrictions or limitations with respect to pre-existing condition exclusions of its employee benefit plans with respect and actively-at-work requirements to be waived for such employees Continuing Employee and their his or her eligible dependents (except to the same extent such exclusions or requirements were waived applicable under a comparable plan of the Company corresponding Prior Plan), and (ii2) permit such Continuing Employee to take into account any eligible expenses incurred by such employees employee and their his or her covered dependents during the plan year in which the employee elects to be covered by the Successor Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their employee and/or his or her covered dependents under for that year, to the extent that such expenses were incurred during the applicable period in which such employee benefit plan of Parent or its Subsidiariescovered dependent was covered by a corresponding Prior Plan.
(gd) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing provisions contained in this Section 6.9 6.8 are included for the sole benefit of the parties hereto, and nothing in this Section 6.8, whether express or this Agreement shall (i) be treated as an amendment of implied, will create any particular third-party beneficiary or other rights in any other person, including, without limitation, any current or former employee, director, officer, other service provider, any participant in any Benefit PlanPlan or other benefit plan or arrangement, (ii) give or any third party dependent or beneficiary thereof, or any right to enforce continued employment or service, or any term or condition of employment with the provisions of this Section 6.9 or (iii) obligate Company, any Company Subsidiary, Parent, the Surviving Corporation or any of their Affiliates to (x) maintain respective Affiliates. Nothing contained herein, whether express or implied, will be treated as the establishment of, amendment to, waiver or other modification of any particular Benefit Plan or (y) retain other employee benefit plan, program, policy, agreement, or arrangement, or will limit the employment right of the Company, any particular employeeCompany Subsidiary, Parent, the Surviving Corporation or any of their respective Affiliates to amend, terminate or otherwise modify any Benefit Plan or other employee benefit plan, program, policy, agreement, or arrangement in accordance with its terms.
Appears in 1 contract
Employee Benefits. (a) Parent agrees that, for a period of one year following the Effective Date, the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective Time. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any employee benefit plans (including vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees that, with respect to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Company Benefit Plans in effect as of the date of this Agreement shall remain in effect with respect to employees of the Company (or its Subsidiaries), covered by such plans at the Effective Time until such time as Parent shall, subject to applicable Law, the terms of this Agreement and the terms of such plans, either transfer employees and former employees of the Company and its Subsidiaries (“Transferred Employees”) to existing benefit plans of the Parent or Merger Sub or adopt new benefit plans with respect to such Transferred Employees (the “Transferred Employee Plans”). Prior to the Effective Time, Parent and the Company shall cooperate in reviewing, evaluating and analyzing Company Benefit Plans with a view towards determining appropriate Transferred Employee Plans. Parent will, and will cause any nonqualified deferred compensation plans covering any its Subsidiaries to, with respect to all Transferred Employee Plans, (i) provide each employee of the Company or its Subsidiaries with service or other credit for all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to employees of the Company or any of its Subsidiaries under any Transferred Employee Plan that is a welfare plan that such employees may be eligible to be drafted and administered participate in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause to the Surviving Corporation and extent that such employee would receive credit for such conditions under the corresponding welfare plan in which any such employee participated immediately prior to the Effective Time, (ii) provide each employee of the Company or its Subsidiaries with credit for any co-payments and deductibles paid in satisfying any applicable deductible or out-of-pocket requirements under any Transferred Employee Plan that is a welfare plan that such employees are eligible to make charitable contributions participate in after the communities Effective Time, to the extent that such employee would have received credit for such co-payment or deductible under the corresponding Company welfare plan in which the applicable employee participated immediately prior to the Effective Time, (iii) provide each employee with credit for all service for purposes of eligibility, vesting and its Subsidiaries serve, in such amounts benefit accruals (but not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent for benefit accruals under any defined benefit pension plan) with the past practices of the Company and its Subsidiaries, under each employee benefit plan, program, or arrangement of Parent or its Subsidiaries in which such employees are eligible to participate after the Effective Time, and (iv) provide benefits under medical, dental, vision and similar health and welfare plans that are in the aggregate no less favorable than those provided to similarly situated employees of Parent and its Subsidiaries; provided, however, that in no event shall the employees be entitled to any credit to the extent that it would result in a duplication of benefits with respect to the same period of service. Notwithstanding anything to the contrary in this Section 6.05, Parent shall have no obligation to provide any credit for service, co-payments, deductibles paid, or for any purpose, unless and until Parent has received such supporting documentation as Parent may reasonably deem to be necessary in order to verify the appropriate credit to be provided.
(kb) Nothing contained in this If requested by Parent at least seven (7) days prior to the Effective Time, the Company shall terminate any and all Company Benefit Plans intended to qualify under Section 6.9 or this Agreement shall (i401(k) of the Code, effective not later than the last Business Day immediately preceding the Effective Time. In the event that Parent requests that such 401(k) plan(s) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parentterminated, the Surviving Corporation or any Company shall provide Parent with evidence that such 401(k) plan(s) have been terminated pursuant to resolution of their Affiliates the Company Board (the form and substance of which shall be subject to (xreview and approval by Parent) maintain any particular Benefit Plan or (ynot later than the day immediately preceding the Effective Time. Regardless of whether such 401(k) retain plans are terminated, as of the employment of any particular employeelast Business Day prior to the Effective Time, all account balances in such plans shall become fully vested and non-forfeitable.
Appears in 1 contract
Samples: Merger Agreement (Allergan Inc)
Employee Benefits. (ai) Parent agrees that, for a period of one year as promptly as reasonably practicable following the Effective DateTime, Parent shall arrange for the employees of the Company and its Subsidiaries will be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar to participate in the aggregate to those currently provided by the Company and its Subsidiaries to such employees or (ii) substantially similar in the aggregate to those provided by Parent and its Subsidiaries to its similarly situated employees. With respect to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposed.
(b) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans of Parent, including but not limited to Parent Compensation and arrangements Benefit Plans, on substantially the same terms and conditions of it and its Subsidiaries to the extent necessary to provide that no similarly situated employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly 401(k) Plan to be terminated effective immediately prior to the Effective TimeParent. In addition, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangementinterim, Parent shall cause to be amended not reduce the employee benefit plans and arrangements aggregate level of it and its Subsidiaries benefits provided to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following under the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
Compensation and Benefit Plans (c) The Company agrees other than Stock Plans pursuant to cause each of its officers and directors to repay any outstanding loans or notes that such officer or director owes to the Company or its Subsidiaries prior to the Effective Time.
(d) Parent agrees that, following the Effective Time, decisions regarding utilization of facilities of the Company and its Subsidiaries or Parent and its Subsidiaries shall which no new awards will be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries (including the Company and its Subsidiaries) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Companygranted). In addition, following the Effective Time, decisions regarding promotions and retention of employees shall be made by Parent on a fair and equitable basis, in light of the circumstances and the objectives to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except to the extent affecting relevant experience) to whether employment prior to the Effective Time was with the Company or any of its Subsidiaries or Parent or any of its Subsidiaries.
(e) Parent agrees that any employee of the Company and its Subsidiaries who is terminated without cause during the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of the Company Disclosure Letter.
(f) Except to the extent it would result in a duplication of benefits, Parent shall cause any its employee benefit plans (including but not limited to vacation, severance and disability plans) covering employees of the Company and its Subsidiaries to take into account for purposes of eligibility, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with of the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plansCompany. For purposes of each Parent employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (ia) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (iib) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent. Parent shall, and shall cause the Surviving Corporation to, honor all employee benefit obligations to current and former employees under the Compensation and Benefit Plans and, to the extent set forth in the Company Disclosure Schedule, all employee severance plans (or its Subsidiariespolicies) in existence on the date hereof and set forth in the Company Disclosure Schedule and all employment or severance agreements entered into by the Company or adopted by the Board of Directors of the Company prior to the date hereof.
(gii) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); providedagrees that, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees Time, neither the Company, the Board of Directors of the Company nor any committee thereof will (x) take any action or omit to take any action which would cause a “Material Change” to occur under the terms of any applicable Compensation and its Subsidiaries designated by Benefit Plan or (y) deposit any cash, marketable securities or other property or funds into the Chief Executive Officer Company’s Benefit Trust dated December 8, 1995, as thereafter amended.
(iii) The Company, the Board of Directors of the Company or any duly authorized committee thereof may implement a retention plan for the benefit of those classes of key employees identified, including reasonably numerous classes and the minimum numbers of participants in accordance with the guidelines set forth in Section 6.9(g) of each such class, by the Company Disclosure Letter to Parent which classes and subject to the approval allocation of benefit among classes are approved in writing by Parent (such approval not to be unreasonably withheld).
withheld or delayed) after the date hereof; provided, that the implementation of such a retention plan shall not have an aggregate cost in excess of $3,000,000, $1,500,000 of which shall be payable on the Closing Date and $1,500,000 of which shall be payable on the date that is six months after the Closing Date (h) Parent agrees thator if earlier, upon termination, with respect to any employee of who is terminated by the Company and its Subsidiaries who, at after the Effective Time, is in a course of training covered in part or in whole by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational periodClosing).
(iiv) From and after Prior to the Effective Time, Parent and the Company shall take such actions as are necessary to cause the right of any nonqualified nonemployee director to receive a deferred compensation Share pursuant to the Company’s Director Retainer Fee Plan or any employee to receive a deferred Share pursuant to the Company’s Executive Incentive Plan, as such plans covering any employees have been or are to be amended in accordance with this Agreement (the “Share Deferral Plans”), to be converted as of the Company Effective Time into either a right to receive from Parent the Per Share Cash Consideration or any a right to receive from Parent the Per Share Stock Consideration, as elected by such nonemployee director or employee in the same manner as that set forth in Section 4.1 of its Subsidiaries this Agreement with respect to be drafted an issued and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after outstanding Share held by such nonemployee director or employee immediately prior to the Effective Time. The payment of cash or shares of Parent Common Stock pursuant to this Section 6.11(c)(iv) shall be made at the same time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities same manner, as provided under the terms of the applicable Share Deferral Plan; provided, however, that a right to receive a cash payment shall be credited with interest from the Company and its Subsidiaries serveEffective Time until such payment, in such amounts (not to exceed $1.5 million in the aggregate)compounded quarterly, at such times and in such manner the rate equivalent to the average Moody’s Long-Term Corporate Bond Yield for the preceding calendar quarter as are generally consistent with determined from the past practices of the Company and its Subsidiaries.
Mxxxx’x Investor Service, Inc. (k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain any particular Benefit Plan or (y) retain the employment of any particular employeesuccessor thereto).
Appears in 1 contract
Employee Benefits. (a) Parent agrees thatthat the Continuing Employees shall, for a during the period of one year following commencing at the Effective Date, the employees Time and ending on December 31 of the Company and its Subsidiaries will year in which the Closing occurs, be provided with pension and welfare benefits under employee benefit plans that at the election of Parent are either (i) substantially similar in the aggregate base salary or base wage and target annual cash bonus opportunities that are at least equal to those currently provided by the Company and its Subsidiaries to such employees or immediately prior to the Effective Time, and (ii) retirement and welfare benefits (excluding equity and long-term incentive compensation) that are substantially similar comparable in the aggregate to those provided by Parent the Company and its Subsidiaries to its similarly situated employees. With respect such employees immediately prior to any bonus or long-term cash incentive awards calculated based on 2006 performance, the Company’s performance for calendar year 2006 shall be calculated without taking into account any reasonable expenses or costs associated with or arising as a result of the transactions contemplated by this Agreement or any nonrecurring charges that would not reasonably be expected to have been incurred had the transactions contemplated by the Agreement not been proposedEffective Time.
(b) Parent shall (i) use commercially reasonable efforts to cause any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Parent or its Affiliates to be waived with respect to the Continuing Employees and their eligible dependents, except to the extent such pre-existing conditions or limitations and eligibility waiting periods would not have been satisfied or waived under the comparable Company Benefit Plan immediately prior to the Effective Time, (ii) use commercially reasonable efforts to give each Continuing Employee credit for the plan year in which the Effective Time occurs towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred prior to the Effective Time for which payment has been made and (iii) give each Continuing Employee service credit for such Continuing Employee’s employment with the Company and its Subsidiaries for purposes of vesting, benefit accrual and eligibility to participate under each applicable benefit plan of Parent or any of its Affiliates, as if such service had been performed with Parent, except for benefit accrual under defined benefit pension plans, for purposes of qualifying for subsidized early retirement benefits, to the extent it would result in a duplication of benefits or to the extent that such service was not recognized under the comparable Company Benefit Plan immediately prior to the Effective Time.
(c) Prior to the Effective Time, if requested by Parent in writing, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, the Company shall (i) cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of Parent and its Subsidiaries shall commence participation therein following the Effective Time unless the Surviving Corporation or such Subsidiary explicitly authorizes such participation and (ii) cause the Xxxxx Corporation Incentive Savings Plan and the Xxxxx Hourly Company 401(k) Plan Plans to be terminated effective immediately prior to the Effective Time. In additionthe event that Parent requests that the Company 401(k) Plans be terminated under this Section 6.08(c), the Company shall, prior to the Effective Time, to the extent permitted by applicable Law and the terms of the applicable plan or arrangement, provide Parent shall cause to be amended the employee benefit plans and arrangements of it and its Subsidiaries to the extent necessary to provide that no employees of the Company and its Subsidiaries shall commence participation therein following the Effective Time unless Parent or such Subsidiary explicitly authorizes such participation.
(c) The Company agrees to cause each of its officers and directors to repay any outstanding loans or notes with evidence that such officer Plan has been terminated (the form and substance of which shall be subject to review and approval by Parent, which approval shall not be unreasonably conditioned, withheld or director owes to the Company or its Subsidiaries prior to the Effective Timedelayed).
(d) Parent agrees thatshall, and shall cause its Affiliates to, have in effect a defined contribution plan that includes a qualified cash or deferred arrangement within the meaning of Section 401(k) of the Code (“Parent’s 401(k) Plan”) and Parent and the Company shall cooperate in good faith for the purpose of providing benefits under Parent’s 401(k) Plan as soon as administratively practicable following the Effective Time, decisions regarding utilization of facilities Closing Date to the employees participating in the Company 401(k) Plans as of the Closing Date. If the Parent requests that the Company and its Subsidiaries 401(k) Plans be terminated pursuant to Section 6.08(c), then Parent shall permit each Continuing Employee to make rollover contributions of “eligible rollover distributions” (within the meaning of Section 401(a)(31) of the Code) of his or Parent and its Subsidiaries shall be made by Parent on a basis that reflects the best long-term business interests of Parent and its Subsidiaries her account balances (including earnings thereon through the date of transfer and promissory notes evidencing all outstanding loans) under the Company 401(k) Plans if such rollover to Parent’s 401(k) Plan is elected in accordance with applicable law by such Continuing Employee, subject to Parent’s reasonable satisfaction that the Company 401(k) Plans is in compliance with all applicable Laws and its Subsidiariesthat such plan continues to satisfy the requirements for a qualified plan under Section 401(a) and without regard to whether the facility is a legacy facility of Parent or a legacy facility of the Company. In addition, following Code and that the Effective Time, decisions regarding promotions and retention trust that forms a part of employees shall be made by Parent on a fair and equitable basis, in light such plan is exempt from tax under Section 5.01(a) of the circumstances and the objectives Code.
(e) Prior to be achieved, giving consideration to previous work history, job experience, qualifications and business needs without regard (except making any written or oral communications to the extent affecting relevant experience) to whether employment prior to the Effective Time was with directors, officers or employees of the Company or any of its Subsidiaries pertaining to compensation or benefit matters that are affected by the transactions contemplated by this Agreement, the Company shall provide Parent or any of its Subsidiaries.
(e) Parent agrees that any employee with a copy of the Company intended communication, Parent shall have a reasonable period of time to review and its Subsidiaries who is terminated without cause during comment on the 18 months following the Effective Time shall receive severance benefits in accordance with Section 6.9(e) of communication, and the Company Disclosure Lettershall consider any such comments in good faith.
(f) Except Nothing set forth in this Agreement is intended to (i) be treated as an amendment of any particular Company Benefit Plan, (ii) prevent Parent, the extent it would result in a duplication Surviving Corporation or any of benefits, Parent shall cause their Affiliates from amending or terminating any employee of their benefit plans or, after the Effective Time, any Company Benefit Plan in accordance with their terms, (including vacationiii) prevent Parent, severance and disability plansthe Surviving Corporation or any of their Affiliates, after the Effective Time, from terminating the employment of any Continuing Employee, or (iv) covering employees without limiting the generality of the Company and its Subsidiaries to take into account for purposes of eligibilitySection 9.08, benefits (excluding accruals under a defined benefit plan) and vesting thereunder service by such employees with the Company and its Subsidiaries as if such service were with Parent or its Subsidiaries, to the same extent that such service was credited under a comparable plan of the Company or its Subsidiaries, provided, that no credit shall be given under frozen benefit plans. For purposes of each employee benefit plan of Parent or its Subsidiaries providing medical, dental, prescription drug, vision, life insurance or disability benefits to create any third-party beneficiary rights in any employee of the Company or any of its Subsidiaries, Parent shall cause its employee benefit plans to (i) waive all pre-existing condition exclusions of its employee benefit plans with respect to such employees and their dependents to the same extent such exclusions were waived under a comparable plan of the Company and (ii) take into account any eligible expenses incurred by such employees and their dependents for purposes of satisfying all deductiblebeneficiary or dependent thereof, coinsurance and maximum out-of-pocket requirements applicable to such employees and their covered dependents under the applicable employee benefit plan of Parent or its Subsidiaries.
(g) The Company may establish a retention and transaction bonus pool (the “Retention Pool”); provided, that (i) the aggregate amount of bonuses paid pursuant to such Retention Pool shall not exceed $3,000,000 and (ii) the Retention Pool complies with the requirements set forth in Section 6.9(g) of the Company Disclosure Letter. Amounts awarded under the Retention Pool shall be allocated prior to the Effective Time to employees of the Company and its Subsidiaries designated by the Chief Executive Officer of the Company in accordance with the guidelines set forth in Section 6.9(g) of the Company Disclosure Letter and subject to the approval of Parent (such approval not to be unreasonably withheld).
(h) Parent agrees thatany collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any employee of the Company and its Subsidiaries who, at the Effective Time, is in a course of training covered in part or in whole Continuing Employee by a tuition reimbursement program of the Company or any of its Subsidiaries, such program will be continued throughout such course of training (not to exceed two years or $1,000,000 in the aggregate) (as opposed to the current educational period).
(i) From and after the Effective Time, Parent shall cause any nonqualified deferred compensation plans covering any employees of the Company or any of its Subsidiaries to be drafted and administered in a manner that complies with Section 409A of the Code.
(j) For a period of three years after the Effective Time, Parent shall cause the Surviving Corporation and its Subsidiaries to make charitable contributions in the communities that the Company and its Subsidiaries serve, in such amounts (not to exceed $1.5 million in the aggregate), at such times and in such manner as are generally consistent with the past practices of the Company and its Subsidiaries.
(k) Nothing contained in this Section 6.9 or this Agreement shall (i) be treated as an amendment of any particular Benefit Plan, (ii) give any third party any right to enforce the provisions of this Section 6.9 or (iii) obligate Parent, the Surviving Corporation or any of their Affiliates to (x) maintain or under any particular Benefit Plan benefit plan which Parent, the Surviving Corporation or (y) retain the employment any of any particular employeetheir Affiliates may maintain.
Appears in 1 contract