Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6 (a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6 (a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6 (a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6 (a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.” (b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation. (c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose. (d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims. (e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (CMS Energy Corp), Purchase and Sale Agreement (Consumers Energy Co)
Employee Matters. (a) Not less than thirty Except as specifically provided in this Section 5.14: (30i) Purchaser shall not adopt, become a sponsoring employer of, or have any liabilities or obligations under or with respect to the Employee Plans, and Seller shall be solely responsible for any and all such liabilities and obligations that have been incurred or may be incurred; (ii) Seller shall be solely responsible for any and all liabilities under any Employee Plan arising out of the employment of Specified Business Days Employees who do not become Transferring Employees (as defined below), whether such liabilities arise before, on or after the Closing Date; and (iii) Seller shall be solely responsible for any and all liabilities incurred prior to the Closing Date under any Employee Plan arising out of or relating to the employment of any Transferring Employee.
(b) Notwithstanding the foregoing and subject to Seller’s obligations under the Transition Services Agreement, Purchaser will have no obligation to continue the employment of any Specified Business Employee, and Purchaser may, in its sole discretion, extend offers of employment to up to 18 of the Specified Business Employees at any time prior to the Closing Date (and such Specified Business Employees who are hired by Purchaser are referred to as the “Transferring Employees”). Such offer by Purchaser to each such Specified Business Employee will contain (i) [*]. Seller: (1) shall cooperate with and use its [*] to assist Purchaser in its efforts to secure satisfactory employment arrangements with those Specified Business Employees of Seller to whom Purchaser makes offers of employment, (2) shall terminate the employment of the Transferring Employees, effective as of the date of such Transferring Employee’s start date of employment with Purchaser and (3) shall not, in any event, provide any Specified Business Employees to whom Purchaser extends offers of employment pursuant to this Section 5.14(b) with severance or other compensation in connection with such Specified Business Employees’ separation from employment with Seller (excluding, for the avoidance of doubt, any severance, compensation, or other benefits legally required to be paid). Subject to the foregoing, with respect to Transferring Employees only, Purchaser will be solely responsible for all wages, salaries, any bonuses or incentive compensation, employment taxes, withholding taxes, and any and all vacation days, sick days, paid time off, and personal days and any other employment benefits, if applicable, accruing after the Closing Date by virtue of such Transferred Employee’s employment by Purchaser.
(c) Seller shall comply with the requirements of the WARN Act or any similar state, provincial or local law with respect to any “plant closing” or “mass layoff,” as those terms are defined in the WARN Act or such other applicable law, which may result from Seller’s termination of the employment of any of its employees in connection with the transactions contemplated hereby through the Closing Date.
(d) Following the Closing Date, Buyer may offer employmentPurchaser shall, commencing pursuant to plans and arrangements established or maintained by Purchaser and/or its Affiliates (the “Purchaser Welfare Plans”), provide the Transferring Employees with health and welfare benefits [*]. Purchaser and its Affiliates shall, to the extent permitted by the applicable contract, use its best efforts to [*]
(e) For purposes of determining eligibility to participate, vesting and determination of the level of benefits (but not accrual or entitlement to benefits other than severance benefit accrual where length of service is relevant) for Transferring Employees under all employee benefit plans and arrangements of Purchaser, Purchaser shall [*]
(f) Effective as of the Closing Date, Purchaser shall establish or designate a defined contribution retirement plan eligible for qualification under Section 401(a) of the Code (the “Purchaser 401(k) Plan”). Each Transferring Employee who satisfies the eligibility requirements of the Purchaser 401(k) Plan shall become eligible to participate in the Purchaser 401(k) Plan [*]. To the extent permitted by the Purchaser 401(k) Plan, Purchaser shall use reasonable best efforts [*]. Seller shall continue to administer the Seller 401(k) Plan with respect to employees and former employees of Seller other than the Transferring Employees, and shall take all appropriate actions to make distributions under the Seller 401(k) Plan to such individuals identified on Section 5.6(a) in accordance with the terms of the Seller Disclosure Letter (401(k) Plan and the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller applicable provisions of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationCode.
(cg) Following the Closing for a period of one (1) yearNothing contained in this Agreement shall create any third party beneficiary rights in any Transferring Employee, none of Buyer, Generation any beneficiary or their Affiliates shall directly or indirectly solicit the employment or services ofdependents thereof, or hire in any capacity (whether as an employeecollective bargaining representative thereof, consultantwith respect to the compensation, independent contractor terms and conditions of employment and benefits that may be provided to any Transferring Employee by Purchaser or otherwise) under any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which benefit plan that Purchaser may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposemaintain.
(dh) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller Nothing contained in this regard specifically includes Agreement shall confer upon any Claim Transferring Employee any right with respect to continued employment by Purchaser, nor shall anything herein interfere with the right of Purchaser to terminate the employment of any Transferring Employee at any time, with or without cause, following the effective date of his or her employment with Purchaser, or restrict Purchaser in the exercise of its independent business judgment in modifying any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue terms and conditions of prior notification (or lack thereof) the employment of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsTransferring Employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Mirum Pharmaceuticals, Inc.), Asset Purchase Agreement (Travere Therapeutics, Inc.)
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After Following the date hereof and prior to the Closing Date, Seller Regency shall, or shall provide Buyer with accesscause the Acquired Companies or another Affiliate of Regency to offer to employ as a direct employee of Regency, during reasonable business hours the Acquired Companies or another Affiliate of Regency each employee of Contributor (i) who is assigned to, and upon reasonable noticedevotes substantially all of his or her time to, providing services to the Acquired Companies, each of whom shall be identified by Contributor in a list to be provided to Regency within thirty (30) days after the Execution Date (collectively, the “Dedicated Employees”), which list shall include the name, title, business location and annual compensation of each Dedicated Employee, (ii) who devotes some, but less than substantially all, of his or her time to providing services to the Acquired Companies, each of whom Contributor and Regency shall identify by mutual agreement prior to the Closing Date (collectively, the “Shared Employees”), and (iii) who, without regard to whether he or she is a Dedicated Employee or a Shared Employee, is listed in Schedule 5.6
5.18(a)(iii) of the Contributor Disclosure Schedule (a) collectively, the “Listed Employees”, and together with the Dedicated Employees and Shared Employees, the “Offered Employees”). Such offers shall be for employment with substantially the same title and Buyer agrees that it shall use its best efforts to conduct its hiring processposition, during reasonable business hours and upon reasonable notice, in with (i) a manner that causes minimum disruption base pay or salary rate at least equal to the operations base pay or salary rate as in effect with respect to each such Offered Employee immediately prior to the Closing Date and (ii) bonus opportunities and employee benefits no less favorable in the aggregate than the bonus opportunities and employee benefits offered or provided to similarly situated employees of SellerRegency and its Affiliates. Each Both the offers from Regency or its Affiliates and any acceptances thereof by the Offered Employees shall be contingent upon the consummation of the Schedule 5.6
(a) Employees who commences employment with Buyer transaction contemplated in this Agreement and effective as of (or who is on approved leave of absence on) upon the Closing Date, together with the continuing employees . Offered Employees who accept such offers of the Material Subsidiaries, shall be employment from Regency or its Affiliates are referred to herein as “Transferred Employees,.” and each Schedule 5.6
Such employment of Transferred Employees as direct employees of Regency, the Acquired Companies or another Affiliate of Regency (aas applicable) Employee who is not a Transferred Employee shall be referred to herein commence effective as a “Non-Hired Employeeof the Closing Date.”
(b) Following the Closing for For a period of one at least 12 months following the Closing Date, Regency shall, or shall cause the Acquired Companies or another Affiliate of Regency to, provide each Transferred Employee with (1i) yeara base pay or salary rate at least equal to the base pay or salary rate as in effect with respect to such Transferred Employee immediately prior to the Closing Date and (ii) bonus opportunities and employee benefits no less favorable in the aggregate than the bonus opportunities and employee benefits offered or provided to similarly situated employees of Regency and its Affiliates. The Transferred Employees shall receive credit for all periods of employment and/or service with Contributor and its Affiliates prior to the Closing Date for purposes of eligibility, none vesting and benefit accrual under all plans, programs and arrangements made available to such Transferred Employees, except for purposes of Buyerbenefit accruals under defined benefit pension plans unless required by Applicable Law. For the calendar year in which the Closing Date occurs, Generation or their each Transferred Employee will accrue an amount of vacation time equal to that which a similarly situated employee of Regency and its Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion with tenure that includes all of such severance compensationTransferred Employee’s periods of employment and/or service with Contributor and its Affiliates prior to the Closing Date) would accrue under the policies of Regency and its Affiliates.
(c) Following Regency shall be responsible for all continuation coverage under Section 601 et seq. of ERISA (“COBRA Obligations”) and any state continuation coverage requirements accrued after the Closing Date with respect to the Transferred Employees and their beneficiaries, provided such Transferred Employees enroll in a group health plan sponsored by Regency or one of its Affiliates. Contributor agrees that it shall retain responsibility for COBRA Obligations to all employees and their beneficiaries who are not Transferred Employees for whom a period of one (1) year, none of Buyer, Generation “qualifying event” under COBRA occurs or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposehas occurred.
(d) BuyerRegency shall not assume or otherwise be responsible for any liability, Generation claim, loss, severance, bonus or benefit accrued or owed under any Company Benefit Plan or otherwise with respect to any employee that (1) does not become a Transferred Employee, irrespective of the date of accrual of such liability, or (2) becomes a Transferred Employee, only to the extent such liability, claim, loss, severance, bonus or benefit has accrued on or prior to the Closing Date. Contributor and the Subsidiaries of Generation not Regency shall be responsible for all Liabilities and obligations any severance payments that become due under any Company Benefit Plan of Contributor or its Affiliates to an employee whose employment with Contributor or its Affiliates is terminated in conjunction with the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller transaction contemplated in this regard specifically includes any Claim by any Agreement either because (1) the employee is not an Offered Employee and, as such, does not receive an offer of employment from Regency the Transferred Employees for back payAcquired Companies or another Affiliate of Regency or (2) the Offered Employee receives an offer of employment from Regency, front paythe Acquired Companies or another Affiliate of Regency, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any but elects not to accept such Claimsoffer.
(e) Buyer and Seller In the event that any Transferred Employee is required to forfeit equity in Contributor or one of Contributor’s Affiliates in order to accept an offer of employment from Regency, Regency shall cooperate as reasonably necessary use commercially reasonable best efforts to implement the provisions ensure that such Transferred Employee(s), receives equity in Regency or one of its Affiliates of substantially equal value.
(f) Nothing herein express or implied by this Agreement shall (i) confer upon any employee, including but not limited to any Offered Employee or Transferred Employee, or legal representative thereof, any rights or remedies, including any right to employment or benefits for any specified period, of any nature or kind whatsoever, under or by reason of this Section 5.6 and agree Agreement, or (ii) be deemed to provide each other with such records and information as may be necessary and appropriate to carry out amend any employee benefit plan of Contributor, Regency or any of their respective obligations under this Section 5.6Affiliates.
Appears in 2 contracts
Samples: Contribution Agreement (Energy Transfer Equity, L.P.), Contribution Agreement (Regency Energy Partners LP)
Employee Matters. (a) Not less than thirty Parent shall, and shall cause the Selling Subsidiaries to, request each Manager to contine to employ, and not to give any termination notices under the WARN Act to, any Employees or Governmental Authorities. Buyers shall (30or shall cause each Manager to) Business Days employ a sufficient number of Employees on sufficient terms and conditions to avoid applicability of the WARN Act to the transactions contemplated by this Agreement, and if any notice obligations under the WARN Act arise after the Closing, shall require each Manager to comply with all applicable Employment Laws and Obligations, including, if applicable, any obligations to provide any notice required by the WARN Act. Each Buyer shall indemnify, defend and hold harmless the Parent Indemnified Parties from and against any Losses that may be incurred by, or asserted against, any such Parent Indemnified Party arising out of or relating to any Buyer’s failure to comply with the WARN Act in connection with the transactions contemplated by this Agreement, except to the extent such Losses arise prior to the Closing Date, Buyer may offer employment, commencing (other than as a result of any Buyer’s failure to employ a sufficient number of Employees on sufficient terms and conditions to avoid applicability of the WARN Act to the transactions contemplated by this Agreement). Parent shall indemnify, defend and hold harmless the Buyer Indemnified Parties from and against any Losses that may be incurred by, or asserted against, any such Buyer Indemnified Party arising out of or relating to Parent’s, the Selling Subisidaries’ and the Managers’ failure to comply with the WARN Act in connection with the transactions contemplated by this Agreement, except to the extent such Losses first arise after Closing Date, or otherwise related to such individuals identified any Buyer’s failure to employ a sufficient number of Employees on Section 5.6(a) sufficient terms and conditions to avoid applicability of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior WARN Act to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective transactions contemplated by this Agreement as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeerequired by this Section 6.8(a).”
(b) Following Prior to the Closing for a period Closing, no Buyer shall communicate with any Employees except with Parent’s and the applicable Manager’s prior consent. Parent shall cooperate (and, subject to the terms of one (1the Management Agreements, direct the Managers to cooperate) year, none with Buyers in such manner as Buyers may reasonably request to enable Buyers to meet with the Employees regarding the sale of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion the Hotel Assets to Buyers. None of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services ofParent, or hire in any capacity (whether as an employeeSelling Subsidiary or any Manager shall have any liability whatsoever with respect to any act or omission on the part of any Buyer with respect to such Buyer’s conduct of employment interviews or employee screening. In particular, consultantBuyers are advised that applicable Law may limit the scope and manner of drug screening of prospective employees. Each Buyer shall indemnify, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for the Parent Indemnified Parties from and against any breach Losses that may be incurred by, or asserted against, any such Parent Indemnified Party arising out of such responsibility and or relating to any Buyer’s indemnification conducting of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits employment interviews or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsemployee screening.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Northstar Realty Finance Corp.), Asset Purchase Agreement (Inland American Real Estate Trust, Inc.)
Employee Matters. (a) Not less than thirty (30) Business Days Purchaser shall notify Seller prior to the Bid Deadline which Employees of Seller to whom Purchaser intends to make offers of employment, which Employees shall include at least the Employees required to implement the business plan embodied in the Wafer Budget (such Employees who accept such offer are hereinafter referred to as the “Transferred Employees”). Any such offers shall be on terms that include the same salary or hourly pay as currently being paid and with a severance program at least as favorable as the current program summarized in Section 5.14(e) of the Seller Disclosure Schedule and with other benefits that are comparable (in the aggregate) to the employee’s current benefits as of the Execution Date, and on such other terms and conditions as Purchaser shall in its sole discretion deem appropriate. The employment offer will be timed with the intention of making the Transferred Employee’s first day of employment effective as of the Closing Date. Transferred Employees’ employment with the Purchaser or any of its Affiliates will be “at will” and nothing contained in this Agreement or any other communication shall constitute a contract of employment and the Transferred Employees shall not be a third party beneficiary of this Agreement. Seller will reasonably cooperate with the Purchaser in any offer of employment that Purchaser may extend and Seller shall terminate the employment of each Transferred Employee on the Closing Date.
(b) All Liabilities to, Buyer may offer employmentor relating to, commencing the Benefit Plans, and all Liabilities to, or relating to, any such Service Provider shall be Retained Liabilities, and Purchaser shall have no obligation or liability with respect to such Benefit Plans, arrangements or agreements. Purchaser and Seller shall take all actions necessary to cause the retention by Seller of all such Benefit Plans with effect as of the Closing Date, any Subsidiary that has Service Providers that participate in any Benefit Plan of Seller shall cease to be a participating employer in any such individuals identified on Section 5.6(a) of the Plans and Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps actions necessary to ensure effectuate the foregoing.
(c) All Liabilities in respect of each Transferred Employee have or shall have been paid by Seller prior to the date upon which the Transferred Employee commences employment with Purchaser, including premium contributions, remittance and assessments for unemployment insurance, employer health tax, income tax, workers’ compensation and any other employment related legislation, accrued wages, taxes, salaries, commissions and employee benefit plan payments. There are no outstanding, pending, threatened or anticipated assessments, actions, causes of action, claims, complaints, demands, orders, prosecutions or suits against Seller or its or their respective directors, officers or agents pursuant to or under any Applicable Laws, unemployment insurance, income tax, employer health tax, employment standards, labor relations, occupational health and safety, human rights, workers’ compensation and pay equity. Seller have no obligation to re-instate any Employees in connection with the Wafer Business.
(d) To the extent that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days any obligations might arise under WARN or under any similar provision of any United States federal, state, regional, non-United States or local law, rule or regulation as a consequence of the Transactions, Seller shall be responsible for therefor to the extent arising as a result of any employment losses to Employees of Seller occurring prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary cooperate, to implement the provisions extent permitted by law, with the Purchaser’s attempt to obtain information relating to the Transferred Employees, including making available to Purchaser Service Providers’ personnel files and performance evaluations. Any such information of this Section 5.6 and agree to provide each other with such records and information as may the Transferred Employees shall be necessary and appropriate to carry out their respective obligations under this Section 5.6an Acquired Asset.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Evergreen Solar Inc), Asset Purchase Agreement
Employee Matters. (a) Not less than thirty Neither Seller nor any of its Affiliates will make (30i) any offer of employment to any individual to become a Business Days Employee or (ii) any change in status concerning promotion, transfer, termination without “cause” or any increase in any compensation of any employee exclusively engaged in the Business (each, a “Business Employee”) outside the ordinary course of business, without the consent of Buyer. Buyer and Seller acknowledge and agree that the Business Employees shall continue to be employed by Seller until the day before the Transfer Date pursuant to the Employee Services Agreement.
(b) Effective as of the Transfer Date, Buyer will offer comparable employment as a successor employer to all unrepresented Business Employees (except for the Retained Employee) who are actively employed (including employees on vacation, holiday, jury duty, or other similar absence) by Seller or any of its Affiliates immediately prior to the Closing Transfer Date. Buyer also shall, or shall cause its Affiliates to, offer re-instatement or employment as a successor employer, as the case may be, to each unrepresented Business Employee who is not actively employed immediately prior to the Transfer Date and who has a right of reinstatement pursuant to Seller policy or applicable Law (collectively, “Inactive Contract Employees”), in each case promptly upon his or her return from any leave or other absence. All Business Employees to whom Buyer offers employment and who accept such employment are herein referred to as the “Hired Employees,” and any Inactive Contract Employee shall be treated as a Hired Employee upon his or her return to, or commencement of active employment with, Buyer or its Affiliates. For purposes of this Section 5.5(b), “comparable employment as a successor employer” means such material terms and conditions as are necessary to avoid a claim for severance benefits. Seller hereby acknowledges that Buyer providing the terms and conditions described in clauses (i), (v) and (vi) of this Section 5.5(b) and Section 5.5(c), as well as the same principal work location and with substantially equivalent duties as in effect immediately prior to the Transfer Date, Buyer may offer employment, commencing will constitute “comparable employment as a successor employer” as described herein.
(i) For the period starting on the Transfer Date and ending on the first anniversary of the Closing Date, each unrepresented Hired Employee shall be entitled to receive while in the employ of the Buyer or any of its Affiliates the same or similar base salary or wage rate, and (to the extent any such Hired Employee was provided incentive compensation and bonus opportunities by Seller prior to the Transfer Date) amount of incentive compensation and bonus opportunities as provided by Seller immediately prior to the Transfer Date. In addition, Buyer shall provide each unrepresented Hired Employee, for the period starting on the Transfer Date and ending on the first anniversary of the Closing Date while in the employ of the Buyer or any of its Affiliates, with substantially equivalent employee benefits having a comparable aggregate employer-provided value to all benefits provided to such individuals individual under the applicable Seller Benefit Plans in effect immediately prior to the Transfer Date; provided that (A) for purposes of this covenant, stock options and other equity awards shall be disregarded and (B) this provision does not oblige Buyer to provide defined benefit pension benefits for such unrepresented Hired Employees. Seller acknowledges and agrees that Buyer’s benefits program in the aggregate as disclosed to Seller and described in Schedule 5.5(b)(i) satisfies the standard set forth in the immediately preceding sentence.
(ii) The employment of the unrepresented Hired Employees will be “at-will.”
(iii) Effective as of the Transfer Date, Buyer will offer employment to all represented Business Employees under the terms and conditions outlined in the Collective Bargaining Agreement identified on Section 5.6(a3.15(g) of the Seller Disclosure Letter Schedule with any labor organization representing Business Employees. Effective on the Transfer Date, Buyer will assume the Collective Bargaining Agreement set forth in Section 3.15(g) of the Seller Disclosure Schedule and all represented Business Employees shall be treated as Hired Employees. Buyer shall establish a new defined benefit pension plan (the “Schedule 5.6(a) EmployeesBuyer’s Pension Plan”) that would have the same benefit multiplier and other terms and conditions regarding vesting and eligibility to participate and receive benefits that are the same as it may determine those contained in its discretionthe GE Mechanical Systems-Los Angeles Pension Plan for UAW Local 509 Hourly Employees (“GE Local 509 Plan”) in such manner as to comply with the Collective Bargaining Agreement with respect to employment on and after the Transfer Date; provided, however, that Seller agrees to amend the GE Local 509 Plan effective on and after the Transfer Date to treat Buyer and any member of a group under common control with Buyer for purposes of Section 414(b) or (c) of the Code as an “Employer” solely with respect to determining the eligibility of any represented Hired Employees on or after the Transfer Date for a disability retirement pension under the GE Local 509 Plan. Buyer shall take all steps necessary to ensure that its hiring decisions also, for the duration of the current Collective Bargaining Agreement on and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to after the Closing Transfer Date, Buyer shall notify Seller make employer matching contributions under a plan qualified under sections 401(a) and 401(k) of the Schedule 5.6Code with respect to represented Hired Employees at the rate of 50% of the first 6% of compensation contributed to such plan by any such employee.
(aiv) Employees who have accepted Buyer’s offer Effective as of employment. After the date hereof and prior to the Closing Transfer Date, Seller shall pay any Hired Employee the appropriate accrued amounts of sick leave pay, vacation pay or other paid time off of such Hired Employees, as required by applicable Law.
(v) Notwithstanding anything contrary in this Agreement, Buyer shall or shall cause its Affiliates to, provide Buyer with access, severance benefits to any unrepresented Hired Employee who is laid off or made redundant or during reasonable business hours the period starting on the Transfer Date and upon reasonable notice, ending on the first anniversary of the Closing Date in an amount that is equal to the Schedule 5.6
severance benefits (aincluding severance payments, transition payments and continued health coverage) Employees, that the employee would have been entitled to pursuant to and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to under circumstances consistent with the operations of Seller. Each terms of the Schedule 5.6
(a) Employees who commences employment with Buyer effective applicable Seller Benefit Plans as of (or who is in effect on approved leave of absence on) the Closing Date.
(vi) Buyer shall, together with the continuing employees and shall cause its Affiliates to, waive limitations on benefits relating to any pre-existing conditions of the Material Subsidiaries, shall be referred Hired Employees and their eligible spouses and dependents (but only to herein the extent such pre-existing condition limitations were waived under the Seller Benefit Plans as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following of the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated byTransfer Date). Buyer shall, and received severance compensation fromshall cause its Affiliates to, Seller unless recognize for purposes of annual deductible and until Buyer reimburses Seller for a reasonable portion out-of-pocket limits under their health plans applicable to Hired Employees, deductible and out-of-pocket expenses paid by Hired Employees and their respective spouses and dependents under Seller’s or any of such severance compensationits Affiliates’ health plans in 2013.
(c) Following Except as otherwise provided in the Closing Employee Services Agreement, Hired Employees will cease active participation in any Seller Benefit Plan (other than the Assumed Plans) and will commence participation in employee benefit plans, programs and arrangements offered by Buyer (“Buyer Benefit Plans”) effective as of 11:59 p.m. local time on the day immediately before the Transfer Date. Such Hired Employees will be given credit under Buyer Benefit Plans for a period all service prior to the Transfer Date with Seller (to the extent credit was given by Seller) for purposes of one (1) yeareligibility, none vesting and, to the extent applicable, calculation of Buyer, Generation vacation or their Affiliates shall directly or indirectly solicit the employment or services ofother paid time off, or hire in any capacity (whether as an employeeseverance benefits; provided, consultanthowever, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may that such service will not be unreasonably withheldcredited for purposes of benefit accruals under any such Buyer Benefit Plans (other than for vacation, conditioned other paid time off or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeseverance benefits).
(d) Buyer, Generation Seller has satisfied its obligation under applicable labor law with respect to represented Business Employees regarding the consummation of the transactions contemplated by this Agreement and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for has not received any breach request on behalf of such responsibility and Buyer’s indemnification of Seller represented Business Employees to engage in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any bargaining relating to such Claimscontemplated transactions.
(e) Effective as of the Transfer Date, Buyer shall assume sponsorship of and all obligations under, liabilities with respect to, and assets (if any) with respect to, the Seller Benefit Plans set forth on Section 5.5(e) of the Seller Disclosure Schedule (the “Assumed Plans”) provided, however, that Seller will remain responsible for (i) any uninsured liabilities under the Assumed Plans applicable to individuals who as of the Closing Date are former employees of Seller and (ii) any claims incurred and unpaid under the Assumed Plans prior to the Closing with respect to any self-insured Assumed Plan. Seller shall cooperate as reasonably take all actions necessary to implement transfer such sponsorship and assets (if any) to Buyer as of the provisions Transfer Date and Buyer shall reasonably cooperate with Seller in connection therewith. Prior to the Transfer Date, Seller shall cause the members of any committee charged with administrative and/or fiduciary responsibility with respect to any of the Assumed Plans to relinquish their membership in such committee effective as of the Transfer Date. Buyer shall, or shall cause its Affiliates to, appoint all administrators, fiduciaries and others responsible for the Assumed Plans on and after the Transfer Date.
(f) Nothing in this Section 5.6 5.5 shall (i) confer any rights upon any person, including any current or former employees of the Seller, other than the parties hereto and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6successors and permitted assigns, (ii) constitute or create an employment agreement, or (iii) constitute or be treated as the amendment, modification or adoption of any employee benefit plan of the Seller or any of its Affiliates.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Woodward, Inc.)
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a7.6(a) of the Seller Disclosure Letter Schedules lists the employees of the Companies who will remain employed by the Companies after the Closing (the “Schedule 5.6(a) Continuing Employees”) as it may determine subject to the unilateral right of the Purchaser or the Companies to terminate their employment after the Closing in its their sole discretion. Buyer Notwithstanding the foregoing, the individuals listed on Section 7.6(a) of the Seller Disclosure Schedule that are on a leave of absence as of the Closing will not remain employees of the Companies, but will instead be transferred by the Seller to Affiliates of the Seller other than the Companies. The Purchaser shall take all steps necessary have no Liabilities or obligations with respect to ensure such employees on such leaves of absence unless and until such employee returns from his or her respective leave of absence and is hired by the Purchaser or one of its Subsidiaries after Closing at the Purchaser’s sole discretion; provided, however, that its hiring decisions such individual will not become a Continuing Employee if the individual is not cleared for work and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior presents himself or herself to the Closing DatePurchaser or one of its Subsidiaries for active employment within 180 days following the date hereof. Before the Closing, Buyer the Seller shall notify Seller terminate or transfer to Affiliates of the Schedule 5.6
(a) Seller other than the Companies those employees who are not Continuing Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption consistent with all applicable contractual, legal and other requirements. The Seller shall retain any and all liabilities relating to the operations of Seller. Each of the Schedule 5.6
(a) Employees employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Dateare not Continuing Employees, together with the continuing employees of the Material Subsidiaries, shall be referred all liabilities pursuant to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions all liabilities related to employees on a leave of Buyer, Generation and the Subsidiaries absence as of Generation after the Closing Date. Buyer agrees .
(b) The Continuing Employees shall continue to indemnify participate in the Seller Plans that are group health, dental, and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any vision plans (but not disability insurance plans), including health reimbursement account plans, through the end of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after month in which the Closing Date occurs. The Continuing Employees will be eligible to participate in Purchaser group health, dental, and Seller’s costsvision plans, subject to the terms thereof, as of the first day of the month following the month in which the Closing Date occurs.
(c) Before the Closing Date, the Seller shall take all actions necessary, including reasonable attorneyadopting amendments to its 401(k) plan, to provide that the Continuing Employees shall be fully vested in their accounts in the 401(k) plan and the Companies shall terminate participation in the 401(k) plan, each effective as of the day before the Closing Date, and outstanding participant loans shall be eligible for rollover to another tax-qualified plan that will accept such rollovers.
(d) The Seller shall pay each employee of the Companies who are not Continuing Employees, and employees on a leave of absence as of the Closing Date, all accrued wages, salary, commission, bonus, vacation pay, paid time off, and other employee compensation and benefits related to employment with the Seller and its Affiliates (including the Companies) for all periods through the date of termination of each such employee’s feesemployment with the Seller and its Affiliates (including the Companies) in a timely fashion through its ordinary course payroll systems, in defending and not later than the date such payment is required by law or the provisions of any benefit plan or contract under which such Claimscompensation is or becomes duly payable.
(e) Buyer The Purchaser shall honor each Continuing Employee’s elections for the 2013 calendar year with respect to each Seller Plan that is a healthcare spending account and dependent care spending account plan (the “Spending Accounts”). In the event that the aggregate amount withheld from the Continuing Employees’ compensation with respect to the Spending Accounts exceeds the amount reimbursed to the Continuing Employees, the Seller shall cooperate remit such excess amount to the Purchaser. In the event that the aggregate amount withheld from the Continuing Employees’ compensation with respect to the Spending Accounts is less than the amount reimbursed to the Continuing Employees, Purchaser shall remit to the Seller the amount of the unfunded reimbursements.
(f) For a period of six months after the Closing Date, unless the Seller otherwise agrees in writing and subject to the foregoing, the Purchaser shall cause the Companies or an Affiliate of the Companies to provide salaries and/or hourly wages (but not bonus opportunities) to the Continuing Employees on comparable terms, in the aggregate, applicable to such Continuing Employees immediately prior to the Closing. Nothing herein shall be construed to prohibit the Purchaser from causing or the Companies from terminating any Continuing Employee as reasonably necessary a result of integrating or relocating any facility of the Companies or otherwise. Upon the expiration of such six month period, nothing in this Agreement, express or implied, shall be construed to implement prevent the provisions Purchaser from causing or the Companies from modifying the salary and/or hourly wage of any Continuing Employee. No Continuing Employee shall be a third party beneficiary of this Section 5.6 Agreement. No covenant or other undertaking in this Agreement shall constitute an amendment to any employee benefit plan, program, policy or arrangement, and agree any covenant or undertaking that suggests that an employee benefit plan, program, policy or arrangement will be amended shall be effective only upon the adoption of a written amendment in accordance with the amendment procedures of such plan, program, policy or arrangement. Neither the Purchaser nor the Companies shall have any liability or obligation with respect to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6the Seller Plans after the Closing.
Appears in 2 contracts
Samples: Stock Purchase Agreement (API Technologies Corp.), Stock Purchase Agreement (Measurement Specialties Inc)
Employee Matters. (a) Not less Prior to the Closing, Purchaser shall offer to enter into a severance agreement with Xxxxx X. Xxxxx to become effective upon the commencement of his employment with Purchaser, which agreement shall be on the same terms and conditions as offered by Purchaser to its executive officers of a similar level.
(b) Section 5.10 of the Disclosure Schedule, which Purchaser shall deliver not later than thirty (30) the Business Days Day prior to the Closing DateClosing, Buyer may offer shall set forth the list of the employees of Seller that are expected to become employees of Purchaser or one of its Affiliates (the “Designated Employees”). Seller shall terminate the employment of all Designated Employees to whom Purchaser or one of its Affiliates offers employment immediately prior to the Closing, and Seller shall cooperate with and use commercially reasonable efforts to assist Purchaser and its Affiliates in their respective efforts to secure satisfactory employment arrangements with the Designated Employees, including providing Purchaser with access to the Designated Employees for purposes of negotiating terms of employment. Nothing contained in this Agreement shall confer upon any Designated Employee any right with respect to employment, commencing or continuance thereof, with Purchaser or one of its Affiliates, nor shall anything herein interfere with the right of Purchaser and its Affiliates to terminate the employment of any of the Designated Employees at any time, with our without cause and with or without prior notice, or restrict Purchaser or its Affiliates in the exercise of their independent business judgment in modifying any of the terms and conditions of the employment of the Designated Employees. Purchaser shall have no obligation with respect to claims by any employee of Seller, including any Designated Employee, whether under any Employee Plan or for severance, unpaid wages, unpaid accrued time off, unpaid bonuses, credit for prior service, unpaid commissions or otherwise, except, from and after the Closing, with respect to (i) the Assumed Liabilities specified in Section 2.2(c)(iii) and (ii) obligations under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended. Seller shall be responsible for any and all Liability under the WARN Act or other Legal Requirements that arises out of or results from any termination of employment by Seller on or before the Closing Date, to such individuals identified on Section 5.6(a) . Promptly following the filing of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing DatePetition, Seller shall provide Buyer all notices required to be provided in order to comply with access, during reasonable business hours the WARN Act. Seller shall provide a valid and upon reasonable notice, complete WARN Act notice to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use each of its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable noticeemployees as soon as practicable and, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Dateany event, together with the continuing employees of the Material Subsidiariesno later than November 24, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee2006.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Steinway Musical Instruments Inc), Asset Purchase Agreement (Guitar Center Inc)
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing DateUnless Seller or Seller Parent otherwise consent in writing, Buyer may shall, or shall cause an Affiliate to, offer employment, commencing effective as of the applicable Hire Date to those Business Employees (i) who are specifically identified on Schedule 5.1 or (ii) with the job categories or titles set forth on Schedule 5.1, which identifies the intended Hire Date for such Business Employees who are employed by Seller or Seller Parent as of the Closing Dateand whom Buyer reasonably determines, in its sole discretion, meet the standards of employment applicable to such individuals identified on Section 5.6(aBuyer’s employees generally (each, a “Scheduled Employee”) which schedule may be amended upon mutual agreement of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretionParties. Buyer shall take all steps necessary to ensure that its hiring decisions Any Scheduled Employee who accepts and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences active employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee applicable Hire Date shall be referred to herein as a “Non-Hired Employee”, with such employment to be conditioned upon the consummation of the transactions contemplated by this Agreement and the Ancillary Agreements; provided, however, that with respect to any Scheduled Employee who is not actively employed at the time such offers are made because such employee is on a leave of absence (other than regularly scheduled vacation) (the “Leave of Absence Employees”), Buyer shall be under no obligation to make an offer to any such Leave of Absence Employees unless and until such Leave of Absence Employee returns to active employment on or within three (3) months following the applicable Hire Date; and provided, further, that, notwithstanding anything in this Agreement to the contrary, Buyer shall have no Liability with respect to any Leave of Absence Employee unless such employee returns to active employment on or within three (3) months of the applicable Hire Date and accepts Buyer’s offer of employment within such time; and provided, further, that Buyer shall not use any such leave of absence as cause to modify, alter, or change any proposed offer of employment to the detriment of such Leave of Absence Employee. All Scheduled Employees, other than Leave of Absence Employees, shall be employed on a substantially uninterrupted basis by Xxxxx as of the Hire Date set forth on Schedule 5.1.”
(b) Following As of the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-applicable Hire Date each Hired Employee who has been terminated byis actively at work as of the applicable Hire Date shall receive from Buyer, until the first anniversary of the applicable Hire Date, salary, bonus, severance and received employee benefit plan opportunities that are substantially comparable to the salary, bonus, severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion employee benefits provided to similarly situated employees of such severance compensationBuyer.
(c) Following the Closing for a period of one (1) yearSubject to Information Privacy and Security Laws and other applicable Laws, none of Seller will make available to Buyer, Generation or their Affiliates shall directly or indirectly solicit at least six (6) weeks prior to the employment or services ofClosing, or hire in any capacity (whether as an employeethe following true, consultantaccurate, independent contractor or otherwise) any employee and complete information regarding each Scheduled Employee: (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or name, (ii) employing entity, (iii) salary or other rate of Energy base pay, if applicable, (iv) other compensation (including bonus target, incentive compensation target, deferred compensation, and commissions arrangements), (v) severance and employee benefit plan opportunities, (vi) status as an exempt or its Affiliates without non-exempt under the prior Fair Labor Standards Act and any similar wage and hour law, (vii) status as a full-or part-time employee, (viii) job title or position, (ix) status as an active or inactive employee (and, if on leave, the nature of the leave and the expected return date, if known), (x) work authorization, if not a citizen or permanent resident, (xi) address, and (xii) whether such Business Employee is primarily or exclusively working for the Business. Unless Buyer otherwise consents in writing, each week following the delivery of the information pursuant to the preceding sentence Seller shall provide Buyer with written consent notice of Seller, which may not any updates to the Scheduled Employee information provided pursuant to the preceding sentence and Buyer and Seller shall in good faith mutually agree upon the form of a written communication to be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller provided by Buyer to retain such employee for a reasonable time and purposethe applicable Scheduled Employees describing the offer process.
(d) Seller, Seller Parent and Xxxxx intend that the transactions contemplated by this Agreement shall not result in a severance of employment of any Hired Employee for purposes of any benefit plan maintained by Seller or Seller Parent (“Seller Plans”), that the Hired Employees shall have continuous and uninterrupted employment immediately before, on, and immediately after the applicable Hire Date, and Buyer, Generation Seller and Seller Parent shall use reasonable efforts to ensure the Subsidiaries of Generation same. Any severance or other payments that might become payable to any Business Employee whether or not such individual becomes a Hired Employee shall be responsible the sole responsibility of the Seller Parties. For purposes of eligibility to participate, vesting, benefit accruals and level of benefits (except as otherwise specifically provided below) under any benefit plan maintained by Buyer and/or its Affiliates providing benefits to any Hired Employee after the Hire Date, each Hired Employee shall be credited with his or her years of service with Seller and its Affiliates (and any predecessors) prior to the applicable Hire Date, to the same extent as such Hired Employee was (or would have been) entitled, before the Agreement Date, to credit for all Liabilities such service under Seller Plans; provided, however, that such service need not be recognized (i) to the extent that such recognition would result in any duplication of benefits for the same period of service, (ii) for any purpose under any defined benefit retirement plan, retiree welfare plan, equity-based incentive plan or long-term incentive plan (including any cash balance plan or employee stock purchase plan of Buyer or its Affiliates), (iii) to the extent not recognized by Seller or Seller Parent for similar purposes, (iv) for purposes of any plan, program or arrangement (A) under which similarly situated employees of Buyer and obligations its Affiliates do not receive credit for prior service or (B) that is grandfathered or frozen, either with respect to level of benefits or participation, or (v) discretionary contributions under Buyer’s employees’ retirement savings plan. To the extent that Buyer maintains a similar Employee Benefit Plan providing health and welfare benefits, for each Hired Employee, Buyer and/or its Affiliates shall take commercially reasonable steps to (x) waive any applicable waiting periods, pre-existing conditions or actively-at-work requirements (y) subject to each Hired Employee providing a copy of their explanation of benefits, statement, provide full credit to each Hired Employee or spouse or dependent thereof for any copayments, deductibles, out-of-pocket expenses and for any lifetime maximums paid by such Hired Employee or spouse or dependent thereof under the Worker Adjustment comparable Seller Parent Benefit Plan during the relevant plan year up to and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after including the Closing Dateas if such amounts had been paid under such Buyer’s health and welfare plans. The Seller Parties shall be solely responsible, and Buyer agrees shall have no obligations whatsoever for, any amounts accrued or payable to indemnify Seller and to defend and hold Seller harmless any current or former employees (including Hired Employees), including accrued vacation for which Buyer is not providing credit for any breach of such responsibility and Buyer’s indemnification of period relating to the service with Seller in this regard specifically includes or Seller Parent, as applicable, at any Claim time on or prior to the applicable Hire Date or due to termination by any of either Seller Party or its Affiliates on or prior to the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsapplicable Hire Date.
(e) If, as a result of the transactions contemplated by this Agreement, Seller or any of its Affiliates are required before, on or after the Closing to provide notice of any employment loss to any Business Employee or other Person under the WARN Act or any applicable foreign, state or local laws, regulations or ordinances related to plant closings, relocations, mass layoffs or employment losses, the Seller Parties shall provide, or arrange for the provision of, all such required notices and make any required payments within the time periods required by applicable Law (collectively, “WARN Laws”). The Seller Parties shall provide Buyer with a reasonable opportunity to review and comment upon all such notices before the notices required by WARN Laws are provided to affected employees, governmental agencies or other Persons. Seller shall cooperate as reasonably necessary bear any and all obligations and Liability under the WARN Laws resulting from employment losses arising in connection with the transactions contemplated in this Agreement, including without limitation the provision or failure to implement provide notice requirements, including any required notices to Hired Employees, and make any required payments under the WARN Laws. Buyer shall be responsible for compliance with WARN Laws with respect to the Hired Employees following the Closing.
(f) The provisions of this Section 5.6 5.1 are solely for the benefit of the Parties, and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under no provision of this Section 5.65.1 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, or result in any current or former director, employee, consultant of Seller or Seller Parent or any other individual associated therewith being regarded for any purposes as a third party beneficiary of this Agreement or have the right to enforce the provisions hereof.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Opko Health, Inc.), Asset Purchase Agreement (Opko Health, Inc.)
Employee Matters. 9.1 Promptly following the date hereof, Purchaser shall make an offer of continued employment (a) Not less than thirty (30) Business Days prior to the Closing Date‘haavara beretzef’ in Hebrew), Buyer may offer employment, commencing effective as of the Closing Date, to such individuals identified on Section 5.6(a) each of the Seller Disclosure Letter Employees that Purchaser desires to retain (other than to those employees set forth in Schedule 9.1 who shall continue to be employed by the Seller), in the form to be agreed between the Parties (such form and any ancillary document thereto shall be hereinafter referred to as the “EmployeeNotice”). The Employees who receive such Employee Notice (and do not lawfully object thereto or, at the request of either Party, countersign such Notice) are hereinafter referred to as “Assumed Employees.” The Seller shall use its reasonable commercial efforts to assist the Purchaser in retaining such Assumed Employees.
9.2 At Closing, Seller shall (a) consent to the transfer of each of the Assumed Employees to Purchaser and each such employee shall become an employee of Purchaser, and (ii) transfer and assign to Purchaser, for the benefit of the Assumed Employees, all education funds (keren hishtalmut), managers’ insurance policies (bituach menahalim) and/or pension funds, severance pay funds and any other funds, that have been reserved or contributed by Seller (whether required by applicable law, custom or agreement) with respect to any of such Employees (the “Schedule 5.6(a) EmployeesSeller Existing Funds”) and all of Sellers’ rights with regard thereto, and subject to the following sentence, the Seller shall not have any obligation to complete any such Funds. It is hereby acknowledged and agreed that to the extent that any of the Seller Existing Funds at Closing are not sufficient to cover all such funds to which any Assumed Employee who has chosen not to continue his employment with the Purchaser is entitled through the Closing Date (by applicable law or agreement), Seller shall, without any consideration or adjustment of the Purchase Price, transfer cash equal to the balance required to complete any such funds to the Seller Existing Funds. Prior to the Closing, Purchaser shall make (and Seller shall cooperate with Purchaser to the extent required) the appropriate filings with the ITA for the transfer of the Seller Existing Funds from Seller to Purchaser and Seller shall submit all required documents to the Assumed Employees’ funds and insurance policies. Promptly following its receipt of all requisite approvals from the ITA, and after the Closing, Seller will transfer to Purchaser all its rights and interests in and to the Seller Existing Funds.
9.3 The employment agreements of the Assumed Employees and their Funds shall be assigned from Seller to Purchaser, and the Assumed Employees shall transfer to Purchaser, as it may determine applicable, with continuity of rights, and whilst taking their employment with Seller in its discretion. Buyer account for purposes of the calculation of their rights and entitlements.
9.4 Notwithstanding any non-compete obligations of any Assumed Employee to Seller, or any Affiliates thereof, all Assumed Employees shall take all steps necessary to ensure that its hiring decisions be permitted, on and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to after the Closing Date, Buyer to engage in the Business only on behalf of Purchaser and its Affiliates.
9.5 Purchaser shall notify Seller of the Schedule 5.6
assume all obligations and liabilities (a) Employees who have accepted Buyer’s offer of employment. After the date hereof including any and all prior notice payments and other employment and severance and termination benefits as is required by applicable Law, custom or agreement, as well as liability with respect to the Closing Dateany accrued but unpaid vacation pay or benefits, Seller shall provide Buyer with accessany withholding or employment Taxes, during reasonable business hours and upon reasonable notice, any other mandatory payments to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor social security or otherwise) concerning the Assumed Employees, whereas Seller shall retain all such liabilities concerning any Non-Hired Employee other employees and will be liable for all severance expenses of Assumed Employees who has been terminated by, resign and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of are entitled to receive such severance compensation.
(c) Following due to the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.transaction..
Appears in 2 contracts
Samples: Asset Purchase Agreement (Internet Gold Golden Lines LTD), Asset Purchase Agreement (Ampal-American Israel Corp)
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employmentextend offers of employment to no more than seven (7) Product Employees, commencing such employees to be mutually acceptable to Seller and Buyer and named on Schedule 5.5 (such Product Employees who accept Buyer’s offers of employment are referred to herein as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Transferred Employees”) as it may determine in its discretion). Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with accessreasonable access to meet with and interview such Product Employees during normal business hours, during reasonable provided that such access shall not unduly interfere with the operation of the business hours of Seller and upon reasonable noticeits affiliates prior to the Closing. Immediately prior to the Closing, each Transferred Employee that, with Buyer’s approval, has agreed to accept an offer of employment from Buyer, shall resign effective immediately after the Closing. Seller or its affiliates shall pay to such Transferred Employees all compensation, bonus and other amounts due and payable to such Transferred Employees in connection with such terminations of employment with Seller or its affiliates in accordance with Seller’s or any of its affiliate’s regular employment policies and practices. Seller or its affiliates shall pay to such Transferred Employees any additional amounts owed to such Transferred Employees pursuant to a Seller Plan when such amounts become due and payable, to the Schedule 5.6
(a) extent that such amounts constitute Excluded Liabilities. To the extent permitted by Buyer’s benefit plans, the employee benefit plans of Buyer in which the Transferred Employees, and Buyer agrees that it if any, are eligible to participate shall use its best efforts to conduct its hiring processtake into account, during reasonable business hours and upon reasonable noticefor purposes of eligibility, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated bywaiting periods, and received severance compensation frompre-existing periods, Seller unless and until Buyer reimburses Seller for a reasonable portion the service of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any with Seller as if such Claimsservice were with Buyer.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Netlogic Microsystems Inc), Asset Purchase Agreement (Integrated Device Technology Inc)
Employee Matters. (a) Not less than thirty (30Schedule 4.15(a)(i) Business Days prior to the Closing Datelists, Buyer may offer employment, commencing as of the Closing Datedate hereof, to such individuals identified on Section 5.6(a) all employees of the Seller Disclosure Letter Company or any of its Subsidiaries by name, employing entity, location, position or job title, compensation (other than base salary, bonuses and commissions, which has been provided to Buyer separately), and date of hire (the “Schedule 5.6(a) Employees”); provided, however, that any Person listed on Schedule 4.15(a)(ii) as it may determine in or who otherwise resigns, retires or separates from the Company or any of its discretionSubsidiaries at or before the Closing shall not, for purposes of this Agreement, be considered to be Employees after the Closing. Buyer shall take all steps necessary to ensure that its hiring decisions The Company and practices in this regard TEAK Texana Pipeline have entered into Client Service Agreements with Administaff Companies II, L.P. (“Insperity”) (together, the “Insperity Agreement”) under which Insperity and the Company and TEAK Texana Pipeline are in accordance with Applicable Lawco-employers of the Employees. Not fewer than twenty (20) Business Days prior Pursuant to the Closing DateInsperity Agreement, Buyer shall notify Seller Insperity is responsible for, among other things, paying salaries and wages, complying with reporting and payment of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof federal and prior state payroll taxes, and providing benefits to the Closing DateEmployees. The Company and TEAK Texana Pipeline have complied in all material respects with its responsibilities under the Insperity Agreement. To the Company’s Knowledge, Seller shall provide Buyer Insperity has complied in all material respects with access, during reasonable business hours and upon reasonable notice, to its responsibilities under the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired EmployeeInsperity Agreement.”
(b) Following The Company and the Closing for a period Subsidiaries have complied in all material respects with all applicable Laws relating to (i) proper classification and treatment of one all of their workers as independent contractors or employees, (1ii) yearproper classification and treatment of all of their Employees as “exempt” or “nonexempt” from overtime requirements under Law. In addition, none of Buyer, Generation or their Affiliates shall hire the Company and the Subsidiaries are not delinquent in any capacity payments to, or on behalf of, any Employees (whether as an employeeincluding wages, consultantovertime compensation, salaries, commissions, bonuses or other direct compensation) or current or former independent contractor contractors for any services or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationamounts required to be reimbursed or otherwise paid.
(c) Following None of the Closing for Company or any of its Subsidiaries is a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the party to any employment or services of, similar contract or hire in agreement of employment with any capacity (whether as an employee, consultant, independent contractor of their Employees that cannot be terminated at will with or otherwise) any employee (i) of Seller without notice by the Company or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy Subsidiaries and without liability to the Company or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeSubsidiaries.
(d) BuyerExcept with respect to each Confidentiality and Non-Compete Agreement set forth on Schedule 4.15(d), Generation and the Subsidiaries each of Generation which shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions terminated as of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees without liability or continuing obligation by the Company, the Company and its Subsidiaries have not entered into any severance, change of control or similar arrangement with any employee that will result in any obligations to indemnify Seller and to defend and hold Seller harmless for make any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any severance or additional payment if employment is terminated following the Closing or upon consummation of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim transactions contemplated by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsthis Agreement.
(e) The Company and its Subsidiaries have timely paid or accrued for all wages, salaries, commissions, bonuses, severance pay, change in control payments, vacation pay, benefits, and other compensation or remuneration to the Employees on account of employment. Seller has provided Buyer with or made available to Buyer true and Seller shall cooperate as reasonably necessary to implement correct copies of all employment or similar contracts or agreements of employment between the provisions of this Section 5.6 Company or any Subsidiary and agree to provide each any Employee other with such records and information as than unwritten contracts or agreements that may be necessary terminated at will with or without notice by the Company or its Subsidiaries and appropriate without liability to carry out their respective obligations under this Section 5.6the Company or its Subsidiaries.
(f) There are no pending, or to the Company’s Knowledge, threatened Legal Proceedings before any Governmental Authority by any present or former Employee alleging a violation of, or compliance with, statutory or common laws relating to employment, employment practices, or terms and conditions of employment.
(g) To the Company’s Knowledge, the Company and its Subsidiaries have complied in all material respects with all statutory and common laws relating employment, employment practices, and terms and conditions of employment.
(h) None of the Company or any of its Subsidiaries is a party to, or otherwise bound by, any judgment, settlement, consent decree, order, or injunction with any Governmental Authority with respect to any Employees, the terms and conditions of employment of any employees, or the working conditions of any Employees.
Appears in 2 contracts
Samples: Purchase and Sale Agreement, Purchase and Sale Agreement (Atlas Pipeline Partners Lp)
Employee Matters. (a) Not less than thirty (30) Business Days prior The parties hereby agree that notwithstanding any provisions of the Asset Purchase Agreement to the Closing Datecontrary, including, without limitation, Section 6.1(a), Buyer may offer employment, commencing as will assume the obligations for paying all of the Closing Dateseverance payments described on Appendix A to the Marcus employees listed on Appendix A (the “Severance Payments”), to such individuals identified on Section 5.6(aand Buyer shall receive a credit from the Marcus Entities for sixty percent (60%) of the Seller Disclosure Letter amount of such Severance Payments against the Purchase Price at the time of Closing in accordance with the second sentence of Section 12.3(b) of the Asset Purchase Agreement, except for the Severance Payment to the single employee so-designated on Appendix A (for which Buyer shall receive a credit for fifty percent (50%) of the “Schedule 5.6(a) Employees”) as it may determine in its discretionamount of the applicable Severance Payment). Buyer shall take all steps necessary make the actual severance payments to ensure such employees on the dates or after the periods of temporary employment indicated on Appendix A. In the event that its hiring decisions and practices in this regard are any of the employees listed on Appendix A do not qualify for their severance payment pursuant to the terms of their respective employment letter agreements as initially entered into, then Buyer shall reimburse the Marcus Entities for the amount of the credit Buyer received at Closing that was attributable to the Severance Payment to which such employee would otherwise have been entitled. Buyer shall obtain a release from each employee set forth on Appendix A in accordance with Applicable Lawthe letter agreements entered into with each such employee, respectively. Not fewer than twenty Buyer shall promptly reimburse the Marcus Entities for fifty percent (2050%) Business Days prior of the out-of-pocket fees and expenses associated with providing outplacement services to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is employees set forth on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”Appendix A.
(b) Following The parties hereby agree that notwithstanding any provisions of the Closing Asset Purchase Agreement to the contrary, including, without limitation, Section 6.1(c), Buyer will not carry-over and recognize any unused vacation for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated bythe Affected Employees set forth on Appendix A, and any credit received severance compensation from, Seller unless and until by Buyer reimburses Seller for a reasonable portion pursuant to Section 6.1(c) of the Asset Purchase Agreement shall not include any amounts attributable to such severance compensationAffected Employees.
(c) Following The Marcus Entities hereby agree that the Affected Employees who were located at Marcus’ corporate headquarters in Milwaukee, Wisconsin immediately prior to the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities entitled to continue to use such location from and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. through and including September 13, 2004, solely for purposes of such Affected Employees’ employment with Buyer agrees and the transition of Personal Property and Marcus Records and Files from the Marcus Entities to indemnify Seller Buyer as and to defend the extent contemplated by the Asset Purchase Agreement. Such access will generally be consistent with their prior use thereof while employed by the Marcus Entities, subject to the Marcus Entities and hold Seller harmless for any breach of such responsibility their Affiliates taking reasonable steps to address their reasonable confidentiality and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimssimilar concerns.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement (La Quinta Properties Inc), Asset Purchase Agreement (Marcus Corp)
Employee Matters. (a) Not less Sellers have terminated the employment of all Employees of the Business located at the Plants and the Depots, other than thirty (30) any such Employees necessary for purposes of providing the cleaning and other Plant closing activities at such Plants provided for in Section 8.13. Sellers shall terminate the employment of such other Employees of the Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretionClosing. Buyer shall take all steps necessary to ensure that its hiring decisions Sellers will retain and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be solely responsible for all Liabilities and obligations that relate to any Employee’s employment with any Seller Entity and, if applicable, their termination of employment from any Seller Entity, including all such Liability arising under the Worker Adjustment WARN Act, any CBAs, the Employee Benefit Plans or the Multiemployer Plans or otherwise and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting including any such Liabilities to Employees arising from the effect of, or in any way related to, the sale of the Purchased Assets on Employees. Without limiting the generality of the foregoing, Purchaser will have no Liability whatsoever under the WARN Act based on actions of Buyertaken at or before the Closing, Generation and any CBA, the Subsidiaries of Generation after Employee Benefit Plans or the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless Multiemployer Plans (including for any breach of such responsibility and Buyer’s indemnification of Seller unpaid contributions or withdrawal Liability in this regard specifically includes any Claim by connection with any of the Transferred Employees for back payforgoing whether such Liability arises before or after the Closing), front paynor will Purchaser become a participating employer in, benefits or compensatory or punitive damagesmake contributions to, any Claim by such Employee Benefit Plans or the Multiemployer Plans. Purchaser will have no obligation to employ or to consider employing any Governmental Authority for penalties regarding any issue of prior notification (Employee on or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costsClosing. If any Employees are hired by Purchaser, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree Purchaser will not be obligated to provide each other with any particular level of compensation or benefits to such records and information Employees except as Purchaser may be necessary and appropriate to carry out their respective obligations under this Section 5.6otherwise agree.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Flowers Foods Inc)
Employee Matters. (a) Not less than thirty five (305) Business Days prior to Closing, Stayton shall deliver to Purchaser an updated schedule of the Facility Employees and Corporate Employees including the information required pursuant to Section 4.1(aa). Within five (5) Business Days following the Sale Approval Order, Purchaser shall submit to Stayton a list of the Corporate Employees, from which list Purchaser shall select in writing within ten (10) Business Days prior to the Closing Date, Buyer may which Corporate Employees it will agree to offer employmentemployment to on the Closing Date in accordance with this Section 9.2 (each such selected Corporate Employees, commencing a “Designated Corporate Employee”).
(b) On the Closing Date, (i) Stayton (or, if applicable, one of its Affiliates) shall terminate the employment of those individuals who are Facility Employees as of the Closing DateDate (if not previously terminated) and (ii) Purchaser shall cause one of its Affiliates or another Person, which may include Purchaser's Manager, to offer employment to such individuals identified on Section 5.6(aFacility Employees as of the Closing Date at a base salary (or other wage or rate of pay) and bonus opportunity (if applicable) consistent with the updated Schedule 4.1(aa) of the Seller Disclosure Letter (Schedule and upon such additional terms and conditions of employment as Purchaser or the “Schedule 5.6(a) Employees”) as it may determine in its discretionapplicable employer shall determine. Buyer shall take all steps necessary to ensure that its hiring decisions Any such Facility Employee who accepts such employment and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to commences work after the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, Date shall be referred to herein as “a "Transferred Employees,” and each Schedule 5.6
(a) Facility Employee". Any Facility Employee who is not a Transferred Facility Employee shall be referred to herein as a “Non-Hired Transferred Facility Employee.”
(b) Following . The parties do not believe the Closing for provisions of the WARN Act apply to this transaction and do not expect to incur any such liability as a period result of one (1) year, none of Buyer, Generation actions taken or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the taken prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Emeritus Corp\wa\), Purchase and Sale Agreement
Employee Matters. (a) Not less than thirty Prior to the Closing, the Purchaser may offer to employ each current Seller Employee that Purchaser selects in its sole discretion to become an employee of Purchaser commencing as of the Closing. Offers of employment to Seller Employees who are not subject to, or otherwise covered by, a Labor Agreement, shall be on an “at-will” basis; provided, that, any such “at-will” employment offers will (30i) Business Days be contingent on the Closing occurring; (ii) be subject to and in compliance with the Purchaser’s standard human resources, ethics and compliance policies and procedures; (iii) supersede any prior employment agreements and (iv) be contingent on each Seller Employee (A) completing, in a manner reasonably satisfactory to the Purchaser, an employment application (including work status verification), (B) passing a standard background check of the Purchaser, and (C) signing such covenants and other contractual provisions as the Purchaser may in its discretion require in the ordinary course of its business; provided, further, that nothing in this Section 5.9(a) requires the Purchaser to employ any Seller Employee for any period of time after the Closing. For purposes of this Agreement, each Seller Employee who receives such an offer of employment shall be referred to as an “Offeree”. Each Offeree who accepts such offer prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Transferred Employee”. The Sellers hereby agree to waive any condition or restriction that they may have the contractual right to impose on the hiring and employment by Purchaser of any Seller Employee, effective as of the Closing Date (other than any such covenants not to disclose confidential information of any Seller to any Person other than Purchaser or any Affiliate thereof). Following the date of this Agreement, the Sellers shall allow the Purchaser reasonable access upon reasonable advance notice to meet with and interview Seller Employees, whom Purchaser has identified as potential Offerees, during normal business hours; provided, however, that such access shall not unduly interfere with the conduct of the Auction or the maintenance or Stabilization of the Purchased Assets or the Project prior to the Closing.”
(b) Following Sellers shall be responsible for providing any notice to all Seller Employees required pursuant to the WARN Act with respect to any layoff or plant closing that occurs prior to or on the Closing for a period of one (1) year, none of Buyer, Generation Date and to each Excluded Employee required pursuant to the WARN Act with respect to any layoff or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated byplant closing that occurs after the Closing Date, and received severance compensation from, Seller unless and until Buyer reimburses Seller Sellers shall be solely liable for all Liabilities with respect to the WARN Act or the failure to provide any such notice in a reasonable portion of such severance compensationtimely manner.
(c) Following Sellers agree and acknowledge that the Sellers shall continue to offer or otherwise ensure access to coverage under a U.S. group health plan to any Seller Employee, or their qualified beneficiaries under COBRA (“COBRA Beneficiaries”), after the Closing Date and for a any period of one (1) yearnecessary in order to fulfill Seller’s health care continuation coverage obligations, if any, under COBRA. Sellers shall ensure none of BuyerPurchaser or its Affiliates, Generation nor their respective Seller Benefits Plans, are required to provide such COBRA continuation coverage or any alternative coverage, nor have any Liability under COBRA, arising on or before the Closing Date, with respect to any COBRA Beneficiary subsequently covered or required to be covered under a U.S. group health plan maintained by Purchaser. Sellers shall be solely responsible for providing COBRA continuation coverage, including to those individuals who are M&A qualified beneficiaries (as defined in Treasury Regulation Section 54.4980B-9, Q&A-4(a)) with respect to the transactions contemplated by this Agreement, in accordance with Applicable Law, regardless of when their Affiliates shall directly or indirectly solicit qualifying event occurs, for the employment or services ofduration of the period during which such individuals are eligible for such coverage, or hire otherwise providing alternative coverage as permitted under Applicable Law in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) lieu of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeCOBRA continuation coverage.
(d) Buyer, Generation and Nothing in this Agreement shall affect the Subsidiaries Purchaser’s right to terminate the employment of Generation its employees. Nothing in this Agreement shall be responsible for all Liabilities construed to grant any employee of any Seller a right to continued employment by, or to receive any payment or benefits from, any Seller or Purchaser or through any Seller Benefit Plan or other benefit plan. This Agreement shall not limit Purchaser’s or its Affiliates’ ability or right to amend or terminate any benefit or compensation plan or program of Purchaser or its Affiliates and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions nothing contained herein shall be construed as an amendment to or modification of Buyer, Generation and the Subsidiaries of Generation after the Closing Dateany such plan. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller Nothing contained in this regard specifically includes Section 5.9, express or implied, shall constitute an amendment to any Claim Seller Benefit Plan or other plan, create any third party beneficiary rights or inure to the benefit of or be enforceable by any employee of the Transferred Employees for back pay, front pay, benefits Purchaser or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing Seller, or mass layoff occurring after any Person representing the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending interest of any such Claimsemployees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Penn National Gaming Inc)
Employee Matters. The following provisions shall be for the exclusive benefit of the parties to this Agreement and not for the benefit of any other person or entity:
(ai) Not less than thirty Effective as of the applicable Effective Time, (30but subject to rescission if the applicable Closing does not occur), with respect to each Station, except with respect to employees retained by Seller under any applicable TBA ("Retained Employees"), Buyer (A) Business Days prior shall assume the Assumed Contracts listed on Schedule 3.12 and (B) may, in its sole discretion, but shall not be obligated to, offer employment to the any of Seller's other employees with respect to such Station and (ii)
(1) effective as of any applicable Closing Date, Buyer (A) shall assume any Retained Employee's Assumed Contracts listed on Schedule 3.12 that are not assumed at the Effective Time and (B) may, in its sole discretion, but shall not be obligated to, offer employment to any of the other Retained Employees (collectively, those employees to whom Buyer elects to offer employment and who are employed pursuant to Assumed Contracts, the "Assumed Employees"). Except as otherwise provided in any Assumed Contract, Buyer may offer employment, commencing as of employment to the Closing Date, to such individuals identified Assumed Employees on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine any terms and conditions that are determined by Buyer in its sole discretion, including with respect to the provision of retirement and health care benefits. Buyer shall take all steps necessary to ensure that its hiring decisions assume the contracts of employment of the Assumed Employees and practices notwithstanding anything in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior the foregoing to the Closing Datecontrary, to the extent such employment contracts assumed hereunder provide for terms and conditions in addition to those referenced in the preceding sentence, Buyer shall notify Seller of assume the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeeterms thereof.”
(b) Following To the Closing extent the Purchase Price is reduced pursuant to Section 2.5 in respect thereof, Buyer shall grant Assumed Employees credit for a period and shall assume and be responsible for any liabilities with respect to sick leave and personal days accrued but unused by any Assumed Employees as of one (1) yearthe applicable Effective Time, none of Buyerand, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion to the extent of such severance compensationPurchase Price reduction, shall grant Assumed Employees credit for and shall assume and be responsible for any liabilities with respect to any accrued but unused vacation for such employees as of such Effective Time. No such credit shall exceed the number of sick, personal and vacation days listed on Schedule 3.12.
(c) Following Buyer agrees that Seller may inform its employees that Buyer has agreed that the Closing for a period of one (1) yearAssumed Employees will be offered employment as provided in this Section 6.7; provided, none of Buyerhowever, Generation or their Affiliates that Buyer shall directly or indirectly solicit have the employment or services of, or hire right to approve any written statement to be made by Seller in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeconnection therewith.
(d) Buyer, Generation and Seller shall comply with the Subsidiaries provisions of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining and Notification Act (the "WARN Act") and similar foreignlaws and regulations, state if applicable, and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless shall be solely responsible for any breach and all liabilities, penalties, fines, or other sanctions that may be assessed or otherwise due under such applicable laws and regulations on account of such responsibility and Buyer’s indemnification the dismissal or termination of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) employees of any of the Stations by Seller prior to the applicable Effective Time or Closing Date, as the case may be. Buyer shall employ at least that proportion of the employees of each Station as shall be necessary to prevent a "mass layoff" or a "plant closing or mass layoff occurring after closing" as such terms are defined in the Closing Date WARN Act and Buyer shall comply with all applicable laws and regulations applicable in connection with Buyer's exercise of discretion in offering employment to employees of Seller’s costs, including reasonable attorney’s feesincluding, in defending any such Claimswithout limitation, those relating to employment discrimination.
(e) Buyer and With respect to any Assumed Employees, within a reasonable period of time after the related Effective Time or within a reasonable period of time after the related Closing Date, as the case may be, Seller shall cooperate transfer from the Paxsxx Xxxmunications 401(k) Profit Sharing Plan (the "Seller 401(k) Plan") to the 401(k) Plan maintained by the Guarantor or its Affiliates for the benefit of the employees of the Buyer ("Buyer's 401(k) Plan") an amount, in cash, equal to the aggregate account balances held in the Seller 401(k) Plan as reasonably necessary of the date of transfer with respect to implement all Assumed Employees hired by the provisions Buyer as of this Section 5.6 and agree to provide each other with such records and information Effective Time or such Closing Date, as the case may be necessary and appropriate to carry out their respective obligations be; provided, however, that Buyer shall have no obligation under this Section 5.66.7(e) if Buyer reasonably believes such transfer shall cause Buyer's 401(k) Plan to not be qualified under the Code. Prior to the date of any such transfer, and as preconditions thereto:
(i) Buyer shall use commercially reasonable efforts to deliver to Seller a copy of the most recently issued Internal Revenue Service ("IRS") determination letter (or other proof reasonably satisfactory to counsel for Seller) that Buyer's 401(k) Plan is qualified under the Code, and (ii) Seller shall use commercially reasonable efforts to deliver to Buyer a copy of the most recently issued IRS determination letter (or other proof reasonably satisfactory to counsel for the Buyer) that the Seller 401(k) Plan is qualified under the Code. Seller and Buyer agree to cooperate with respect to any government filing, including, but not limited to, the filing of IRS Forms 5310-A, if necessary, to effect the transfer of assets contemplated by this Section 6.7(e).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Paxson Communications Corp), Asset Purchase Agreement (Ccci Capital Trust Iii)
Employee Matters. (a) Not The Purchaser shall offer employment to no less than thirty sixty percent (3060%) of the employees of the Business; provided, however, that the Purchaser retains the right to alter any terms and conditions of employment (including, without limitation, the levels of compensation and benefits) in the future or to discontinue to employ any such employee after the Closing Date. At least five (5) Business Days prior to the Closing Date, Buyer may offer employment, commencing the Purchaser will advise the Seller of those employees of the Seller who will be hired by the Purchaser. Purchaser (so long as Seller has not laid off or terminated more than ten (10) employees during the 90-day period preceding the Closing Date) hereby agrees to indemnify and hold harmless Seller and the Shareholder from any claim under the WARN Act arising from Purchaser's refusal to hire employees of Seller effective as of the Closing Date, or the Purchaser's layoff or termination of any Continuing Employee after the Closing.
(b) The Purchaser shall not be deemed to such individuals identified on Section 5.6(a) be a successor employer with respect to the employment of any Continuing Employees or with respect to any Benefit Plans. In the event any employee of the Seller Disclosure Letter (Business shall be deemed to have been terminated by reason of the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take execution, delivery and performance of this Agreement and the consummation of the transactions contemplated hereby, all steps necessary liability for any severance and other similar benefits to ensure that its hiring decisions and practices in this regard are in accordance any such employee with Applicable Law. Not fewer than twenty (20) Business Days respect to employment prior to the Closing Date, Buyer shall notify Seller be the sole responsibility of the Schedule 5.6
Seller. An individual who was previously employed by the Seller who is hired by the Purchaser shall be deemed a new employee of the Purchaser (aa "Continuing Employee"). The Purchaser shall not have any liability, obligation or responsibility to any employee of the Seller (including any Continuing Employee(s)) Employees who have accepted Buyer’s offer of employment. After the date hereof and which liability, obligation or responsibility arose or accrued on or prior to the Closing Date, Date (except for the Accrued Vacation Liability). The Seller shall provide Buyer with accessnot have any liability, during reasonable business hours and upon reasonable notice, obligation or responsibility to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (any Continuing Employee which arises or who is accrues on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees In addition, the Seller shall be responsible solely for any obligations with respect to indemnify COBRA health care continuation and disability insurance for all former employees of the Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any employees of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsSeller who are not Continuing Employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Invivo Corp), Asset Purchase Agreement (Invivo Corp)
Employee Matters. (a) Not less From and after the date of this Agreement, the Sellers shall provide the Buyer with reasonable access, during business hours, to Business Employees, and independent contractors or consultants of the Business, for purposes of the Buyer’s communications therewith concerning potential employment or retention by the Buyer and the terms and conditions of employment, employee benefits, consulting terms or fees, retention arrangements (if any), and other transitional matters.
(b) With respect to the UK Employees, Section 7.4 shall apply in full and shall take precedence over this Section 7.3.
(c) Contemporaneous with the date of this Agreement, Buyer Parent has delivered to Seller Parent a letter identifying those Business Employees who will not be receiving an offer of continuing employment with Buyer (“Non-Transferring Employee Letter”). Subject to the limitations and conditions set forth in the Non-Transferring Employee Letter, Buyer shall offer all other Business Employees disclosed to Buyer on Schedule 3.7(a) as of the date of this Agreement continuing employment on an “at will” basis (to the extent applicable under local Law), subject to the terms and conditions of employment as the Buyer shall choose (other than thirty the UK Employees as to which Section 7.4 shall apply). The UK Employees and those employees who accept employment with the Buyer or an Affiliate of the Buyer shall be referred to as “Transferring Employees.” Nothing in this Agreement is intended to or shall be interpreted to require the Buyer to continue the employment of any Transferring Employee for any period of time following the Closing Date or to prevent the Buyer from making future changes in the terms and conditions of employment (30including the compensation) of any Transferring Employee, subject to applicable Law.
(d) The Sellers shall be solely responsible for any notice, consultation, information or other obligations required prior to the Closing Date pursuant to any Labor Laws or collective bargaining or similar agreement covering the Business Days Employees or the Business, and the Buyer will cooperate and provide the Sellers with true and complete information reasonably requested by the Sellers that is necessary for the Sellers to perform any notification, information or consultation obligations.
(e) With the exception of its defined benefit pension plan and retiree medical plans, the Buyer will cause each of its pension and welfare benefit plans to recognize all of the service that the Transferring Employees completed with the Sellers for purposes of determining their eligibility to participate in, the amount of, and vesting in their benefits under such plans. As of the Closing Date, the Transferring Employees and their eligible family members shall cease to participate in the Employee Plans except as otherwise required by Law; provided, however, that the Sellers and the Employee Plans will remain responsible to such Transferring Employees and their eligible family members for all benefits accrued or payable under such plans on or prior to the Closing Date, Buyer may offer employmentexcept as provided in Section 7.3(f) below. Except as provided in Section 7.3(f), commencing as no portion of the Closing Date, to such individuals identified on Section 5.6(a) assets of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior any Employee Plan will be transferred to the Closing DateBuyer, and the Buyer shall notify Seller of assumes no liability or obligation with respect to the Schedule 5.6Employee Plans.
(af) Employees who have accepted Buyer’s offer of employment. After the date hereof and On or prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours Parent will cause the unvested accrued benefits of all Business Employees under its defined benefit pension plan (the “Seller Pension Plan”) and upon reasonable notice, defined contribution pension plan (the “Seller 401(k) Plan”) to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Sellerbecome fully vested. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective As soon as of (or who is on approved leave of absence on) reasonably practical following the Closing Date, together with Seller Parent will cause the continuing employees accounts of each Transferring Employee under the Seller 401(k) Plan to be transferred to the qualified 401(k) plan of the Material SubsidiariesBuyer (the “Buyer 401(k) Plan”). Such transfer will include a transfer of the corresponding assets from the trust forming part of the Seller 401(k) Plan to the trust forming part of the Buyer 401(k) Plan, which shall be referred consist of cash and, to herein as “Transferred Employees,” the extent permitted by the plan, any promissory notes or other evidences of indebtedness with respect to outstanding plan loans to the Transferring Employees who are participants in such Seller 401(k) Plan. On the transfer date of such accounts and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred assets, Seller Parent will deliver to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer all information related to such transfer reasonably requested by Buyer, Generation or their Affiliates shall hire in including the amounts of the account balances of the Transferring Employees and the details of any capacity (whether as an employee, consultant, independent contractor or otherwiseoutstanding plan loans from the Seller 401(k) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of Plan to such severance compensationTransferring Employees.
(cg) Following Seller Parent will ensure that the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time COBRA continuation coverage requirements are met on and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date with respect to all current and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsformer Business Employees (and their eligible family members) who experience a “qualifying event” on or prior to the Closing Date.
(eh) Seller Parent shall cause the sale of the Assets described in this Agreement to be treated as a “Divestiture of a Business Segment” for all purposes under its 2005 Executive Incentive Compensation Plan as applied to all outstanding grants and awards made pursuant thereto to any Transferring Employees, so that any outstanding unvested stock options or restricted stock units granted to such Transferring Employees will become fully vested and (with respect to stock options) exercisable in accordance with their terms on the Closing Date.
(i) Seller Parent shall pay to any Business Employee owed a bonus, incentive, payment, or other benefit or acceleration pursuant to a Sale Bonus Agreement the full amount of any such bonus, incentive, payment, or other benefit or acceleration due under such agreement in accordance with the applicable terms of each such Sale Bonus Agreement.
(j) On or immediately following the Closing Date, Seller Parent will provide Buyer with a list of the Transferring Employees and Seller shall cooperate as reasonably necessary to implement the provisions amount of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6Transferring Employee’s unused vacation benefits included in the Current Liabilities set forth in the Preliminary Statement.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Federal Signal Corp /De/)
Employee Matters. (a) Not less than thirty The Endo Companies shall update the Employee Census as of five (305) Business Days days prior to the Closing Date. Within ten (10) days prior to the anticipated Closing Date, Buyer may offer employment, commencing the Endo Companies shall provide the Buyers with a list of any applicable individuals (on a no-name basis where required by applicable Law) who are expected to be Qualified Leave Recipients as of the Closing Date, including the Qualified Leave Recipient’s employee identification number, type of leave and their respective expected date of return, if known, and shall update that list from time to time through the Closing Date as necessary.
(b) Prior to the Closing, the Buyers shall provide (or cause one of their Affiliates to provide) to each Offer Employee an offer of employment for such individuals identified position and with such responsibilities that are no less favorable than each Offer Employee’s current position and current responsibilities with the Endo Companies and such other terms as set forth in Section 5.4(h), in each case to commence on Section 5.6(a) the Closing Date; provided, however, that the Buyers shall assume the Collective Bargaining Agreement and, to the extent any Offer Employee is subject to the Collective Bargaining Agreement, the terms and conditions of employment of any Offer Employee subject to the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer Collective Bargaining Agreement shall take all steps necessary to ensure that its hiring decisions and practices in this regard are be in accordance with Applicable Lawthe Collective Bargaining Agreement. Not fewer than twenty (20) Business Days Each Offer Employee who accepts an offer of employment made pursuant to this Section 5.4 and who does not terminate employment with the Endo Companies prior to the Closing Date, Buyer Date shall notify Seller be an “Offer and Acceptance Employee”. Each offer of employment made pursuant to this Section 5.4 shall be contingent upon the Closing and the issuance of the Schedule 5.6
Confirmation Order. The Endo Companies and the Buyers anticipate that the Automatic Transfer Employees will transfer by operation of Law under Canadian Labor Laws, and, subject to any specific exemptions under applicable local Laws, the contracts of employment of the Automatic Transfer Employees shall have effect from the Closing Date as if originally made between the Buyers (aor an Affiliate of the Buyers as the case may be) and the Automatic Transfer Employee; provided, however, that with respect to all Automatic Transfer Employees who have accepted Buyer’s offer employed in Canada, their transfer and continued employment as of and from the Closing Date with the Buyers or an Affiliate of the Buyers, including all terms and conditions of employment. After the date hereof , will be in accordance with Canadian Labor Laws and in any event no less favorable than currently in place and as in effect immediately prior to the Closing DateClosing. The Buyers and their Affiliates as applicable agree to perform, Seller shall provide Buyer discharge and fulfil their obligations as successor employer as required by applicable Canadian Labor Laws with access, during reasonable business hours and upon reasonable notice, respect to the Schedule 5.6
(a) Employees, Automatic Transfer Employees in Canada whose employment is transferred by operation of Canadian Labor Laws on Closing. The Buyers and Buyer agrees that it their Affiliates as applicable shall use its best efforts to conduct its hiring process, during reasonable business hours recognize the periods of employment of all Transferred Employees for all purposes on the same basis and upon reasonable notice, in a manner that causes minimum disruption to the operations of Sellersame extent as recognized by the Sellers. Each of the Schedule 5.6
(a) Endo Companies shall procure the delivery to the Automatic Transfer Employees who commences employment with Buyer effective of such information as of (or who is on approved leave of absence on) required to notify the Closing Date, together with the continuing employees Automatic Transfer Employees of the Material Subsidiariestransfer of their employment in accordance with Canadian Labor Laws. The Buyers shall provide reasonable cooperation to the Endo Companies to facilitate the discharge of their obligations in the preceding sentence, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee Party shall be referred provide the other Party with such information as such Party may request to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or allow them to perform their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsCanadian Labor Laws.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Endo, Inc.), Purchase and Sale Agreement (Endo International PLC)
Employee Matters. (a) Not less than thirty The Parent agrees to provide any required notice under WARN and any other applicable Law and to otherwise comply with any such statute with respect to any “plant closing” or “mass layoff” (30as defined in WARN) Business Days prior or any similar triggering event under any other applicable Law occurring on or after the Closing or arising as a result of the transactions contemplated hereby. In addition, except as provided in the definition of Company Transaction Fees, the Parent further agrees to be solely responsible for all terminations and severance benefits, costs, charges and liabilities of any nature incurred with respect to any employee of the Surviving Company (“Company Employee”) arising after the Closing, including, without limitation, any claims arising out of or relating to any Company Plan or any plant closing, mass layoff, termination or similar event under applicable Law occurring after the Closing.
(b) Prior to the Closing Date, Buyer may offer employment, commencing Holdings shall submit to a stockholder vote the right of any “disqualified individual” (as of the Closing Date, to such individuals identified on defined in Section 5.6(a280G(c) of the Seller Disclosure Letter Code) to receive any and all payments (or other benefits) contingent on the “Schedule 5.6(aconsummation of the transactions contemplated by this Agreement (within the meaning of Section 280G(b)(2)(A)(i) Employees”of the Code) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller extent necessary so that no payment received by such “disqualified individual” would be an “excess parachute payment” under Section 280G(b) of the Schedule 5.6
Code (adetermined without regard to Section 280G(b)(4) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable noticeCode), in a manner that causes minimum disruption satisfies the stockholder approval requirements under Section 280G(b)(5)(B) of the Code and regulations promulgated thereunder. Such vote shall establish the “disqualified individual’s” right to the operations payment or other compensation. In addition, before the vote is submitted to stockholders, Holdings shall provide adequate disclosure to the stockholders of Seller. Each Holdings of all material facts concerning all payments that, but for such vote, could be deemed “excess parachute payments” to a “disqualified individual” under Section 280G of the Schedule 5.6
(aCode in a manner that satisfies Section 280G(b)(5)(B)(ii) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, Code and regulations promulgated thereunder. The Parent shall have the right to review and comment on all documents to be referred delivered to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who Holdings’ stockholders in connection with such vote but the Company shall have the right to reject such comments if in the opinion of its outside counsel such disclosure is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement comply with the provisions disclosure requirements of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.68.10(b).
Appears in 2 contracts
Samples: Agreement and Plan of Merger (Global BPO Services Corp), Merger Agreement (Global BPO Services Corp)
Employee Matters. (a) Not less than thirty (30) Business Days prior to Falcon shall terminate, effective as of the Closing DateAdjustment Time, Buyer may offer employment, commencing the employment of each Headquarters Employee who remains in employment as of the Closing Date, other than those Headquarters Employees designated in a written notice delivered by Buyer to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer Sellers not later than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After 60 days after the date hereof and prior to the Closing Date, of this Agreement. Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) affected Headquarters Employees, and Buyer agrees that it shall use its best efforts other parties entitled to conduct its hiring process, during reasonable business hours and upon reasonable receive notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective such notice as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall may be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations required under the Worker Adjustment and Retraining Notification Act promptly following receipt of written notice from Buyer described in the preceding sentence. Buyer shall indemnify and similar foreign, state hold harmless Sellers from and local rules, statutes against any and ordinances resulting from the actions all liability arising out of either Buyer, Generation and the Subsidiaries of Generation 's failure to provide such notice not later than 60 days after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach date of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any Agreement or the termination of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) employment of any plant closing or mass layoff occurring after Headquarters Employee, except for the Closing Date payment of compensation and Seller’s costsseverance benefits, including reasonable attorney’s fees, as provided in defending any such ClaimsSection 6.9(b) below.
(eb) Buyer On or prior to Closing, Falcon shall pay any and Seller shall cooperate all compensation owing to Headquarters Employees for any time period prior to and including the Closing, including any wages, salaries, bonuses and payments under any Compensation Arrangement owing to such employees. On or prior to the Closing, subject to the adjustment provided in 2.4(b)(viii), Falcon will pay each of the Headquarters Employees (including Headquarters Employees who decline continued employment with Buyer), other than (i) those employees identified on Schedule 6.9 and (ii) those Headquarters Employees whose employment will not be terminated in accordance with Section 6.9(a) above (the "Transferred Headquarters Employees"), severance pay on such terms and in such amounts as reasonably necessary Falcon may determine in its sole discretion. On or prior to implement the provisions Closing, Falcon will terminate the Falcon Communications, L.P. 1993 Incentive Performance Plan and provide for the payment of this Section 5.6 all benefits due under the terms of such plan and agree to provide each other with for the payment of any amounts due under the Falcon Communications, L.P. Key Executive Equity Program and any such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6program sponsored by any Falcon Company.
Appears in 2 contracts
Samples: Purchase and Contribution Agreement (Falcon Funding Corp), Purchase and Contribution Agreement (Charter Communications Inc /Mo/)
Employee Matters. (a) Not less Following the Closing Date Purchaser shall offer employment to all of the employees of the Business other than thirty (30) Business Days selected individuals to be identified by Purchaser at least 5 days prior to the Closing DateDate (collectively, Buyer may offer employment, commencing as the "Employees"). Shares of Purchaser Common Stock equal to 20% of the Closing Dateinitial capital stock of Purchaser (computed on a fully diluted basis including the issuance to Seller and the issuance of 7,000,000 shares of Series A Preferred) will be reserved for issuance to Purchaser's employees, officers and directors (specifically including the Employees) upon the exercise of employee stock options with terms and conditions, including vesting tied to continued employment by Purchaser, customary to venture capital backed start-up companies. Conditions to Acquisition. Unless waived in writing by Purchaser, Purchaser's obligation to consummate the Acquisition shall be subject to the satisfaction of the following conditions, among others, to such individuals identified on Section 5.6(abe contained in the Definitive Agreement:
(i) completion of, and satisfaction with the results of, financial, business, technical and legal due diligence reviews of Seller by the Purchaser;
(ii) Seller shall have solicited and received the approval of the holders of common stock of Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions effect the sale of substantially all of the assets of Seller;
(iii) if necessary to consummate the Acquisition, Seller shall have solicited and practices received the approval of the holders of 66-2/3% of the shares of Series A Preferred Stock of Seller;
(iv) Purchaser shall have received all permits, authorizations, consents, agreements and approvals of all foreign or domestic governmental agencies and other third parties which are necessary or appropriate to permit Purchaser to use and operate the Assets in this regard are a manner consistent with the manner in accordance with Applicable Law. Not fewer than twenty (20) Business Days which they were used and operated by Seller prior to the Closing DateDate (the "Approvals"), Buyer which Approvals shall notify not contain any condition or restriction which materially impairs Purchaser's ability to use, operate or enjoy the Assets;
(v) there shall not be in effect any injunction, stay or restraining order issued by a court of competent jurisdiction, whether foreign or domestic, staying the effectiveness of any Approval, and there shall not be any pending request for such an injunction, stay or restraining order;
(vi) there shall not be threatened or pending any suit, action, investigation, inquiry or other proceeding by or before any court of competent jurisdiction or governmental agency which, in Purchaser's reasonable judgment, could have a material adverse effect on Purchaser's ability to acquire, use, operate or enjoy the Assets;
(vii) Seller shall have delivered to Purchaser appropriate closing documents, including a bill of sale and other title documents, satisfactory in xxxm and substance to Purchaser;
(viii) Seller shall have delivered to Purchaser a signed counterpart of a stockholders' agreement including the terms set forth in Exhibit D hereto and otherwise satisfactory to Purchaser (the "Stockholders' Agreement");
(ix) Purchaser shall be satisfied that applicable bulk sale or similar requirements shall have been complied with by Seller on a timely basis;
(x) No material adverse change in the Business or the Assets shall have occurred since the date hereof;
(xi) Purchaser shall have received audited financial statements of Seller for the fiscal year ended December 31, 1998;
(xii) the Contracts shall have been assigned as contemplated by Section 2;
(xiii) All of the Schedule 5.6employees of Seller prior to the Closing Date designated by the Purchaser as key employees on Exhibit E ("Key Employees") shall have accepted the offer of employment by Purchaser made pursuant to Section 9 above;
(xiv) Purchaser shall be satisfied in its sole discretion that Seller is able to sell, convey and assign to Purchaser, free and clear of all claims, liens and interests except as is provided for herein, all of Seller's right, title and interest in and to the Assets; and
(xv) Seller shall have complied in all material respects with its covenants and agreements hereunder.
(a) Employees who have accepted Buyer’s offer of employment. After Unless waived in writing by Seller, Seller's obligation to consummate the date hereof and prior transactions contemplated hereby shall be subject to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each satisfaction of the Schedule 5.6following conditions, among others to be contained in the Definitive Agreement:
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(athe conditions set forth in subsections (a)(ii) Employee or and (iii) shall have been satisfied;
(ii) Purchaser and its current stockholders shall each have delivered to Seller a signed counterpart of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.Stockholders' Agreement;
(diii) Buyer, Generation Purchaser shall have been capitalized with equity capital of not less than $6,000,000 in cash and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.commitments; and
(eiv) Buyer Purchaser shall have complied in all material respects with its covenants and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6agreements hereunder.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Panda Project Inc), Asset Purchase Agreement (Panda Project Inc)
Employee Matters. (a) Not less than thirty (30) Business Days Immediately prior to the Closing DateSecond Closing, Seller shall (i) cause the Retained Employees to be employed by Seller or an Affiliate of Seller other than any Acquired Company or Subsidiary of an Acquired Company and (ii) cause the Acquired Companies or their Subsidiaries to, terminate or assign and transfer to an Affiliate of Seller other than any Acquired Company or Subsidiary of an Acquired Company each Acquired Company Benefit Plan and all assets thereof, other than any Acquired Company Benefit Plan listed on Section 6.5(a) of the Seller Disclosure Letter (each such listed plan an “Assumed Benefit Plan”).
(b) On or following the First Closing, Buyer may shall, or shall cause one if its Affiliates to, make an offer employment, commencing as of employment to each of the Closing Date, to such individuals identified on employees listed in Section 5.6(a6.5(b) of the Seller Disclosure Letter (the “Schedule 5.6(a) Designated Employees”) as it may determine in its discretion. Buyer ), which employment, with respect to each Designated Employee, shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty be effective upon such Designated Employee’s acceptance of such offer (20) Business Days or another date prior to the Second Closing Date, as designated by Buyer). Seller shall reasonably cooperate with Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s and any such Designated Employee that accepts such offer of employmentemployment with regard to the termination of such Designated Employee’s employment with an Acquired Company or any Subsidiary of an Acquired Company. After In the date hereof and event that this Agreement terminates prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each consummation of the Schedule 5.6
Second Closing, (ai) Employees who commences any such offers of employment that have not been accepted by a Designated Employee, or under which a Designated Employee has not yet commenced employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material SubsidiariesBuyer, shall be referred to herein as “Transferred Employees,” revoked and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated byrescinded, and received severance compensation fromupon such revocation and rescission, such offers shall have no further force or effect; and (ii) Buyer shall cause the employment of any Designated Employee hired and employed by Buyer or one of its Affiliates to be terminated effective upon the termination of this Agreement, and Seller unless and until Buyer reimburses Seller for a reasonable portion shall cause the Acquired Company or Subsidiary of an Acquired Company that previously employed such severance compensationDesignated Employee to offer employment to such Designated Employee upon the same terms as applied to such Designated Employee prior to the First Closing.
(c) Following From and after the Closing for Second Closing, any individual who remains employed with an Acquired Company or any Subsidiary of an Acquired Company as of the Second Closing, and from and after the date a period Designated Employee begins employment with Buyer or one of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(awith respect to those Designated Employees to whom an offer was made in accordance with Section 6.5(b) Employee and accepted (such employees collectively, the “Business Employees”) will participate and be covered or (ii) of Energy or its Affiliates without be offered participation and coverage, as applicable, under the applicable Buyer Benefit Plans; provided, that continued participation and coverage following the Second Closing under any Assumed Benefit Plan as in effect immediately prior written consent of Seller, which may not to the Second Closing shall be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller deemed to retain such employee for a reasonable time and purposesatisfy the obligations under this sentence.
(d) BuyerBuyer shall cause each Buyer Benefit Plan in which Business Employees are eligible to participate to take into account for purposes of eligibility, Generation vesting and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations benefit accruals under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions Buyer Benefit Plans (other than benefit accruals under any of Buyer, Generation ’s tax-qualified and non-qualified defined benefit pension plans) the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach service of such responsibility Business Employees with the Acquired Companies and Buyer’s indemnification their Subsidiaries (and any predecessor entities) to the same extent as such service was credited for such purpose by the Acquired Companies and their Subsidiaries under a comparable Acquired Company Benefit Plan; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of Seller in this regard specifically includes any Claim by benefits with respect to the same period of service or with respect to newly implemented plans for which prior service is not taken into account or with respect to plans for which participation, service and/or benefit accrual is frozen. Nothing herein shall limit the ability of Buyer to amend or terminate any of the Transferred Employees for back pay, front pay, benefits Assumed Benefit Plans or compensatory or punitive damages, Buyer Benefit Plans in accordance with their terms at any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimstime.
(e) At and following the Second Closing, Buyer will honor the accrued and vested obligations of the Acquired Companies and their Subsidiaries as of the Second Closing under the provisions of the Assumed Benefit Plans, provided, that this provision shall not prevent Buyer from amending, suspending or terminating any such plans or agreements to the extent permitted by the respective terms of such plans or agreements. Nothing contained in this Agreement shall constitute or be deemed to be an amendment to any Acquired Company Benefit Plan (including any Assumed Benefit Plan), Buyer Benefit Plan or any other compensation or benefit plan, program or arrangement of Buyer, Seller, the Acquired Companies and their respective Subsidiaries.
(f) If Business Employees become eligible to participate in a medical, dental or other health care insurance plan of Buyer, Buyer shall cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable medical, health or dental plans of Buyer, (ii) honor under such plans any deductible, co-payment and out-of-pocket expenses incurred by such employees and their beneficiaries during the portion of the calendar year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Second Closing for the year in which the Second Closing or participation in such medical, dental or other health care insurance plan of Buyer, as applicable, occurs, in each case to the extent such employee had satisfied any similar limitation or requirement under an analogous medical, dental or other health care insurance plan of Seller, the Acquired Companies and their respective Subsidiaries prior to the Second Closing for the year in which the Second Closing or participation in such medical, dental or health care insurance plan of Buyer, as applicable, occurs.
(g) To the extent any employee of an Acquired Company or a Subsidiary of an Acquired Company (including any Designated Employee), other than a Retained Employee, does not become a Business Employee, Buyer shall be solely responsible for, and Seller shall cooperate have no responsibility, liability or obligation for, any and all cash severance amounts payable to such employees in connection with their termination of employment from an Acquired Company or Affiliate of an Acquired Company, as reasonably necessary applicable, other than amounts payable with respect to implement the provisions termination or accelerated vesting of any equity-related rights (i.e., restricted stock) held by such employees as of the date of termination.
(h) Without limiting the generality of Section 10.9, this Section 6.5 shall be binding upon and inure solely to the benefit of each party to this Agreement, and nothing in this Section 6.5, express or implied, is intended to confer upon any other Person, including any current or former director, officer or employee the Acquired Companies and their respective Subsidiaries, any rights or remedies of any nature whatsoever under or by reason of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.66.5.
Appears in 2 contracts
Samples: Equity Purchase Agreement (ARC Properties Operating Partnership, L.P.), Equity Purchase Agreement (RCS Capital Corp)
Employee Matters. (a) Not less than thirty (30) Business Days prior Prior to the Closing Date, Buyer may offer employment, commencing as Company’s receipt of the Closing Dateinitial Cultivation License in connection with the Delta 3 Assets and Operations (or earlier), Village Farms will identify the Employees to such individuals identified on Section 5.6(a) the Company and will provide the Company with the following information for each of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions : years of service; position; salary or wage rate; a description of any group insurance or retirement benefits arrangements; and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeebonus eligibility.”
(b) Following the Closing for a period Company’s receipt of one (1) year, none of Buyer, Generation or their Affiliates shall hire the initial Cultivation License in connection with the Delta 3 Assets and Operations and in any capacity (whether event no later than five Business Days thereafter, the Company will offer in writing continuation of employment to those Employees who it wishes to hire, subject to examination and approval by Emerald and subject further to each such Employee being eligible to receive the necessary Security Clearance with the Minister under the ACMPR or other approvals required under Applicable Laws in order to be employed by the Company and provide services pursuant to the Licences and Applicable Laws, in each case on terms and conditions no less favourable than the Employee holds with Village Farms as at such date and with recognition of all of the Employee’s prior service with Village Farms for all purposes. Each Employee who accepts an employeeoffer of employment with the Company will be a “Hired Employee”, consultant, independent contractor or otherwise) and each such offer shall include an assignment to the Company of any Non-and all Intellectual Property created by the Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion during the course of such severance compensationthe Hired Employee’s employment with the Company.
(c) Following Upon the Closing for a period commencement of one (1) yeareach Hired Employee’s employment with the Company, none the Company shall assume and be responsible for, and shall defend, indemnify and save Village Farms and its directors, officers and employees harmless from and against, all liabilities and obligations for, and any Losses arising out of Buyeror related to, Generation or their Affiliates shall directly or indirectly solicit the employment or services ofand any termination of employment of such Hired Employee, or hire except as set out in any capacity (whether as an employee, consultant, independent contractor or otherwiseSection 4.3(d) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeSection 4.3(h).
(d) Buyer, Generation and the Subsidiaries of Generation shall Village Farms will be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless pay each Hired Employee in full for any breach of unpaid salary, wages, bonus entitlement and vacation pay accrued during each such responsibility Hired Employee’s employment with Village Farms prior to the date that such Hired Employee commences employment with the Company and Buyer’s indemnification of Seller will indemnify the Company from and against any and all Losses incurred by the Company in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsconnection therewith.
(e) Buyer and Seller shall cooperate From time-to-time, as reasonably necessary requested by the Company, Village Farms and Emerald will second employees to implement the provisions Company to provide certain services. In such cases, Village Farms and Emerald, as applicable, will, in consultation with the Company, determine the appropriate manner in which such employees will be seconded to comply with Applicable Laws and to ensure no adverse impact on the good standing of the Licenses. The Company will reimburse Village Farms and Emerald on an out- of-pocket cost-recovery basis for each such seconded employee’s reasonable time spent and reasonable expenses incurred by the seconded employee in providing such services.
(f) In accordance with the Intellectual Property licenses granted to the Company in Section 13.1(b) of this Section 5.6 Agreement, each of Village Farms and agree to Emerald will provide each other necessary growing oversight and input from its senior growing and development teams as needed and shall be reimbursed, on a monthly basis, by the Company for all properly documented reasonable costs and expenses incurred by Village Farms or Emerald, as the case may be, in connection with providing such records oversight and information as may input. There shall be necessary no xxxx-up by Emerald or Village Farms on such costs and appropriate to carry out expenses.
(g) The Company shall defend, indemnify and save Emerald, Village Farms and their Affiliates and their respective obligations directors, officers and employees (collectively, the “Indemnified Parties”) harmless from and against any and all Losses incurred by the Indemnified Parties of any nature in connection with, resulting from or relating to the secondment of any employees of Emerald, Village Farms and their Affiliates to the Company, including as a result of personal injury including death and property damage and Losses suffered by third parties; provided that the Company shall not be required to reimburse or indemnify any Indemnified Party for any Losses to the extent such Losses arise from the negligence or wilful misconduct of any Indemnified Party or any breach or default under this Section 5.64.2.
(h) Where the Company terminates a Hired Employee’s employment relationship on a “without cause” basis, either Village Farms or Emerald shall be given an opportunity to offer employment to the Hired Employee. If Village Farms or Emerald offers such Hired Employee employment and the Hired Employee accepts the offer, the other Party, as between Village Farms and Emerald, will have no liability for any Losses arising from or relating to the cessation of the employee’s employment with the Company. If neither Village Farms nor Emerald makes an offer of employment to such Hired Employee, or Village Farms or Emerald offers the Hired Employee employment but the Hired Employee rejects the offer, then Village Farms will reimburse the Company for its pro rata portion of the reasonable out-of- pocket costs for pay in lieu of notice of termination or severance (but excluding working notice), if any, incurred by the Company that arise from the termination of the Hired Employee’s employment with the Company (“Severance Costs”) to be determined based on the ratio, expressed as a percentage, obtained by dividing: (i) the number of months (including part months) the Hired Employee was employed by Village Farms, by (ii) the aggregate of the number of months (including part months) the Hired Employee was employed by Village Farms and the Company; provided that:
(i) if the Hired Employee ceases employment with the Company on a date following the first anniversary of the Hired Employee commencing employment with the Company, Village Farms shall have no liability for Severance Costs relating to such Hired Employee; and
(ii) in no event will Village Farms reimburse the Company for more than 100% of the Severance Costs relating to a Hired Employee.
Appears in 2 contracts
Samples: Shareholders Agreement (Village Farms International, Inc.), Shareholder Agreement
Employee Matters. (a) Not less than thirty Except as specifically provided in this Section 5.7: (30i) the Buyer shall not adopt, become a sponsoring employer of, or have any obligations under or with respect to the Employee Plans, and the Seller shall be solely responsible for any and all liabilities and obligations that have been incurred or may be incurred under or in connection with any Employee Plan; (ii) the Seller shall be solely responsible for any and all liabilities arising out of or relating to the employment of Business Days Employees who do not become Transferring Employees (as defined below), whether such liabilities arise before, on or after the Closing Date; and (iii) the Seller shall be solely responsible for any and all liabilities arising out of or relating to the employment of any Transferring Employee before the date such employee actually commences work with the Buyer and its Affiliates pursuant to Section 5.7(b). For purposes hereof, with respect to the Welfare Plans, claims under any medical, dental, vision, or prescription drug plan generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim is made; provided, however, that with respect to claims relating to hospitalization, the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan will be incurred on the date the Business Employee is first absent from work because of the condition giving rise to such disability and not when the Business Employee is determined to be eligible for benefits under the applicable Welfare Plan.
(b) The Buyer may, or may cause one of its Affiliates to, extend offers of employment to the Business Employees listed on Section 3.9(a) of the Seller Disclosure Letter who are actively at work as of the Closing Date (all such employees who accept the Buyer’s offer of employment are referred to as the “Transferring Employees”). Such offer of employment shall include: (i) a base salary and annual target cash incentive opportunities that each are substantially comparable to those being provided to such Transferring Employee by the Seller immediately prior to the Closing and (ii) employee benefits that are either substantially comparable in the aggregate to either those provided by the Seller immediately prior to the Closing or to those provided by the Buyer and its Affiliates to its similarly-situated employees, provided that for purposes of the covenants of this Section 5.7(b), defined benefit pension plans, retiree welfare benefits, long term incentive compensation and equity compensation shall be disregarded. For purposes of this Agreement, any Business Employee who is not at work on the Closing Date due to a short-term absence (including due to vacation, holiday, jury duty, illness, authorized short-term leave of absence or short-term disability) shall be deemed to be “actively at work”; provided, that any such individuals that are on authorized short-term leave of absence or short-term disability shall not be deemed to constitute “Transferring Employees” until such time as they return to active employment and the Seller shall be responsible for all liabilities with respect to such employees until they become Transferring Employees. The Seller shall terminate the employment of all Transferring Employees immediately prior to the Closing (or, as applicable, upon their return to active employment) and shall cooperate with and use its commercially reasonable efforts to assist the Buyer in its efforts to secure satisfactory employment arrangements with those employees of the Seller to whom the Buyer makes offers of employment.
(c) The Seller shall comply with the requirements of the WARN Act or any similar state, provincial or local law with respect to any “plant closing” or “mass layoff,” as those terms are defined in the WARN Act or such other applicable law, which may result from the Seller’s termination of the employment of any of its employees in connection with the transactions contemplated hereby through the Closing Date.
(d) The Seller and its ERISA Affiliates shall comply with the provisions of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended (“COBRA”), as set forth in Section 4980B of the Code and Part 6 of Title I of ERISA, with respect to any employee, former employee or beneficiary of any such employee or former employee who is covered under any group health plan, as defined in Section 5000(b)(1) of the Code (a “Group Health Plan”), maintained by the Seller and its ERISA Affiliates as of the Closing Date or whose “qualifying event” within the meaning of Section 4980B(f) of the Code occurs on or prior to the Closing Date, whether pursuant to the provisions of COBRA or otherwise. The Buyer may offer employmentshall comply with the provisions of COBRA with respect to Transferring Employees who are covered under any Group Health Plan maintained by the Buyer after the Closing Date.
(e) The Buyer shall use commercially reasonable efforts to (i) waive all limitations as to pre-existing conditions, commencing exclusions and waiting periods with respect to participation and coverage requirements applicable to Transferring Employees under the plans and arrangements established or maintained by the Buyer (the “Buyer Welfare Plans”), other than limitations or waiting periods that are already in effect with respect to such employees and that have not been satisfied as of the Closing DateDate under the corresponding Employee Plan and (ii) provide each Transferring Employee with credit under the Buyer Welfare Plans for any co-payments and deductibles paid under the corresponding Employee Plans prior to the Closing Date in satisfying any applicable deductible or out-of-pocket requirements for the year in which the Closing Date occurs.
(f) For purposes of determining eligibility to participate, to such individuals identified on Section 5.6(a) vesting and determination of the Seller Disclosure Letter level of benefits (but not accrual or entitlement to benefits other than severance benefit and vacation accrual where length of service is relevant) for Transferring Employees under all employee benefit plans and arrangements of the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer, the Buyer shall take all steps necessary recognize service with the Seller to ensure that its hiring decisions and practices the same extent recognized under the corresponding Employee Plans as in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days effect immediately prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(cg) Following The Seller shall cash out the Closing for a period accrued vacation and paid time-off of one all Transferring Employees no later than promptly following their termination of employment.
(1h) yearNothing contained in this Agreement shall create any third-party beneficiary rights in any Transferring Employee, none of Buyer, Generation any beneficiary or their Affiliates shall directly or indirectly solicit the employment or services ofdependents thereof, or hire in any capacity (whether as an employeecollective bargaining representative thereof, consultantwith respect to the compensation, independent contractor terms and conditions of employment and benefits that may be provided to any Transferring Employee by the Buyer or otherwise) under any employee benefit plan that the Buyer may maintain.
(i) of Seller or its Affiliates who is not a Schedule 5.6(a) Nothing contained in this Agreement shall confer upon any Transferring Employee or (ii) of Energy or its Affiliates without any right with respect to continued employment by the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and nor shall anything herein interfere with the Subsidiaries right of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreignBuyer to terminate the employment of any Transferring Employee at any time, state and local ruleswith or without cause, statutes and ordinances resulting from following the actions effective date of his or her employment with the Buyer, Generation and or restrict the Subsidiaries Buyer in the exercise of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller its independent business judgment in this regard specifically includes any Claim by modifying any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue terms and conditions of prior notification (or lack thereof) the employment of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsTransferring Employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 2 contracts
Samples: Asset Purchase Agreement (BOVIE MEDICAL Corp), Asset Purchase Agreement (BOVIE MEDICAL Corp)
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(aSchedule 6.08(a) of the Seller Disclosure Letter Schedules provides a list of all employees of the Sellers (including active employees and employees on maternity, military, short-term disability, long-term disability, holiday, jury duty, bereavement or other leave) who perform (or would perform except for being on such leave) a majority of their duties on behalf of the Business (“Schedule 5.6(a) Business Employees”) as it may determine of the date identified in its discretion. Buyer such schedule, and such schedule shall take all steps necessary be updated by the Sellers prior to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior Closing as close as practical to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) A Business Employee who is not a Transferred Employee used to service or is necessary to fulfill Sellers’ or Sellers’ Affiliates’ obligations under any Retained Contract with respect to which any required consent to assign is obtained after the Closing Date and in accordance with Section 6.17 hereof shall be referred to herein as a “NonPost-Hired Closing Assigned Contract Employee”. Except as provided below, the Sellers shall terminate the employment of each Business Employee, effective as of the Closing Date other than a Business Employee on long-term disability leave on such date. The Sellers shall terminate the employment of each Post-Closing Assigned Contract Employee, effective as of the date that the Retained Contract covering such individual becomes assigned under Section 6.17 hereof other than a Post-Closing Assigned Contract Employee on long-term disability leave on such date.”
(b) Following The Purchaser shall, and shall cause its Affiliates to, make offers of employment to all of the Business Employees (other than Business Employees described in Section 2.02(b) hereof and the Post-Closing Assigned Contract Employees) in accordance with the provisions of this Section 6.08(b) on the Closing, and to the Post-Closing Assigned Contract Employees on the date that the Retained Contract covering such individual becomes assigned under Section 6.17 hereof. Such employment offers shall contain terms and conditions, including compensation and benefits (including severance but excluding retention bonuses, one-time bonus payments, one-time incentive payments and implementation bonuses), that are no less favorable in the aggregate than those applicable to such Business Employees immediately prior to the Closing, and such terms and conditions, including compensation and benefits (including severance but excluding retention bonuses, one-time bonus payments, one-time incentive payments and implementation bonuses), shall continue for a period of at least one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following year following the Closing for the employees listed on Schedule 6.08(b)(i) of the Seller Disclosure Schedules; provided, however, that the Purchaser shall not be obligated to offer the Business Employees equity-based compensation benefits so long as the other compensation and benefits offered to the Business Employees by the Purchaser are, in the aggregate (taking into account the equity-based compensation benefits), no less favorable to the Business Employees than those applicable to them immediately prior to the Closing, and the Purchaser shall have no obligation to offer defined benefit pension plan benefits or cash balance pension plan benefits to any Business Employee. Each Business Employee who accepts the offer of employment from the Purchaser or its Affiliate is referred to herein as a period of one (1) year“Transferred Employee”, none of Buyerand the date such individual commences employment with the Purchaser or its Affiliate is referred to herein as the “Transfer Date”. To Sellers’ Knowledge, Generation or their Affiliates shall directly or indirectly solicit there are no restrictions that would prohibit the employment of any Business Employee by Purchaser or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) Affiliate of Seller or Purchaser immediately following the Closing. The Purchaser and its Affiliates who is agree not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by terminate any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereofwho are identified on Schedule 6.08(b)(i) of any plant closing the Seller Disclosure Schedules during the one (1) year period commencing on the Closing Date; provided, however, the Purchaser and its Affiliates may terminate the employment of such individuals (i) for cause, which shall include (without limitation) poor performance and misconduct, as determined by Purchaser and its Affiliates; (ii) due to a change of Customer requirements pertaining to the individual, which shall include (without limitation) termination of the applicable Customer Contract or mass layoff occurring after a Customer requested personnel change; or (iii) whose roles or employment terms, prior to the Closing Date, are under review or in the process of being changed by the Sellers, or whose Customer Contract terms are changed by the Customer prior to the Closing Date and Seller’s costs(or if such individual is a Post-Closing Assigned Contract Employee, including reasonable attorney’s feesthen the date the applicable Assigned Contract is assigned in accordance with Section 6.17 hereof). Except as set forth in the preceding sentence, nothing in defending this Agreement shall obligate the Purchaser or its Affiliates to continue the employment of any Transferred Employee or otherwise alter the otherwise “at-will” status of any such ClaimsTransferred Employee.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty Section 8.04 of the Seller Disclosure Schedule lists each Business Employee with a current annual base compensation rate in excess of $100,000 per year as of the date hereof, and sets forth for each individual the following: (30i) name; (ii) title or position (including whether full or part time); (iii) hire date; (iv) current annual base compensation rate or hourly rate and description of any increase in compensation after the Most Recent Balance Sheet Date; (v) commission, bonus or other incentive-based compensation to which such Business Days Employee is entitled; (vi) accrued paid time off (PTO); and (vii) a description of the fringe benefits provided to each such individual. Seller will promptly provide written notice and an updated Section 8.04 of the Seller Disclosure Schedule to Purchaser in the event of any changes thereto prior to the Closing Date, Buyer may offer employmentprovided that any such changes shall be limited to the matters permitted under this Section 8.04(a) or Section 6.03(xii), commencing voluntary terminations of employment of Business Employees and changes otherwise agreed to in writing by Purchaser. Prior to Closing, Purchaser shall advise Seller of the Business Employees to whom Purchaser or its Affiliate intends to make offers of employment (which group shall include all Business Employees who are in the bargaining unit covered by the CBAs, as that term is defined below, other than those Business Employees who Seller (in consultation with Purchaser), in coordination with the Unions (as defined below) to the extent necessary), identifies as being allocated to a manufacturing facility, and who will be removed from Section 8.04 of the Seller Disclosure Schedule prior to the Closing (the “Target Employees”), with such offers of employment to be effective as of the Closing Date, to unless such individuals identified Business Employee is on Section 5.6(a) a leave of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to absence on the Closing Date, Buyer in which case, Seller shall, or shall notify Seller cause their Affiliates to, retain the employment of such Business Employees until, and such employment offer will be effective as of when, the Schedule 5.6
Business Employee is available to return to active employment if such availability to return occurs within six months following the Closing Date (a) Employees or any later date to the extent such Target Employee has reinstatement, re-hire or similar rights under applicable Law on such later date). Each such Target Employee who have accepted Buyer’s accepts such offer of employment. After the date hereof employment from and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (Purchaser or who its Affiliate is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Transferred Employee.”” Except as otherwise specifically provided in this Section 8.04, or as required by applicable Law, effective as of the Closing Date, the employment of the Transferred Employees with Seller shall terminate and the Transferred Employees shall cease all active participation in and accrual of benefits under any applicable Seller Employee Plan, except as required by either of the CBAs or by Section 8.08. Seller and their Affiliates shall bear any costs related to any claims made by any Business Employee for any severance payments, payment of earned and unused paid leave, wages, and benefits arising out of or in connection with Purchaser’s decision not to make offers of employment to any Business Employee in accordance with this Agreement.
(b) Following Effective as of the Closing, Purchaser will assume, and will be bound by, the terms and obligations of (i) the collective bargaining agreement dated February 17, 2021, between TCC Pennwest and the Pennwest Union (the “Pennwest CBA”) or (ii) the collective bargaining agreement dated May 1, 2018, by and among Commodore, TCC Clarion and the Commodore Union (the “Commodore CBA” and together with the Pennwest CBA, each a “CBA” and collectively, the “CBAs”) with respect to the Transferred Employees who were covered by either CBA while employed by Seller or any of its Affiliates (the “Transferred Union Employees”). The Parties will cooperate as necessary to facilitate the assumption of the CBAs by Purchaser. Purchaser agrees to recognize the Pennwest Union and the Commodore Union (each a “Union” and collectively, the “Unions”) as the representative of the Transferred Union Employees as of the Closing, and (unless a Union and Purchaser or its Affiliate otherwise agree) to recognize and honor the seniority of each Transferred Union Employee to the extent recognized by Seller or its Affiliate as of the Closing for a period under the CBAs or any of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationpredecessor agreements.
(c) Following Notwithstanding any contrary provision of this Agreement, Seller shall be responsible and liable for providing, or continuing to provide, health care continuation coverage as required under COBRA with respect to any individual who experienced a COBRA “qualifying event” on or prior to the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in Date under any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller Plan subject to retain such employee for a reasonable time and purposeCOBRA.
(d) BuyerFor purposes of payroll taxes with respect to Transferred Employees, Generation Seller and Purchaser, and their respective Affiliates, shall use commercially reasonable efforts to treat the transaction contemplated by this Agreement as a transaction described in Treasury Regulation Sections 31.3121(a)(1)-1(b)(2) and 31.3306(b)(1)-1(b)(2), and the Subsidiaries Parties further agree to implement this treatment by utilizing Section 4 of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreignRevenue Procedure 2004-53, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsSTANDARD PROCEDURE FOR PREDECESSORS AND SUCCESSORS.
(e) Buyer Seller’s management shall be made available to Purchaser to assist/consult with issues with customers, sellers, former employees and government agencies for three (3) years following Closing.
(f) This Section 8.04 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Section 8.04, express or implied, shall confer upon any Business Employee, or any legal representative or beneficiary thereof, any rights or remedies, including any right to employment or continued employment for any specified period, or compensation or benefits of any nature or kind whatsoever under this Agreement. Nothing in this Section 8.04, express or implied, shall be deemed to establish or amend any plan providing benefits to any Business Employee or as altering the at-will nature of any Transferred Employee’s employment.
(g) For a period of ninety (90) days after the Closing, Purchaser shall not take any action with respect to the Transferred Employees which would reasonably be expected to trigger any liability under the WARN Act, unless Purchaser gives Seller shall cooperate notice of its intentions to undertake such post-Closing actions, with such notice given within a reasonable time before the Closing such that Seller could reasonably take such actions as reasonably are necessary to implement the provisions of this Section 5.6 and agree to provide each other comply with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6its resulting WARN Act obligations.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing Effective as of the Closing Date, Buyer, shall, or shall cause the Buyer Subsidiaries and the Clairol Entities to, assume and be responsible for all employment and employee benefit- related matters, obligations and liabilities that are payable on or after the Closing Date, regardless of whether such liabilities arise before, on or after the Closing Date, with respect to such individuals identified on Section 5.6(a) all persons who are employees of the Seller Disclosure Letter Acquired Business immediately before the Closing Date, including active employees, employees on leave of absence or vacation, employees on short-term or long-term disability, employees represented by bargaining unit representatives and persons employed within and outside the United States (collectively, the “Schedule 5.6(a) Employees”) "EMPLOYEES"), except as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices specifically provided otherwise in this regard are Article IX. From and after the Closing Date, (i) Buyer and the Clairol Entities shall assume and have all responsibilities, liabilities and obligations with respect to the Employees and their beneficiaries, including any claims incurred at any time, and (ii) Seller and its Affiliates shall have no responsibilities, liabilities or obligations with respect to the Employees and their beneficiaries, except as specifically provided otherwise in accordance with Applicable Lawthis Article IX.
(b) The provisions of this Article IX shall apply to all Employees, including Employees based in locations outside the United States. Not fewer The term "Employee" includes all employees of the CMO, other than twenty BMS Retained Employees (20as defined in the CMO Transitional Services Agreement).
(c) Business Days prior In addition to the foregoing, effective as of the Closing Date, Buyer shall, or shall notify cause the Buyer Subsidiaries to, assume all contracts, obligations and liabilities with respect to independent contractors of Seller, the Seller Entities and the Clairol Entities that relate primarily to the Acquired Business (including any sales agents and other independent contractors who are not Employees).
(d) Seller has provided to Buyer a list (by name or by category and number) of all Employees of the Schedule 5.6
(a) Acquired Business who are employees of the Clairol Entities, as well as all Employees who have accepted Buyer’s offer are not employees of employment. After the date hereof Clairol Entities, and prior all independent contractors of Seller, the Seller Entities and the Clairol Entities that relate primarily to the Closing Date, Acquired Business. Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is an updated list on approved leave of absence on) the Closing Date, together which shall reflect any employment terminations and new hires in the ordinary course of business consistent with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeethis Agreement.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Bristol Myers Squibb Co)
Employee Matters. (a) Not less than thirty (30) Business Days prior Neither Buyer nor any Affiliate thereof shall be required or under any obligation to offer employment to any employee of Seller. If and to the Closing Dateextent that Buyer or one of its Affiliates shall offer employment (on terms and conditions determined by Buyer in its sole discretion), Buyer may offer employment, commencing effective as of the Closing Date, to such individuals identified on Section 5.6(a) employees of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) who are actively at work as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to of the Closing Date, such employees of Seller who accept an offer of employment from Buyer shall notify Seller or such Affiliate of Buyer as of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior Closing Date shall hereinafter be referred to the Closing Date, as "ACQUIRED EMPLOYEES." Seller shall provide Buyer with access, during reasonable business hours access to Seller employees and/or their representatives between the execution of this Agreement and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees for purposes of the Material Subsidiariescommunicating and discussing such offers of employment, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeeif any.”
(b) Following In accordance with Section 2.3, Seller shall be liable for all Liabilities arising on or prior to the Closing for a period Date under, pursuant to or in connection with any Collective Bargaining Agreement or any other collective bargaining agreement, regardless of one (1) yearwhether such other collective bargaining agreement is disclosed on the Disclosure Schedule. Nothing in this Agreement shall obligate Buyer to assume, none and shall not constitute the assumption of, any collective bargaining agreement of Seller or any Liability thereunder. Seller shall make no express or implied representations or statements to any person or persons, including, but not limited to, labor unions and Personnel, that Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employeeof its successors or Affiliates, consultantis adopting or assuming, independent contractor or otherwise) intends to adopt or assume, all or any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationany collective bargaining agreement of Seller or any Liability thereunder.
(c) Following Seller shall make all contributions due through the Closing for a period Date under all Employee Plans on behalf of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent all employees of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) BuyerNo provision of this Section 6.8 shall create any third-party beneficiary rights in any Acquired Employee or Seller Employee, Generation and any beneficiary or dependent thereof, or any collective bargaining representative thereof, including, without limitation, any right to employment by Buyer as of the Subsidiaries Closing Date or continued employment for any specified period of Generation shall be responsible for all Liabilities and obligations under time after the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation Closing Date or employment in any particular position with Buyer after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach No provision of such responsibility and this Section 6.8 shall restrict Buyer’s indemnification , in the exercise of Seller in this regard specifically includes any Claim by its independent business judgement, from modifying any of the Transferred Employees for back pay, front pay, benefits terms or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue conditions of prior notification (or lack thereof) the employment of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsAcquired Employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (On Point Technology Systems Inc)
Employee Matters. 6.3.1 Sellers shall or shall cause an Affiliate (aother than the Companies and the Subsidiaries) Not less than thirty to employ prior to the Closing Date each employee of any Company or any Subsidiary employed in the United States who was absent from active employment on the Closing Date due to long term disability or who is a former employee receiving severance benefits (30) Business Days an "Inactive Employee"). Such Inactive Employees shall be deemed to have transferred their employment from the Companies and the Subsidiaries to the Sellers or any such Affiliate prior to the close of business on the Closing Date. Sellers shall provide a schedule listing such Inactive Employees as of the Closing Date on or prior to the Closing Date. All Employees of the Companies and the Subsidiaries (other than Inactive Employees) ("Employees") who are actively at work (including Employees on vacation and on any Approved Absence, Buyer as defined below) as of the Closing Date shall continue to be employed as of the Closing Date at their base salary or wage rate in effect immediately prior to the Closing Date (or, as applicable, immediately prior to his or her Approved Absence). All other Employees of the Companies and the Subsidiaries employed in the United States who are not actively at work on the Closing Date due to an approved leave of absence (including active military service), short term disability (including employees on workers' compensation) or a layoff with active recall rights in place pursuant to the terms of applicable Company policy or labor agreement ("Approved Absence"), shall continue to be employed by the Companies and the Subsidiaries as of the Closing Date. All Employees of the Companies and the Subsidiaries employed outside the United States ("Non-U.S. Employees") shall continue to be employed on and after the Closing Date on terms and conditions required by and in accordance with the provisions of applicable foreign, federal or state Law.
6.3.2 Purchaser agrees to provide, and shall cause the Companies and the Subsidiaries to provide, each Employee with employee benefits (including, without limitation, medical and dental benefits) that in the aggregate are substantially similar to those benefits provided by Purchaser or its Affiliates to its similarly situated employees and such other terms and conditions of employment as may offer employmentbe required by applicable Law.
6.3.3 The Purchaser acknowledges that the Companies and the Subsidiaries will have in effect on the Closing Date, commencing the collective bargaining agreements (including any benefit plans maintained pursuant to such collective bargaining agreements) and the Company Plans listed in Schedule 4.16.1 and Schedule 4.17.1 and statutory and social laws of foreign countries.
6.3.4 Purchaser agrees that, with respect to all of its employee benefit plans, programs and arrangements covering or otherwise benefiting any of the Employees on or after the Closing Date, service with the Companies and the Subsidiaries shall be, to the extent permitted under applicable Law, counted for purposes of eligibility to participate, vesting, level of benefits with respect to vacation , and benefit accruals in any defined benefit pension plan, to the same extent such service was counted under the corresponding employee benefit plans, programs, or arrangements of the Companies and the Subsidiaries prior to the Closing Date and, in the case of Non-U.S. Employees, further to the extent and in the manner provided for under applicable Law, except to the extent that such credit would result in duplication of benefits for such period of service. With regard to severance arrangements, Employees will be treated the same as similarly situated employees of the Purchaser.
6.3.5 Purchaser shall provide welfare benefits of the type described in Section 3(1) of ERISA and in accordance with this Section 6.3, as of the Closing Date so as to ensure uninterrupted coverage of all Employees employed in the United States ("U.S. Employees"). Such plans shall grant credit for amounts paid by the U.S. Employees on or before the Closing Date by an Employee or an Employee's covered dependent for purposes of satisfying applicable deductible, coinsurance, and maximum out-of-pocket provisions if such amounts are applicable to the same calendar year in which the Closing Date occurs, in each case, under any applicable welfare plan of Purchaser or its Affiliates, provided that such information is provided to Purchaser within thirty (30) days following the Closing Date, and Purchaser shall waive any pre-existing condition exclusions evidence of insurability provisions, waiting period requirements or any similar provision.
6.3.6 Effective as of the Closing Date, the Purchaser shall cover, or cause the Companies and the Subsidiaries to such individuals identified on cover, the U.S. Employees under one or more defined contribution plans and trusts intended to qualify under Section 5.6(a401(a) and Section 501(a) of the Seller Disclosure Letter Code (the “Schedule 5.6(a"Purchaser DC Plan"). Invensys shall transfer the account balances (including loans to U.S. Employees) Employees”of U.S. Employees under the Invensys 401(k) plan which is a defined contribution plan ("Seller DC Plan") to the Purchaser DC Plan. In connection with any transfer, the Purchaser will allow each U.S. Employee's outstanding loan and related promissory note, if any, under the Seller DC Plan to be transferred to the Purchaser DC Plan. Sellers and Purchaser shall reasonably cooperate in good faith to effect such transfers as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to soon as practicable after the Closing Date.
6.3.7.1 Effective as of the Closing Date, Buyer the Purchaser shall notify Seller establish one (1) or more qualified defined benefit plans or shall designate one (1) or more established defined benefit plans ("Purchaser's Salaried Plans") and a trust(s) to fund Purchaser's Salaried Plans ("Purchaser's Salaried Trust") to assume the liabilities attributable to the non-union, current U.S. Employees (and excluding former and Inactive Employees) of the Schedule 5.6Fasco Business (collectively, the "Salaried Pension Transferees") as of the Closing Date entitled to a benefit under the Invensys Pension Plan applicable to such Salaried Pension Transferees ("Assumed Salaried Pension Plan Liabilities").
6.3.7.2 As soon as possible, but no later than sixty (a60) Employees who have accepted Buyer’s offer days post-Closing, Purchaser shall provide Sellers with a current determination letter(s) on the qualification under Sections 401(a) and 501(a) of employment. After the date hereof and prior to Code of all Purchaser's Salaried Plans.
6.3.7.3 Within one hundred twenty (120) days after the Closing Date, Seller but in no event prior to the confirmation that Purchaser's Salaried Plans and the Invensys Pension Plan comply with Sections 401(a) and 501(a) of the Code, Invensys shall provide Buyer cause the transfer of assets from the Sellers' qualified pension trust for the Invensys Pension Plan (the "Sellers' Salaried Trust") to Purchaser's Salaried Trust which shall comply with accessSection 414(l) of the Code and applicable PBGC regulations and assumptions, during reasonable business hours as described in PBGC regulation appendix B to Part 4044, Table I, as of the Closing Date.
6.3.7.4 The transfer, when made from the Sellers' Salaried Trust to the Purchaser's Salaried Trust, shall be in cash and shall be adjusted based on the actual rate of return of the Sellers' Salaried Trust on the amount calculated under Section 6.3.7.2 or Section 6.3.7.3 above from the Closing Date to the actual date of transfer to the Purchaser's Salaried Trust.
6.3.7.5 Upon the receipt of the assets by Purchaser's Salaried Trust in accordance with this Section 6.3.7 and upon reasonable noticereceipt by Purchaser of all participant data reasonably necessary for Purchaser to calculate benefits and administer the Purchaser's Salaried Plan (with regard to such participants), the Purchaser and Purchaser's Salaried Plans shall be solely responsible for the Assumed Salaried Pension Plan Liabilities.
6.3.7.6 The Purchaser and the Sellers shall take such other actions necessary or appropriate to accomplish the assumption of the Assumed Salaried Pension Plan Liabilities including, without limitation, the timely filing of IRS Forms 5310-A and the timely filing of any necessary PBGC filings.
6.3.7.7 Any calculations of the amount to be transferred under this Agreement by Sellers' actuary shall be subject to review by Purchaser's actuary. If Purchaser's and Sellers' actuaries cannot agree on the amount to be transferred, Purchaser and Sellers shall appoint a third mutually acceptable actuary whose decision on the amount to be transferred shall be binding on the parties. The Sellers and the Purchaser shall furnish, or cause to be furnished, to such actuary all information the Schedule 5.6
actuary shall reasonably request for purposes of making this determination. The Sellers and the Purchaser shall cause the actuary to act promptly to resolve the issues in dispute. The fees and expenses of such actuary shall be borne equally (ai.e., on a 50/50 basis) Employeesby the Sellers and the Purchaser. Following determination of the amount to be transferred under this Agreement, Purchaser and Buyer agrees that it Invensys, as agent for the Sellers, shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption send to the operations Escrow Agent a certificate, signed by each of Seller. Each of Purchaser and Invensys, directing the Schedule 5.6Escrow Agent to disburse the Escrow Funds to Purchaser and/or Invensys in amounts determined in accordance with Section 2.2.2.4.
(a) Employees who commences employment with Buyer effective as of (or who is 6.3.7.8 Effective on approved leave of absence on) the Closing Date, together with the continuing Purchaser shall assume all liability for providing retiree health and life insurance benefits to all Employees and all former employees of the Material SubsidiariesFasco Business entitled to such benefits under any plan, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following program or arrangement provided by the Closing for a period of one (1) yearSellers, none of Buyer, Generation the Companies or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries as of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any .
6.3.7.9 Effective as of the Transferred Employees for back payClosing Date, front payFasco Australia Pty Limited and Fasco Motors Limited shall cease participating in any pension plan or fund which is not sponsored by the Companies or Subsidiaries and shall cease contributing on behalf of their respective current and former employees to such plans. With respect to such plans, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date Purchaser and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and Sellers agree to provide each other with such records and information take all actions necessary or as may be necessary and appropriate required by Law to carry out their respective obligations under this Section 5.6effectuate the foregoing.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days Purchaser shall determine which Employees, if any, to offer employment to, in its sole discretion, and shall thereafter promptly notify Sellers in writing of such determination. Only Employees who are offered and accept such offers of employment with Purchaser based on the initial terms and conditions set by Purchaser and then actually commence employment with Purchaser will become “Transferred Employees” as of the applicable Assignment Date or such other date after the Assignment Date but prior to the Closing end of the Designation Rights Period as may be determined by Purchaser (such date, the “Hire Date”). Sellers shall terminate, or shall cause to be terminated, on the applicable Hire Date, Buyer may offer employment, commencing the employment of such Employees who are offered and accept offers of employment with Purchaser as of such Hire Date pursuant to this Section 6.5(a). Notwithstanding the Closing foregoing, nothing herein will impose on Purchaser any obligation to retain any Transferred Employee in its employment for any amount of time or on any terms and conditions of employment after the applicable Hire Date. The employment of each such Transferred Employee with Purchaser (including any Transferred Employee who may be on leave of absence) will commence on the applicable Hire Date. Purchaser shall not be obligated to provide any severance, separation pay, or other payments or benefits, including any key employee retention payments, to any Employee on account of any termination of such individuals identified Employee’s employment on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine applicable Hire Date or in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance connection with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s any offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employeesemployment from Purchaser, and Buyer agrees that it such benefits (if any) shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations remain obligations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired EmployeeSellers.”
(b) Following From and after the Closing for a period of one (1) yeardate hereof, none of BuyerSellers shall provide Purchaser, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated byits Affiliates, and received severance compensation fromtheir representatives with reasonable access to the Employees and with information, Seller unless including employee records and until Buyer reimburses Seller for a reasonable portion of Benefit Plan data, reasonably requested by Purchaser and such severance compensationAffiliates, except as otherwise prohibited by applicable Law or Regulation.
(c) Following For purposes of payroll Taxes with respect to the Closing for Transferred Employees, Sellers shall treat the transactions contemplated by this Agreement, as a period transaction described in Treasury Regulation Sections 31.3121(a)(1)-1(b)(2) and 31.3306(b)(1)-(b)(2); and as such, Sellers and Purchaser shall report on a basis as set forth under the “Standard Procedure” provided in Section 4 of one (1) yearRevenue Procedure 2004-53, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose2004-2 C.B. 320.
(d) BuyerWith respect to Transferred Employees, Generation Purchaser will have full responsibility under the WARN Act relating to any act or omission of Purchaser after the applicable Hire Date. With respect to the Employees, Sellers will have full responsibility under the WARN Act relating to any act or omission of Sellers prior to and on the Subsidiaries of Generation applicable Hire Date. Sellers shall be responsible for all other WARN Act Liabilities relating to the periods prior to and obligations on the applicable Hire Date, including any such Liabilities that result from Employees’ separation of employment from Sellers and/or Employees not becoming Transferred Employees pursuant to this Section 6.5. Sellers have issued prior to the date of this Agreement, all WARN Act notices to the applicable Employees and all other parties required to receive notice under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsWARN Act.
(e) Buyer For the avoidance of doubt and without limiting the generality of Section 2.1(d), Purchaser will not assume or be liable for any Excluded Employee Liabilities (except to the extent constituting Expenses payable by Purchaser pursuant to the terms of the Agency Agreement). Purchaser does not accept or assume any Collective Bargaining Agreements to which any Seller is a party to or subject to, and expressly declines to be bound by or accept the terms of any such Collective Bargaining Agreements. Purchaser shall cooperate not be obligated to, and does not, accept or adopt any wage rates, employee benefits, employee policies, or any other terms and conditions of employment.
(f) All provisions contained in this Agreement with respect to employee benefit plans or compensation of Transferred Employees are included for the sole benefit of the respective parties hereto. Nothing contained herein: (i) shall confer upon any former, current or future employee of Sellers or Purchaser, or any other Participant, or any legal representative or beneficiary thereof any rights or remedies, including any right to employment or continued employment, of any nature, for any specified period; (ii) shall cause the employment status of any former, present or future employee to be other than terminable at will; or (iii) shall confer any third party beneficiary rights upon any Transferred Employee or any dependent or beneficiary thereof or any heirs or assigns thereof. This Agreement is not intended to and shall not be construed to amend, modify or terminate any employee benefit plan (including, without limitation, as reasonably necessary to implement the provisions such term is defined under Section 3(3) of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6ERISA), program or arrangement.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days prior to As of the Closing Date, Buyer and its Affiliates (including, after the Closing, the Company) shall continue to employ all of those individuals who are immediately prior to the Closing Date employed by the Company (such individuals, the “Continuing Employees”) with compensation and benefits that are substantially similar in the aggregate to those in effect with respect to similarly situated employees of Buyer or its operating Subsidiary, as applicable. For purposes of clarity, this Section 6.10 shall not apply to those directors and officers of the Company who resign prior to the Closing pursuant to Section 3.6(a)(iv).
(b) For a period of sixty (60) days following the date of this Agreement (unless Seller otherwise agrees in writing to extend such period) (such period, as may offer be so extended, the “Consultation Period”), Buyer may (i) interview at a reasonable time arranged through Seller’s Vice President of Finance and Strategy (and any individuals as may be designated in writing by Seller), and (ii) at Buyer’s election, make offers of employment to, those employees of Seller or its Affiliates (other than the Company) who are listed on Schedule 6.10(b) (the “Offered Employees”), which offers of employment, commencing if any, shall comply with the terms and conditions of Section 6.10(a) as if the Offered Employees were Continuing Employees. Any Offered Employee who accepts Buyer’s offer of employment during the Consultation Period shall be deemed to be a Continuing Employee as of the Closing Date for purposes of this Section 6.10. Buyer shall reimburse Seller for the actual severance costs and expenses (excluding any Stay Bonuses), if any, incurred by Seller under any written employment agreement, severance plan or other arrangement providing for termination benefits with respect to any Offered Employee who accepts Buyer’s offer of employment. From and after the Consultation Period until the date that is eighteen (18) months after the earlier of the date of any termination of this Agreement and the Closing Date, neither Buyer nor any of its Affiliates (including, after the Closing, the Company) shall, directly or indirectly, employ or solicit for employment (or other provision of services), either as an employee, consultant, agent or representative, any Offered Employee who does not accept an offer of employment from Buyer during the Consultation Period (irrespective of whether Buyer makes an offer of employment to such Offered Employee).
(c) As soon as practicable after the Closing Date (but in any event no later than two weeks following the Closing Date), Seller shall pay the amount indicated on Schedule A, if any, payable pursuant to those certain retention letter agreements identified on Schedule A as a result of the transactions contemplated by this Agreement (and any payroll and employment Taxes applicable thereto) (each, a “Stay Bonus” and, collectively, the “Stay Bonuses”). For the avoidance of doubt, the liability for and obligation to pay any remaining unpaid portion of the Stay Bonuses (and any payroll and employment Taxes applicable thereto) shall be the responsibility of Buyer or one of its Affiliates (including, after the Closing, the Company) following the Closing and any portion of the Stay Bonuses payable by Buyer and its Affiliates shall be payable in accordance with the terms of the arrangements evidencing the applicable Stay Bonus and applicable Law.
(d) Effective as of the Closing, all Continuing Employees shall cease to participate in all Company Benefit Plans.
(e) To the extent applicable with respect to employee benefit plans, programs and arrangements that are established or maintained by Buyer or its operating Subsidiary, as applicable, for the benefit of Continuing Employees, except with respect to the Casino Queen Employee Stock Ownership Plan, Continuing Employees (and their eligible dependents) shall be given credit for their service with the Company and its Affiliates (including Seller) (i) for purposes of eligibility to participate, for purposes of vesting, and for purposes of vacation and severance (but no other purpose), benefit accrual to the extent such service was taken into account under a corresponding Company Benefit Plan, and (ii) for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations; provided, however, that such service need not be credited in accordance with this Section 6.10(e) to the extent it would result in a duplication of benefits or to the extent that an applicable plan of Buyer or its operating Subsidiary is insured and the applicable insurer does not consent to the foregoing provisions, provided Buyer or its operating Subsidiary, as applicable, shall use reasonable efforts to obtain such consent. Notwithstanding anything to the contrary contained herein, for the avoidance of doubt, Continuing Employees shall not be given credit for their service with the Company and its Affiliates (including Seller) for purposes of vesting or eligibility to participate, or for any other purposes, with respect to the Casino Queen Employee Stock Ownership Plan.
(f) Without limiting the generality of any other provision of this Section 6.10 and for the avoidance of doubt:
(i) To the extent not paid as of the Closing Date, Buyer shall cause the Company to such individuals identified on Section 5.6(a) of assume liability for, and to pay to each Continuing Employee who is employed by the Seller Disclosure Letter Company as and when due, the annual bonus to which the Continuing Employee is entitled under Seller’s annual performance bonus plan (the “Schedule 5.6(a) EmployeesAnnual Bonus Arrangement”) as it may determine for the fiscal year ended April 24, 2017; provided, that an accrued liability in respect of such amounts is included on the Final Closing Statement.
(ii) In the event that the Closing does not occur until after the fiscal year ended April 24, 2017, or any fiscal year thereafter in which the Closing Date occurs, Buyer shall not be responsible for, and shall not be obligated to cause the Company to pay to any Continuing Employee, any annual bonus that such Continuing Employee would have received under the Annual Bonus Arrangement for any such fiscal year; provided, however, in such event, Seller shall be permitted to pay, or cause the Company to pay, a prorated annual bonus to such Continuing Employee equivalent to the pro rata amount such Continuing Employee would have received under the Annual Bonus Arrangement for the portion of the bonus period up to and including the Closing Date. If Seller determines, in its sole and absolute discretion. , to make any such bonus payments, Seller may cause the Company to institute a special payroll period (which shall be a one time event and occur immediately prior to the Closing) to pay the prorated annual bonuses to the applicable Continuing Employees.
(iii) Buyer shall take all steps necessary cause the Company to ensure provide severance payments and benefits to any Continuing Employee whose employment is terminated within ninety (90) days after the Closing which are no less favorable than the severance benefits that its hiring decisions would have been paid to such Continuing Employee under Seller’s written severance plan as in effect on the Closing Date for a termination under comparable circumstances, such plan being set forth on Schedule 6.10(f)(iii).
(g) Buyer agrees to indemnify, defend and practices in hold harmless Seller from and against any loss, damage, liability, claim, cost or expense (including reasonable attorneys’ fees) that may be incurred by, or asserted against, Seller arising out of or relating to Buyer’s failure, if any, to comply with the Worker Adjustment Retraining and Notification Act or any similar state Laws with respect to the Continuing Employees.
(h) Except for those Continuing Employees and Offered Employees who are employed by Buyer pursuant to this regard are in accordance with Applicable Law. Not fewer than twenty Section 6.10, Buyer agrees that for a period commencing on the date hereof and ending on the date which is eighteen (2018) Business Days prior to months after the earlier of the date of any termination of this Agreement and the Closing Date, Buyer shall notify not (and shall cause its Affiliates not to), directly or indirectly, solicit or hire for employment or in any other capacity any individual who is currently, or at any time becomes, employed by Seller or any of its Affiliates (other than the Schedule 5.6Company subsequent to Closing), until such individual has been separated from such employment for at least forty-five (45) days (subject in all cases to the restrictions in Section 6.10(b)), unless Seller provides Buyer specific prior written consent; provided, however, that the foregoing shall not prohibit Buyer from employing any such person who contacts Buyer on his or her own initiative without any direct or indirect solicitation or encouragement from Buyer or any general solicitation of employees that is not targeted at such individuals (subject in all cases to the restrictions in Section 6.10(b)). For the avoidance of doubt, this Section 6.10(h) shall survive the termination of this Agreement.
(ai) Employees who have accepted Buyer’s offer of employment. After Seller agrees that for a period commencing on the date hereof and prior to ending on the date which is eighteen (18) months after the earlier of the date of any termination of this Agreement and the Closing Date, Seller shall provide not (and shall cause its Affiliates not to), directly or indirectly, solicit or hire for employment or in any other capacity any individual who is currently, or at any time becomes, employed by Buyer with accessor any of its Affiliates, during reasonable business hours and upon reasonable noticeuntil such individual has been separated from such employment for at least forty-five (45) days, to unless Buyer provides Seller specific prior written consent; provided, however, that the Schedule 5.6foregoing shall not prohibit Seller from employing any such person who contacts Seller on his or her own initiative without any direct or indirect solicitation or encouragement from Seller or any general solicitation of employees that is not targeted at such individuals. For the avoidance of doubt, this Section 6.10(i) shall survive the termination of this Agreement.
(aj) EmployeesNothing in this Section 6.10, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (whether express or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiariesimplied, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee confer upon any Person who is not a Transferred Party to this Agreement, including any Continuing Employee or Offered Employee, any right to employment or recall, any right to continued employment, any right to compensation or benefits, or any other right of any kind or nature whatsoever and nothing contained herein shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether treated as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any amendment of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsCompany Benefit Plan.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Stock Purchase Agreement (Isle of Capri Casinos Inc)
Employee Matters. (a) Not less than thirty Notwithstanding anything in the Confidentiality Agreement to the contrary, prior to Closing, Purchaser may offer employment with Purchaser or its Affiliates to any Business Employee identified by Purchaser in its sole discretion on terms and conditions determined by Purchaser in its sole discretion. Within five (305) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Datefollowing request from Purchaser, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
post (aor send via electronic mail) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of written advertisement (electronically or otherwise) prepared by Purchaser notifying Seller. Each ’s Business Employees of the Schedule 5.6
(a) positions Purchaser has open for hire and including information on how such Business Employees who commences may apply for such positions. Purchaser is solely responsible for scheduling any meetings or interviews with any Business Employees interested in employment with Buyer effective as Purchaser. The Parties acknowledge and agree that Purchaser or its Affiliates shall have no obligation to interview or make an offer of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees employment to any of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
Business Employees (a) including any Business Employee who is not a Transferred actively at work) pursuant to this Agreement or for any other reason. Each Business Employee shall be who accepts an offer of employment with Purchaser and commences employment with Purchaser or an Affiliate thereof immediately following the Closing or, if applicable, the end of the transition period under the Transition Services Agreement (such applicable date, the “Transfer Date”) is referred to herein as a “Non-Hired Transferred Employee.”” Seller shall be responsible for any severance payable to any Business Employee that is triggered under any employee benefit plan.
(b) Following Subject to Purchaser’s rights under Section 11.1(b)(iv), Purchaser hereby releases Seller Group from any claims for Losses relating to Purchaser’s hiring of Business Employees (including Purchaser’s use of Business Employees in making the Closing for a period of one (1) year, none of Buyer, Generation decision to hire or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationnot to hire).
(c) Following Seller shall remain obligated to provide continuation health care coverage (including the Closing issuance of any required notices), in accordance with Section 4980B of the Code and Sections 601 to 608 of ERISA (“COBRA”), to each Business Employee and his or her qualified dependents and each other individual who, in connection with the transactions contemplated by this Agreement, meet the definition of a “M&A qualified beneficiary” as defined in Treasury Regulation Section 54.4980B-9, Q&A-4. Purchaser shall have responsibility for a period of one (1) yearany and all obligations under COBRA with respect to Transferred Employees and their qualified dependents who incur qualifying events, none of Buyerin each case, Generation on or their Affiliates shall directly or indirectly solicit after the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeTransfer Date.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the The provisions of this Section 5.6 7.7 are solely for the benefit of the respective Parties to this Agreement and agree nothing in this Section 7.7, express or implied, shall confer upon any other Person, including any employee (or any dependent or beneficiary thereof), any Third Party beneficiary rights or other rights or remedies, including any right to provide each continuance of employment or any other service relationship with such records and information as may be necessary and appropriate Purchaser, Seller or any of their Affiliates, or any right to carry out their respective obligations compensation or benefits or any term of condition of employment or service of any nature or kind whatsoever under this Agreement or otherwise. Nothing in this Section 5.67.7, express or implied, shall: (i) interfere with the right of Purchaser or any of its Affiliates to terminate the employment or other service relationship of any Transferred Employee at any time, (ii) obligate Purchaser or its Affiliates to adopt, enter into or maintain any benefit or compensation plan, program or arrangement at any time, (iii) be construed as the establishment of or an amendment to any benefit or compensation plan, program, policy, agreement, arrangement or contract, or (iv) limit the ability of Purchaser or any of its Affiliates to amend, modify or terminate any benefit or compensation plan, program, policy, agreement, arrangement or contract.
Appears in 1 contract
Employee Matters. (a) Not less than Effective as of the Closing Date, Buyer may make an offer of employment to those full time and part time field employees (hourly and salaried) of Seller, who currently perform substantially all of their services with respect to the Assets, as identified by Seller within thirty (30) Business Days after execution of this Agreement, but prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter Date (the “Schedule 5.6(a) Business Employees”) as it may determine in its discretion). Buyer shall take all steps necessary to ensure that its hiring decisions and practices in For purposes of this regard are in accordance with Applicable Law. Not fewer than twenty (20) Agreement, a “Transferred Employee” is a Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees Employee who have accepted Buyer’s accepts an offer of employment. After the date hereof and prior employment made pursuant to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeethis Section 19.23(a).”
(b) Following Buyer agrees to pay Seller at Closing an amount equal to the Closing for a period sum of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) four (4) months salary/wages, and (ii) four (4) months COBRA premiums, with respect to each Business Employee who does not constitute a Transferred Employee pursuant to Section 19.23 (as computed with respect to each Business Employee, a “Severance Amount,”). In addition, if within the six (6) month period commencing on the Closing Date a Transferred Employee incurs an “Involuntary Termination of Employment,” Buyer shall pay Seller a Severance Amount with respect to such terminated Transferred Employee. For purposes of this Section 19.23(b), the term “Involuntary Termination of Employment” means the termination of the Transferred Employee’s employment with Buyer (i) by Buyer or one of its Affiliates who is not a Schedule 5.6(a) Employee affiliates without “Cause” or (ii) by the Transferred Employee for “Good Reason.” For purposes of Energy this Section 19.23(b), the term “Cause” means (i) the willful and continued failure by the Transferred Employee to perform his or its Affiliates without her duties, or (ii) the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any willful engaging of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date Employee in conduct that is demonstrably and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary materially injurious to implement the provisions Buyer. For purposes of this Section 5.6 and agree 19.23(b), the term “Good Reason” means (i) the assignment to provide each other the Transferred Employee of any duties or responsibilities that are substantially diminished as compared to the Transferred Employee’s duties as of date of hire by Buyer, (ii) a reduction in the amount of the Transferred Employee’s aggregate annualized salary, or hourly base rate of pay, as applicable, plus the individual’s target cash bonus opportunity below the amount of the Transferred Employee’s aggregate annualized salary, or hourly base rate of pay, as applicable, plus the individual’s target cash bonus opportunity with such records and information Seller as may be necessary and appropriate of date of hire by Buyer, or (iii) the relocation of the Transferred Employee’s principal place of employment would require an increase of more than 50 miles in his commute from his residence to carry out their respective obligations under this Section 5.6his principal place of employment.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Denbury Resources Inc)
Employee Matters. (a) Not less than thirty Seller shall pay, perform and discharge, and remain liable after the Closing, for all obligations to its employees, for compensation and benefits, including wages, salaries, commissions, bonuses, deferred compensation, severance, termination, insurance, pensions, profit-sharing, vacation, sick pay and other compensation or benefits (30"Seller Employees Compensation") Business Days to which they are entitled for periods prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to Until the Closing Date, Seller shall provide Buyer with accessnot, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Purchaser, change the compensation or benefits of any of its employees.
(b) Purchaser is not assuming and shall have no obligation to pay any Seller Employees Compensation, whether accruing before, as a result of, or after the Closing, except (i) one-half of the Post-Closing Transitional Employee Costs (as defined below), and (ii) the compensation and benefits employees of Seller who are not Transitional Employees who are employed by Purchaser for services performed for Purchaser after the Closing. Seller shall perform, and Purchaser is not assuming and shall have no obligation to perform, any severance or termination obligations, liabilities and commitments accruing or arising by agreement, plan or policy of Seller as a result of the transactions contemplated hereby.
(c) Purchaser may, but shall have no obligation to, offer employment to any of the current employees of Seller in the Business as Purchaser may desire. In addition, Purchaser shall have the right, but not the obligation, to offer employment to and to employ a sufficient number of current employees of Seller, with American Meter's consent (which may shall not be unreasonably withheld), conditioned to enable Purchaser to make Pantheon feasible, to sell Pantheon and to meet its other obligations under the License Agreements. Any employee of Seller considered for employment by Purchaser shall be subject to Purchaser's normal application and screening procedures and to Purchaser's compensation and benefits policies. No provisions of this Agreement, express or delayed absent significant business rationale implied, shall confer on any employee or former employee of Seller any right to employment or any continued right to employment for Seller to retain such employee for a reasonable time and purposeany extended period.
(d) Buyer, Generation and the Subsidiaries of Generation Seller shall be responsible for all Liabilities the maintenance and obligations distribution of benefits accrued under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees any Employee Plans maintained by Seller pursuant to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.plans. Purchaser shall assume neither any liability for any such accrued benefits nor any fiduciary or administrative
Appears in 1 contract
Samples: Asset Purchase Agreement (Marcum Natural Gas Services Inc/New)
Employee Matters. (ai) Not less than thirty The Disclosure Schedule sets forth a list of each individual employed by Seller, including project employees, and employees who are on vacation leave, family leave, authorized leave of absence or short term disability leave (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine and their respective years of service, annual compensation including but not limited to any incentive and bonus compensation and annual vacation eligibility.
(ii) Buyer shall have the right (but not the obligation) to offer employment effective on the Closing Date to each Employee, each such person to be selected by Buyer in its sole discretion. Buyer shall take all steps necessary to ensure that its hiring decisions , and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees any such Employee who have accepted Buyeraccepts Xxxxx’s offer of employmentemployment shall be deemed a “Buyer Employee”. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) The Employees who commences are not offered employment with by Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees those Employees who do not accept offers of the Material Subsidiariesemployment by Buyer, shall be are referred to herein as the “Transferred Seller Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following . For the Closing for a period avoidance of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation fromdoubt, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for terminating the employment of the Seller Employees and for paying severance and all Liabilities and obligations under other applicable payments due any or all Seller Employees as a result of the Worker Adjustment and Retraining Notification Act and similar foreigntermination of their employment.
(iii) Xxxxxx agrees to assist Xxxxx in encouraging employees so offered employment by Buyer to accept said offers. Notwithstanding anything contained herein to the contrary, state and local rules, statutes and ordinances resulting from nothing herein shall be deemed a legally binding obligation on the actions part of Buyer, Generation and the Subsidiaries Buyer to retain any employees of Generation Seller after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(eiv) Buyer shall not assume any liabilities or any other obligation, including without limitation, under any plan, arrangement or agreement described in Section 3(g), with respect to any current, former or retired employee or contractor of Seller, and Seller retains all liabilities with respect to such employees. Seller shall cooperate be responsible for the payment of separation/termination pay claimed by its employees as reasonably necessary to implement a result of their termination of employment from Seller, notwithstanding the provisions subsequent employment by Buyer of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6one or more of said employees.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Matters. (a) Not less than thirty (30) Business Days prior The Buyer agrees to the Closing Dateoffer, Buyer may offer in writing, employment, commencing as of 12:01 a.m. on the Initial Closing Date, for a period of at least twelve (12) months (the "Minimum Employment Period") from such date, to such individuals identified on Section 5.6(a) all employees of NAESCO who are represented by the Local and who were employed in represented positions in the operation of the Seller Disclosure Letter Acquired Assets at any time during the three- month period prior to the Initial Closing, as set forth in Schedule 5.7(a) (the “Schedule 5.6(a) "Represented Plant Employees”) "). Those employees who accept, in writing, such offer of employment are hereinafter referred to as it may determine in its discretion. Buyer the "Represented Employees." All such offers of employment shall take all steps necessary to ensure that its hiring decisions and practices in this regard are be made in accordance with Applicable Lawall applicable Laws and regulations and the Collective Bargaining Agreement. Not fewer than twenty (20) Business Days prior to Effective as of the Initial Closing Date, the Buyer shall notify Seller agree to be bound by the terms of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior Collective Bargaining Agreement with respect to the Closing DateRepresented Employees as if the Buyer were the Seller for purposes of such Collective Bargaining Agreement, Seller shall provide Buyer and to thereafter comply with accessall applicable obligations thereunder, during reasonable business hours and upon reasonable notice, subject to the Schedule 5.6
(a) changes negotiated with and acceptable to the Local. The Buyer shall take, or cause to be taken, all actions, or do, or cause to be done, all things necessary, proper or advisable with respect to the Collective Bargaining Agreement as the Sellers shall reasonably request, including becoming a party to the Collective Bargaining Agreement for the duration of its term as it relates to the Represented Employees, and the Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to comply with all applicable obligations under the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired EmployeeCollective Bargaining Agreement.”
(b) Following The Buyer agrees to offer, in writing, employment, commencing as of 12:01 a.m. on the Initial Closing Date, for a at least the Minimum Employment Period, to all employees of NAESCO who were employed in the operation of the Acquired Assets at any time during the three-month period prior to the Initial Closing Date, other than Represented Plant Employees, as set forth in Schedule 5.7(b)(i) (the "Non-Represented Plant Employees," together with the Represented Plant Employees, the "Plant Employees"), at levels of one (1) yearwages and benefits in the aggregate not less than the level of wages and benefits in the aggregate of each such Non-Represented Plant Employee in effect immediately prior to the Initial Closing Date. The Non-Represented Plant Employees who accept, none in writing, such offer of Buyer, Generation employment are hereinafter referred to as the "Non-Represented Employees," and the Non-Represented Employees and the Represented Employees are hereinafter collectively referred to as the "Acquired Assets Employees." Plant Employees who decline to accept such offer of employment shall not be entitled to any severance or their Affiliates other benefits on account of such declination. The Buyer shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) provide to any Non-Hired Represented Employee who has been is terminated by, for reasons other than cause during the Minimum Employment Period those severance benefits described in Schedule 5.7(b)(ii). The Buyer shall provide to any Non-Represented Employee whose employment is terminated involuntarily during the six (6) month period immediately following the Minimum Employment Period out-placement assistance and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationtuition reimbursement consistent with that described in Schedule 5.7(b)(iii).
(c) Following As soon as practical after the Effective Date, the Buyer shall take all action necessary or appropriate to establish and maintain a tax qualified pension plan for the Acquired Assets Employees (the "Buyer's Plan"), which Buyer's Plan shall provide, with respect to relevant Acquired Assets Employees who leave employment with the Buyer or subsequent buyers, for the following:
(i) The Buyer shall provide a level of pension benefits not lower than such level of pension benefits calculated using the pension benefit formula applicable to each relevant Acquired Assets Employee under the NUSCO Retirement Plan (the "Plan") as of the Initial Closing for a period Date. The Buyer's obligation under the Buyer's Plan will be calculated as the difference between (A) the total pension benefit of one such Acquired Assets Employee as calculated as of such Acquired Assets Employee's retirement date with Buyer using (1) yearthe pension benefit formula and actuarial factors that would have been applicable to the Acquired Assets Employee if he or she had continued to participate in the Plan as the Plan was in effect on the Initial Closing Date, none (2) the "final average earnings" (as defined in the Plan) as of such Acquired Assets Employee's retirement date with the Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations taking into account compensation credited under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from Plan through the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Initial Closing Date and Seller’s costsearned from NAESCO or any of its Affiliates and the Buyer, including reasonable attorney’s fees(3) such Acquired Assets Employee's total years of service under the Plan as of the Initial Closing Date plus years of service with the Buyer as of such Acquired Asset Employee's retirement date with the Buyer, and (4) "covered compensation" (as defined in defending the Plan) as of such Acquired Assets Employee's retirement date with the Buyer, and (B) the pension benefit payable to such Acquired Assets Employee by NAESCO or any of its Affiliates at retirement determined as follows: the pension benefit payable to each Acquired Assets Employee by NAESCO or any of its Affiliates shall be calculated by the Sellers as of the Initial Closing Date, based upon (1) the pension benefit formula under the Plan applicable to such ClaimsAcquired Assets Employee as of the Initial Closing Date, (2) years of credited service of such Acquired Assets Employee under the Plan as of the Initial Closing Date, (3) the "final average earnings" (as defined in the Plan) of such Acquired Asset Employee as of the Initial Closing Date, and (4) the "covered compensation" (as defined in the Plan) as of the Initial Closing Date.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty Nothing in this Agreement shall confer upon any employee of Seller the right to employment with Buyer after the Closing Date. Buyer shall offer employment to all of Seller’s current employees as listed on Schedule 2.19(a) hereto (30all such employees accepting such offer are hereinafter referred to as the "Transferred Employees"), on terms to be established by Buyer in its sole discretion. Buyer shall have no Liabilities with respect to Seller’s employees or independent contractors for periods prior to any such person becoming employees of, or independent contractors to, Buyer, including, but not limited to, Liabilities for wages, bonuses, vacation pay and employee benefits of any kind, and Seller shall be solely liable for the payment of any such Liabilities.
(b) Business Days Except to the extent specifically set forth in Section 4.1 of the Disclosure Schedule hereto, Buyer is not assuming and Seller shall remain liable for all Liabilities arising out of or in any way related to (i) all amounts required to be paid pursuant to any Employment Agreements, Retention Agreements and any other similar agreements between Seller and any of Seller’s employees, subject to and in accordance with the terms and conditions set forth in such agreements; (ii) any and all severance or termination costs that arise with respect to employees of Seller terminated from employment with Seller on or before the Closing Date (or whose notice of termination was delivered prior to such date); (iii) any claims by any employee of Seller relating to a termination or deemed termination on or prior to the Closing Date as a result of the transactions contemplated by this Agreement; (iv) any claims by any of Seller’s employees who refuse Buyer’s offer of employment; (v) any workers’ compensation claims by any Transferred Employee for injuries or illnesses incurred, sustained or resulting from work-related exposures or conditions prior to such Transferred Employee’s employment date with Buyer, if any (regardless of whether the claim related thereto is filed before or after the Closing Date); (vi) claims for any benefits accruing, or with respect to occurrences commencing, on or before the Closing Date under any of Seller’s benefit plans, including, but not limited to, (A) hospital benefits or any confinements that commenced on or before the Closing Date, including any covered charges of health care professionals relating to such confinements, (B) short-term and long-term disability benefits, if any, for disabilities that commenced on or before the Closing Date for the period that each of such affected individuals remain disabled, (C) life and survivor income benefits, if any, for deaths that occur on or prior to the Closing Date, Buyer (D) all benefits that are being, or may offer employmentbe, commencing paid to, or with respect to, any of such employees who are on long-term or short-term disability or medical, family, personal or other leaves of absence as of the Closing Date, or who go on short-term, long-term, medical, family, personal or other leaves of absence after the Closing Date as a result of any injury, illness or other factor occurring on or prior to the Closing Date pursuant to the terms of such individuals identified on Seller benefit plans as in effect immediately prior to the Closing Date (including any subsequent benefit increases); (E) benefits under any "spending account" or similar arrangement under any "cafeteria plan" (as defined in Section 5.6(a) 125 of the Seller Disclosure Letter (the “Schedule 5.6(aInternal Revenue Code of 1986, as amended) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary with respect to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days salary reduction elections made prior to the Closing Date, (F) benefits under all other benefit plans of Seller which accrue on or before the Closing Date; (vii) any independent contractor agreement or relationship to or involving Seller entered into prior to the Closing Date; (viii) other acts or omissions occurring or otherwise attributable to the period on or before the Closing Date with respect to the employment of, termination of employment of, provision of benefits to, and/or compensation of any of Seller’s employees, including, but not limited to, any personal injury, discrimination, wage/hour, family and medical leave, mass layoff, plant closing, harassment, wrongful discharge, or other wrongful employment practice, unfair labor practice, claims for benefits (including claims arising under ERISA or workers’ compensation laws), or other violation of, or obligations under, any labor, employment or benefits law; and (ix) all wages and salaries of Seller’s employees for work performed or services rendered by such employees on or prior to the Closing Date. The parties hereto acknowledge and agree that, except with respect to those benefit plans listed on Section 4.1 of the Disclosure Schedule (the “Assumed Plans”), as of the Closing Date, the Transferred Employees will cease accruing benefits under and shall cease participation in all of Seller’s benefit plans. Buyer shall notify not have any liability or obligations of any nature, whether known or unknown, absolute, accrued, contingent or otherwise, and whether due or to become due, arising out of relating to Seller being, or being deemed to be, a joint employer or part of a single employer group.
(c) The Buyer shall not adopt, assume or otherwise become responsible for, either primarily or as a successor employer, any assets or Liabilities of any Employee Plans, employee benefit plans, arrangements, commitments or policies currently provided by the Seller or by any member of the Schedule 5.6Group and Seller shall remain solely liable for, and shall indemnify Buyer from, any Liability related to Employee Plans or other employee benefit plans, arrangements, commitments or policies, except that Buyer shall assume all obligations under the Assumed Plans for periods beginning after the Closing Date; and if and to the extent that the Buyer is deemed by law or otherwise to be liable as a successor employer for such purposes, the Seller and the Stockholder shall jointly and severally indemnify the Buyer for the full and complete costs, fees and other Liabilities which result. Seller shall honor and be solely responsible for all Liabilities under Seller’s benefit plans.
(ad) Seller shall not take any action, including, but not limited to, offering employment with Seller, to induce Transferred Employees who have accepted not to accept employment with Buyer’s offer of employment.
(e) To the extent permitted by law, as soon as reasonably practicable after the date hereof, Seller will provide to Buyer the necessary employee data, including personnel and benefits information, maintained with respect to the Transferred Employees by Seller or by its independent contractors, such as insurance companies and actuaries, in order to facilitate benefit and payroll transition for the Transferred Employees. After the date hereof hereof, Seller shall cooperate and provide Buyer with reasonable assistance in connection with the establishment of any applicable employee benefit plans and programs and shall cooperate with the Buyer in assisting the Transferred Employees in rolling over amounts attributable to their participation in Seller’s defined contribution plan(s) into any comparable defined contribution retirement plan that may be established by the Buyer.
(f) Notwithstanding anything to the contrary contained in Section 6 hereof, Seller and Stockholder shall pay and shall assume, indemnify, defend, and hold harmless Buyer from and against and in respect of any and all losses, damages, claims for benefits, Liabilities, taxes, and sanctions that arise under the Section 4980B of the Code, or Part 6 of Title I of ERISA or any similar state law (individually and collectively "COBRA"), interest and penalties, costs, and expenses (including, without limitation, disbursements and reasonable legal fees incurred in connection with any action, suit, proceeding, claim, appeal, demand, assessment, or judgment) imposed upon, incurred by, or assessed against Buyer and any of its employees arising by reason of or relating to any failure of Seller to comply with the continuation health care coverage provisions of COBRA which failure occurred with respect to any current or prior employee of Seller or any qualified beneficiary of such employee (as defined in COBRA) prior to the Closing Date or as otherwise required as a result of Seller’s dissolution and/or termination of its group health plan or plans or any other transactions or matters contemplated by this Agreement. In particular, if and to the extent that the Buyer is deemed by law or otherwise to be liable as a successor employer for such COBRA purposes, the Seller and the Stockholder shall jointly and severally indemnify the Buyer for the full and complete costs, fees and other Liabilities which result.
(g) In respect of grievances or Labor Claims of Transferred Employees to the extent relating to their employment by Seller including, without limitation, any such grievances or Labor Claims filed before state or local authorities for which payment has not been made prior to the Closing Date, Seller shall provide retain responsibility and liability for all amounts due with respect thereto including, without limitation, the payment of any amounts in the nature of back pay or employee compensation, and any state or federal taxes in connection with such back pay or employee compensation. Handling of such grievances and Labor Claims shall be at Seller’s cost and expense. Buyer shall have sole responsibility and liability for any Labor Claims of Transferred Employees that relate to their employment with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6Buyer.
(ah) Employees, and Buyer agrees that it Nothing in this Section 4.1 shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to limit the operations of Seller. Each at will nature of the Schedule 5.6employment of the Transferred Employees or the right of Buyer to alter or terminate any employee benefit plan, program or arrangement.
(ai) Employees who commences employment with Buyer The Seller and all members of the Group shall each terminate, effective as of (or who is on approved leave of absence on) the day immediately preceding the Closing Date, together with any and all Employee Plans, except for the continuing employees Assumed Plans. Buyer shall receive from Seller evidence that all tax qualified Employee Plans (other than those which are Assumed Plans) have been terminated by the Seller and all members of the Material Subsidiaries, shall be referred Group pursuant to herein as “Transferred Employees,” resolutions of each such entity’s Board of Directors (the form and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred substance of such resolutions being subject to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none review and approval of Buyer), Generation or their Affiliates shall hire in any capacity (whether effective as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after day immediately preceding the Closing Date. Buyer agrees to indemnify The Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any each member of the Transferred Employees Group shall submit, or have submitted on its behalf, to the Internal Revenue Service an application for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue determination of prior notification (or lack thereofthe tax-qualified status upon its termination of each Employee Plan which is intended to qualify under Section 401(a) of any plant closing or mass layoff occurring after the Code and each trust intended to qualify under Section 501(a) of the Code. Each such application shall be (i) submitted as soon as administratively possible following the Closing Date Date, and (ii) paid for (including all related legal, administrative and other costs and expenses) solely by the Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and . The Seller shall cooperate as reasonably necessary to implement periodically notify Buyer of the provisions status of this Section 5.6 each such submission and agree to shall provide Buyer with a copy of each other determination letter, if and when received. The Seller and all members of the Group shall operate and maintain the Employee Plans in all respects in accordance with its terms and in compliance with all applicable laws, statutes, orders, rules and regulations including, without limitation, ERISA and the Code, until all amounts are distributed from such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6Employee Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Medical Alert Corp)
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days On or prior to the Closing Date, Buyer shall notify Seller extend offers of the Schedule 5.6
(a) employment to all of each Seller’s Property Employees who have accepted are employed at the Property on the date such offer is extended, other than each Seller’s Reserved Employees. Each Property Employee who accepts Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller employment shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences commence employment with Buyer effective as of (or who is on approved leave of absence on) the Closing DateClosing, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) except that any Property Employee who is not actively at work on the Closing Date (other than due to a Transferred short-term absence (e.g., vacation, holiday, jury duty, maternity leave, paternity leave or bereavement leave, illness or injury of shorter duration than would provide for coverage under each of Seller’s long-term disability leave policies) in compliance with applicable policies of the applicable Seller) shall commence employment with Buyer effective as of the date such employee presents himself or herself to Buyer for active employment following the Closing Date. Each Property Employee who so commences employment with Buyer shall hereinafter be referred to herein as a “NonTransferred Employee” as of the day each commences employment with Buyer. To the knowledge of each Seller, following the Closing, each of its Transferred Employees shall be at-Hired Employeewill employees, other than those employees covered by a collective bargaining agreement or whose employment agreements are set forth on Section 8.4(a) of the applicable Seller Disclosure Letter.”
(b) Following Effective as of the Closing for a period Closing, Buyer shall assume the employment agreements set forth in Section 8.4(a) of one (1) year, none the Seller Disclosure Letter to the extent in effect as of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationthe Closing.
(c) Following Subject to the Closing terms and conditions of any applicable collective bargaining agreement which is currently in effect or which may be in effect at any time in the future, (x) for a period of at least one (1) yearyear immediately following the Closing Date, none Buyer shall provide each Transferred Employee with base compensation which is not less than the base compensation of Buyersuch Transferred Employee immediately prior to the Closing and (y) for a period of at least one (1) year immediately following the Closing Date, Generation Buyer shall provide the Transferred Employees with bonus opportunity and annual and long-term incentive compensation (other than equity-based compensation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (iSeller Benefit Plan containing similar benefits to those plans set forth on Section 8.4(c) of the Buyer Disclosure Letter) that are in the aggregate, on an employee by employee basis, no less favorable than those which the Transferred Employees were provided by the applicable Seller or its Affiliates who is not a Schedule 5.6(aimmediately prior to the Closing; provided, however, that the Transferred Employees that are parties to the employment agreements which are assumed pursuant to Section 8.4(b) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may hereof shall not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller entitled to retain such employee for a reasonable time and purposeany rights under this Section 8.4(c).
(d) BuyerSubject to the terms and conditions of any applicable collective bargaining agreement which is currently in effect or which may be in effect at any time in the future, Generation for a period of at least one (1) year immediately following the Closing Date, Buyer shall, pursuant to plans and arrangements established or maintained by Buyer (the Subsidiaries of Generation shall be responsible for all Liabilities “Buyer Benefit Plans”), provide the Transferred Employees with pension, health and obligations welfare benefits which in the aggregate are substantially comparable to those which the Transferred Employees were provided under the Worker Adjustment Seller Benefit Plans (with the exception of equity-based Seller Benefit Plans , those plans set forth on Section 8.4(c) of the Buyer Disclosure Letter and Retraining Notification Act any other Seller Benefit Plans that contains similar benefits to those set forth on Section 8.4(c) of the Buyer Disclosure Letter) immediately prior to the Closing. Buyer shall ensure that the Buyer Benefit Plans treat employment with any of the Sellers or their respective Affiliates prior to the Closing the same as employment with any of Buyer and similar foreign, state its Affiliates from and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Date for purposes of eligibility, vesting, and benefit accrual under the Buyer agrees Benefit Plans (except (x) to indemnify Seller the extent giving such credit would result in duplication of benefits, (y) with respect to the benefits accruals under any defined benefit plan (whether or not tax qualified) and (z) any Buyer Benefit Plan which provides severance benefits).
(e) Effective immediately after the Closing, Buyer shall cause the Transferred Employees to defend and hold Seller harmless for any breach of such responsibility and be covered by one or more medical benefit plans (“Buyer’s indemnification of Seller Medical Plans”) which shall provide benefits to the Transferred Employees and their dependents which in this regard specifically includes the aggregate are substantially comparable to the benefits which were provided to the Transferred Employees and their dependents by the applicable Seller’s medical plans. Buyer’s Medical Plans shall not contain any Claim by “pre-existing conditions” exclusions or limitations or “actively at work” requirements which would cause any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring their dependents to be excluded from Buyer’s Medical Plans immediately after the Closing Date and Seller’s costs, including reasonable attorney’s feesClosing. Buyer shall give effect, in defending determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, such Claimsemployees for the calendar year in which the Closing occurs under any welfare benefit plans maintained or contributed to by the applicable Seller for their benefit immediately prior to the Closing Date.
(ef) Effective as of the Closing Date, Buyer shall establish or designate a defined contribution retirement plan which is qualified or eligible for qualification under Section 401(a) of the Code (“Buyer’s 401(k) Plan”). Subject to the terms and conditions of any applicable collective bargaining agreement which is currently in effect or which may be in effect at any time in the future, each Transferred Employee who participates in the Xxxxxx’x Entertainment, Inc. Savings and Retirement Plan, the Grand Casinos 401(k) Savings Plan or the Restated Park Place Entertainment Corporation 401(k) Savings Plan, as applicable (the applicable plan for each Seller, the “Seller 401(k) Plan”) who satisfies the eligibility requirements of Buyer’s 401(k) Plan shall become eligible to participate in Buyer’s 401(k) Plan on the date he or she becomes an employee of Buyer and shall be credited with eligibility service and vesting service for all periods of service with the applicable Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each or any other entity if so credited with such records and information as may be necessary and appropriate to carry out their respective obligations service under this Section 5.6.the Seller 401(k)
Appears in 1 contract
Samples: Asset Purchase Agreement (Harrahs Entertainment Inc)
Employee Matters. (a) Not less than thirty (30) Business Days prior to After the Closing Date, Buyer may offer employmentemployment to one or more employees of Seller in addition to Hirschson but shall not be obligated to do so. Such offer of employment shall be on such terms and conditions as Buyer, commencing in its sole discretion, shall determine. All such employees who accept such offer of employment of Buyer shall become employees of Buyer as of the Closing Date, day of hire (hereafter the "Newly Hired Employees").
(b) Employees of Seller who do not become Newly Hired Employees are collectively referred to such individuals identified on Section 5.6(a) of herein as the Seller Disclosure Letter (the “Schedule 5.6(a) "Non-Hired Employees”) as it may determine in its discretion" . Buyer shall take have no liabilities or obligations whatsoever with respect to the Non-Hired Employees, and, in the case of "Newly Hired Employees", with respect to any obligation relating to the period prior to their employment by Buyer which liabilities and obligations (including, without limitation, all steps necessary liabilities and responsibilities for any and all severance, or employment discrimination claims) shall be wholly borne by Seller. Seller shall be responsible for satisfying obligations under Section 601 et seq. of ERISA and Section 4980B of the Code ("COBRA"), to ensure provide continuation coverage to or with respect to any Non-transferred Employee and to any other person entitled to such continuation coverage under Seller's group health plan based on a "qualifying event" which occurred prior to the Closing.
(c) Buyer shall not assume nor be deemed to have assumed any obligations to "Newly Hired Employees" or Non-Hired Employees for vacation pay entitlements for periods prior to the Closing Date or for any other entitlement to which any such employee was entitled under his employment with the Seller. Seller shall satisfy its obligations to all of its Employees for vacation pay and any other entitlements that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days accrued prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Hertz Technology Group Inc)
Employee Matters. (a) Not less than thirty Buyer may extend offers of employment to those employees of Seller and its Affiliates whom Buyer desires to hire (30if any) Business Days (such employees who accept Buyer’s offer are hereinafter referred to as the “Rehired Employees”), which offers (if any) shall be on terms and conditions which Buyer shall determine in its sole discretion. Seller shall terminate the employment of all Rehired Employees, as well as their participation in or under any Seller Benefit Plans, effective immediately prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer and shall take all steps necessary to ensure that its hiring decisions cooperate with and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct assist Buyer in its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption efforts to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences secure satisfactory employment arrangements with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing those employees of the Material Subsidiaries, shall be referred Seller to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred whom Buyer wishes to herein as a “Non-Hired Employeemake offers of employment.”
(b) Following the Closing Seller shall be solely liable for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under complying with the Worker Adjustment and Retraining Notification Act of 1988 and similar foreignany and all comparable state Law obligations (together, state “WARN”) (and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification failures to so comply), in any case, applicable to employees of Seller or its Affiliates who do not become Rehired Employees for any reason (including, for the avoidance of doubt, any employees of Seller of its Affiliates who are not offered employment with Buyer or its Affiliates and/or who do not accept and commence such employment) and (ii) any and all COBRA Liabilities arising with respect to any service provider of Seller or its Affiliates who does not become a Rehired Employee (and any dependents or beneficiaries of the foregoing).
(c) Without limiting the generality of any other provision of this Agreement, Seller shall remain solely liable for, and Buyer shall not assume or become liable for, any Seller Employee Liabilities. Without limiting the generality of the foregoing, Buyer shall not, at any time, have any obligation or Liability with regard to any severance, retention, employment, change-of-control, pension, retirement, equity or other plan, program, policy or agreement of or with Seller or any of its Affiliates.
(d) Nothing contained in this regard specifically includes Agreement shall confer upon any Claim Rehired Employee any right with respect to continued employment by Buyer or its Affiliates, nor shall anything herein interfere with the right of Buyer and its Affiliates to terminate, reassign, promote or demote any employee, independent contractor, director or other service provider at any time following the Closing, with or without cause, or restrict Buyer or its Affiliates in the exercise of their independent business judgment in modifying any of the Transferred Employees for back paytitles, front paypowers, benefits duties, responsibilities, functions, locations, salaries or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue other terms and conditions of prior notification (or lack thereof) the employment of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsRehired Employees.
(e) No provision of this Agreement shall create any third-party beneficiary rights in any employee (including any Rehired Employee), consultant, director or other service provider, or any beneficiary or dependents of any of the foregoing, or any collective bargaining representative, in any case, with respect to the compensation, terms and conditions of employment and benefits that may be provided to any Rehired Employee by Buyer, under any benefit plan which Buyer may maintain or otherwise.
(f) Seller shall not, directly or indirectly, offer employment to or seek to hire or offer employment to any Rehired Employee or any employee of Buyer or any successor or Affiliate of Buyer, unless Buyer first terminates the employment of such employee or gives its written consent to such employment or offer of employment.
(g) Seller intends that Buyer will qualify as a successor employer for the purpose of receiving credit for the payment of taxes under FICA and FUTA by Seller with respect to Rehired Employees. Buyer and Seller shall cooperate to effectuate the foregoing.
(h) Nothing in this Agreement shall, or shall be construed so as reasonably necessary to: (i) constitute an amendment or modification of any employee benefit plan, (ii) obligate Buyer or its Affiliates to implement the provisions of this Section 5.6 and agree to provide each adopt or maintain any plan or program or other with compensatory or benefits arrangement at any time, or (iii) prevent Buyer from modifying or terminating any such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6plan, program or other compensatory or benefits arrangement at any time.
Appears in 1 contract
Employee Matters. (a) Not less Pursuant to, and in accordance with the terms of, the Contribution and Assumption Agreement, as of the Closing Date, Seller shall cause (i) each employee of Seller or any of its Affiliates who works at a NTB Store as of the Closing Date and (ii) the other employees of Seller listed on Schedule 5.6(a) of the Disclosure Schedule, to the extent such employees continue to be employed by Seller or any of its Affiliates as of the Closing Date (the employees described in clauses (i) and (ii), collectively, the "Business Employees"), to be transferred to the Company and to cease, as of the Closing Date, any services being performed by such Business Employee for the benefit of Seller or its Affiliates (other than thirty the Company), other than the services contemplated by the Transition Services Agreement.
(30b) Buyer agrees and acknowledges that it is expressly assuming, as of the Closing Date, all liabilities and obligations, including all payment obligations, of Seller to Business Days Employees under each of the retention, severance and "stay bonus" agreements and arrangements set forth at items 1-3 of Schedule 5.6(b) of the Disclosure Schedule (other than any Incentive Plan payments or Quarterly Bonus payments promised under such agreements and arrangements) and for the severance payments described at item 4 of Schedule 5.6(b). Buyer agrees and acknowledges that the Company is also expressly assuming, as of the Closing Date, all liabilities and obligations, including all payment obligations, of Seller to Business Employees under each of the retention, severance and "stay bonus" agreements and arrangements set forth at items 1-3 of Schedule 5.6(b) of the Disclosure Schedule (other than any Incentive Plan payments or Quarterly Bonus payments promised under such agreements and arrangements) and for the severance payments described at item 4 of Schedule 5.6(b). Seller shall retain all obligations owing to Business Employees under the Sears, Xxxxxxx and Co. Annual Incentive Plan (the "Incentive Plan"), and the Sears, Xxxxxxx and Co. Quarterly Annual Bonus Plan (the "Quarterly Bonus Plan"). In the case of the Incentive Plan, Seller shall, as soon as practicable after the end of the year in which the Closing Date occurs (the "Payout Date"), make annual incentive payments under the Incentive Plan to eligible employees who are employed by the Business as of the last day of the year in which the Closing Date occurs (determined without regard to the transactions contemplated by this Agreement). The payment will be calculated as a pro rata percentage (based on (i) actual days elapsed from the beginning of such year to the Closing Date, divided by (ii) total days of the year) of the actual award that would have been earned had the Business Employee been employed by Seller for the full year, based on actual Company and Business performance for that year. As soon as practicable after the end of the quarter in which the Closing Date occurs, Seller will make payments under the Quarterly Bonus Plan to eligible employees who are employed by the Business as of the last day of the quarter in which the Closing Date occurs (determined without regard to the transactions contemplated by this Agreement). The payment will be calculated as a pro rata percentage (based on (i) actual days elapsed from the beginning of such quarter to the Closing Date, divided by (ii) total days in the quarter) of the actual award that would have been earned under the Quarterly Bonus Plan had the Business Employee been employed by Seller for the full quarter in which the Closing Date occurs, based on actual performance for that quarter. At the Closing, Buyer agrees to execute any and all documents and instruments, including any assignment and assumption agreements or other express written acknowledgements, required to effect and evidence the assumption of liabilities and obligations and other matters provided in this Section 5.6(b).
(c) Subject to Section 5.6(b) above, Company shall not become a participating employer in any employee benefit plan, program, policy or arrangement of Seller and its Affiliates, and effective as of Closing, each Business Employee shall cease accruing service for any purpose under any such plan, program, policy or arrangement. Except as provided in Section 5.6(b) above and Section 5.6(d) below, Seller shall retain liability, and be solely responsible, for all benefits and compensation payable to, or with respect to, the Business Employees with respect to services performed and claims incurred, in each case on or prior to the Closing Date, Buyer may offer employmentunder any plans, commencing agreements, policies, arrangements related to compensation and other employee benefits. For purposes of this Section 5.6(c), disability claims, medical and dental services claims and death benefit claims are incurred as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are date determined in accordance with Applicable Lawthe applicable Seller plan. Not fewer than twenty Seller shall be responsible for all qualifying events, if any, under Part 6 of Title I of ERISA and Section 4980B of the Code (20"COBRA") and COBRA claims incurred under the welfare plans of Seller on or before the Closing Date.
(d) For the one year period after Closing, with respect to each Business Days Employee, during such Business Employee's employment during such one year period after Closing, Buyer shall provide (or shall cause Company to provide) such Business Employee (i) employment in the identical geographic location as in effect with respect to such Business Employee immediately prior to the Closing Date, Buyer shall notify Seller of and (ii) with base pay and incentive compensation opportunities that are in the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and aggregate substantially comparable to that in effect for such Business Employee immediately prior to the Closing Date; provided that for such period described above, Seller there will be no reduction in excess of 10% in such Business Employee's annual earnings potential. During the period commencing on the Closing Date and ending on the first anniversary thereof, Buyer shall provide Buyer with accessprovide, during reasonable business hours and upon reasonable noticecause the Company to provide, to Business Employees the following group health, life insurance, disability insurance and 401(k) savings plan benefits: (i) participation (commencing no later than the Coverage Date (as defined in Section 5.6(d)(ii) below) in a group health plan or plans equivalent to the plan or plans then being made available to employees of Buyer's subsidiary, Tire Kingdom ("Tire Kingdom"), with premium contributions by the Business Employee that are no greater than the contributions then being paid by similar employees of Tire Kingdom; (ii) life insurance, at no cost to the Business Employee, in an amount equal to one year's base pay; (iii) long term disability insurance that is equivalent to, and is provided at a cost to the Business Employee which is equivalent to, that then being made available to employees of Tire Kingdom; and (iv) a 401(k) savings plan that provides for a Company matching contribution equal to 50% of the first 4% of employee deferral. Buyer and Seller also agree as follows:
(i) Buyer assumes and agrees to satisfy and discharge, as the same become due, all vacation, sick pay and holiday pay obligations owing as of the Closing Date to Business Employees under the Welfare Plans listed in Schedule 5.63.19
(a) EmployeesIn addition, and Buyer agrees that it shall use its best efforts cause Business Employees to conduct its hiring processbe given credit under each employee benefit plan, during reasonable business hours and upon reasonable noticeprogram, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (policy or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none arrangement of Buyer, Generation the Company or their any of its Affiliates shall hire in which such Business Employees are eligible to participate for all service with Seller and any capacity ERISA Affiliate of Seller, or any predecessor employer (whether as an employeeto the extent such credit was given by Seller) for purposes of eligibility, consultantvesting, independent contractor or otherwise) severance and vacation entitlement and any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationother benefit plan under which service is taken into account.
(ciii) Following Seller shall take all necessary action to contribute and shall contribute to the 401(k) Plan for the portion of the year preceding the Closing for a period Date on behalf of one (1each Business Employee who participates in the 401(k) yearPlan the amounts that are provided in the 401(k) Plan, none regardless of Buyer, Generation or their Affiliates shall directly or indirectly solicit whether the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Business Employee is employed by the Seller or its Affiliates (including the Company) on December 31 of the year in which the Closing occurs. All Business Employees who is not a Schedule 5.6(ahave Account Balances in the 401(k) Employee or (ii) Plan will be 100% vested in their Account Balances as of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Seller shall provide, or cause any administrator of a Benefit Plan to provide, Buyer agrees with all information and data in a timely manner as it may reasonably request in order for Buyer to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in comply with this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsSection 5.6(d).
(e) Buyer Nothing contained in this Agreement shall create any third-party beneficiary rights in any current or former employee of the Business or any beneficiary or dependents thereof with respect to the compensation, terms and Seller shall cooperate as reasonably necessary to implement the provisions conditions of this Section 5.6 employment and agree to provide each other with such records and information as benefits that may be necessary and appropriate provided to carry out their respective obligations such employee by Buyer or under this Section 5.6any benefit plan that Buyer may maintain.
Appears in 1 contract
Samples: Stock Purchase Agreement (TBC Corp)
Employee Matters. (a) Not less It is the intent of the Parties that, prior to the Scheduled Closing Date, Buyer shall review its employee requirements and conduct interviews (to the extent, in its sole discretion, it so desires) of the Affected Employees with a view to offering employment to a significant number of the Affected Employees. Without limiting the generality of the foregoing, the Parties acknowledge that if the Approval and Vesting Order of the Court does not provide for a stay of proceedings that stays the rights of Third Parties to terminate, change, or otherwise replace the operator, or otherwise prevent the assignment of such operatorship from the operator to its designated assignee, such that Buyer is not guaranteed to be appointed or to have its designee appointed as the successor operator of those Oil and Gas Assets that Seller currently operates, then Buyer’s employee requirements (together with its offers of employment to Affected Employees) will be materially reduced. Seller shall provide Buyer with reasonable access to meet the Affected Employees. Such access shall be provided at the offices of Seller, or such other reasonable location as may be specified by Seller and agreed by Buyer, during normal business hours.
(b) No later than thirty twelve (3012) days prior to the Scheduled Closing Date, Buyer shall make the offers of employment contemplated in Section 8.5(a). Buyer shall provide Seller with a form of offer it will use at least two (2) Business Days prior to the offers being delivered to any Affected Employees. All offers of employment shall be made in accordance with the following:
(i) each offer of employment shall be conditional on Closing Date, Buyer may offer employment, commencing as of occurring and shall be effective at 12:01 a.m. on the day following the Closing Date;
(ii) each offer of employment shall be open for acceptance for at least seven (7) days, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter and shall expire not later than four (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (204) Business Days prior to the Scheduled Closing Date;
(iii) Buyer's offer of employment shall include provision for compensation, and benefits, including responsibilities, hours of work, location and shift scheduling, that, with respect to each such employee, are in the aggregate substantially similar to the compensation, benefits and other work terms in effect for such employee immediately prior to the Closing Date; and
(iv) Buyer's offer of employment shall also indicate that, for the purposes of common law pay in lieu of notice on termination of employment with Buyer and for purposes of eligibility for participation in Buyer’s employee group insured benefits arrangements, as applicable, the period of employment of an Employee who accepts an offer from Buyer shall notify be deemed to include the period of employment with Seller as set out in the Employee List; provided, in each case that, certain of the Schedule 5.6offers of employment may (at the sole discretion of Buyer) be conditional on the Approval and Vesting Order of the Court providing for a stay of proceedings that stays the rights of Third Parties to terminate, change, or otherwise replace the operator, or otherwise prevent the assignment of such operatorship from the operator to its designated assignee, such that Buyer is guaranteed to be appointed or to have its designee appointed as the successor operator of those Oil and Gas Assets that Seller currently operates.
(ac) Not later than three (3) Business Days prior to the Scheduled Closing Date Buyer shall provide Seller with a complete list of Affected Employees who have accepted Buyer’s offers of employment from Buyer (each a "Transferring Employee") and a complete list of Affected Employees who rejected Xxxxx's offer of employment. After Notwithstanding the foregoing, in respect of any Transferring Employee on short term disability, long term disability or any other approved leave of absence, at the Closing Date, the effective date of such employment shall not be the Closing Date, but, rather, the terms of Buyer's offer of employment to any such individuals shall specify that the offer is conditional upon the Transferring Employee being capable of returning to work with proper accommodation and the date hereof and on which such Transferring Employee returns to work shall be the effective date of employment.
(d) Seller shall terminate the employment of each Transferring Employee effective the end of the day on which Closing occurs, except those Transferring Employees who, prior to the Closing Date, Seller shall provide Buyer are terminated for cause, retire, voluntarily resign or, with accessXxxxx's consent, during reasonable business hours and upon reasonable noticeare terminated without cause. If, to within the Schedule 5.6
six (a6) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) month period commencing at the Closing Date, together with the continuing employees Buyer employs, or hires as a contractor, any of the Material SubsidiariesAffected Employees who, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following at the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee Date (i) of Seller or its Affiliates who is had not a Schedule 5.6(a) Employee or accepted an offer from Buyer, and (ii) of Energy or its Affiliates without the prior written consent of was terminated by Seller as a result thereof, then Buyer shall promptly so notify Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for and shall reimburse Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and severance, termination or similar foreignamounts, state and local rulesif any, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees paid to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim Affected Employee by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Seller and Buyer and Seller shall cooperate as reasonably necessary to implement at Closing enter into the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6TSA.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Matters. (a) Not less than thirty (30The Buyer shall offer employment to each employee of the Seller listed on Schedule 7(a) Business Days who is employed immediately prior to the Closing DateDate by the Seller in the Division (the "PTG Employees"), in each case for a substantially comparable position (as reasonably determined by the Seller) that is within 25 miles of such PTG Employee's current work location. Prior to the Closing, the Buyer may offer employmentshall be entitled to offer, commencing as of discuss and negotiate a new employment contract with each PTG Employee, which contract shall be effective only upon the Closing.
(b) From and after the Closing Date, the Buyer shall make payment to such individuals identified the Seller in an amount equal to all financial obligations of the Seller to any of the PTG Employees for severance pay and related benefits to the extent set forth on Schedule 7(c) which result from the failure of the Buyer to comply with the Buyer's obligations under Section 5.6(a7(a) or from the Buyer's termination or severance after the Closing Date (and whether or not resulting from or in connection with the transactions contemplated hereby) of the Seller Disclosure Letter employment of any PTG Employee who accepts employment with the Buyer (the “Schedule 5.6(a) Employees”) as it may determine in its discretion"Employment Obligations"). Notwithstanding anything to the contrary herein, the Buyer shall take all steps necessary have no liability with respect to, and the Seller shall be solely liable to ensure pay, any severance pay and other benefits or claims that its hiring decisions arise in connection with the Seller's employment of the PTG Employees, or the severance from the employment by the Seller of any such employees, including without limitation any who do not accept employment with the Buyer. The Seller represents and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior warrants to the Closing Date, Buyer shall notify Seller that Schedule 7(c) sets forth the severance and other related benefits to which each employee of the Seller listed on Schedule 5.6
(a7(a) Employees who have accepted Buyer’s offer of employment. After will be entitled if such employee is terminated by the date hereof and prior to Seller on the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees Date assuming that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who such employee is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following employed by the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following Notwithstanding anything to the Closing for a period of one (1) yearcontrary in this Section 7, none of Buyerthe Buyer shall have no liability with respect to, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation Seller shall be responsible for all Liabilities solely obligated to provide, health care continuation coverage pursuant to the Consolidated Omnibus Reconciliation Act of 1985 and obligations under the Worker Adjustment and Retraining Notification Act and similar foreignapplicable state law, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any those employees of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereofSeller listed on Schedule 7(a) of any plant closing or mass layoff occurring after who do not accept employment with the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6qualified beneficiaries.
Appears in 1 contract
Employee Matters. {M1108931.1 } - 26 -
(a) Not Purchaser agrees to offer employment as of the Closing Date, on an “at will” basis and on terms and conditions that are no less favorable (as to each of base salary and bonus opportunity, respectively, except with respect to Xxxxxx Xxxxxxxxx, who will be offered employment on terms and conditions as agreed upon by Purchaser pursuant to the Employment Agreement) than thirty the terms and conditions being provided to such employees by Seller on the Closing Date (30except as specifically set forth herein), only to the employees of Seller listed on Schedule 5.12(a) Business Days hereto and if any such employee of Seller accepts Purchaser’s offer of employment, he or she shall become an employee of Purchaser (or an Affiliate of Purchaser) after the Closing Date (such Employees are referred to hereinafter as the “Transferred Employees”).
(b) Seller shall be liable for, and shall indemnify and hold harmless Purchaser with respect to all of Seller’s liabilities to the employees including: (i) any Termination Liability in connection with the termination of employment with Seller of any employees of Seller; (ii) any Employee Benefit Plan in existence prior to the Closing Date, Buyer may offer employmentwhether such liability arises before, commencing as of on or after the Closing Date, including, without limitation, unfunded liabilities, liability with respect to the termination of any such individuals identified on Section 5.6(aplan, any retiree from employment with Seller, any unfunded liability under any such plan, or any accrued but unpaid claim under such plan; (iii) of any compensation due to the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary employees or consultants relating to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days periods ending on or prior to the Closing Date, Buyer including, without limitation, salary, wages, overtime payments, commission, bonus, incentives or other benefit accruals (including vacation pay); and (iv) any liability of Seller with respect to any labor Laws. Seller shall notify Seller make all salary, commission, bonus, incentive or other benefit accrual payments to employees as they become due. Except with respect to hiring of the Schedule 5.6
(a) Transferred Employees who have accepted Buyer’s offer as provided in Section 5.12(a), Purchaser shall not be required to hire any employees of employmentSeller or to provide continuations of any such plans, commissions or incentives after the Closing Date. After As used herein, “Termination Liability” shall mean all liabilities, costs, claims, damages and expenses incurred by Seller or Purchaser either before or after the date hereof with respect to such terminated employees including without limitation, severance, outplacement, vacation pay, salary, commissions and benefits for periods prior to the Closing Date, Seller shall provide Buyer with accessclaims of wrongful termination, during reasonable business hours and upon reasonable noticeage, to race or sex discrimination or the Schedule 5.6
(a) Employeeslike, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations liability under the Worker Adjustment and Retraining Retaining Notification Act of 1988, as amended, and each similar foreignstate law WARN, state COBRA and local rulesState benefits continuation laws, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees any taxes or penalties payable with respect to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits foregoing payments or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsliabilities.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. No later than ten (a10) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and days prior to the Closing Date, Seller shall provide Buyer with accessto Purchaser an updated, during reasonable business hours current copy of Schedule 1.01(a) and upon reasonable notice, the Business Employee Information which information shall be considered to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each be final as of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) Closing Date for all purposes under this Section 7.07. Prior to the Closing Date, together with the continuing employees Purchaser shall, or shall cause any applicable Affiliates or its designee to make offers of employment (each, an “Employment Offer”) to each of the Material SubsidiariesBusiness Employees, including employees hired after the Effective Date who otherwise meet the definition of Business Employee. Each such Employment Offer shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) for a position having comparable job duties and the same primary work location as held by the applicable Business Employee as of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or immediately prior to the Closing Date, and (ii) for employment commencing immediately following the Closing and shall advise the recipient that by accepting the offer and commencing employment, he or she is agreeing that his or her personnel records will be transferred to the employing entity. The Business Employees who timely accept the terms and conditions of Energy such Employment Offer and who are employed by Purchaser or any of its Affiliates or its designee in accordance with such Employment Offers are hereinafter referred to as the “Continuing Employees.” Prior to the Closing Date, Purchaser may, or may cause any applicable Affiliates without or its designee, to make offers of employment, in its sole and absolute discretion (and on terms and conditions which are determined in its sole and absolute discretion) and with the prior written consent of Seller, which may to other employees or service providers of Seller who are involved in the Business; Purchaser shall not, and shall cause its Affiliates or designee not be unreasonably withheldto, conditioned directly or delayed indirectly, solicit for employment any such other employee or service providers of Seller absent significant business rationale for the prior written consent of Seller. Any such other employee or service provider of Seller to retain such employee for a reasonable time who accepts the terms and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach conditions of such responsibility offer of employment, and Buyer’s indemnification of Seller in this regard specifically includes any Claim who is employed by Purchaser or any of its Affiliates or its designee in accordance with such offer, is hereinafter referred to as an “Optional Employee.” Seller shall release each Continuing Employee and each Optional Employee from any confidentiality agreement or other agreement solely as it applies to Purchaser and solely with respect to matters relating to the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damagesBusiness, any Claim by Holdco, any Governmental Authority for penalties regarding any issue Project Company, or the sale of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other Facilities that may interfere with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6Continuing Employee’s or Optional Employee’s employment with Purchaser or such Affiliate or designee.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (NRG Energy, Inc.)
Employee Matters. (a) Not less than thirty It is hereby agreed by the parties that this Agreement is governed by the Transfer of Undertakings (30Protection of Employment) Business Days prior to the Closing DateRegulations 1981, Buyer may offer employmentas amended, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a"Regulations") Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure and that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty the Regulations the contracts of employment of each of the persons employed by the Seller in the Business at Closing, being those whose names are set out in Schedule 4.2.3 (20"Employee") Business Days prior shall have effect after Closing as if originally made between each of the Employees and the Buyer respectively (save to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior extent that such contracts relates to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeeany occupational pension scheme).”
(b) Following The parties hereby acknowledge that each of the Closing for a period of one Seller and the Buyer will comply with and fulfill their respective obligations under the Regulations including (1but not limited to) year, none of Buyer, Generation or their Affiliates shall hire in any capacity obligations to provide information to and consult with all relevant trade union bodies (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationif any).
(c) Following Immediately following Closing the Closing for a period Seller will, at the cost of one (1) year, none of the Buyer, Generation or join with the Buyer in sending out a notice in a form agreed between them to the Employees confirming the transfer of their Affiliates contracts of employment to the Buyer and stating that, save as to the identity of their employer (and save in respect of any occupational pension scheme rights) and such other amendments to which the Employees may expressly have agreed, all the terms of their employment shall directly or indirectly solicit remain the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposesame.
(d) Buyer, Generation Subject to Section 3.3(e):
(1) All liabilities in relation to the Employees in respect of the period prior to Closing shall be discharged by the Seller and the Subsidiaries Seller shall indemnify the Buyer in respect thereof; and
(2) All liabilities in relation to the Employees in respect of Generation the period after Closing shall be responsible for all Liabilities and obligations under discharged by the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation Buyer and the Subsidiaries of Generation after Buyer shall indemnify the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack respect thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) The Seller hereby undertakes to and covenants with the Buyer to indemnify and Seller shall cooperate keep indemnified the Buyer from and against all and any liabilities, damages, costs, claims, charges and expenses incurred by the Buyer in connection with or arising out of the transfer or purported transfer of the contracts of employment or other employment related rights of:
(1) the Employees, to the extent that such liabilities arise from any matters relating to the period prior to Closing, except as reasonably necessary provided in the Transfer of Undertakings (Protection of Employment) Regulations 1981, as amended.; and
(2) any persons employed in the Business other than the Employees including (but without prejudice to implement the provisions generality of this Section 5.6 and agree to provide each other with the foregoing) any claims brought by such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6persons for wrongful or unfair dismissal or redundancy arising therefrom or in connection therewith or at any time thereafter.
Appears in 1 contract
Employee Matters. (a) Not less than thirty Buyer shall determine and provide terms and conditions of employment for each Employee from and after the Closing Date. Notwithstanding anything set forth below or in this Agreement to the contrary: (30i) Business Days nothing in this Agreement shall create any obligation on the part of Buyer or the Company to hire any Employee or continue the employment of any Employee for any definite period following the Closing, (ii) nothing in this Agreement shall preclude Buyer or the Company from changing or modifying the compensation paid to any Employee or any other terms and conditions relating to the employment of Employees at any time following the Closing, and (iii) nothing in this Agreement shall preclude Buyer or the Company from altering, amending, or terminating any Buyer Plan, or the participation of any of its employees in such plans, at any time following the Closing. Notwithstanding anything contained herein to the contrary, Seller shall retain any liability under any Company Employment Agreement unless Buyer elects, at the Closing, to hire an Employee that is subject to an Employment Agreement. If Buyer elects not to hire an Employee that is subject to an Employment Agreement at the Closing and notwithstanding Section 6.16(a) hereof, Seller shall have the right to hire such Employee; provided however, that if Buyer elects to hire an Employee subject to an Employment Agreement at any time before the expiration of nine (9) months from the Closing, Buyer shall reimburse Seller for any amounts paid to such Employee as termination fees pursuant to the terms of any Employment Agreement.
(b) All Employees retained by the Company shall be permitted by the Company and Buyer to participate in such employee benefit plans, programs, agreements and arrangements of Buyer and its Affiliates (including the Company) (the “Buyer Plans”) as Buyer routinely makes generally available to other employees of Buyer. Buyer shall be entitled to require the Company, at or prior to Closing, to terminate any or all of the employee benefit plans, programs, agreements or arrangements currently existing exclusively for the benefit of employees of the Company, if Buyer so elects, in order to replace such employee benefit plans, programs, agreements or arrangements with the Buyer Plans, and Buyer shall indemnify, defend and hold harmless Seller, the Company and their respective Affiliates from and against any Damages arising or resulting therefrom.
(c) Buyer and the Company shall not, at any time during the ninety-one (91) days following the Closing Date, engage in any conduct that would result in an “employment loss” or layoff for a number of Employees which, if aggregated with any conduct on the part of Seller prior to the Closing Date, Buyer may offer employment, commencing as would trigger application of the Closing Dateobligations imposed by the WARN Act. Buyer, to such individuals identified on Section 5.6(a) of Seller and the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to Company agree that, after the Closing Date, Buyer and the Company shall notify be responsible for any notification required under and any liability arising under or relating to the WARN Act with respect to the continuing Employees. Buyer, Seller of and the Schedule 5.6
(a) Company agree that Seller shall be responsible for any notification required under and any liability arising under or relating to the WARN Act with respect to the Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to for any acts or omissions occurring before the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation The Buyer Plans shall have exclusive responsibility for the provision of health care continuation coverage required under COBRA or other applicable Law with respect to any Employee (and any dependent of any Employee) who has a “qualifying event” within the Subsidiaries meaning of Generation shall be responsible for all Liabilities and obligations Section 4980B(f) of the Code (or other applicable Law) under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation a Buyer Plan on or after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless , provided that, for any breach purposes of determining the occurrence of such responsibility event, a “qualified beneficiary” shall be interpreted to include any Employee (and Buyer’s indemnification any dependent of Seller in this regard specifically includes any Claim by any Employee) who (i) is a “qualified beneficiary” within the meaning of Section 4980B(g) of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification Code (or lack thereofother applicable Law) under a Company Benefit Plan sponsored by Seller on the day prior to the Closing Date or (ii) is or becomes a “qualified beneficiary” within the meaning of Section 4980B(g) of any plant closing the Code (or mass layoff occurring other applicable Law) under a Buyer Plan on or after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsDate.
(e) Buyer and Seller Regardless of anything else contained herein, the Parties do not intend for this Agreement to amend any Company Benefit Plan or arrangements or create any rights or obligations except between the Parties. No Employee or other current or former employee of the Company or any of its Affiliates, including any beneficiary or dependent thereof, or any other Person not a party to this Agreement, shall cooperate as reasonably necessary be entitled to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6assert any claim hereunder.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Full House Resorts Inc)
Employee Matters. The following provisions shall be for the exclusive benefit of the parties to this Agreement and not for the benefit of any other person or entity:
(ai) Not less than thirty Effective as of the Effective Time, Buyer (30A) Business Days prior shall assume the Assumed Contracts listed on Schedule 3.12 and (B) may, in its sole discretion, but shall not be obligated to, offer employment to any of Seller's other employees with respect to the Closing DateBusinesses (collectively, those employees to whom Buyer elects to offer employment and who are employed pursuant to Assumed Contracts, the "Assumed Employees"). Except as otherwise provided in any Assumed Contract, Buyer may offer employment, commencing as of employment to the Closing Date, to such individuals identified Assumed Employees on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine any terms and conditions that are determined by Buyer in its sole discretion, including with respect to the provision of retirement and health care benefits. Buyer shall take all steps necessary to ensure that its hiring decisions and practices assume the contracts of employment of the Assumed Employees and, notwithstanding anything in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior the foregoing to the Closing Datecontrary, to the extent such employment contracts assumed hereunder provide for terms and conditions in addition to those referenced in the preceding sentence, Buyer shall notify Seller of assume the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeeterms thereof.”
(b) Following To the Closing extent the Purchase Price is reduced pursuant to Section 2.5 in respect thereof, Buyer shall grant Assumed Employees credit for a period and shall assume and be responsible for any liabilities with respect to sick leave and personal days accrued but unused by any Assumed Employees as of one (1) yearthe Effective Time, none of Buyerand, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion to the extent of such severance compensationPurchase Price reduction, Buyer shall grant Assumed Employees credit for and shall assume and be responsible for any liabilities with respect to any accrued but unused vacation for such employees as of the Effective Time. No such credit shall exceed the number of sick, personal and vacation days listed on Schedule 3.12.
(c) Following Buyer agrees that Seller may inform its employees that Buyer has agreed that the Closing for a period of one (1) yearAssumed Employees will be offered employment as provided in this Section 6.6; provided, none of Buyerhowever, Generation or their Affiliates that Buyer shall directly or indirectly solicit have the employment or services of, or hire right to approve any written statement to be made by Seller in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeconnection therewith.
(d) Buyer, Generation and Seller shall comply with the Subsidiaries provisions of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining and Notification Act (the "WARN Act") and similar foreignlaws and regulations, state if applicable, and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless shall be solely responsible for any breach and all liabilities, penalties, fines, or other sanctions that may be assessed or otherwise due under such applicable laws and regulations on account of such responsibility and Buyer’s indemnification the dismissal or termination of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) employees of any of the Businesses by Seller prior to the Effective Time. Buyer shall employ at least that proportion of the employees of each Station as shall be necessary to prevent a "mass layoff" or a "plant closing or mass layoff occurring after closing" as such terms are defined in the Closing Date WARN Act and Buyer shall comply with all applicable laws and regulations applicable in connection with Buyer's exercise of discretion in offering employment to employees of Seller’s costs, including reasonable attorney’s feesincluding, in defending any such Claimswithout limitation, those relating to employment discrimination.
(e) Buyer and Within a reasonable period of time after the Effective Time, Seller shall cooperate transfer from the Paxsxx Xxxmunications 401(k) Profit Sharing Plan (the "Seller 401(k) Plan") to the 401(k) Plan maintained by the Guarantor or its Affiliates for the benefit of the employees of the Buyer ("Buyer's 401(k) Plan") an amount, in cash, equal to the aggregate account balances held in the Seller 401(k) Plan as reasonably necessary of the date of transfer with respect to implement all Assumed Employees hired by Buyer as of the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations Effective Time, provided, however, that Buyer shall have no obligation under this Section 5.66.6(e) if Buyer reasonably believes such transfer shall cause Buyer's 401(k) Plan to not be qualified under the Code. Prior to the date of any such transfer, and as preconditions thereto:
(i) Buyer shall use commercially reasonable efforts to deliver to Seller a copy of the most recently issued Internal Revenue Service ("IRS") determination letter (or other proof reasonably satisfactory to counsel for Seller) that Buyer's 401(k) Plan is qualified under the Code, and (ii) Seller shall use commercially reasonable efforts to deliver to Buyer a copy of the most recently issued IRS determination letter (or other proof reasonably satisfactory to counsel for Buyer) that the Seller 401(k) Plan is qualified under the Code. Seller and Buyer agree to cooperate with respect to any government filing, including, but not limited to, the filing of IRS Forms 5310-A, if necessary, to effect the transfer of assets contemplated by this Section 6.6(e).
Appears in 1 contract
Employee Matters. 9.5.1 The Parties intend that there will be continuity of employment with respect to all Eligible Employees who become Transferred Employees. Accordingly, all of the employees of the Vendor and the Subsidiary employed in the Business as of the Closing Date (aall of whom, if employed on the Effective Date are listed by numbers on Schedule 9.5.1) Not less (collectively, “Eligible Employees”), shall either be automatically transferred to and continued by Purchaser (where applicable law provides for an automatic transfer of employees upon the transfer of assets or of a business as a going concern), or Purchaser shall offer employment to commence as of the Closing Date to all of the Eligible Employees. Such employment shall be at the same salaries and wages, at least substantially equivalent benefits in the aggregate (including benefits under Vendor Benefit Plans and vacation benefits), same location (except as otherwise agreed by the Eligible Employee), and otherwise on substantially the same terms and conditions (other than thirty (30with respect to bonus and other incentive programs) Business Days as those in effect immediately prior to the Closing Date (provided, however, that the new terms of employment may include provisions against non-competition). Those Eligible Employees who either transfer and continue employment or accept Purchaser’s offer of employment and commence working with Purchaser on or after the Closing Date shall hereafter be referred to as “Transferred Employees”. Without limiting the Purchaser’s obligations under the Employment Agreements, and subject to Section 9.5.2, nothing in this Agreement shall obligate Purchaser to provide continued employment to any employee of the Vendor for any specified period of time following the Closing Date or to maintain the same terms of employment for any specified period of time following the Closing Date. All bonus and incentive payments payable to Eligible Employees for the year ending December 31, 2005 shall, on or prior to the Closing, have been paid or accrued by the Purchaser on the Most Recent Balance Sheet in accordance with GAAP.
9.5.2 Without limiting the generality of any other provision of this Agreement, Purchaser shall defend, indemnify and hold the Vendor harmless from and against any and all Losses the Vendor may incur in connection with any constructive or wrongful termination or dismissal claim asserted by any Eligible Employee of the Vendor or the Subsidiary relating to or arising in connection with (i) Purchaser not offering any such Eligible Employee employment on substantially the same terms and conditions as such Eligible Employee’s employment terms and conditions with the Vendor and/or the Subsidiary, or (ii) Purchaser otherwise not complying with the provisions of this Section 9.5. Vendor shall defend, indemnify and hold the Purchaser harmless from and against any and all Losses asserted by any Eligible Employee of the Vendor or the Subsidiary who declines an offer of employment by the Purchaser (provided that the Purchaser has complied with the provisions of this Section 9.5).
9.5.3 Purchaser shall have the responsibility for providing health care continuation coverage pursuant to the Consolidated Omnibus Budget Reconciliation Act to any of the U.S. employees of the Vendor or the Subsidiary terminated on or before the Closing Date (to the extent eligible for coverage thereunder), any of the U.S. employees of the Vendor or the Subsidiary who decline offers of employment by the Purchaser on or after the Closing Date, Buyer may offer employment, commencing and to former U.S. employees of the Vendor and the Subsidiary receiving such continuation coverage as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (ai) Not less Part I of Schedule 6(c) sets forth all of the employees of Seller who have significant responsibilities with respect to the Affordable Housing Group. Buyer shall, no later than thirty 30 days after the execution hereof, deliver to Seller a list of the employees of Seller listed on Part I of Schedule 6(c) that Buyer does not wish to employ after the closing (30the "LIST OF NON-HIRED EMPLOYEES"). Seller shall cause all employees listed on the List of Non-Hired Employees, at or before Closing, to be terminated or transferred to other employment of Seller, and shall be responsible for any severance obligations to these employees. Buyer shall, at Closing, offer employment to all employees listed on Part I of Schedule 6(c) Business Days prior who are not included on the List of Non-Hired Employees. In the event any employee listed on Part I of Schedule 6(c) declines to accept such employment with Buyer, Seller shall be responsible for any severance obligations.
(ii) After the Closing Date, Buyer may offer employmentagrees to provide salaries and wages to any employees of Seller who transfer to the employment of Buyer or its Affiliates (the "EMPLOYEES") that are at least as great as the salaries and wages as paid by Seller on the date immediately preceding the Closing Date; provided, commencing however, that (A) any bonus or similar incentive payments shall be based upon Buyer's practices and not the practices of Seller, and (B) any raises in base salary in excess of 10% from the base salary in place at December 31, 1997, shall only be considered in Buyer's sole discretion. Buyer also agrees to provide Employees (under employee plans sponsored by Buyer) the same employee benefits plans as provided to similarly situated employees of Buyer or its Affiliates. Further, Buyer shall (A) waive, or cause the Affordable Housing Group or any Affiliate of Buyer to waive, any preexisting condition limitations applicable to the Employees and any covered dependents under the group medical plan of Buyer or its Affiliates, (B) ensure that Employees are given full credit for all copayments and deductibles incurred by such Employees and covered dependents under the applicable group medical plan of Seller or the Affordable Housing Group for the 1997 and 1998 plan year, and (C) cause any Employee Pension Benefit Plan that is intended to be qualified under section 401 of the Code to credit Employees for participation and vesting purposes under such plan for their period of employment with Seller and its predecessors to the extent such predecessor employment was recognized by any tax-qualified pension plan of Seller, and credit Employees for their period of employment with Seller for purposes of participation or accruals under any vacation, sick leave or other service-based plan or policy of Buyer or its Affiliates.
(iii) Buyer agrees that, if any employee of Seller who accepts employment with Buyer, any entity in the Affordable Housing Group or Affiliate of Buyer, is terminated from employment by any entity in the Affordable Housing Group, Buyer or any Affiliate of Buyer on or after the Closing Date but on or before the first anniversary of the Closing DateDate for any reason other than cause, or is required to transfer to a job location that is more than 25 miles from his or her current job location or to take a reduction in base rate of pay, but refuses such individuals identified on Section 5.6(atransfer or reduction and terminates his or her employment with Buyer or any Affiliate of Buyer or a Directly-Owned Company, Buyer shall provide, or cause the Directly-Owned Company or any Affiliate of Buyer to provide, the employee with (A) a lump sum cash severance payment equal to two weeks' base pay, plus three weeks' base pay for each year of service (taking into account service with Seller and its Affiliates and service with predecessor employers that is considered by Seller and its Affiliates under its existing severance programs) and rounding up any partial year of at least six months to at least one full year of service, with a total severance payment of not less than 12 weeks' base pay, and (B) continued health insurance coverage for the employee and his or her dependents under Part 6 of Title I of ERISA (COBRA) at a cost to the employee that is not in excess of the Seller Disclosure Letter cost of coverage for active employees of Buyer or its Affiliates (including the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to Directly-Owned Company after the Closing Date) who were formerly employed by Seller or its Affiliates. For purposes of this subparagraph (iii), termination shall be for cause if it is for conduct such as fraud, embezzlement, theft, commission of a felony, or any other criminal act against Buyer shall notify Seller of or its Affiliates (including the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to Directly-Owned Company after the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation).
(civ) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities payment of the retention bonuses which it has agreed to pay the Employees and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of other payment obligations which it has to the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of periods prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsto Closing.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty As of the Closing Date, Buyer and its Affiliates (30including, after the Closing, the Company) Business Days shall continue to employ all of those individuals who are immediately prior to the Closing Date employed by the Company (such individuals, the “Continuing Employees”) with compensation and benefits that are substantially similar in the aggregate to those in effect with respect to the Continuing Employees immediately prior to the Closing Date.
(b) For a period of sixty (60) days following the date of this Agreement (unless Seller otherwise agrees in writing to extend such period) (such period, as may be so extended, the “Consultation Period”), Buyer may offer (i) interview at a reasonable time arranged through Seller’s Vice President of Finance and Strategy (and any individuals as may be designated in writing by Seller) and (ii) at Buyer’s election, make offers of employment, commencing to those employees of Seller or its Affiliates (other than the Company) who are listed on Schedule 6.10(b) (the “Offered Employees”), which offers of employment, if any, shall comply with the terms and conditions of Section 6.10(a) as if the Offered Employees were Continuing Employees. Any Offered Employee who accepts Buyer’s offer of employment during the Consultation Period shall be deemed to be a Continuing Employee as of the Closing Date, to such individuals identified on Date for purposes of this Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion6.10. Buyer shall take all steps necessary reimburse Seller for the actual severance costs and expenses (excluding any Stay Bonuses), if any, incurred by Seller under any written employment agreement, severance plan or other arrangement providing for termination benefits with respect to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees any Offered Employee who have accepted accepts Buyer’s offer of employment. After From and after the Consultation Period until the date hereof that is eighteen (18) months after the earlier of the date of any termination of this Agreement and prior to the Closing Date, Seller shall provide neither Buyer with accessnor any of its Affiliates (including, during reasonable business hours and upon reasonable noticeafter the Closing, to the Schedule 5.6
(aCompany) Employeesshall, and Buyer agrees that it shall use its best efforts to conduct its hiring processdirectly or indirectly, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employ or solicit for employment with Buyer effective as of (or who is on approved leave other provision of absence on) the Closing Dateservices), together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether either as an employee, consultant, independent contractor agent or otherwise) representative, any Non-Hired Offered Employee who has been terminated by, and received severance compensation from, Seller unless and until does not accept an offer of employment from Buyer reimburses Seller for a reasonable portion during the Consultation Period (irrespective of whether Buyer makes an offer of employment to such severance compensationOffered Employee).
(c) Following As soon as practicable after the Closing Date (but in any event no later than two weeks following the Closing Date), Seller shall pay the amount indicated on Schedule A, if any, payable pursuant to those certain retention letter agreements identified on Schedule A as a result of the transactions contemplated by this Agreement (and any payroll and employment Taxes applicable thereto) (each, a “Stay Bonus” and, collectively, the “Stay Bonuses”). For the avoidance of doubt, the liability for a period and obligation to pay any remaining unpaid portion of the Stay Bonuses (and any payroll and employment Taxes applicable thereto) shall be the responsibility of Buyer or one of its Affiliates (1including, after the Closing, the Company) year, none following the Closing and any portion of Buyer, Generation or their the Stay Bonuses payable by Buyer and its Affiliates shall directly or indirectly solicit be payable in accordance with the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) terms of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time arrangements evidencing the applicable Stay Bonus and purposeapplicable Law.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any Effective as of the Transferred Closing, all Continuing Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, shall cease to participate in defending any such Claimsall Company Benefit Plans.
(e) To the extent applicable with respect to employee benefit plans, programs and arrangements that are established or maintained by Buyer for the benefit of Continuing Employees, Continuing Employees (and Seller their eligible dependents) shall cooperate as reasonably necessary be given credit for their service with the Company and its Affiliates (including Seller) (i) for purposes of eligibility to implement participate, vesting and, for purposes of vacation and severance (but no other purpose), benefit accrual to the provisions extent such service was taken into account under a corresponding Company Benefit Plan, and (ii) for purposes of satisfying any waiting periods, evidence of insurability requirements, or the application of any pre-existing condition limitations; provided, however, that such service need not be credited in accordance with this Section 6.10(e) to the extent it would result in a duplication of benefits.
(f) Without limiting the generality of any other provision of this Section 5.6 6.10 and agree for the avoidance of doubt:
(i) If the Closing Date occurs after the last day of the Seller’s fiscal year ended April 23, 2017, Buyer shall cause the Company to assume liability for, and to pay to each Continuing Employee who is employed by the Company as and when due, the annual bonus to which the Continuing Employee is entitled under Seller’s annual performance bonus plan (the “Annual Bonus Arrangement”) for such fiscal year (to the extent not paid as of the Closing Date); provided, that an accrued liability in respect of such amounts is included on the Final Closing Statement.
(ii) For the fiscal year in which the Closing Date occurs, Buyer shall cause the Company to pay to each Continuing Employee who is employed by the Company an annual bonus which is no less than the annual bonus that such Continuing Employee would have received under the Annual Bonus Arrangement for such fiscal year had the Closing Date not occurred; provided, that an accrued liability in respect of amounts accrued through the Closing Date is included on the Final Closing Statement.
(iii) Buyer shall cause the Company to provide each other with severance payments and benefits to any Continuing Employee whose employment is terminated within ninety (90) days following the Closing Date which are no less favorable than the severance benefits that would have been paid to such records Continuing Employee under Seller’s written severance plan as in effect on the Closing Date for a termination under comparable circumstances, a copy of which plan is set forth on Schedule 6.10(f)(iii).
(g) Buyer agrees to indemnify, defend and information as hold harmless Seller from and against any loss, damage, liability, claim, cost or expense (including reasonable attorneys’ fees) that may be necessary incurred by, or asserted against, Seller arising out of or relating to Buyer’s failure, if any, to comply with the Worker Adjustment Retraining and appropriate Notification Act or any similar state Laws with respect to carry out their respective obligations under the Continuing Employees.
(h) Except for those Continuing Employees who are employed by Buyer or its Affiliates pursuant to this Section 5.66.10, Buyer agrees that for a period commencing on the date hereof and ending on the date which is eighteen (18) months after the earlier of the date of any termination of this Agreement and the Closing Date, it shall not (and shall cause its Affiliates not to), directly or indirectly, solicit or hire for employment or in any other capacity any individual who is currently, or at any time becomes, employed by Seller or any of its Affiliates (other than the Company subsequent to the Closing), until such individual has been separated from such employment for at least forty-five (45) days (and subject to the restrictions in Section 6.10(b)), unless Seller provides Buyer specific prior written consent. For the avoidance of doubt, this Section 6.10(h) shall survive the termination of this Agreement.
(i) Nothing in this Section 6.10, whether express or implied, shall confer upon any Person who is not a Party to this Agreement, including any Continuing Employee, any right to employment or recall, any right to continued employment, any right to compensation or benefits, or any other right of any kind or nature whatsoever and nothing contained herein shall be treated as an amendment of any Company Benefit Plan.
Appears in 1 contract
Samples: Equity Purchase Agreement (Isle of Capri Casinos Inc)
Employee Matters. (a) Not less than thirty Buyer shall offer equivalent employment at the Auctioned Assets to those employees of Seller regularly assigned by Seller to work at the Auctioned Assets on the Closing Date in the job titles and facilities listed in Schedule 9.01(a) (30) Business Days prior all such employees described above and those individuals described in the following sentence being hereinafter referred to as "Affected Employees"). Affected Employees include each such 64 57 employee of Seller who is not actively at work on the Closing Date due solely to a temporary short-term absence, whether paid or unpaid, in accordance with applicable policies of Seller, including as a result of vacation, holiday, personal time, leave of absence, union leave, short- or long-term disability leave, military leave or jury duty. Affected Employees whether or not they accept an offer of employment from Buyer shall cease to be employees of Seller on the Closing Date and, to the extent they accept an offer of employment from Buyer, their period of employment by Buyer shall begin on the Closing Date, Buyer may offer employment, commencing as of the Closing Date, . Seller shall be responsible for any obligation to provide employee benefits to an Affected Employee prior to such individuals identified on Section 5.6(aemployee's period of employment by Buyer. All such offers of employment will be made (x) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof all applicable laws and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employeesregulations, and Buyer agrees that it shall use (y) for employees represented by Utility Workers' Union of America AFL-CIO and its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable noticeLocal Union 1-2 ("Local 1-2"), in a manner that causes minimum disruption to accordance with the operations of SellerLocal 1-2 Collective Bargaining Agreement (as defined in Schedule 9.01(b)). Each of the Schedule 5.6
(aAffected Employee who becomes employed by Buyer pursuant to this Section 9.01(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” a "Continued Employee". Buyer may commence discussions concerning offers for employment beginning on the Closing Date to Affected Employees at any time following the date of this Agreement. Seller acknowledges and each Schedule 5.6agrees that Buyer may discharge any of its obligations under this Article IX through one of its Affiliates; provided, however, that Buyer shall in no event be relieved from the full liabilities and the full financial responsibility under this Article IX.
(ab) Schedule 9.01(b) sets forth the collective bargaining agreement, and amendments thereto, to which Seller is a party in connection with the Auctioned Assets (the "Collective Bargaining Agreement"). Affected Employees who are included in the collective bargaining unit covered by the Collective Bargaining Agreement are referred to herein as "Affected Union Employees". Each Continued Employee who is not a Transferred an Affected Union Employee shall be referred to herein as a “Non-Hired "Continued Union Employee.”
". On the Closing Date, Buyer will assume the terms and conditions of the Collective Bargaining Agreement, except as set forth in Section 9.02 (b) Following below, as it relates to Affected Union Employees until the Closing expiration date of the Collective Bargaining Agreement. Buyer will comply with its legal obligations with respect to collective bargaining under Federal labor law for a period the employees at the Auctioned Assets 65 58 in the job titles or related work responsibilities of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated bythe Affected Union Employees, and received severance compensation fromBuyer will comply with all applicable obligations thereunder as the new owner of the Auctioned Assets. Buyer shall recognize Local 1-2 as the exclusive collective bargaining representative of the employees at the Auctioned Assets in the job titles or related work responsibilities of the Affected Union Employees and Buyer agrees that, Seller unless and until Buyer reimburses Seller for should any other business entity (regardless of its relationship to Buyer) acquire all or a reasonable portion of the Auctioned Assets from Buyer prior to the expiration date of the Collective Bargaining Agreement, Buyer will require such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee business entity to (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or offer employment to Affected Union Employees employed by Buyer at the Auctioned Assets immediately prior to the change in ownership, (ii) recognize Local 1-2 as the exclusive collective bargaining representative of Energy or its Affiliates without Buyer's employees at the prior written consent Auctioned Assets in the job titles and work responsibilities of Sellerthe Affected Union Employees, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller and (iii) assume the terms and conditions of the Collective Bargaining Agreement as they relate to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting Affected Union Employees from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach date of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any acquisition through the expiration date of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsCollective Bargaining Agreement.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement (Orion Power Holdings Inc)
Employee Matters. (a) Not less than thirty (30) Business Days prior Subject to the Closing Dateprovisions of Section ---------------- 2.2, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller offer employment to such employees of the Schedule 5.6
(a) Employees who have accepted Business as it shall determine in its sole discretion, which offer will include Buyer’s 's standard package of employee benefits, provided, however, that any offer of employmentemployment shall be contingent upon the Closing actually occurring. After Seller has identified on Schedule 6.10 those employees ------------- of the date hereof and prior to Business who are on short term disability or long term disability leave. All such employees who accept Buyer's offer of employment will become employees of Buyer ("Transferred Employees") as of the Closing Date. Except as otherwise --------------------- provided in this Agreement or in individual employment agreements, Seller such Transferred Employees shall provide Buyer not be eligible to participate in executive bonus or stock compensation programs of the Buyer. Further, any Transferred Employees shall not be credited with access, during reasonable business hours and upon reasonable noticeany period of service under Buyer's employee benefit programs for any period preceding such Transferred Employees' date of hire. With respect to any Transferred Employees, to the Schedule 5.6
(aextent that such Transferred Employees receive distributions from a tax-qualified plan maintained by Seller that qualify as eligible rollover distributions pursuant to Section 401(a)(31) Employeesof the Code, Buyer shall facilitate the acceptance of such eligible rollover distributions by Buyer's 401(k) plan. Buyer shall have no liability with respect to the Employee Benefit Plans, and Buyer agrees that it shall use its best efforts no responsibility or obligation to conduct its hiring processcontinue, during reasonable business hours and upon reasonable noticeterminate, in a manner that causes minimum disruption to or otherwise take responsibility for the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired EmployeeBenefit Plans.”
(b) Following the Closing for a period of one (1) yearNeither Buyer nor Seller intend this Section to create any rights or interests, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether except as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated bybetween Buyer and Seller, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion no present or future employees of either party (or any dependents of such severance compensationemployees) will be treated or deemed as third party beneficiaries in or under this Agreement.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees severance payments that are or may become payable pursuant to indemnify Seller and individual severance contracts or severance plans to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any employees of the Business that are terminated as a result of the sale of Assets pursuant to this Agreement, other than for Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsEmployees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Primus Telecommunications Group Inc)
Employee Matters. (a) Not less As soon as practical after the Execution Date, but in any event by not later than thirty (30) Business Days prior to the Closing Date, Buyer may offer employmentand Seller shall jointly notify the Transferred Employees that, commencing contingent upon the Closing, they will continue to be employed by Buyer following the Closing Date, and that such employment will be without prejudice to their rights ("retzef zsuciot"). The notice shall be published in the customary manner, and shall contain an undertaking by Buyer to bear sole responsibility towards the Transferred Employees for their Benefits following the Closing Date. Buyer and Seller shall jointly apply to the Ministry of Finance or other appropriate government ministry in order to obtain approval for the transfer of all employee severance pay and pension funds (the "Employee Funds") of the Transferred Employees to Buyer without prejudice to the accrued rights of the Transferred Employees.
(b) Seller shall ensure that all the Employee Funds of the Transferred Employees are fully funded to the extent required by operation of law and/or relevant pension fund regulations in accordance with the exemption requirements set out in Section 14 of the Severance Pay Act of 1963 (the "SEVERANCE ACT") as of the Closing Date, . Seller shall transfer the Employee Funds to such individuals identified Buyer on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days or prior to the Closing Date provided that a pre-ruling has been received from the Ministry of Finance or other appropriate government ministry for the transfer of the Employee Funds. It is hereby agreed subject to the foregoing, that after the transfer of the Employee Funds, the Seller shall bear no further liability for payment of severance pay to any of the Tranferred Employees. Subject to the foregoing, if Ministry of Finance approval (or other appropriate government ministry approval) is not obtained by the Closing Date, Buyer shall notify the date for the fulfillment by Seller of this covenant shall be extended accordingly. In the Schedule 5.6
(a) Employees who have accepted Buyer’s offer event that the contributions to the Employee Funds on account of employment. After severance payments for the date hereof and period of employment by the Seller prior to the Closing DateEffective Date require supplementary payments (if and to the extent that it is established by a court of law that the exemption of Section 14 of the Severance Act does not apply), Seller shall provide hereby agrees to fully indemnify the Parent and Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(aextent laid down in Section 9.1(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion respect of such severance compensationa claim and/or demand.
(c) Following In the event that workers at the Facility employed by an employment agency to work in the Business within two years of the Closing for a Effective Date demand equalization of employment terms and conditions during the period of one (1their employment on behalf of the Seller at the Facility prior to the Closing Effective Date, the Seller agrees to indemnify fully the Parent and Buyer to the extent laid down in Section 9.1(a) year, none in respect of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not such a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeclaim and/or demand.
(d) BuyerIn the event that employees who are employed on the basis of a "global" or all-inclusive salary and do not receive overtime or other benefit in kind according to Hours of Work and Rest Law 1951 ("OVERTIME PAYMENTS"), Generation and the Subsidiaries are deemed, according to applicable Law to be entitled to such Overtime Payments within one year of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Effective Date in respect of the period by Seller prior to the Closing Effective Date. Buyer , the Seller agrees to indemnify Seller fully the Parent and Buyer to defend and hold Seller harmless for any breach the extent laid down in Section 9.1(a) in respect of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsa claim and/or demand.
(e) In the event that workers at the facility employed by a contractor to work in the Business are held as a matter of law to be employees of the Seller during the period of their employment at the Facility prior to the Closing Effective Date within one year of the Closing Effective Date, the Seller agrees to indemnify fully the Parent and Buyer and Seller to the extent laid down in Section 9.1(a) in respect of such a claim and/or demand. This indemnity shall cooperate not apply to any employee who is hired by the Parent or the Buyer as reasonably necessary to implement a regular employee within a year of the provisions of this Section 5.6 and agree to provide each other date on which such employee terminates his or her employment with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6contractor.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days prior to The Purchaser and Medical Manager agree that, on the Closing Date, Buyer either Medical Manager or the Purchaser shall offer employment to all of the Employees who the Purchaser or Medical Manager wish to employ. Without limiting the foregoing, the Purchaser or Medical Manager, as the case may offer employmentbe, commencing agrees to credit to any Employee who becomes employed by the Purchaser or Medical Manager, as applicable, following the Closing Date all unused vacation time such Employee has accrued with the Sellers as of the Closing DateDate as set forth on Schedule 5.18(a), for the benefit of such Employee subject to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Lawthe Purchaser's and Medical Manager's vacation policy in effect from time to time. Not fewer than twenty Except as provided in the three immediately preceding sentences, nothing contained in this Section 10.2 shall in any way limit the Purchaser's and Medical Manager's right or ability to, in its sole discretion, deal with any such employee in any manner it determines, including, without limitation, the right to terminate or sever any such employee, change or alter the nature of the Business, or change or alter the organizational structure of the Business. Nothing contained in this Section 10.2 shall in any way limit or modify the Purchaser's agreement to assume any of the Assumed Liabilities, including, without limitation, the obligation to satisfy the Severance Obligations with respect to any Employee who is not offered employment with the Purchaser or Medical Manager on the Closing Date and whose employment with the Sellers is terminated on or following the Closing Date.
(20b) Business Days prior to On the Closing Date, Buyer shall notify Seller contemporaneously with the payment by the payment by the Purchaser to the Sellers of the Purchase Price, the Purchaser shall also pay to the Sellers an amount equal to the sum of (the "Agreed Reimbursement Amount"):
(i) the amount of all obligations of any one or more of the Sellers to any one or more of its employees with respect to: (A) any Severance Obligations set forth on Schedule 5.65.18
(a) Employees who have accepted Buyer’s offer actually payable by the Sellers arising as a result of employment. After (x) the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each failure of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred EmployeesPurchaser to,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Physician Computer Network Inc /Nj)
Employee Matters. (a) Not less than thirty Acquiror shall employ those of Seller's employees whom Acquiror may select and hire, in Acquiror's sole discretion (30) Business Days such employees are hereinafter referred to as the "Rehired Employees"), which offers shall be on terms and conditions which Acquiror shall determine in its sole discretion. Seller shall terminate the employment of all Rehired Employees immediately prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer and shall take all steps necessary to ensure that its hiring decisions cooperate with and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct assist Acquiror in its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption efforts to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences secure satisfactory employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together arrangements with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Rehired Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following Seller shall comply with the Closing for a period requirements of one (1) yearthe WARN Act with respect to any "plant closing" or "mass layoff", none as those terms are defined in WARN Act, which may result from Seller's termination of Buyer, Generation the employment of any of the employees of the Business in connection with Seller's sale of the Assets to Acquiror or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationthe other transactions contemplated by this Agreement.
(c) Following Seller shall be solely responsible for all of the Closing for a period Employee Plans and all obligations and liabilities thereunder. Acquiror shall not assume any of one (1) year, none of Buyer, Generation the Employee Plans or their Affiliates shall directly any obligation or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeliability thereunder.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller Nothing contained in this regard specifically includes Agreement shall confer upon any Claim Rehired Employee any right with respect to continuance of employment by Acquiror, nor shall anything herein interfere with the right of Acquiror to terminate the employment of any of the Transferred Rehired Employees for back payat any time, front paywith or without cause, benefits or compensatory or punitive damages, restrict Acquiror in the exercise of its independent business judgment in modifying any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) the terms and conditions of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsemployment of the Rehired Employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions No provision of this Section 5.6 Agreement shall create any third party beneficiary rights in any Rehired Employee, any beneficiary or dependents thereof, or any collective bargaining representative thereof, with respect to the compensation, terms and agree to provide each other with such records conditions of employment and information as benefits that may be necessary provided to any Rehired Employee by Acquiror or under any benefit plan which Acquiror may maintain.
(f) Concurrently with the Closing, Acquiror and appropriate to carry out their respective obligations under this Section 5.6.Xxxxxxxxxx shall enter into an Employment Agreement in the form attached hereto as Exhibit K.
Appears in 1 contract
Employee Matters. (a) Not less No later than thirty (30) Business Days prior to the Closing DateMay 8, 2018, Buyer may shall extend an offer employmentof employment to each of the Offered Employees, commencing effective as of the Closing Date. Each offer of employment shall be for a position with substantially similar duties and responsibilities, and provide for the same hourly wage rate or base salary, pursuant to which such individuals identified Offered Employee was employed by Seller on Section 5.6(a) the date hereof. Each offer of employment shall provide for incentive and other employee benefits which are, taken in the aggregate, substantially similar to those made available by Seller to the Offered Employees as of the Seller Disclosure Letter (date hereof. Any such offer shall be contingent upon the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to occurrence of the Closing Dateand may be contingent on each Offered Employee satisfying such employment requirements of Buyer, Buyer shall notify Seller or any Affiliate of Buyer, as the Schedule 5.6
case may be (a) Employees who have accepted Buyer’s including, without limitation, the execution of an offer of employment. After the date hereof letter, proprietary information agreement and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable noticenon-competition agreement, in each case in a manner that causes minimum disruption form acceptable to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired EmployeeBuyer).”
(b) Following The parties agree to deem the Transferred Employees has having resigned from their positions with Seller to join Buyer as of the Closing Date. Seller will be responsible for a period paying out any accrued but unpaid wages and benefits to Transferring Employees as would have been due to them had they resigned voluntarily of one (1) year, none their own accord from all positions with Seller. Seller Group shall not be required to pay or responsible for any severance payments in respect of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Transferred Employee who has been terminated by, and received severance compensation from, Seller accepts employment with Buyer or any affiliate of Buyer unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationrequired to do so under applicable law.
(c) Following In the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee event that either:
(i) following the date a Transferring Employee accepts Buyer’s offer of employment described above, Buyer requests that Seller terminate the employment of the Transferred Employee, withdraws such offer, or its Affiliates who otherwise elects not to employ such Transferring Employee; or
(ii) Buyer extends an offer of employment, that is not a Schedule 5.6(ain compliance with Section 6.3(a) of this Agreement, to an Offered Employee and such Employee does not accept Buyer’s offer; then, in either such case, Buyer shall reimburse Seller for all severance costs and benefits required to be paid (and actually paid) by Seller in terminating Seller’s employment relationship with the applicable Transferred Employee or Offered Employee, as well as the cost of any wages and fringe benefits required to be paid (and actually paid) by Seller to such Transferred Employee or Offered Employee following the date of the applicable event described above, provided that Seller terminates the employment of such person within fifteen (15) days of the triggering event described in clause (i) or (ii) above, in each case within thirty (30) days of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale being invoiced by Seller for Seller to retain such employee for a reasonable time and purposesame.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees Subject to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification compliance with its obligations set forth herein, Seller will use commercially reasonable efforts (not involving any payment of any amount by Seller in this regard specifically includes any Claim by any of the Group) to cooperate with Buyer to cause Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after to accept employment with Buyer and/or its designated Affiliates on the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsterms set forth herein.
(e) Except as set forth in Sections 6.3(b) and 6.3(c), Seller will be solely responsible for all payments owed to each employee terminated pursuant to Section 6.3(b), and to any other employee or independent contractor, as a result of or relating to their service with Seller or the termination thereof, including without limitation vacation pay, sick pay, termination pay, severance pay, incentive bonuses, retention bonuses, sales participation bonuses, pay-in-lieu-of-notice, unemployment benefits or any other benefits to which such employee or independent contractor may be entitled as a result of his or her employment by or independent contractor relationship with Seller prior to or on the date of Closing or the termination of such employment or independent contractor relationship as contemplated by this Agreement, as applicable.
(f) Seller will be solely responsible for any compensation to which an Offered Employee or Transferred Employee became entitled prior to the Closing Date by reason of having provided services to Seller.
(g) So long as any Transferred Employee remains an employee of Buyer or an affiliate and Buyer remains in compliance with this Agreement and the Buyer Ancillary Agreements, MACOM hereby agrees that it will not attempt to enforce any non-compete, non-solicit, confidentiality (solely with respect to the Business and/or the Transferred Assets) or similar restrictive covenant or obligation contained in any employment-related agreement between it and such Transferred Employee to prevent such Transferred Employee from participating in the management or operation of the Business by Buyer or such affiliate in accordance with this Agreement and the Buyer Ancillary Agreements.
(h) No provision of Section 6.3 shall create any third-party beneficiary rights against Buyer or Seller shall cooperate as reasonably necessary Group in any employee or other person (including any heir, beneficiary, executor, administrator or representative of any employee or any person claiming through any employee), including any right to implement the provisions employment or continued employment for any period of time or any right to a particular term or condition of employment. Nothing in this Section 5.6 and agree 6.3 shall be construed as (i) conferring any legal rights upon any current or former employee or independent contractor of Seller (for continuation of employment by or independent contractor relationship with Buyer or otherwise), (ii) obligating Buyer to provide each Seller’s current or former employees or independent contractors for any payment for employment or services prior to the Closing or upon discontinuation of such employment or independent contractor relationship, or (iii) requiring Buyer to implement, or limiting the rights of Buyer to amend or discontinue, any fringe benefit plan, program or practice or any other with such records and information as may be necessary and appropriate employee benefit plan of any nature whatsoever. Neither Buyer nor any of its Affiliates will assume sponsorship of or contribute to carry out their respective obligations under this Section 5.6any Company Benefit Plan or other compensation or benefit plan or agreement of Seller.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days prior to From and after the Closing Execution Date, Buyer may and/or its affiliate or designee shall be permitted to meet with and interview each Available Employee in connection with prospective employment with Buyer and/or its affiliate or designee and offer employment, commencing as of the Closing Date, employment to any such individuals identified Available Employee on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine terms determined by Buyer and/or its affiliate or designee in its sole discretion. Buyer shall take all steps necessary to ensure that its hiring decisions is responsible for scheduling any meetings or interviews and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6shall
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer also agrees that it shall use will provide copies of any offer letters and/or acceptance letters to Seller at its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Sellerrequest. Each of the Schedule 5.6
(a) All Available Employees who commences accept an offer of employment with from, and commence employment with, Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, its affiliate or designee shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following Seller shall terminate the employment of each Available Employee who accepts an offer of employment made pursuant to Section 5.9(a) effective as of the Closing Date or, if later, as of the date on which such Available Employee returns from a leave of absence (so long as such return occurs within ninety (90) days after the Closing or such later time as may be required by Law). Seller shall be solely responsible for all (i) obligations owed to, and Liabilities that are attributable to, associated with or related to, or that arise out of or in connection with the employment of (A) those Business Employees who do not become Transferred Employees, including Rejected Available Employees, and (B) the Transferred Employees, if any, up to and including the last date of their employment with Seller or its affiliate, including, in each case, salary, bonus (including any “retention bonus” or “stay bonus”), accrued paid time off, severance, retirement benefits and amounts owed under any Employee Benefit Plan (including, for the avoidance of doubt, any payroll, employment and similar Taxes with respect thereto), and (ii) Liabilities that are attributable to, associated with or related to, or that arise out of or in connection with any Employee Benefit Plan, including all Controlled Group Liabilities.
(c) For a period of one (1) yearyear following the Closing, none Buyer may not, directly or indirectly (including through its affiliates or any staffing or search firm or other vendor), solicit for employment or engagement, any Available Employee that (i) is not offered employment by Buyer or its affiliate or designee pursuant to Section 5.9(a) or (ii) declines any offer of Buyeremployment made by Buyer or its affiliate or designee pursuant to Section 5.9(a) (collectively, Generation “Rejected Available Employees”). For the avoidance of doubt, nothing in this Section 5.9(c) shall prohibit Seller or its affiliates from retaining any Rejected Available Employee or attempting to induce any such Rejected Available Employee to continue their Affiliates shall hire in any capacity (whether employment with Seller or its affiliates, as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for applicable. For a period of one (1) yearyear following the Closing, none of BuyerSeller may not, Generation or their Affiliates shall directly or indirectly (including through its affiliates or any staffing or search firm or other vendor), solicit the for employment or services of, or hire in engagement any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeTransferred Employee.
(d) Buyer, Generation and the Subsidiaries of Generation Buyer shall be solely responsible for complying with WARN Act obligations owed to Transferred Employees, including any and all Liabilities and obligations under the Worker Adjustment WARN Act requiring notice of plant closings, relocations, mass layoffs, reductions in force or similar actions (and Retraining Notification Act and similar foreignfor any failures to so comply), state and local rulesin any case, statutes and ordinances resulting applicable to the Transferred Employees, which result from the actions of Buyer, Generation and the Subsidiaries of Generation any action by Buyer or its affiliates or designee after the Closing Date. Buyer agrees to shall defend, indemnify and hold harmless Seller and its affiliates against any and all Liabilities arising in connection with any failure to defend and hold Seller harmless for any breach comply with the requirements of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsSection 5.9(d).
(e) Seller shall be solely responsible for complying with WARN Act obligations including any and all obligations requiring notice of plant closings, relocations, mass layoffs, reductions in force or similar actions (and for any failures to so comply), in any case, applicable to the Available Employees, which result from any action by Seller or its affiliates on or before the Closing Date. Seller shall defend, indemnify and hold harmless Buyer and Seller shall cooperate as reasonably necessary its affiliates and designee against any and all Liabilities arising in connection with any failure to implement comply with the requirements of this Section 5.9(e).
(f) The provisions of this Section 5.6 5.9 are solely for the benefit of the respective Parties to this Agreement and agree nothing in this Section 5.9, express or implied, shall confer upon any employee (or any dependent or beneficiary thereof), any rights or remedies, including any right to provide each continuance of employment or any other service relationship with such records and information as may be necessary and appropriate to carry out Buyer, Seller or any of their respective obligations affiliates or designees, or any right to compensation or benefits of any nature or kind whatsoever under this Section 5.6Agreement. For the avoidance of doubt, nothing in this Agreement will be construed as an amendment to any Employee Benefit Plan or any other compensation and benefit plans maintained for or provided to directors, officers or employees of Seller or its affiliates prior to or following the Closing.
Appears in 1 contract
Samples: Purchase and Sale Agreement
Employee Matters. (a) Not less Buyer shall, as of the Closing Date, offer employment or, in the case of Employees of the Subsidiaries, continuing employment, to substantially all Employees whose names are set forth on Schedule 5.8(a)(i) attached hereto (the "Target Employees"). Target Employees of the Company who accept employment with Buyer pursuant to this Section 5.8(a), by countersigning Buyer's offer letter no later than thirty the date specified therein, together with the Target Employees of the Subsidiaries as of the Closing Date, are referred to collectively as "Continuing Employees." Employees whose names are not set forth on Schedule 5.8(a)(i) or who do not accept employment with Buyer pursuant to this Section 5.8(a), by countersigning Buyer's offer letter by the date specified therein, together with the Employees of the Subsidiaries whose names are not set forth on Schedule 5.8(a)(i) are referred to collectively as "Retained Employees." On or prior to the Closing, the Company shall cause the Subsidiaries to terminate the employment of all Retained Employees employed by the Subsidiaries. The Company shall use its commercially reasonable efforts (30and cause the Subsidiaries to use their commercially reasonable efforts) Business Days to retain the Target Employees (including by establishment of the "Retention Bonuses" as defined in paragraph (i) of this Section 5.8) until the Closing Date and to have the Target Employees accept Buyer's offer of employment or remain employed by the Subsidiary, as the case may be. If any Continuing Employee is discharged by Buyer on or after the Closing Date, then Buyer shall be solely liable for any and all severance costs for such Continuing Employee under any severance benefit plan maintained by the Buyer or assumed by the Buyer pursuant to this Agreement (including the U. S. Severance Pay Plan for Management Employees and the U. S. Severance Pay Plan for Non-Management Employees) and with respect to the Subsidiaries, any severance or termination payments, compensation or damages under any severance plan currently maintained by the Subsidiaries or arising under foreign law. Notwithstanding the foregoing, Buyer shall not be liable for and the Company shall retain or assume liability for and indemnify and hold harmless the Buyer and the Subsidiaries for the payment of severance compensation or similar termination indemnity payments or benefits arising under any severance benefits plan maintained by the Company (including the U. S. Severance Pay Plan for Management Employees and the U. S. Severance Pay Plan for Non-Management Employees) and with respect to the Subsidiaries any severance or termination payments, compensation or damages under any severance plan maintained by the Subsidiaries or arising under foreign law (i) to the extent such compensation is not deductible solely by reason of Code Section 280G or (ii) to Retained Employees or Employees who are terminated or are notified of their termination of employment by the Company or a Subsidiary on or prior to the Closing Date, whether effective prior to on or following the Closing Date. Buyer may offer shall be responsible for and assume all liability for all notices or payments due to any Continuing Employees, and all notices, payments, fines or assessments due to any Governmental Entity, pursuant to any applicable foreign, federal, state or local law, common law, statute, rule or regulation with respect to the employment, commencing discharge or layoff of the Continuing Employees following the Closing Date, including without limitation, the WARN Act, Section 4980B of the Code, Title X of the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended ("COBRA"), and any rules or regulations that have been issued in connection with the foregoing. The Company acknowledges and assumes all liabilities, if any, under COBRA or any comparable foreign law with respect to all of its employees as of the Closing Date (including Continuing Employees and their "qualified beneficiaries" whose "qualifying event" (as such terms are defined in Code Section 4980B) occurs on or prior to the Closing Date), including any notice required by COBRA or comparable foreign law to Continuing Employees with respect to cessation of coverage under any group health plan of the Sellers as the result of the transactions contemplated by this Agreement. The Company shall be responsible and assume all liability for any obligations or other violations of the WARN Act or any comparable foreign law, associated with the sale of the Business or any other event occurring on or prior to the Closing Date. The foregoing three sentences to the contrary, notwithstanding, if the Buyer fails to fulfill its obligation set forth in this 24 paragraph to offer employment to substantially all of the Target Employees and, as a result of such failure, a violation of the WARN Act or comparable foreign law occurs, Buyer shall be responsible and assume all liability for such obligations and other violations.
(b) On and for a period of not less than one year following the Closing Date, Buyer shall provide, or shall cause to be provided, salary, bonus and other cash compensation and benefits for Continuing Employees that in the aggregate are substantially similar to or better than the compensation and benefits provided to such individuals identified on Section 5.6(a) Continuing Employees under the welfare plans made available to the employees of the Seller Disclosure Letter (respective Sellers on the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days day prior to the Closing Date, Buyer but only to the extent commercially available on a fully insured basis at commercially reasonable rates (it being agreed that the rates paid by the Sellers on the day prior to the Closing Date shall notify Seller be deemed to be commercially reasonable rates) (such substituted benefits being referred to as "Buyer's Welfare Plans"), which benefits are described in Schedule 5.8(b) attached hereto. Continuing Employees shall receive service credit for their service with the Sellers and their respective predecessors for all purposes under Buyer's Welfare Plans (but only to the extent such service was taken into account under the comparable benefit plan made available to the employees of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After respective Sellers on the date hereof and day prior to the Closing Date). No additional waiting periods, Seller deductibles, exclusions or benefit limitations for pre-existing conditions shall provide Buyer with access, during reasonable business hours and upon reasonable notice, be imposed or assessed against such Continuing Employees (or their dependents) under Buyer's Welfare Plans (other than as would have been applicable to such Continuing Employees or their dependents under the benefit plans made available to the Schedule 5.6
Employees of the respective Sellers on the day prior to the Closing Date) but only to the extent such terms are commercially available on a fully insured basis at commercially reasonable rates. Buyer's Welfare Plans shall recognize any expenses paid by such Continuing Employees (aor their dependents) Employeeswhich were applied to meet deductibles and maximum out-of-pocket limits under the benefit plans for the calendar year of the Closing as if such expenses had been paid under Buyer's Welfare Plans for purposes of applying the deductible and maximum out-of-pocket limits of Buyer's Welfare Plans for such calendar year but only to the extent such terms are commercially available on a fully issued basis at commercially reasonable rates. Seller acknowledges that for purposes of this paragraph (b) of Section 5.8, stock options, stock purchase plans and similar equity-based compensation plans, programs and arrangements maintained by Seller or any of the Subsidiaries for the benefit of the Employees shall be disregarded and Buyer agrees that it shall use its best efforts not be required under the terms of this Agreement to conduct its hiring processprovide any such plan, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption program or arrangement to the operations of SellerContinuing Employees following the Closing. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) Prior to the Closing Date, together with the continuing employees of Company shall take any and all action necessary to provide that any unexercised stock options held by Continuing Employees shall become fully vested on the Material Subsidiaries, Closing Date and shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following exercisable by the Closing for a period of Continuing Employees until at least one (1) yearyear following the Closing Date or until the date the stock option would otherwise expire, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationif sooner.
(c) Following (i) Continuing Employees who participate in the Closing for Company's 401(k) Plan or any other qualified retirement plans (the "Qualified Plans") shall terminate as participants and the Company shall amend its Qualified Plans to provide that Continuing Employees become fully vested in their accrued benefits under such plans. Buyer shall permit any such Continuing Employees to directly roll over any eligible rollover distributions paid in cash from such plans to a period of one (1) year, none defined contribution plan of Buyer, Generation or their Affiliates shall directly or indirectly solicit subject to Buyer's reasonable satisfaction that such rollover will not adversely affect the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) qualified status of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation 's plan and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any tax-exempt status of the Transferred Employees for back paycorresponding trust under Sections 401(a) and 501(a), front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsrespectively.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less Prior to the Closing, Purchaser shall offer to enter into a severance agreement with Xxxxx X. Xxxxx to become effective upon the commencement of his employment with Purchaser, which agreement shall be on the same terms and conditions as offered by Purchaser to its executive officers of a similar level.
(b) Section 5.10 of the Disclosure Schedule, which Purchaser shall deliver not later than thirty (30) the Business Days Day prior to the Closing Date, Buyer may offer employment, commencing as shall set forth the list of the Closing Date, employees of Seller that are expected to such individuals identified on Section 5.6(a) become employees of the Seller Disclosure Letter Purchaser or one of its Affiliates (the “Schedule 5.6(a) Designated Employees”) as it may determine in ). Seller shall terminate the employment of all Designated Employees to whom Purchaser or one of its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days Affiliates offers employment immediately prior to the Closing DateClosing, Buyer and Seller shall notify Seller cooperate with and use commercially reasonable efforts to assist Purchaser and its Affiliates in their respective efforts to secure satisfactory employment arrangements with the Designated Employees, including providing Purchaser with access to the Designated Employees for purposes of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer negotiating terms of employment. After Nothing contained in this Agreement shall confer upon any Designated Employee any right with respect to employment, or continuance thereof, with Purchaser or one of its Affiliates, nor shall anything herein interfere with the date hereof right of Purchaser and its Affiliates to terminate the employment of any of the Designated Employees at any time, with our without cause and with or without prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, or restrict Purchaser or its Affiliates in the exercise of their independent business judgment in modifying any of the terms and conditions of the employment of the Designated Employees. Purchaser shall have no obligation with respect to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations claims by any employee of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (, including any Designated Employee, whether under any Employee Plan or who is on approved leave of absence on) the Closing Datefor severance, together with the continuing employees of the Material Subsidiariesunpaid wages, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing unpaid accrued time off, unpaid bonuses, credit for a period of one (1) yearprior service, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor unpaid commissions or otherwise) any Non-Hired Employee who has been terminated by, except, from and received severance compensation fromafter the Closing, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee with respect to (i) of Seller or its Affiliates who is not a Schedule 5.6(athe Assumed Liabilities specified in Section 2.2(c)(iii) Employee or and (ii) obligations under the Consolidated Omnibus Budget Reconciliation Act of Energy or its Affiliates without the prior written consent of Seller1985, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for as amended. Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for any and all Liabilities and obligations Liability under the Worker Adjustment WARN Act or other Legal Requirements that arises out of or results from any termination of employment by Seller. Seller confirms that it has provided to each of its employees on or about November 22, 2006 and Retraining Notification Act and similar foreignJanuary 15, state and local rules, statutes and ordinances resulting from 2007 all notices required to be provided in order to comply with the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costsWARN Act, including reasonable attorney’s fees, in defending any such Claimsa valid and complete WARN Act notice.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. Immediately prior to the Closing, Seller shall terminate the employment of all of the active employees identified (the "Employees") on the attached "Employee Schedule" and, immediately after the Closing, TransWestern will offer employment to the Employees. At the time of such termination, each Employee shall have the option to elect to receive either (a) Not less than thirty all accrued vacation pay then owed to such Employee as of such termination or (30b) Business Days to carry forward a number of paid vacation days accrued prior to the Closing Dateto his or her employment with TransWestern. At Closing, Buyer may offer employment, commencing as Seller shall deliver to TransWestern a schedule setting forth all of the Closing Datevacation days which the Employees have elected pursuant to the foregoing clause (b) to carry forward to their employment with TransWestern and shall pay to TransWestern an amount equal to the amount which would have been paid the Employees but for their election pursuant to the foregoing clause (b) to carry forward vacation days. As of the Closing, Seller will deliver to TransWestern a list (the "Collection Employees Schedule") of individuals to remain employed by Seller solely for the purpose of conducting collection activities with respect to the past, present and future editions of the Directories as provided in Section 4.4(a) (collectively, the "Collection Employees"), which list will identify the complete and correct costs to be incurred by Seller in continuing to employ the Collection Employees and will be subject to review and approval of TransWestern. Seller shall terminate, and TransWestern will hire, the Collection Employees for the period commencing March 1, 2000 as reflected on the Collection Employees Schedule through the Accounts Receivable Measurement Date (or such earlier date as may be designated by Seller) at a rate of pay commensurate with such persons' respective compensation packages as reflected on the Collection Employees Schedule. Nothing in this Agreement shall obligate TransWestern to offer employment to any employee of Seller or any other individual other than the Employees and, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices extent provided in this regard are Section 4.3, the Collection Employees; and nothing in accordance with Applicable Law. Not fewer than twenty (20) Business Days this Agreement shall limit the ability of TransWestern to terminate the employment of any Employee at any time and for any reason, whether for cause or without cause, or the employment of any Collection Employee for cause, it being understood that TransWestern shall not terminate the employment of any Collection Employee without cause prior to the Closing Date, Buyer shall notify Seller Accounts Receivable Measurement Date without the prior consent of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employmentSeller. After the date hereof From and prior to after the Closing Date, Seller shall provide Buyer retain all Liabilities arising under or in connection with accessany "employee benefit plan" (as such term is defined in Section 3(3) of ERISA) or any other employee benefit plan or arrangement at any time maintained or contributed to by Seller, during reasonable business hours including, but not limited to, those Liabilities arising under Part 6 of Title I of ERISA and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each Section 4980B of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, Code. Seller shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be additionally responsible for all Liabilities (i) relating to compensation (including vacation pay and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereofinsurance benefits) of any plant closing or mass layoff occurring after Employee for periods prior to the Closing Date and Seller’s costsof any other employee of Seller for any period and/or (ii) arising as a result of the transactions contemplated by this Agreement, including reasonable attorney’s feesincluding, in defending any such Claimsbut not limited to, severance compensation and bonus payments.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Transwestern Publishing Co LLC)
Employee Matters. (1) The Vendor Parent, effective no later than immediately prior to the Closing Date, shall take any action that is reasonably required to cause:
(a) Not less the Coal Employees listed in Section 9.1(1)(a) of the Disclosure Letter employed by TCL as of the date of this Agreement to be offered employment with the Vendor Parent or one of its Subsidiaries (other than thirty the Purchased Entities) effective on or before the Closing Date (30as the same may be added to or subtracted from pursuant to Section 9.1(2)) (each, an "Excluded Employee"). Except as otherwise specified in this Agreement, the Vendor Parent shall assume and retain any and all Liabilities relating to, arising out of or in respect of any Excluded Employee (and such Liabilities shall be Excluded Liabilities for all purposes of this Agreement); and
(b) the Transferred Employees listed in Section 3.1(ii)(vi) of the Disclosure Letter (as the same may be added to or subtracted from pursuant to Section 9.1(2)) employed by the Vendor Parent or one of its Subsidiaries (other than the Purchased Entities) as of the date of this Agreement to be offered employment with TCL or one of the other Purchased Entities effective on or before the Closing Date. Except as otherwise specified in this Agreement, TCL or the applicable Purchased Entity shall assume and retain any and all Liabilities relating to, arising out of or in respect of any Transferred Employee (and such Liabilities shall be Coal Liabilities for all purposes of this Agreement).
(2) The Parties acknowledge and agree that, prior to the Closing, the Vendor Parties may, acting reasonably add to or subtract from (a) the list of Excluded Employees in Section 9.1(1)(a) of the Disclosure Letter; and (b) the list of Transferred Employees in Section 3.1(ii)(vi) of the Disclosure Letter; provided however that any material changes to the list of Excluded Employees in Section 9.1(1)(a) of the Disclosure Letter or the list of Transferred Employees in
Section 3.1 (ii)(vi) of the Disclosure Letter (other than due to terminations for cause or performance issues and turnover in the Ordinary Course, including for resignations, retirements, death and disability) shall require the consent of the Purchaser (which consent shall not be unreasonably withheld, delayed or conditioned). The Vendor Parties will consult in good faith with the Purchaser in respect of any such changes to Section 9.1(1)(a) and/or in Section 3.1(ii)(vi) of the Disclosure Letter reasonably prior to the Closing Date and shall deliver to the Purchaser (a) a final list of Excluded Employees in Section 9.1(1)(a) of the Disclosure Letter; and (b) the list of Transferred Employees in Section 3.1(ii)(vi) of the Disclosure Letter no later than five (5) Business Days prior to the Closing Date. For the purposes of this Section 9.1(2), Buyer may offer employmentany amendment which excludes a Key Coal Employee from the list of Transferred Employees or includes a Key Coal Employee on this list of Excluded Employees is considered material.
(3) During the eighteen (18) month period commencing on the Closing Date, commencing the Purchaser Parties shall, and shall cause the Purchased Entities to, provide each Coal Employee who is employed by any of the Purchased Entities (or the Purchaser or any of its Affiliates) immediately following the Closing (each, a "Continuing Employee") with: (a) a base salary or wage rate at least equal to each such Continuing Employee's base salary or wage rate in effect immediately prior to the Closing; (b) an annual target cash bonus opportunity at least equal to each such Continuing Employee's annual target cash bonus opportunity in effect immediately prior to the Closing; (c) annual short- and long-term incentive opportunities (excluding equity-based compensation) at least equal to the value of such Continuing Employee's annual short- and long-term incentive opportunities in effect as of immediately prior to the Closing; and (d) employee benefits that are, in the aggregate, no less favorable than the employee benefits provided to such Continuing Employees under the Employee Plans in effect immediately prior to the Closing (without duplication of benefits).
(4) For the avoidance of doubt, for the purposes of Section 9.1(3):
(a) except to the extent related to any agreement or commitment made by any Purchaser Party or its Representative in connection with Section 5.2(1), the value of any cash or other compensation or benefits (including any acceleration of vesting of or timing for payment in respect of any compensation securities or other awards) payable (I) in connection with the transactions contemplated by this Agreement (including the Pre-Closing Reorganization), or (II) in connection with the Separation (as defined in the Notice of Meeting and Management Proxy Circular of the Vendor Parent prepared in connection with the Annual and Special Meeting of the Vendor Parent held on April 26, 2023), shall be excluded, and for greater certainty, the Purchaser Parties shall have no Liability for such payments and any such Liabilities shall be deemed to be Excluded Liabilities; and
(b) the Purchaser Parties shall not be obligated to adopt any equity based compensation plan for the benefit of the Continuing Employees or to allow any Continuing Employee to participate in any equity based compensation plan maintained by the Purchaser Parties or any of their Subsidiaries (provided that Continuing Employees shall be provided with annual short- and long-term incentive opportunities that provide for at least equal value to the target value of such Continuing Employee's annual short- and long-term incentive opportunities under the Vendor Parent and its Subsidiaries' equity-compensation plans in effect immediately prior to the Closing). This Section 9.1(4) shall not give any Continuing Employee any right to continued employment or impair in any way the right of the Purchaser Parties or any of their Subsidiaries to terminate the employment of any Continuing Employee, including for the avoidance of doubt, during the eighteen (18) month period referred above. Notwithstanding anything in this Section 9.1(4) to the contrary, the terms of this Section 9.1(4) shall not apply to any Continuing Employee who is covered by a Collective Bargaining Agreement and instead, the terms and conditions of employment of each such Continuing Employee following the Closing Date shall be governed by the terms of the applicable Collective Bargaining Agreement.
(5) From and after the Closing Date, the Continuing Employees shall be entitled to use and obtain their unused and accrued vacation benefits and vacation pay under their previous vacation arrangements, determined as of the Closing Date, to such individuals identified on Section 5.6(a) at the expense of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired EmployeePurchaser Parties.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days prior Prior to the Closing Date, Buyer may offer employment, commencing but effective as of the Closing, the Buyer shall make offers of employment to all of the Active Business Employees (each such Active Business Employee, upon accepting an offer of employment from the Buyer, a "Transferred Employee"). For a period of eighteen (18) months following the Closing Date, as Inactive Business Employees are able to such individuals identified on Section 5.6(a) of return to active employment, the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary make offers of employment to ensure that its hiring decisions each such returning Inactive Business Employee, and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) each such Inactive Business Days prior to the Closing DateEmployee shall, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s upon accepting an offer of employment. After employment from the date hereof and prior to the Closing DateBuyer, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee for the purposes of this Agreement. The Closing Date and any such later date upon which a Business Employee accepts employment with the Buyer shall be referred to herein as a “Non-Hired Employee"Buyer Employment Date.”" Each such offer of employment required by this Section 5.3(a) shall be communicated in a writing, the form of which shall be mutually agreed to by the Seller and the Buyer and shall include base salary or base wages and a target cash bonus opportunity which are, in the aggregate, and not on an individual basis, no less favorable than those provided to Transferred Employees prior to the applicable Buyer Employment Date. Nothing in this Agreement shall limit the right of the Buyer to terminate the employment of any Transferred Employee following the applicable Buyer Employment Date. The Buyer shall ho nor any recall rights of any individual whose employment relates primarily to the Business in accordance with any applicable policies of the Seller with respect to such individual immediately prior to the Closing Date; provided, however, that the Buyer shall only be obligated to honor such recall rights with respect to any individual for up to one year after the date that such individual's employment is terminated. Any individual so recalled shall, from and after the date of such recall, be a Transferred Employee for purposes of this Agreement.
(b) Following Subject to Section 5.3(d) hereof, as of the first day following the applicable Buyer Employment Date, each Transferred Employee shall be permitted to participate in plans, programs and arrangements of the Buyer and its Affiliates relating to compensation and employee benefits (each, a "Buyer Benefit Plan"). Without limiting the generality of the foregoing, for a period of not less than two (2) years following the applicable Buyer Employment Date, the Buyer shall provide, or shall cause to be provided, to the Transferred Employee, compensation and employee benefits that are, in the aggregate and not on an individual basis, not less favorable than those provided to the Transferred Employees immediately before the Closing for Date.
(c) The Buyer agrees to provide, or cause to be provided, severance benefits to any Transferred Employee whose employment with the Buyer is terminated due to a layoff due to lack of work (including, but not limited to, a termination of employment by a Transferred Employee following a relocation of such Transferred Employee's work location of more than fifty miles) within a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity year following the applicable Buyer Employment Date substantially equivalent to the severance benefits (whether as an employee, consultant, independent contractor or otherwiseincluding COBRA coverage) any such Transferred Employee would have been entitled to under the Northrop Grumman Corporation May 2002 Severance Plan for Exempt and Non-Hired Exempt Employees of the Component Technologies Sector or the Northrop Grumman Corporation May 2002 Severance Plan for Director Level Employees of the Component Technologies Sector (a list of Business Employees who are eligible for benefits under the Northrop Grumman Corporation May 2002 Severance Plan for Director Level Employees of the Component Technologies Sector has been previously furnished to the Buyer), each as amended or extended from time to time prior to the Closing together, (the "Severance Plan"), as applicable, except to the extent that the provision of such severance benefits would result in a duplication of benefits, and provided that such Transferred Employee executes a separation agreement and general release in a form substantially similar to the form of Confidential Separation Agreement and General Release that accompanies the Severance Plan. For the purposes of determining the amount of benefits due from the Buyer to any Transferred Employee pursuant to this Section 5.3(c), the Buyer shall take into account all years of service that such Transferred Employee was credited with by the Seller as of the applicable Buyer Employment Date and all years of such Transferred Employee's service with the Buyer after the applicable Buyer Employment Date. Notwithstanding anything in this Section 5.3(c) to the contrary, the provisions of this Section 5.3(c) shall not apply to any Transferred Employee who has been entered into a Special Incentive Arrangement with the Northrop Grumman Corporation if such Transferred Employee's employment with the Buyer is terminated byon or before July 31, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose2004.
(d) BuyerFor purposes under the Buyer Benefit Plans, Generation each Transferred Employee shall be credited with all years of service for which such Transferred Employee was credited before the applicable Buyer Employment Date 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) each Transferred Employee shall be immediately eligible to participate, without any waiting time, in any and all Buyer Benefit Plans to the extent that coverage under such Buyer Benefit Plans replaces coverage under comparable Benefit Plans in which such Transferred Employee participated immediately before the applicable Buyer Employment Date; and (ii) for purposes of each Buyer Benefit Plan providing medical, dental, pharmaceutical and/or vision benefits to any Transferred Employee, the Buyer shall cause all pre-existing condition exclusions and actively-at-work requirements of such Buyer Benefit Plan to be waived for such Transferred Employee and his or her covered dependents, and the Subsidiaries Buyer shall cause any eligible expenses incurred by such Transferred Employee and his or her covered dependents during the portion of Generation the plan year of the Benefit Plan ending on the date such Transferred Employee's participation in the corresponding Buyer Benefit Plan begins to be taken into account under such Buyer Benefit Plan for purposes of satisfying all deductible, coinsurance and maximum out-of-pocket requirements applicable to such Transferred Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such Buyer Benefit Plan. For purposes of clause (ii) of the preceding sentence, the Buyer shall take all steps necessary such that each of the applicable Buyer Benefit Plans constitutes "another group health plan" for purposes of Treas. Reg. § 54.4980B-7 Q&A 2.
(e) The Buyer shall assume all liabilities and obligations to provide future COBRA continuation coverage for Transferred Employees pursuant to (and in accordance with the terms of) the agreements set forth on Schedule 5.3(e) of the Seller Disclosure Schedules.
(f) The Seller shall be solely responsible for all Liabilities any notices required to be given under, and obligations under otherwise comply with, the Worker Workers Adjustment and Retraining Notification Act and ("WARN ") or similar foreign, state and local rules, statutes and ordinances resulting from the actions laws or regulations of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees any jurisdiction relating to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring (or similar triggering event) caused by the Seller with respect to its employees on or before the Closing Date. The Buyer shall be solely responsible for any notices required to be given under, and otherwise comply with, WARN or similar laws or regulations of any jurisdiction relating to any plant closing or mass layoff (or similar triggering event) caused by the Buyer with respect to the Transferred Employees after the Closing Date Date. Notwithstanding anything in this Agreement to the contrary, the Buyer shall be solely responsible for any and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsall liability that may arise under WARN or similar laws or regulations as a result of the Buyer's failure to offer employment to all of the Business Employees.
(eg) The Buyer and agrees to provide the Transferred Employees with post-retirement health care coverage on the same terms as the Seller's post-retirement health care coverage described in Schedule 2.12(g) of the Seller Disclosure Schedules. Notwithstanding anything in this Section 5.3(g) to the contrary, the Seller shall cooperate as be responsible for any post-retirement health and life insurance benefits to those former employees of the Seller who retired prior to the Closing Date.
(h) The Seller agrees that on the Closing Date each Business Employee will be fully vested under the terms of the Benefit Plans.
(i) The Buyer shall assume the obligations of the Seller and/or its Affiliates to furnish Forms W-2 to Transferred Employees for the calendar year in which the Closing Date occurs. To the extent reasonably practicable, the Seller shall provide the Buyer with any information not available to the Buyer relating to periods ending on the Closing Date necessary for the Buyer to implement prepare and distribute Forms W-2 to Transferred Employees for the provisions of this Section 5.6 calendar year in which the Closing Date occurs, which Forms W-2 will include all remuneration earned by Transferred Employees during such year, and agree to provide each other with the Buyer will prepare and distribute such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6forms.
Appears in 1 contract
Employee Matters. (ai) Not less than thirty The Disclosure Schedule sets forth a list of each individual employed by Seller, including project employees, and employees who are on vacation leave, family leave, authorized leave of absence or short term disability leave (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine and their respective years of service, annual compensation including but not limited to any incentive and bonus compensation and annual vacation eligibility.
(ii) Buyer shall have the right (but not the obligation) to offer employment effective on the Closing Date to each Employee, each such person to be selected by Buyer in its sole discretion. Buyer shall take all steps necessary to ensure that its hiring decisions , and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees any such Employee who have accepted accepts Buyer’s offer of employmentemployment shall be deemed a “Buyer Employee”. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) The Employees who commences are not offered employment with by Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees those Employees who do not accept offers of the Material Subsidiariesemployment by Buyer, shall be are referred to herein as the “Transferred Seller Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following . For the Closing for a period avoidance of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation fromdoubt, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for terminating the employment of the Seller Employees and for paying severance and all Liabilities and obligations under other applicable payments due any or all Seller Employees as a result of the Worker Adjustment and Retraining Notification Act and similar foreigntermination of their employment.
(iii) Seller agrees to assist Buyer in encouraging employees so offered employment by Buyer to accept said offers. Notwithstanding anything contained herein to the contrary, state and local rules, statutes and ordinances resulting from nothing herein shall be deemed a legally binding obligation on the actions part of Buyer, Generation and the Subsidiaries Buyer to retain any employees of Generation Seller after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(eiv) Buyer shall not assume any liabilities or any other obligation, including without limitation, under any plan, arrangement or agreement described in Section 3(g), with respect to any current, former or retired employee or contractor of Seller, and Seller retains all liabilities with respect to such employees. Seller shall cooperate be responsible for the payment of separation/termination pay claimed by its employees as reasonably necessary to implement a result of their termination of employment from Seller, notwithstanding the provisions subsequent employment by Buyer of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6one or more of said employees.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Matters. (a) Not less than Buyer shall have the right, but shall not be obligated, to hire or otherwise establish an independent contractor, consultant or other business relationship with (collectively "Hire") any employees of Seller, but shall have no right to Hire any employees of Seller's licensing operations unless and until the closing of the transactions contemplated under the Purchase Agreement are consummated, although Buyer shall not be restricted from making offers to Hire such employees provided such offers are conditioned on the consummation of such closing. Buyer shall provide to Seller reasonable advance written notice of any employee of Seller to whom Buyer intends to extend an offer to Hire and shall keep Seller informed of the status of any such offer and the acceptance thereof.
(b) In the event that Seller shall notify Buyer in writing that any employees of Seller who are not represented by a labor organization to whom Buyer intends to extend or shall have extended an offer to Hire shall be, in the commercially reasonable judgment of Frank Mori, necessary to the wind-down of the Business as contemplxxxx xx xxe Omnibus Agreement, the Purchase Agreement and the License Agreement, Seller and Buyer shall in good faith attempt to agree upon a sharing arrangement with respect to such employees on terms and conditions reasonably acceptable to both Seller and Buyer; provided, that any such sharing arrangement shall contain, among other things, the following terms: (i) within thirty (30) Business Days prior to the Closing Date, days after receipt by Buyer may offer employment, commencing as from Seller of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Datevouchers and/or receipts or other documentation reasonably requested by Buyer, Buyer shall notify reimburse Seller with respect to the services of any employee of Seller who shall perform services for Buyer pursuant to any such sharing arrangement in an amount equal to the pro rata portion of such employee's salary based upon the portion of such employee's working time spent in performing such services, and (ii) if Buyer shall fail to reimburse Seller for such pro rata portion of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer salary of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employeesany shared employee as provided above in this Section 9.3(b), and Buyer agrees that it such failure shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing continue for a period of one three (13) year, none of business days after Seller shall have notified Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employeeaccordance with Section 12.2 hereof, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation fromof such failure, Seller unless and until Buyer reimburses Seller shall have the right to terminate the sharing arrangement with respect to such employee. In such event, except for a reasonable the pro rata portion of the salary of such severance compensationemployee that Buyer shall not have paid, neither Seller or Buyer shall have any further rights or obligations with respect to such sharing arrangement.
(c) Following Seller has advised Buyer as to its current severance practice (the Closing for "Severance Practice") with regard to its employees who are not represented by a period of one (1) yearlabor organization, none of and has provided Buyer with such information with regard to such employees reasonably requested by Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in . If Buyer Hires any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time during the twelve-week period from and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach termination of such responsibility and Buyer’s indemnification of employee's employment with Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as have paid or committed to pay to such employee severance in accordance with the terms and conditions of the Severance Practice, Buyer shall, within five (5) business days, after written notice by Seller to Buyer of the actual payment of such severance and upon receipt from Seller of documentation reasonably necessary satisfactory to implement it in respect of such severance payments, reimburse Seller for such severance payments. The foregoing severance reimbursement shall not, in any event, include reimbursement for severance paid or payable under any oral or written employment agreement, or other arrangement (other than the provisions Severance Practice), between Seller and any of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6its employees.
Appears in 1 contract
Samples: Omnibus Agreement (Kasper a S L LTD)
Employee Matters. (a) Not less It is Purchaser's current intention to extend offers of employment to certain of the employees employed in connection with the Business. As promptly as practicable following the date hereof, Seller shall provide Purchaser with a list setting forth the names, addresses and such other information as Purchaser shall reasonably request concerning the employees of Seller employed in connection with the Business (the "Employees"). Purchaser will inform Seller no later than thirty two (302) Business Days days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) names of the Seller Disclosure Letter any Employees who will not be offered employment with Purchaser (the “Schedule 5.6(a"Remaining Seller Employees") Employees”and such other information concerning the terms of employment to be offered by Purchaser to the other Employees as Seller shall reasonably request. Any offer of employment pursuant to this Section 5.8(a) shall be within the sole discretion of Purchaser and shall be on such terms and conditions as it may determine Purchaser, in its sole discretion, may determine. Buyer Nothing herein contained shall take all steps necessary obligate Purchaser to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior employ or offer to the Closing Dateemploy any current or former employee of Seller, Buyer shall notify Seller of the Schedule 5.6or to employ or offer to employ any such individual at any specific wage or benefit level.
(ab) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to On or immediately after the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to notify all Employees other than the Schedule 5.6
(a) Employees, and Buyer agrees Remaining Seller Employees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences their employment with Buyer effective Seller shall terminate at the Closing and Seller shall validly terminate such Employees as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following After the Closing Closing, Seller shall deliver to Purchaser as part of the Purchased Assets conveyed hereunder the applicable personnel file for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any each Employee who Purchaser hires subject to employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior executing written consent for transfer of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposethe file.
(d) Buyer, Generation Purchaser and the Subsidiaries of Generation Seller agree that Seller shall be responsible for all Liabilities and obligations under providing any notice required by the Worker Adjustment and Retraining Notification Act and similar foreignof 1988, as amended (the "WARN Act") or any comparable state and or local rulesstatutes, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any rules or regulations as a result of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimstransactions contemplated hereunder.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Horizon Medical Products Inc)
Employee Matters. (a) Not less No later than thirty fifteen (3015) Business Days days prior to the Closing Date, Buyer may Purchaser shall offer employment, commencing employment effective as of the Closing DateDate to all Persons listed on Exhibit F and any employees hired after the date hereof in compliance with Section 7.1(1)(i) on such terms and conditions of employment as Purchaser may determine, including, with respect to each such employee who is not a Producer or executive officer of Seller, a total compensation opportunity that is no less favorable than the total compensation opportunity afforded to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days employee prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6.
(ab) Employees who have accepted Buyer’s All such employees accepting said offer of employment. After employment by signing Purchaser’s new hire documents (the date hereof “Purchaser New Hire Documents”) and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences actually commencing employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following To the Closing extent permissible under the terms of the applicable Purchaser Plan (as defined below) and in accordance with applicable law, Purchaser will use commercially reasonable efforts to credit the Transferred Employees with service for a period time employed by the applicable Seller as set forth on Exhibit F for purposes of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) vesting for and eligibility to participate in any “employee benefit plan” within the meaning of Seller or its Affiliates who is Section 3(3) of ERISA maintained by Purchaser in which the Transferred Employees are eligible to participate (each, a “Purchaser Plan”), but not a Schedule 5.6(a) Employee or for purposes of benefit accruals; and (ii) eligibility and benefit computation for paid time off plans of Energy Purchaser or its Affiliates without the prior written consent applicable USI Company, except, in each case, to the extent it would result in a duplication of Sellerbenefits for the same period of service. For these purposes, which “commercially reasonable efforts” may not be unreasonably withheldinclude the adoption of amendments to such Purchaser Plans, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposethe extent required by law, to effect the purposes of this Section 7.1(b).
(d) BuyerSeller shall retain all liabilities and obligations (i) arising from or relating to the employment of any Transferred Employees by Seller, Generation (ii) arising from or relating to the employment of any employees of Seller or any of its Affiliates who do not become Transferred Employees, in each case of (i) and (ii), whether such liabilities and obligations arise on, prior to or after the Subsidiaries Effective Time and (iii) under or relating to any Employee Plan or any other employee benefit plan, program or arrangement of Generation Seller or any ERISA Affiliate. Purchaser shall be responsible solely liable for all Liabilities and obligations under (x) arising from or relating to the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions employment of Buyer, Generation and the Subsidiaries of Generation any Transferred Employees with Purchaser for periods after the Closing Date. Buyer agrees Effective Time, and (y) under or relating to indemnify Seller and to defend and hold Seller harmless for any breach Purchaser Plan, and, except as otherwise specifically provided herein, shall not assume any obligations or liabilities under or with respect to, or receive any right or interest in any trusts relating to, any assets of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes or any Claim by insurance, administrative or other Contracts pertaining to, any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsEmployee Plans.
(e) Buyer Seller and Purchaser agree to utilize, or cause their respective Affiliates to utilize, the standard procedure set forth in Revenue Procedure 2004-53, 2004-2 C.B. 320, with respect to wage reporting.
(f) Purchaser shall from the date hereof to the Closing Date, upon reasonable advance notice to NIS, be allowed to meet with any Producer or any other employee of Seller for the purpose of coming to terms of employment. Seller shall cooperate permit Purchaser reasonable access to such Persons to enable Purchaser to present and discuss terms of employment. Seller agrees to facilitate any communications with any such Persons as reasonably necessary requested by Purchaser.
(g) To the extent that any current or former employee of Seller (other than a Transferred Employee who signs Purchaser New Hire Documents on or before the Closing Date and does not subsequently repudiate or disavow such agreement) has agreed to implement be bound by any employment agreement, offer letter, confirmation letter, equity or equity-based award agreement, confidentiality agreement, or severance or separation agreement with Seller or any of its Affiliates, in each case with restrictive covenants binding upon such Producer or employee (such agreement, a “Restrictive Covenant Agreement”), (i) Purchaser shall assume and the provisions Seller Parties shall assign (or cause their Affiliates to assign) to Purchaser each such Restrictive Covenant Agreement with a Non-Accepting Employee; and (ii) Purchaser may request that the Seller Parties either assign (or cause their Affiliates to assign) such agreement for any other such Person to Purchaser or assign the rights intended to be rights of Seller, including rights with respect to restrictive covenants, and the obligations intended to be obligations of Seller under the applicable documents (for the avoidance of doubt, excluding obligations under any Employee Plan of Seller) to Purchaser. If such request is made prior to the Closing, the RC Assignment Agreement to be delivered at the Closing shall include such assigned agreement or terms, as applicable. If such request is made after the Closing, the Seller Parties shall comply with any such request within a reasonable time period following such request. The Seller Parties further agree, at Purchaser’s request and sole cost and expense, to seek to enforce the terms of the restrictive covenants contained in the Restrictive Covenant Agreements in an appropriate forum, whether through injunctive relief or other form of available remedy; provided that Purchaser may deduct any such costs and expenses from the Non-Accepting Employee Second Reversal Amount, if any, pursuant to Section 2.4(c).
(h) For any employees of Seller who are not actively at work on the Closing Date (except for employees on vacation, holiday, sick leave or leave under the Family Medical Leave Act of 1993), Purchaser or one of its Affiliates shall promptly deliver in writing an offer of employment to any such employee if such employee returns to work no later than the earlier of his or her scheduled return date (including any approved extension thereto) and three (3) months following the Closing Date.
(i) No provision in this Section 5.6 7.4 shall (i) create any third-party beneficiary or other rights in any employee or former employee (including any beneficiary or dependent thereof) of Seller or any other Person other than the Parties hereto and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6successors and permitted assigns, (ii) create any rights to continued employment with Purchaser or any USI Company, or (iii) constitute or be deemed to constitute an amendment to any Employee Plan, Purchaser Plan or other employee benefit plan, program, policy or arrangement sponsored or maintained by Purchaser or any USI Company.
Appears in 1 contract
Samples: Asset Purchase Agreement (Northwest Bancshares, Inc.)
Employee Matters. (a) Not less than thirty From and after the Closing, Purchaser shall comply with, or shall cause the Companies and the Companies’ Subsidiaries to comply with, in accordance with their terms, the Affected Benefit Plans (30or, in the case of a Seller Benefit Plan, the portion thereof transferred pursuant to this Section 7.1) and assume, or shall cause the Companies and the Companies’ Subsidiaries to assume, all of the Seller’s, Companies’ and the Companies’ Subsidiaries’ Liabilities that are attributable to the contributions or contribution histories assumed by the Purchaser with respect to Affected Employees and Former Seller Employees relating to the Companies Multiemployer Plans and Companies Multiemployer Welfare Benefit Plans, regardless of when any such Liability arises or is incurred. Notwithstanding the foregoing or any other provision of this Agreement, the terms and conditions of employment, including compensation and benefits, applicable to any Affected Employee who is covered by a Collective Bargaining Agreement shall be governed by the terms of the applicable Collective Bargaining Agreement and/or the federal labor Law. Purchaser shall be responsible for causing the Companies and the Companies’ Subsidiaries to satisfy all Liabilities related to Affected Employees, Former Seller Employees, Affected Benefit Plans (with respect to the portion thereof transferred pursuant to this Section 7.1), and Companies Multiemployer Welfare Benefit Plans, whether such Liabilities relate to periods prior to, on or after the Closing Date. With respect to each Companies Multiemployer Plan and each other Multiemployer Plan to which contributions are required to be made under a Collective Bargaining Agreement identified on Schedule 4.20(a)(i), as well as any other Collective Bargaining Agreement or predecessor collective bargaining agreement attributable to the Business: (1) Purchaser agrees that it shall be allocated the contribution histories with respect to (A) Affected Employees and Former Seller Employees of the Companies, each Companies Subsidiary, and the Seller relating to the Business, and (B) any other individual who performed services for the Companies, a Companies’ Subsidiary or the Seller relating to the Business Days if for the period during which such individual performed services for the Companies, a Companies’ Subsidiary or the Seller relating to the Business, contributions are or were required to be made with respect to a Companies Multiemployer Plan or other Multiemployer Plan to which contributions are or were required to be made under a Collective Bargaining Agreement identified on Schedule 4.20(a)(i), or any other Collective Bargaining Agreement or predecessor collective bargaining agreement attributable to the Business; and (2) Purchaser covenants that the obligation to contribute the contributions required to be made to any such Multiemployer Plan shall be continued without interruption in the manner required under Section 4218 of ERISA to prevent the occurrence of a “withdrawal” by reason of the transactions contemplated under this Agreement. Subject to the foregoing, nothing in this Section 7.1, expressed or implied, shall be construed to prevent the Purchaser from terminating or modifying to any extent or in any respect, any Affected Benefit Plans (subject to the terms thereof) or any other benefit plan that the Purchaser may establish or maintain.
(b) Except as otherwise required by applicable Law or pursuant to the terms of a Collective Bargaining Agreement, for the period beginning on the Closing Date and ending on the first anniversary of the Closing Date, Purchaser shall, and shall cause the Companies, the Companies’ Subsidiaries and their respective Affiliates to, provide each Affected Employee with at least the same salary and wages as were provided by Seller or any of its Affiliates to such employee immediately prior to the Closing Date, Buyer may offer employment, commencing . Except as required by Law or pursuant to the terms of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) a Collective Bargaining Agreement or as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices expressly set forth in this regard are Section 7.1, nothing in accordance this Section 7.1 shall require Purchaser to provide Affected Employees with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) benefits or compensation at a particular level or of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time particular type on and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty From and after the date hereof, Purchaser, in its sole and absolute discretion, may: (30i) in consultation and cooperation with Seller (by and through Seller’s senior management personnel), communicate with any of the Business Days prior to Employees about possible employment with Purchaser after the Closing Date, Buyer may ; and/or (ii) offer employment, commencing employment to any of the Business Employees as of the Closing Date, . Purchaser shall make offers of employment to such individuals identified on Section 5.6(a) not less than 75% of the Seller Disclosure Letter Business Employees for compensation and otherwise on terms and conditions at least comparable to those applicable to similarly situated employees of Purchaser. Those of the Business Employees that accept Purchaser’s offer of employment shall be terminated by Seller, and shall become employed by Purchaser or one of its Affiliates (the referred to in this Agreement as “Schedule 5.6(a) Transferred Employees”) as it may determine in of the Closing Date. All employment offers are subject to the satisfactory completion by Purchaser of its discretion. Buyer customary employment interview, background checks and drug testing procedures.
(b) To the extent that length of employment service is relevant for purposes of eligibility or vesting under any employee benefit plan, program or arrangement established or maintained by Purchaser and provided to the Transferred Employees (excluding any equity-related plan, program or arrangement), Purchaser shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days credit the Transferred Employees under such plan, program or arrangement for service on or prior to the Closing Date, Buyer shall notify Seller of in the manner set forth on Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation4.6(b).
(c) Following the Closing Seller shall be responsible for a period of one (1) year, none of Buyer, Generation any liabilities or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee obligations (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or arising under the WARN Act, if any, and (ii) resulting from or precipitated by layoffs, if any, in respect of Energy employees of Seller whose employment was terminated on or its Affiliates without prior to the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeClosing.
(d) Buyer, Generation Purchaser shall assume all liability and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless responsibility for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any health care continuation coverage (“COBRA Coverage”) required under Section 4980B of the Transferred Code and Part 6 of Subtitle B of Title 1 of ERISA with respect to any Business Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue former employees of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date Seller. Purchaser shall provide COBRA Coverage to 28 such Business Employees and Seller’s costs, including reasonable attorney’s fees, in defending any former employees on such Claimsterms and at such rates as Purchaser currently provides to its own employees and former employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Matters. (a) Not less than thirty (30) From and after the date of this Agreement through the Closing Date or earlier termination of this Agreement, Buyer has the right to enter into negotiations with all of the employees of Seller employed in the Business Days prior to for their continued employment with Buyer from and after the Closing Date, . Seller shall use its commercially reasonable best efforts to make the employment services of all current employees of the Business available to Buyer and shall not solicit any employees to remain with Seller if Buyer offers employment to such employees. Buyer may offer employment, commencing as employment to such current employees of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) Business as it may Buyer shall determine in its sole discretion. Buyer shall determine, in its sole discretion, the terms and conditions of offers of employment to such employees, except that Buyer shall take all steps actions necessary or appropriate to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior permit all employees of Seller who become employees of Buyer to participate as soon as practical after the Closing Date, Date in the standard employee benefit programs of Buyer for which they are otherwise eligible. Each individual offered employment by Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, be considered "newly hired" but shall be referred to herein given credit for time served as “Transferred Employees,” an employee of Seller or its subsidiaries for purposes of determining such employee's eligibility for Buyer's employee benefit plans (including without limitation severance plans, if any) and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeesalary structure.”
(b) Following Notwithstanding the Closing for a period of one foregoing subsection (1) yeara), none of Buyer, Generation or their Affiliates Buyer shall hire offer employment to Xxx Xxxx and Xxx Xxxxx on the terms and subject to the conditions contained in any capacity (whether the offer letters attached hereto as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationExhibit 5.13(b).
(c) Following Buyer agrees to pay severance according to the Closing for a period standard severance policy of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or Buyer and its Affiliates who is to any current employees of the Business to whom Buyer does not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeoffer employment.
(d) BuyerNotwithstanding any other provision of this Agreement, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 5.14 shall inure solely to the benefit of Seller and agree no third party (including, without limitation, any employee of Seller) shall be permitted to provide each other with such records and information rely hereon as may be necessary and appropriate to carry out their respective obligations under this Section 5.6a third party beneficiary or otherwise.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days prior Prior to the Closing Date, and effective as of the day immediately after the Closing Date, one of UK Buyer, HK Buyer may or China Buyer or one of its Affiliates shall offer employmentemployment to each of the Employees (as updated in accordance with this Agreement).
(b) Each Employee who accepts UK Buyer, commencing HK Buyer or China Buyer’s (or one of their Affiliates’) offer of employment and who becomes an employee of UK Buyer, HK Buyer or China Buyer (or one of their Affiliates) in accordance with the terms and conditions of the offer shall be a “Transferred Employee.” Sellers agree to release all Employees from the notice periods and any continuing obligations arising under applicable Law and any employment agreement between Sellers and such Employees, and that each Transferred Employee shall be deemed to have resigned from their employment with Sellers effective as of the Closing. To the extent not prohibited by Law, within five (5) days after the Closing Date, Sellers shall deliver to the applicable Buyer copies of all Transferred Employees’ Records.
(c) Sellers shall remain solely responsible for and will discharge any and all Liabilities in respect of the Employees and any employees of Sellers and their Affiliates that are not Employees, including all obligations and Liabilities for wages, severance pay, long service pay, termination pay, accrued and unused vacation pay or accrued and unused leave to which any Transferred Employee, any Employee that is not a Transferred Employee and any employee of Sellers and their Affiliates that is not an Employee is entitled as of the Closing Date, notice of termination of employment or pay in lieu of such notice or damages for wrongful dismissal, bonuses, retention payments, variable or incentive compensation, stock options or stock purchase plan and Benefits Plan claims, to the extent (i) in respect of any Transferred Employee, that such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary Liabilities arise from facts or circumstances occurring up to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to including the Closing Date, Buyer shall notify Seller or (ii) in respect of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees any Employee that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee or any employee of Sellers and their Affiliates that is not an Employee, regardless of whether such Liabilities arise from facts or circumstances occurring prior to, on or after the Closing Date, including in each case any such obligations and Liabilities that may arise out of or result from the transactions contemplated by this Agreement, and all such Liabilities shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing Excluded Liabilities for a period all purposes under this Agreement. Sellers shall remain solely responsible for and will discharge any and all Liabilities in respect of one (1) year, none any claim or potential claim by any Employee and any employees of Buyer, Generation or Sellers and their Affiliates shall hire in that are not Employees arising from or relating to the Transfer of Undertakings (Protection of Employment) Regulations 2006 (“TUPE”), including any capacity (whether as an employee, consultant, independent contractor failure or otherwise) alleged failure of any Non-Hired Employee who has been terminated by, and received severance compensation from, Buyer or Seller unless and until Buyer reimburses Seller for a reasonable portion to comply with any requirements of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services ofTUPE, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) similar provision of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeapplicable Law.
(d) Buyer, Generation and the Subsidiaries No provision of Generation this Agreement shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for create any breach of such responsibility and Buyer’s indemnification of Seller third party beneficiary rights in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damagesEmployee, any Claim by beneficiary or dependents thereof, or any Governmental Authority for penalties regarding any issue collective bargaining representative thereof, with respect to the compensation, terms and conditions of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date employment and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as benefits that may be necessary and appropriate provided to carry out their respective obligations any Transferred Employee by Buyer or under this Section 5.6any benefit plan which Buyer may maintain, or otherwise.
Appears in 1 contract
Samples: Asset Purchase Agreement (Mad Catz Interactive Inc)
Employee Matters. (a) Not less than thirty (30) Business Days Except to the extent Operating has previously offered employment to Station Employees under the Local Marketing Agreement, and except as set forth on Schedule 4.7, Operating shall offer employment to each Station Employee who is employed immediately prior to the Closing Effective Time and who is not on authorized leave of absence, sick leave, short or long term disability leave, military leave or layoff with recall rights. For the purposes hereof, all Station Employees who accept Operating's offer of employment (either pursuant to the Local Marketing Agreement or pursuant to this Section 4.7) are hereinafter referred to collectively as the "Transferred Employees," and the "Employment Commencement Date" as referred to herein shall mean (i) as to those Transferred Employees hired pursuant to the Local Marketing Agreement, Buyer the LMA Effective Time (as defined in the Local Marketing Agreement) and (ii) as to those Transferred Employees hired pursuant to this Section 4.7, the Effective Time. Operating shall employ at-will those Transferred Employees who do not have employment agreements with the Seller at the same monetary compensation as such employees are currently earning. The initial terms and conditions of employment for those Transferred Employees who have employment agreements, including account executive agreements and bonus term sheets, with the Seller shall be dictated by such employment agreements. Operating may offer employmentmodify, commencing as alter or terminate any of the terms and conditions of employment of the Transferred Employees. Nothing in this Agreement shall prevent Operating from terminating the employment of any Transferred Employee at any time after the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following To the Closing for a period of one (1) year, none extent permitted under Buyer's plans and subject to the requirements of Buyer's plan administrator, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) Buyer shall cause all Transferred Employees to be eligible to participate in its "employee welfare benefit plans" (as defined in Section 3(1) of Seller or ERISA) and its Affiliates who is not a Schedule 5.6(a"defined contribution plans" (as defined in Section 414(i) Employee or of the Code) to the extent Buyer's similarly-situated employees are generally eligible to participate, (ii) of Energy or its Affiliates without all Transferred Employees and their spouses and dependents shall be eligible for coverage immediately after the prior written consent of Seller, which may Employment Commencement Date (and shall not be unreasonably withheldexcluded from coverage under any employee welfare benefit plan that is a group health plan on account of any pre-existing condition, conditioned as long as such condition was covered under Buyer's group health plan), (iii) for purposes of any length of service requirements, waiting periods, vesting periods or delayed absent significant business rationale for Seller to retain differential benefits based on length of service in any such employee welfare benefit plans (including any severance plans or policies) and defined contribution plans for a reasonable time which Transferred Employees may be eligible after Closing, Buyer shall ensure, to the extent permitted by applicable Law (including ERISA and purpose.
the Code), that service with Seller (das shown on Schedule 3.14(a)) shall be deemed to have been service with Buyer, Generation and the Subsidiaries of Generation (iv) Buyer shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting cause its defined contribution plans to accept rollover contributions from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing account balances distributed to them by the Seller's 401(k) plan or mass layoff occurring after the Closing Date any 401(k) plan of Seller's Affiliates and Seller’s costs, including reasonable attorney’s fees, in defending (v) Buyer shall allow any such ClaimsTransferred Employee's outstanding plan loan to be rolled into Buyer's defined contribution plans. The distribution and rollover described herein shall comply with applicable Law, and each party shall make all filings and take any actions required of such party by applicable Law in connection therewith. Buyer also shall ensure, to the extent permitted by applicable Law (including ERISA and the Code) and/or Buyer's plans, that Transferred Employees receive credit under any welfare benefit plan of Buyer for any deductibles or co-payments paid by Transferred Employees and their spouses and dependents for the current plan year under a plan maintained by Seller.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty Nothing in this Agreement shall confer upon any employee of Seller the right to employment with Buyer after the Closing Date. Buyer shall offer employment to all of Seller’s current employees as listed on Schedule 2.19(a) hereto (30all such employees accepting such offer are hereinafter referred to as the “Transferred Employees”), on terms to be established by Buyer in its sole discretion. Buyer shall have no Liabilities with respect to Seller’s employees or independent contractors for periods prior to any such person becoming employees of, or independent contractors to, Buyer, including, but not limited to, Liabilities for wages, bonuses, vacation pay and employee benefits of any kind, and Seller shall be solely liable for the payment of any such Liabilities.
(b) Business Days Except to the extent specifically set forth in Section 4.1 of the Disclosure Schedule hereto, Buyer is not assuming and Seller shall remain liable for all Liabilities arising out of or in any way related to (i) all amounts required to be paid pursuant to any Employment Agreements, Retention Agreements and any other similar agreements between Seller and any of Seller’s employees, subject to and in accordance with the terms and conditions set forth in such agreements; (ii) any and all severance or termination costs that arise with respect to employees of Seller terminated from employment with Seller on or before the Closing Date (or whose notice of termination was delivered prior to such date); (iii) any claims by any employee of Seller relating to a termination or deemed termination on or prior to the Closing Date as a result of the transactions contemplated by this Agreement; (iv) any claims by any of Seller’s employees who refuse Buyer’s offer of employment; (v) any workers’ compensation claims by any Transferred Employee for injuries or illnesses incurred, sustained or resulting from work-related exposures or conditions prior to such Transferred Employee’s employment date with Buyer, if any (regardless of whether the claim related thereto is filed before or after the Closing Date); (vi) claims for any benefits accruing, or with respect to occurrences commencing, on or before the Closing Date under any of Seller’s benefit plans, including, but not limited to, (A) hospital benefits or any confinements that commenced on or before the Closing Date, including any covered charges of health care professionals relating to such confinements, (B) short-term and long-term disability benefits, if any, for disabilities that commenced on or before the Closing Date for the period that each of such affected individuals remain disabled, (C) life and survivor income benefits, if any, for deaths that occur on or prior to the Closing Date, Buyer (D) all benefits that are being, or may offer employmentbe, commencing paid to, or with respect to, any of such employees who are on long-term or short-term disability or medical, family, personal or other leaves of absence as of the Closing Date, or who go on short-term, long-term, medical, family, personal or other leaves of absence after the Closing Date as a result of any injury, illness or other factor occurring on or prior to the Closing Date pursuant to the terms of such individuals identified on Seller benefit plans as in effect immediately prior to the Closing Date (including any subsequent benefit increases); (E) benefits under any “spending account” or similar arrangement under any “cafeteria plan” (as defined in Section 5.6(a) 125 of the Seller Disclosure Letter (the “Schedule 5.6(aInternal Revenue Code of 1986, as amended) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary with respect to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days salary reduction elections made prior to the Closing Date, (F) benefits under all other benefit plans of Seller which accrue on or before the Closing Date; (vii) any independent contractor agreement or relationship to or involving Seller entered into prior to the Closing Date; (viii) other acts or omissions occurring or otherwise attributable to the period on or before the Closing Date with respect to the employment of, termination of employment of, provision of benefits to, and/or compensation of any of Seller’s employees, including, but not limited to, any personal injury, discrimination, wage/hour, family and medical leave, mass layoff, plant closing, harassment, wrongful discharge, or other wrongful employment practice, unfair labor practice, claims for benefits (including claims arising under ERISA or workers’ compensation laws), or other violation of, or obligations under, any labor, employment or benefits law; and (ix) all wages and salaries of Seller’s employees for work performed or services rendered by such employees on or prior to the Closing Date. The parties hereto acknowledge and agree that, as of the Closing Date, the Transferred Employees will cease accruing benefits under and shall cease participation in all of Seller’s benefit plans. Buyer shall notify not have any liability or obligations of any nature, whether known or unknown, absolute, accrued, contingent or otherwise, and whether due or to become due, arising out of relating to Seller being, or being deemed to be, a joint employer or part of a single employer group.
(c) The Buyer shall not adopt, assume or otherwise become responsible for, either primarily or as a successor employer, any assets or Liabilities of any Employee Plans, employee benefit plans, arrangements, commitments or policies currently provided by the Seller or by any member of the Schedule 5.6Group and Seller shall remain solely liable for, and shall indemnify Buyer from, any Liability related to Employee Plans or other employee benefit plans, arrangements, commitments or policies, except that Buyer may, in its sole discretion, assume the payments of premiums under the Vytra health insurance plan for periods beginning after the Closing Date; and if and to the extent that the Buyer is deemed by law or otherwise to be liable as a successor employer for such purposes, the Seller and the Stockholder shall jointly and severally indemnify the Buyer for the full and complete costs, fees and other Liabilities which result. Seller shall honor and be solely responsible for all Liabilities under Seller’s benefit plans.
(ad) Seller shall not take any action, including, but not limited to, offering employment with Seller, to induce Transferred Employees who have accepted not to accept employment with Buyer’s offer of employment.
(e) To the extent permitted by law, as soon as reasonably practicable after the date hereof, Seller will provide to Buyer the necessary employee data, including personnel and benefits information, maintained with respect to the Transferred Employees by Seller or by its independent contractors, such as insurance companies and actuaries, in order to facilitate benefit and payroll transition for the Transferred Employees. After the date hereof hereof, Seller shall cooperate and provide Buyer with reasonable assistance in connection with the establishment of any applicable employee benefit plans and programs and shall cooperate with the Buyer in assisting the Transferred Employees in rolling over amounts attributable to their participation in Seller’s defined contribution plan(s) into any comparable defined contribution retirement plan that may be established by the Buyer.
(f) Notwithstanding anything to the contrary contained in Section 6 hereof, Seller and Stockholder shall pay and shall assume, indemnify, defend, and hold harmless Buyer from and against and in respect of any and all losses, damages, claims for benefits, Liabilities, taxes, and sanctions that arise under the Section 4980B of the Code, or Part 6 of Title I of ERISA or any similar state law (individually and collectively “COBRA”), interest and penalties, costs, and expenses (including, without limitation, disbursements and reasonable legal fees incurred in connection with any action, suit, proceeding, claim, appeal, demand, assessment, or judgment) imposed upon, incurred by, or assessed against Buyer and any of its employees arising by reason of or relating to any failure of Seller to comply with the continuation health care coverage provisions of COBRA which failure occurred with respect to any current or prior employee of Seller or any qualified beneficiary of such employee (as defined in COBRA) prior to the Closing Date or as otherwise required as a result of Seller’s dissolution and/or termination of its group health plan or plans or any other transactions or matters contemplated by this Agreement. In particular, if and to the extent that the Buyer is deemed by law or otherwise to be liable as a successor employer for such COBRA purposes, the Seller and the Stockholder shall jointly and severally indemnify the Buyer for the full and complete costs, fees and other Liabilities which result.
(g) In respect of grievances or Labor Claims of Transferred Employees to the extent relating to their employment by Seller including, without limitation, any such grievances or Labor Claims filed before state or local authorities for which payment has not been made prior to the Closing Date, Seller shall provide retain responsibility and liability for all amounts due with respect thereto including, without limitation, the payment of any amounts in the nature of back pay or employee compensation, and any state or federal taxes in connection with such back pay or employee compensation. Handling of such grievances and Labor Claims shall be at Seller’s cost and expense. Buyer shall have sole responsibility and liability for any Labor Claims of Transferred Employees that relate to their employment with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6Buyer.
(ah) Employees, and Buyer agrees that it Nothing in this Section 4.1 shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to limit the operations of Seller. Each at will nature of the Schedule 5.6employment of the Transferred Employees or the right of Buyer to alter or terminate any employee benefit plan, program or arrangement.
(ai) Employees who commences employment with Buyer The Seller and all members of the Group shall each terminate, effective as of (or who is on approved leave of absence on) the day immediately preceding the Closing Date, together with any and all Employee Plans, except that if Buyer, in its sole discretions, assumes the continuing employees Vytra health insurance plan as of the Material SubsidiariesClosing Date, then such plan shall not be referred terminated by Seller. Buyer shall receive from Seller evidence that all tax qualified Employee Plans have been terminated by the Seller and all members of the Group pursuant to herein as “Transferred Employees,” resolutions of each such entity’s Board of Directors (the form and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred substance of such resolutions being subject to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none review and approval of Buyer), Generation or their Affiliates shall hire in any capacity (whether effective as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after day immediately preceding the Closing Date. Buyer agrees to indemnify The Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any each member of the Transferred Employees Group shall submit, or have submitted on its behalf, to the Internal Revenue Service an application for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue determination of prior notification (or lack thereofthe tax-qualified status upon its termination of each Employee Plan which is intended to qualify under Section 401(a) of any plant closing or mass layoff occurring after the Code and each trust intended to qualify under Section 501(a) of the Code. Each such application shall be (i) submitted as soon as administratively possible following the Closing Date Date, and (ii) paid for (including all related legal, administrative and other costs and expenses) solely by the Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and . The Seller shall cooperate as reasonably necessary to implement periodically notify Buyer of the provisions status of this Section 5.6 each such submission and agree to shall provide Buyer with a copy of each other determination letter, if and when received. The Seller and all members of the Group shall operate and maintain the Employee Plans in all respects in accordance with its terms and in compliance with all applicable laws, statutes, orders, rules and regulations including, without limitation, ERISA and the Code, until all amounts are distributed from such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6Employee Plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (American Medical Alert Corp)
Employee Matters. (a) Not less than thirty Except as specifically provided in this Section 5.11 : (30i) the Buyer shall not adopt, become a sponsoring employer of, or have any obligations under or with respect to the Employee Plans, and the Seller shall be solely responsible for any and all liabilities and obligations that have been incurred or may be incurred under or in connection with any Employee Plan; (ii) the Seller shall be solely responsible for any and all liabilities arising out of or relating to the employment of Business Days Employees who do not become Transferring Employees (as defined below), whether such liabilities arise before, on or after the Closing Date; and (iii) the Seller shall be solely responsible for any and all liabilities arising out of or relating to the employment of any Transferring Employee before the date such employee actually commences work with the Buyer and its Affiliates pursuant to Section 5.11(b). For purposes hereof, with respect to the Welfare Plans, claims under any medical, dental, vision, or prescription drug plan generally will be deemed to be incurred on the date that the service giving rise to such claim is performed and not when such claim in made; provided, however, that with respect to claims relating to hospitalization, the claim will be deemed to be incurred on the first day of such hospitalization and not on the date that such services are performed. Claims for disability under any long or short term disability plan will be incurred on the date the Business Employee is first absent from work because of the condition giving rise to such disability and not when the Business Employee is determined to be eligible for benefits under the applicable Welfare Plan.
(b) The Buyer shall, or shall cause one of its Affiliates to, extend offers of employment to each Business Employee listed on Schedule 3.9(a) of the Disclosure Schedules who is actively at work as of the date of this Agreement (all such employees who accept the Buyer’s offer of employment are referred to as the “Transferring Employees”). For purposes of this Agreement, any Business Employee who is not at work on the date of this Agreement due to a short-term absence (including due to vacation, holiday, jury duty, illness, authorized short-term leave of absence or short-term disability) shall be deemed to be “actively at work”; provided that any such individuals that are on authorized short-term leave of absence or short-term disability shall not be deemed to constitute “Transferring Employees” until such time as they return to active employment. The Seller shall terminate the employment of all Business Employees who do not become Transferring Employees on the Closing date, immediately after the Closing, or at such other time as Buyer and Seller shall agree, and shall cooperate with and use its reasonable best efforts to assist the Buyer in its efforts to secure satisfactory employment arrangements with those Business Employees to whom the Buyer makes offers of employment.
(c) The Seller shall comply with the requirements of the WARN Act or any similar state, provincial or local law with respect to any “plant closing” or “mass layoff”, as those terms are defined in the WARN Act or such other applicable law, which may result from the Seller’s termination of the employment of any of its employees in connection with the transactions contemplated hereby through the Closing Date.
(d) The Seller and its ERISA Affiliates shall comply with the provisions of COBRA, as set forth in Section 4980B of the Code and Part 6 of Title I of ERISA, with respect to any employee, former employee or beneficiary of any such employee or former employee who is covered under any group health plan, as defined in Section 5000(b)(1) of the Code (a “Group Health Plan”), maintained by the Seller and its ERISA Affiliates as of the Closing Date or whose “qualifying event” within the meaning of Section 4980B(f) of the Code occurs on or prior to the Closing Date, whether pursuant to the provisions of COBRA or otherwise. The Buyer may offer employment, commencing as shall ensure that its Group Health Plans comply with the provisions of COBRA with respect to Transferring Employees who are covered under such Group Health Plans maintained by the Buyer after the Closing Date and who experience a “qualifying event” after the Closing Date.
(e) Following the Closing Date, the Buyer shall, pursuant to plans and arrangements established or maintained by the Buyer, offer the Transferring Employees such individuals identified on Section 5.6(a) of the benefits, taken as a whole, that are substantially similar to those provided by Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date. For greater certainty, in respect of any Transferring Employees employed in Canada, Buyer shall notify Seller not be required to offer or provide a “registered pension plan”, as that term is defined in subsection 248(1) of the Schedule 5.6
Income Tax Act (a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationCanada).
(cf) Following the Closing for a period of one (1) yearNothing contained in this Agreement shall create any third party beneficiary rights in any Transferring Employee, none of Buyer, Generation any beneficiary or their Affiliates shall directly or indirectly solicit the employment or services ofdependents thereof, or hire in any capacity (whether as an employeecollective bargaining representative thereof, consultantwith respect to the compensation, independent contractor terms and conditions of employment and benefits that may be provided to any Transferring Employee by the Buyer or otherwise) under any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without benefit plan that the prior written consent of Seller, which Buyer may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposemaintain.
(dg) Nothing contained in this Agreement shall confer upon any Transferring Employee any right with respect to continued employment by the Buyer, Generation and nor shall anything herein interfere with the Subsidiaries right of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreignBuyer to terminate the employment of any Transferring Employee at any time, state and local ruleswith or without cause, statutes and ordinances resulting from following the actions effective date of his or her employment with the Buyer, Generation and or restrict the Subsidiaries Buyer in the exercise of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller its independent business judgment in this regard specifically includes any Claim by modifying any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue terms and conditions of prior notification (or lack thereof) the employment of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsTransferring Employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Albany International Corp /De/)
Employee Matters. (a) Not less than thirty Buyer shall ensure that all persons who were employed by the Company immediately preceding the Closing, including those on vacation, leave of absence or disability and those laid off (30but only, in the case of laid off employees, to the extent a collective bargaining agreement providing for recall rights is applicable to such employees) Business Days prior will be employed by Buyer or any Affiliate of Buyer (including but not limited to the Company) on and after the Closing Date, except as otherwise provided in this Section 7.4. Buyer may offer employmentshall not, commencing as of at any time prior to sixty (60) days after the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) effectuate a "plant closing" or "mass layoff" as it may determine those terms are defined in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act of 1988, as amended ("WARN"), affecting in whole or in part any facility, site of employment, operating unit or employee of the Company without complying fully with the requirements of WARN. Without limiting Buyer's obligations under Article 11, and similar foreignexcept as to matters with respect to which Seller is obligated to indemnify Buyer under the next following paragraph, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer hereby agrees to indemnify Seller and its Affiliates and to defend and hold Seller and its Affiliates harmless for from and against any breach and all claims, losses, damages, expenses, obligations and liabilities (including but not limited to reasonable costs of such responsibility and Buyer’s indemnification collection, attorney's fees (whether or not incurred by Seller or any Affiliate of Seller in this regard specifically includes connection with any Claim action, suit, proceeding or claim against Buyer hereunder) and other costs of defense) arising out of or with respect to claims asserted by any of the Transferred Active Employees for back pay, front pay, benefits with respect to events arising on or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costsDate, including reasonable attorney’s feesbut not limited to (i) termination by Buyer or any of its Affiliates of any Active Employee of the Company on or after the Closing Date, in defending (ii) failure of Buyer or any such Claims.
of its Affiliates to continue the employment of any Active Employee on substantially the same terms as said employee presently enjoys, (eiii) any claim made by any Active Employee for severance pay arising upon, or at any time following, the Closing Date or (iv) any suit or claim of violation brought against Seller or any Affiliate of Seller under WARN based upon any actions taken by Buyer or any of its applicable Affiliates. Without limiting Seller's obligations under Article 11, Seller hereby agrees to defend, indemnify and hold harmless the Buyer and Seller shall cooperate the Company from and against any and all claims, losses, damages, expenses, obligations and liabilities (including but not limited to reasonable costs of collection, attorney's fees and other costs of defense) to the extent arising out of or with respect to a claim based on events which occur prior to the Closing Date asserted by a Company Employee alleging (i) breach of an employment agreement between such a Company Employee and the Company, entered into prior to the Closing Date or (ii) the Company's failure prior to the Closing Date to pay such an Employee pursuant to such Employee's appropriate grade level for work performed prior to the Closing Date or (iii) breach of a duty owed by an employer to an employee or employee applicant under applicable federal and state statutes or regulations enacted for the purpose of protecting employees as reasonably necessary to implement the provisions a class, or (iv) a claim for wrongful termination, intentional infliction of this Section 5.6 emotional distress, defamation, invasion of privacy, negligent hiring, retention, supervision and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6constructive discharge.
Appears in 1 contract
Samples: Stock Purchase Agreement (Harding Lawson Associates Group Inc)
Employee Matters. (a) Not less than thirty Nothing contained in this Agreement shall confer upon any employee of Sellers or Richmond Recycling any right with respect to continued employment by Buyer.
(30b) Business Days prior Sellers, Guarantor and Buyer contemplate that this Agreement will not interrupt operations at any facility being purchased by Buyer and that Buyer will continue to operate such facilities after Closing with substantially the same workforce each Seller employed at each facility on the Closing Date. From the date hereof through the Closing Date, each Seller will provide Buyer may offer employmentwith the opportunity to conduct interviews and extend offers of employment to any of the executives and employees of such Seller. At least five (5) days prior to the Closing, commencing Buyer shall provide BSC with a list of employees of each Seller, if any, that Buyer desires to employ at each facility. Effective as of the Closing DateClosing, Sellers shall release all such employees, such that they will be available for hire by Buyer. All employer responsibilities arising prior to such individuals identified release pursuant to the WARN Act (and any other applicable law, rule or regulation pertaining to the termination of any of its employees) shall be the responsibility of Sellers, and Sellers agree to discharge all such responsibilities. Sellers covenant to hold Buyer harmless from and against all direct and indirect costs, expenses and liabilities of any sort arising from or relating to any claims by or on Section 5.6(a) behalf of the present or former employees of any Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine employed at any such facility in its discretion. Buyer shall take respect to any and all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days matters arising or incurred prior to the Closing Date, release of employees contemplated hereby and in respect to severance pay or termination pay and similar obligations relating to the termination of such employees' employment with any Seller. Buyer covenants to hire sufficient numbers of Sellers' personnel at each facility such that no Seller shall notify Seller be subject to the notification requirements of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, WARN Act in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together connection with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationTransaction.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation Buyer shall not assume any liability or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) obligation of any plant closing Seller with respect to or mass layoff occurring after the Closing Date and in favor of any employees of any Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty Buyer shall extend offers of employment to those of Seller’s employees whom it desires to hire, which are identified on Schedule 4.13 (30) Business Days such employees are hereinafter referred to as the “Rehired Employees”), which Buyer shall determine in its sole discretion. Seller shall terminate the employment of all Rehired Employees immediately prior to the Closing Date, and shall cooperate with and use its reasonable commercial efforts to assist Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. efforts to secure satisfactory employment arrangements with those employees of Seller to whom Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer makes offers of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following Seller shall be solely responsible for all of the Closing for Benefit Plans and all obligations and liabilities thereunder. Buyer shall not assume any of the Benefit Plans or any obligation or liability thereunder.
(c) Nothing contained in this Agreement shall confer upon any Rehired Employee any right with respect to continuance of employment by Buyer, nor shall anything herein interfere with the right of Buyer to terminate the employment of any of the Rehired Employees at any time, with or without cause, or restrict Buyer in the exercise of its independent business judgment in modifying any of the terms and conditions of the employment of the Rehired Employees.
(d) No provision of this Agreement shall create any third party beneficiary rights in any Rehired 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 Rehired Employee by Buyer or under any benefit plan which Buyer may maintain.
(e) For a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation year after the Closing Date. Buyer agrees , neither party shall, directly or indirectly, hire or offer employment to indemnify Seller and or seek to defend and hold Seller harmless for hire or offer employment to any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any employee of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim other party whose employment is continued by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring such party after the Closing Date and Seller’s costsDate, including reasonable attorney’s fees, in defending any unless such Claimsparty first terminates the employment of such employee or gives its written consent to such employment or offer of employment.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Ciphergen Biosystems Inc)
Employee Matters. (a) Not less The Parties acknowledge that Buyer, one of its Affiliates or its third party services provider intends to offer employment to and to hire, effective as of the Closing (or at such other time as may be determined by the Buyer (but not earlier than thirty the Closing Date)), employees of the Facility Operators or their respective Affiliates (30collectively, the “Employers”) who provide services with respect to the Business Days (the “Business Employees”) and who are identified on Schedule 6.14 and any employees who may be hired by the Employers following the Closing to replace any such listed employees. Any such offer of employment that may be provided to a Business Employee is referred to herein as an “Offer” and any Business Employee who accepts such an Offer and commences employment with Buyer or its Affiliate is referred to herein as a “Transferred Employee.” Notwithstanding the foregoing, from and after the date of this Agreement and prior to the Closing, Buyer and its Affiliates shall not (without the prior written consent of Cogent) cause, solicit, induce or encourage any employee of Cogent or its Affiliates (including without limitation Wyoming Operating Company, LLC) who provide services to Cheyenne Rail Hub, LLC to leave such employment or hire, employ or otherwise engage any such individual; provided, however, that nothing in this paragraph shall restrict (i) any general advertisement or solicitation that is not directed at employees of Cogent or its Affiliates (including without limitation Wyoming Operating Company, LLC), (ii) the employment of any person who responds to any such general advertisement or solicitation or who contacts Buyer or one of its Affiliates on his or her own initiative and without any direct or indirect solicitation in contravention of the above restrictions or (iii) the employment of any employee of Cogent or its Affiliates (including without limitation Wyoming Operating Company, LLC) who, prior to the Closing Date, provides services with respect to the Business or the Terminal Facilities.
(b) After the date of this Agreement, the Seller shall instruct the Employers to provide the Buyer reasonable access during normal business hours and on at least 24-hours’ notice to, and facilitate meetings with, Business Employees who may become Transferred Employees or for purposes of making announcements concerning and preparing for the consummation of, the transactions contemplated by this Agreement. The Seller shall not and will instruct the Employers (and any officer, director, manager or equityholder of the Employers) not to offer any Business Employee any employment or service position with any Person. Seller shall use commercially reasonable efforts to cause to be provided to the Buyer such information as the Buyer may offer employmentreasonably request in writing with respect to compensation, commencing service and other information relating to the employment of the Business Employees, and the Seller shall instruct the Employers to reasonably cooperate with the Buyer in connection therewith.
(c) For the avoidance of doubt, the making of an Offer by Buyer or one of its Affiliates or the commencement of employment of a Transferred Employee with Buyer or its Affiliate shall not result in Buyer or its Affiliates assuming any liabilities of any kind with respect or relating to the employment of any Business Employee by any Employer (“Employment Liabilities”), which liabilities shall remain liabilities of the Seller or the Employers, as applicable. The Seller will cause Wyoming Operating Company, LLC, and will use commercially reasonable efforts to instruct Arrow, to promptly pay and satisfy all Employment Liabilities to the extent due and payable, in each case including, without limitation, all accrued vacation pay and any other termination-related liabilities to the Transferred Employees relating to their termination of employment with the Employers. Without limiting the foregoing, Buyer shall not assume any liability for any performance or other bonuses for Business Employees for any period, including the period within which falls the Closing Date, and Seller will use commercially reasonable efforts to cause the Employers to pay out all such bonuses accrued through the Closing Date as of immediately prior to the Closing Date.
(d) Seller will cause Wyoming Operating Company, LLC, and will use commercially reasonable efforts to request Arrow, to provide that the accrued benefits and account balances of Transferred Employees under Employers’ 401(k) plans to be 100% vested effective as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(ce) Following Nothing contained in this Agreement shall confer upon any Transferred Employee any right with respect to continuance of employment by Buyer or its Affiliates, nor shall anything herein interfere with the Closing for a period right of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller Buyer or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) to terminate the employment of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back payat any time, front paywith or without cause, benefits or compensatory restrict Buyer or punitive damages, its Affiliates in the exercise of their independent business judgment in modifying any Claim by of the terms and conditions of the employment of the Transferred Employees. Nothing herein is intended as an amendment to any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsemployee benefit plan.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (USD Partners LP)
Employee Matters. (a) Not less than thirty (30) Business Days prior Prior to the Closing DateClosing, Buyer may offer employmentshall (i) make offers of employment on an at-will basis to each Business Employee employed in the United States who is not a Company Employee (including those on short term disability), commencing with such offers to be effective as of the Closing, (ii) continue to employ (where employment continues automatically by operation of Law or where employer substitution or similar transfer method is possible under applicable Law) each Business Employee employed outside of the United States who is not a Company Employee (including those on short term disability), effective as of the Closing Date, (iii) make offers of employment to such individuals identified on Section 5.6(a(where employment does not continue automatically by operation of law or where employer substitution or similar transfer method is not possible under applicable Law) each Business Employee employed outside of the Seller Disclosure Letter United States who is not a Company Employee (including those on short term disability), with such offers to be effective as of the Closing (each offer described in (i) and (iii), an “Schedule 5.6(aEmployment Offer”); provided, however, that Buyer shall in no event be obligated to make an Employment Offer to any Business Employee who is on long-term disability leave as of immediately prior to the Closing. Except as required by Law, notwithstanding the foregoing, the Employment Offer with respect to any Business Employee who is both (A) Employees”not actively at work due to short-term disability or other approved leave (but not including long-term disability leave) as it may determine of immediately prior to the Closing, and (B)(1) in its discretionthe case of a Business Employee on short-term disability based in the United States, has been determined by Seller’s short-term disability third-party administrator to reasonably be expected to require long-term disability coverage, (2) in the case of a Business Employee on short-term disability based outside of the United States, has been determined by Seller under applicable procedures for such determination in the local jurisdiction to reasonably be expected to require long-term disability coverage, or (3) in the case of a Business Employee on another approved leave, as has been set forth in the letter of approval for such leave, who is scheduled to return to active work after the 90th day following the Closing Date, shall be effective only if and when such employee returns to active work upon the earlier of (w) the last day of the window provided in the applicable leave policy as in effect immediately prior to the Closing or (x) the six-month anniversary of the Closing Date. Buyer shall take all steps necessary Each Employment Offer will include terms consistent with the terms of this Section 5.4 and applicable Law, and, with respect to ensure that its hiring decisions each Business Employee employed outside of the United States, structured in such manner so as to avoid any liability under applicable Law for the payment of severance, payment in lieu of notice or payment of other similar benefits, including, without limitation, vacation, holiday, annual leave and practices sick leave, in this regard are in accordance connection with Applicable Lawthe Contemplated Transactions. Not fewer than twenty (20) Business Days prior Prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and be permitted to communicate with all Business Employees, provided, however, that prior to the Closing Datehaving direct communication with any Business Employee, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without will seek the prior written consent of Seller, which may consent shall not be unreasonably withheld, conditioned or delayed absent significant business rationale delayed. For the period from the Closing Date until the end of the calendar year following the year in which the Closing occurs (such period, the “Continuation Period”), each Company Employee and each Business Employee who accepts an Employment Offer under clauses (i) or (iii), subject to the conditions of this Section 5.4(a), or continues employment under clause (ii) (each, a “Transferred Employee”) shall be entitled to receive (y) salary, wages and annual short-term incentive opportunities that are substantially comparable in the aggregate to the salary, wages and annual short-term incentive opportunities that were provided to them immediately prior to the Closing and (z) long-term incentive opportunities at the stated target rate for such Transferred Employee’s salary band immediately prior to the Closing. Notwithstanding the foregoing, Buyer - 56 - shall not be obligated to continue to employ any Transferred Employee for any specific period of time following the Closing Date, subject to applicable Law.
(b) During the Continuation Period (or such longer period if required by applicable Law), each Transferred Employee shall receive the greater of (i) employee benefits (other than severance, but including, without limitation, defined contribution retirement, defined benefit retirement, retiree medical benefits, welfare and fringe benefits) that at least are substantially comparable in the aggregate to either (A) those benefits provided to them immediately prior to the Closing or (B) those benefits provided to similarly situated employees of Buyer and its Affiliates, or (ii) employee benefits required under applicable Law. For the avoidance of doubt, the value of any benefits provided by Seller under any defined benefit retirement plan may be provided by Buyer following Closing through participation in a Buyer defined contribution retirement plan. Notwithstanding the foregoing, Buyer shall not be obligated to retain continue to employ any Transferred Employee for any specific period of time following the Closing Date, subject to applicable Law.
(c) Without limiting the scope of Sections 5.4(a) and (b), during the period from the Closing Date until the date that is two (2) years from the Closing Date (or such employee for a reasonable time longer period if required by applicable Law), Buyer shall provide to any Transferred Employee whose employment is terminated by Buyer or any of its Affiliates (including the Companies and purposetheir Subsidiaries), the greater of (i) severance commensurate with levels applicable to such Transferred Employees immediately prior to the Closing at Buyer’s expense, provided that no provision providing Seller or the Companies or any of the Companies’ Subsidiaries with discretion to determine whether to pay severance or to reduce the amount of severance payable shall apply, (ii) severance commensurate with levels applicable to similarly situated employees of Buyer under any Buyer Benefit Plans (as defined below), or (iii) severance as required under applicable Law.
(d) BuyerFor purposes of participation of a Transferred Employee in an employee benefit plan of Buyer or its Affiliates (including the Companies and their Subsidiaries) (a “Buyer Benefit Plan”), Generation and the Subsidiaries of Generation each Transferred Employee shall be credited with all years of service for which such Transferred Employee was credited before the Closing Date under any comparable Plans, except for purposes of benefit accrual under defined benefit retirement plans, or to the extent such credit would result in a duplication of benefits for the same period of service, but, for the avoidance of doubt, including credit for service for all purposes with respect to a Buyer Benefit Plan providing retiree medical benefits, if any. In addition, and without limiting the generality of the foregoing: (i) each Transferred Employee shall be immediately eligible to participate without (X) any waiting time, (Y) evidence of insurability and (Z) an actively-at-work requirement, in any and all Buyer Benefit Plans to the extent that coverage under such Buyer Benefit Plans replaces or continues coverage under comparable Plans in which such Transferred Employee participated immediately prior to the Closing; and (ii) for purposes of each Buyer Benefit Plan providing medical, dental, pharmaceutical and/or vision benefits to any Transferred Employee, Buyer shall cause all pre-existing condition exclusions and actively-at-work requirements of such Buyer Benefit Plan to be waived for such Transferred Employee and his or her covered dependents, and Buyer shall cause any eligible expenses incurred by such Transferred Employee and his or her covered dependents during the portion of the plan year of the Plan ending on the date such Transferred Employee’s participation in the corresponding Buyer Benefit Plan begins to be taken into account under such - 57 - Buyer Benefit Plan for purposes of satisfying all deductible and maximum out-of-pocket requirements applicable to such Transferred Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such Buyer Benefit Plan.
(e) Buyer shall, to the extent that applicable Law does not require Seller to cash out a Transferred Employee’s paid time off, (i) credit each Transferred Employee with an amount of paid vacation and sick leave days following the Closing Date equal to the amount of vacation time, holiday, annual leave and sick leave days each such Transferred Employee has accrued but not yet used or cashed out as of the Closing Date under the Consumer Care Business’s vacation, holiday, annual leave and sick leave policies as in effect immediately prior to the Closing Date, and (ii) allow each Transferred Employee to use such accrued vacation, holiday, annual leave and sick leave days at such times as each would have been allowed under the Consumer Care Business’s vacation, holiday, annual leave and sick leave policies as in effect immediately prior to the Closing Date.
(f) Following the Closing, Buyer shall or shall cause its applicable Affiliate to honor the terms and conditions of any Collective Bargaining Agreements in accordance with its terms, including, without limitation, terms and conditions relating to the compensation and benefits of Business Employees who are covered by such agreement.
(g) Buyer shall be solely responsible for all Liabilities any notices required to be given under, and obligations under otherwise comply with, the Worker Workers Adjustment and Retraining Notification Act and or similar foreign, state and local rules, statutes and ordinances resulting from the actions Laws or regulations of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees any jurisdiction relating to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring (or similar triggering event) resulting from Buyer’s actions with respect to the Transferred Employees after the Closing Date.
(h) As soon as practicable following the Closing but in any event within ninety (90) days of the Closing Date, Seller shall pay to each Transferred Employee who participated in an annual bonus and/or sales incentive plan immediately prior to the Closing Date, an amount equal to such Transferred Employee’s Pro Rata Bonus (as defined below) in respect of any annual bonus and/or sales incentive bonus for the performance period in which the Closing Date occurs. Such Pro Rata Bonus shall be calculated by multiplying such Transferred Employee’s incentive plan target bonus opportunity by a fraction, the numerator of which is the number of whole months that has elapsed between the beginning of the performance period and the day immediately prior to the Closing Date (including the month in which the Closing occurs), and the denominator of which is the total number of whole months in the performance period (the “Pro Rata Bonus”). In connection with Buyer’s obligations under Section 5.4(a), Buyer shall cause the Transferred Employees to be eligible for a bonus under the applicable broad-based Buyer bonus plan for similarly situated Buyer employees for the period from the Closing Date through the end of the applicable performance period. For the avoidance of doubt, Seller shall have no further obligation under any of its annual bonus and sales incentive bonus plans for any Transferred Employee for performance periods ending after the Closing Date.
(i) With respect to any Plan (other than a Company Plan or Plan (or portion thereof) required to be transferred to Buyer or its applicable Affiliate under applicable Law), - 58 - Seller or its applicable Affiliates, as the case may be, shall take any necessary actions to cause, as of the Closing Date, Transferred Employees and their eligible spouses, dependents, and beneficiaries who are covered under such Plan to cease coverage under such Plan.
(j) Seller shall provide Buyer with an anonymized employee census covering each Business Employee, other than a Company Employee, which sets forth to the extent permissible under applicable Law: each Business Employee’s employee identification number, name (at such time as this information is necessary for the preparation of employment offer letters), accrued vacation, sick time and other paid time off as of the date set forth therein (the “Business Employee Census”). Seller shall provide Buyer with human resources contact information with respect to each country in which a Business Employee is employed and shall reasonably cooperate with Buyer in good faith for the purpose of extending Employment Offers and preparing for the on-boarding of the Transferred Employees, including, but not limited to, providing an updated Business Employee Census (i) within four weeks following the date hereof, (ii) both four weeks and two weeks prior to the date that is reasonably anticipated to be the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims(iii) immediately prior to the Closing (updated as of the Closing Date).
(ek) Buyer and Seller shall cooperate as reasonably necessary Notwithstanding anything herein to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective contrary, Buyer’s obligations under this Section 5.65.4 shall be modified to the extent necessary to reflect agreements or negotiations with works councils and unions or to comply with applicable Laws of the foreign countries and political subdivisions thereof in which such Transferred Employees are based.
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (Merck & Co. Inc.)
Employee Matters. (a) Not less than thirty (30) Business Days prior Buyer may, at its option, extend offers of employment to certain of Seller’ employees employed in the Business, which offers shall be on terms and subject to the Closing Date, conditions that Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine has determined in its sole discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees Each such employee who have accepted accepts Buyer’s offer of employment. After the date hereof employment and prior to the Closing Date, Seller shall provide becomes an employee of Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”” Seller shall at Closing, terminate the employment of each individual whom Buyer has identified to Seller as a Hired Employee and shall cooperate with Buyer (at no cost or expense to Seller) in its efforts to secure satisfactory employment with those employees of Seller to whom Buyer has made offers of employment.
(b) Following Seller shall collectively be responsible for (i) the payment of all wages, accrued but unused vacation, paid time off and other remuneration or compensation due to Hired Employees, with respect to their services as employees of Seller until the Closing for a period Date; (ii) the payment of one any termination or severance payments; (1iii) year, none the payment of Buyer, Generation any workers’ compensation or their Affiliates shall hire in unemployment benefits; and (iv) the payment of any capacity (whether as an employee, consultant, independent contractor other compensation or otherwise) other remuneration pursuant to any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationlegal requirement.
(c) Following Seller shall be liable for any claims made or incurred by Seller’ employees, including, but not limited to, the Hired Employees, and their beneficiaries prior to the Closing for Date under the Employee Benefit Plans. For purposes of the immediately preceding sentence, a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit claim will be deemed incurred as provided in the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) applicable Employee or (ii) of Energy or its Affiliates without Benefit Plan with respect to which the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeclaim relates.
(d) Nothing contained in this Agreement shall confer upon any Hired Employee any right with respect to continuance of employment by Buyer, Generation and nor shall anything herein interfere with the Subsidiaries right of Generation shall be responsible for all Liabilities and obligations under Buyer to terminate the Worker Adjustment and Retraining Notification Act and similar foreignemployment of any Hired Employee at any time, state and local ruleswith or without cause, statutes and ordinances resulting from or restrict Buyer in the actions exercise of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller its independent business judgment in this regard specifically includes any Claim by modifying any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue terms and conditions of prior notification (or lack thereof) the employment of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsHired Employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty Acquiror shall employ those of Seller's employees whom Acquiror may select and hire, in Acquiror's sole discretion (30) Business Days such employees are hereinafter referred to as the "Rehired Employees"), which offers shall be on terms and conditions which Acquiror shall determine in its sole discretion. Seller shall terminate the employment of all Rehired Employees immediately prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer and shall take all steps necessary to ensure that its hiring decisions cooperate with and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct assist Acquiror in its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption efforts to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences secure satisfactory employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together arrangements with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Rehired Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following Seller shall comply with the Closing for a period requirements of one (1) yearthe WARN Act with respect to any "plant closing" or "mass layoff", none as those terms are defined in WARN Act, which may result from Seller's termination of Buyer, Generation the employment of any of the employees of the Business in connection with Seller's sale of the Assets to Acquiror or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationthe other transactions contemplated by this Agreement.
(c) Following Seller shall be solely responsible for all of the Closing for a period Employee Plans and all obligations and liabilities thereunder. Acquiror shall not assume any of one (1) year, none of Buyer, Generation the Employee Plans or their Affiliates shall directly any obligation or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeliability thereunder.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller Nothing contained in this regard specifically includes Agreement shall confer upon any Claim Rehired Employee any right with respect to continuance of employment by Acquiror, nor shall anything herein interfere with the right of Acquiror to terminate the employment of any of the Transferred Rehired Employees for back payat any time, front paywith or without cause, benefits or compensatory or punitive damages, restrict Acquiror in the exercise of its independent business judgment in modifying any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) the terms and conditions of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsemployment of the Rehired Employees.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions No provision of this Section 5.6 Agreement shall create any third party beneficiary rights in any Rehired Employee, any beneficiary or dependents thereof, or any collective bargaining representative thereof, with respect to the compensation, terms and agree to provide each other with such records conditions of employment and information as benefits that may be necessary provided to any Rehired Employee by Acquiror or under any benefit plan which Acquiror may maintain.
(f) Concurrently with the Closing, Acquiror and appropriate to carry out their respective obligations under this Section 5.6.Xxxxxxx shall enter into an employment agreement in the form attached hereto as Exhibit J.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) At least 10 Business Days before the Closing, Purchaser, shall extend a written offer of employment, the form of which Sellers shall have been given an advance copy (“Transfer Offer”) to certain of the employees set forth on Schedule 3.14(a)(i) (which Schedule 3.14(a)(i) shall be updated by Sellers prior to the Closing Dateto reflect employment hires and terminations (in accordance with the terms of this Agreement) in the time since such schedule was originally provided to Purchaser), Buyer may offer employmentwhich employees shall be specified in a list to be provided by Purchaser to Sellers no later than the date of the Auction (as defined in the Bidding Procedures Order) and which shall include at least 95% of the employees of Sellers and Non-Debtors based solely on Schedule 3.14(a)(i) (collectively, commencing the “Employees”); provided that, with respect to any Employees that are on short-term or long-term disability or other leave of absence other than vacation, short-term (one week or less) paid sick leave, or other paid time off as of the Closing DateDate (“Inactive Employees”), Purchaser shall make a Transfer Offer if such Inactive Employee is available to such individuals identified on Section 5.6(a) work within six months of the Seller Disclosure Letter Closing Date (or any later period required under applicable Law). Employees who accept such Transfer Offers and begin employment with Purchaser effective after the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are Closing in accordance with Applicable Law. Not fewer than twenty (20this Section 6.3(a) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” ”. Purchaser shall notify Sellers in a reasonable timeframe (but in any event within three Business Days of receiving a response from the applicable employee and no later than immediately prior to the Closing) with respect to whether each Schedule 5.6such offer has been accepted or rejected. Nothing herein shall be construed as a representation or guarantee by any Seller or any of their respective Affiliates that any or all of the employees of Sellers or Non-Debtors will accept the Transfer Offer or will continue in employment with Purchaser following the Closing for any period of time. Sellers and Purchaser shall, and Sellers shall cause the Non-Debtors to, cooperate in good faith to carry out all necessary actions to effect the timely transfer of employment from Sellers or Non-Debtors, as applicable, to Purchaser of each such Transferred Employee who has accepted a Transfer Offer. Effective as of the Closing, each Transferred Employee shall cease to be an employee of each Seller or their respective Affiliates.
(ab) For a period of one year from and after the Closing Date, Purchaser shall provide each Transferred Employee, or cause each Transferred Employee who to be provided, with (i) a base compensation or wage rate, as applicable, that is not a no less favorable than that provided to such Transferred Employee as of immediately prior to the Closing, (ii) target cash incentive opportunities that are no less favorable in the aggregate than those provided by Sellers or Non-Debtors, as applicable, to such Transferred Employees as of immediately prior to the Closing including the value of retention bonuses under Invitae’s 2024 Equivalent Retention Program, but excluding transaction bonuses and any other retention bonuses, (iii) severance benefits that are no less favorable than as set forth on Schedule 6.3(b)(iii); provided that the obligation in this subsection (iii) shall terminate at 11:59 p.m. ET on December 31, 2024, and (iv) other employee benefits that are no less favorable in the aggregate than those provided to similarly situated employees of Purchaser. For purposes of eligibility and vesting under any employee benefit plans and programs made available to Transferred Employees by Purchaser or any of its Affiliates after the Closing Date (the “Purchaser Plans”) and for determining the level of benefits for with respect to vacation, paid-time off and severance, each Transferred Employee shall be referred credited with his or her years of service with Sellers or Non-Debtors (and any predecessor of such Seller or Non-Debtor, as applicable) before the Closing Date, except to herein as the extent such credit would result in a duplication of benefits; provided, however, that such service need not be recognized (i) for any purpose under any defined benefit retirement plan or retiree welfare plan, (ii) for participation purposes under any equity-based incentive plan or long-term incentive plan or employee stock purchase plan of Purchaser or its Affiliates, or (iii) for purposes of any plan, program or arrangement or that is a “Non-Hired Employee.grandfathered group health plan”
(b) Following the Closing for a period , either with respect to level of one (1) year, none of Buyer, Generation benefits or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationparticipation.
(c) Following the Closing for a period For purposes of one each Purchaser Plan providing 401(k) retirement benefits, Transferred Employees will be eligible to enroll in such plan, taking into account service crediting in subsection (1b) yearabove, none as soon as such relevant eligibility requirements are satisfied. For purposes of Buyereach Purchaser Plan providing health or welfare benefits, Generation or their Affiliates each Transferred Employee shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee be immediately eligible to participate and:
(i) Purchaser shall use commercially reasonable efforts to cause all pre-existing condition exclusions and actively-at-work requirements of such Purchaser Plan to be waived for such Transferred Employee and his or her covered dependents (unless such exclusions or requirements were applicable under comparable Seller or its Affiliates who is not a Schedule 5.6(a) Employee or Plans); and (ii) subject to each Transferred Employee, or Sellers or Non-Debtors on behalf of Energy such Transferred Employee, providing a copy of their explanation of benefits statement or its Affiliates without Sellers or Non-Debtors otherwise providing evidence of such amounts, Purchaser shall cause any co-payments, deductible and other eligible expenses incurred by such Transferred Employee or his or her covered dependents during the prior written consent plan year in which the Closing Date occurs to be credited for purposes of Sellersatisfying all deductible, which may not be unreasonably withheld, conditioned coinsurance and maximum out-of-pocket requirements applicable to such Transferred Employee and his or delayed absent significant business rationale her covered dependents for Seller to retain such employee for a reasonable time and purposethe applicable plan year of each comparable Purchaser Plan.
(d) Buyer, Generation and the Subsidiaries of Generation Sellers shall be responsible solely responsible, and Purchaser shall have no obligations whatsoever, for all Liabilities any compensation or other amounts payable by any Seller or Non-Debtor to any current or former employees of Sellers or Non-Debtors, including the Transferred Employees, including hourly pay, commission, bonus, salary, accrued paid time off (including vacation and obligations under sick leave), fringe, pension or profit sharing benefits, or severance pay for any period relating to the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after service with Sellers or Non-Debtors at any time on or prior to the Closing Date. Buyer agrees to indemnify Seller , and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back Sellers shall pay, front or cause the Non-Debtors to pay, benefits or compensatory or punitive damagesas applicable, any Claim all such amounts to all entitled Persons within the time required by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsapplicable Law.
(e) Buyer The Parties acknowledge and agree that they shall apply the “Standard Procedure” in Rev. Proc. 2004-53 when preparing and filing relevant tax returns for Transferred Employees for the year in which the Closing occurs.
(f) The provisions of this Section 6.3 are for the sole benefit of the Parties and nothing herein, express or implied, is intended or shall be construed to confer upon or give any Person (including for the avoidance of doubt any employees of Sellers or Non-Debtors or Transferred Employees), other than the Parties and their respective permitted successors and assigns, any legal or equitable or other rights or remedies (with respect to the matters provided for in this Section 6.3 or under or by reason of any provision of this Agreement). Nothing contained herein, express or implied: (i) shall be construed to establish, amend, or modify any benefit plan, program, agreement or arrangement; (ii) shall, subject to compliance with the other provisions of this Section 6.3, alter or limit Purchaser’s, Sellers’ or Non-Debtors’ ability to amend, modify or terminate any particular benefit plan, program, agreement or arrangement; or (iii) is intended to confer upon any current or former employee any right to employment or continued employment for any period of time by reason of this Agreement, or any right to a particular term or condition of employment.
(g) On or before the Closing Date, Sellers shall provide a list of the names and site of employment of any and all employees of Seller who have experienced “employment losses” as defined by WARN within the 90 days prior to the Closing Date. In the event that, in the 90 days following the Closing Date, Purchaser takes any action that would cause any “employment losses” of any Transferred Employees that, when aggregated with any “employment losses” caused by Sellers in the preceding 90 days of Purchaser’s action, would constitute a “plant closing” or “mass layoff” so as to trigger obligations under WARN, Purchaser shall be solely responsible for, and shall indemnify and hold harmless Sellers and their Affiliates and each of their respective officers, directors, employees, and agents from and against, any and all obligations and Liabilities under WARN with respect to such employees (including, for the avoidance of doubt, such employees of Sellers and Transferred Employees experiencing “employment losses” within such 90 day period).
(h) The Parties shall, and shall cause their Affiliates to, use best efforts to ensure that any Employee who requires a visa, work permit or similar authorization under immigration Laws to work for Sellers and their Affiliates in his or her current position may continue to work in such position as a Transferred Employee for Purchaser and its Affiliates as of the Closing Date. Sellers shall, and shall cause their Affiliates to, cooperate with Purchaser and will provide documentation and information as reasonably requested by Purchaser to enable Purchaser to make filings under immigration Laws to ensure uninterrupted work authorization for Transferred Employees whose current immigration status requires such filings to be made. Notwithstanding best efforts of the Parties, Purchaser does not guarantee that immigration authorities will timely issue requisite approvals to ensure uninterrupted work authorization for each and every Transferred Employee whose current immigration status requires such approval. In the event that the requisite immigration approvals cannot be timely obtained despite the Parties’ best efforts, the Parties shall cooperate in good faith to arrange for the applicable Employee to commence employment with Purchaser and its Affiliates as a Transferred Employee, to the extent commercially feasible and permitted by applicable Law, as soon as reasonably necessary practicable, unless such Employee’s employment otherwise earlier terminates with Sellers and their Affiliates or such approvals cannot be obtained.
(i) Solely to implement the extent required by applicable Law, Purchaser shall be responsible for obligations and Liabilities arising under Section 4980B of the Tax Code with respect to “M&A qualified beneficiaries” as defined in 26 C.F.R. § 54.4980B-9. Following the Closing, Sellers shall promptly notify Purchaser when they cease to provide any group health plan.
(j) For any Transferred Employees who are principally based outside the United States, the provisions of this Section 5.6 and agree 6.3 shall apply to provide each other with such records and information as may be necessary and appropriate employees mutatis mutandis to carry out their respective obligations under this Section 5.6the maximum extent permitted by applicable Law.
Appears in 1 contract
Employee Matters. (a) Not less than thirty CONTINUATION OF EMPLOYMENT; CREDITED SERVICE. Effective as of the Closing, except with respect to those Business Employees listed in Schedule 5.09(a), each of whom shall remain in the employ of the Seller, Seller Sub or an affiliate of Seller or Seller Sub after the Closing (30) the "EXCLUDED EMPLOYEES"), Purchaser shall make offers of employment to each other Business Days Employee, in a substantially similar and suitable position with the same salary and hourly wage rate and incentive bonus opportunities as that provided to the Business Employees immediately prior to Closing (subject to the Closing Dateprovisions of Section 5.09(b)). For purposes of this Section 5.09, Buyer may offer employment, commencing "Business Employees" shall include those employees who are not actively at work as of the Closing Datedue to disability or approved leave of absence (including, without limitation, vacation, jury duty, medical leave, maternity or paternity leave, and military leave) (in each case referred to as an "INACTIVE EMPLOYEE"); PROVIDED, that Purchaser's obligation to employ any Inactive Employee upon such individuals identified on Section 5.6(a) Inactive Employee's return from disability or other approved leave of absence shall be subject to Applicable Law. Purchaser shall assume all liabilities relating to its failure to employ any such employees in the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary same positions upon such employees' ability to ensure that its hiring decisions and practices in this regard are return to work in accordance with Applicable Law. Not fewer than twenty Business Employees who accept Purchaser's offer of employment shall be referred to as "CONTINUED EMPLOYEES". Continued Employees shall receive credit for all service with Seller, Seller Sub and their affiliates (20and their predecessors) Business Days for all purposes under Purchaser's employee benefit plans to the same extent recognized by Seller, Seller Sub and their affiliates immediately prior to the Closing Date; PROVIDED, Buyer HOWEVER, that such service shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire result in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion duplication of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, be credited for benefit accrual purposes under any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsPurchaser defined benefit pension plan.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less Employment Offers. Prior to Closing, Purchaser shall provide offers of “at-will” employment to the Key Employees and Designated Employees, in accordance with Schedule 1.1, for employment with Purchaser or its subsidiaries as a Continuing Employee, to be effective as of the Closing Date. Such “at-will” offer of employment will: (i) be contingent on Closing, (ii) be set forth in offer letters (each, an “Offer Letter”), (iii) be subject to and in compliance with Purchaser’s applicable policies and procedures, including requirements for proof evidencing a legal right to work in the offeree’s country of current employment and employment background checks and the execution of Purchaser’s employee proprietary information and inventions assignment agreement, governing employment conduct and performance, (iv) have terms, including position (other than thirty titles), salary, and benefits, which in the case of salary shall be at least equal to what such offeree currently receives from the Seller, and in the case of position (30other than titles) Business Days and benefits, taken as a whole, shall be at least comparable in all material respects to what such offeree receives from Seller, (v) supersede any prior Employment Agreement or other express or implied employment agreements, arrangement or offer letter in effect with such Designated Employee or Key Employee prior to the Closing Date.
(b) Except as set forth on Schedule 1.1, with respect to any Designated Employees or Key Employees who receive offers of employment from Purchaser, Seller shall inform such individuals that upon the Closing Date, such individuals’ employment with Seller shall be terminated without the possibility of severance. Upon the Closing Date, except as set forth on Schedule 1.1, Seller shall terminate without severance all Designated Employees or Key Employees who receive but do not accept offers of employment from Purchaser.
(c) Subject to applicable limitations under Purchaser’s existing employee benefit programs, for each Employee of the CNS Division hired by Purchaser, Purchaser shall credit each such Continuing Employee’s years of service with Seller (and any predecessor thereof) toward any eligibility or vesting requirements under any of the employee benefit programs Purchaser establishes for Continuing Employees of the CNS Division. It is specifically understood and agreed that Purchaser shall have the right, exercisable in its sole discretion, to terminate or layoff any such Continuing Employees hired by Purchaser; provided that Purchaser offers any such terminated employees severance consistent with the severance historically offered to similarly situated employees of Purchaser.
(d) Each Designated Employee and Key Employee shall be immediately eligible to participate, without any waiting time, in any and all employee benefit plans sponsored by Purchaser for the benefit of its employees and shall be credited with his or her years of service with the Seller prior to the Closing Date, Buyer may offer employmentexcept to the extent such credit would result in a duplication of benefits. For purposes of each of Purchaser’s plan’s providing medical, commencing as of the Closing Datedental or vision benefits, Purchaser shall cause all pre-existing condition exclusions to be waived and any eligible expenses incurred by such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions Designated Employee or Key Employee and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days his or her covered dependents prior to the Closing DateDate to be taken into account for purposes of satisfying all deductible, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof coinsurance and prior maximum out-of-pocket requirements applicable to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours such Continuing Employee and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (his or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeeher covered dependents.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement
Employee Matters. (a) Not less Beginning after a date mutually agreed by SELLER and the BANK but not later than thirty (30) Business Days days prior to the Closing Date, Buyer the BANK shall have the right to discuss with any or all employees of the Branch Offices the possibility of their employment by the BANK after the Closing Date. On or before the Closing Date, SELLER shall notify in writing all employees of the Branch Offices (the "Employees") that the business of SELLER has been or will be transferred to the BANK and that the BANK may offer employmentto employ, commencing effective on the day following the Closing Date, such Employees as it at its sole discretion so elects on terms and conditions of employment established by the BANK. As of the Closing Date, all Employees that the BANK elects to hire shall be discharged by the SELLER. SELLER shall be solely responsible for its obligations to all discharged Employees, whether or not such individuals identified on Section 5.6(adischarged Employees are hired by the BANK. Nothing contained herein shall preclude SELLER from permitting an employee who declines employment with the BANK from accepting another position with SELLER provided that SELLER has not encouraged such employee to decline to accept such position with the BANK or to seek another position with the SELLER. SELLER covenants with the BANK that prior to closing, SELLER shall not, without the BANK's prior consent (i) increase the aggregate full-time equivalent size of the Seller Disclosure Letter (work force at the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to Branch Offices above the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After level existing at the date hereof and prior to or alter the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each composition of the Schedule 5.6
work force at the Branch Offices from the composition existing at the date hereof, (aii) Employees who commences encourage any Employee to refuse an offer of employment by the BANK, (iii) enter into any employment contract with Buyer effective as any Employee, or (iv) increase the gross annual compensation of (or who is on approved leave any Employee pursuant to any evaluation other than in the normal course of absence on) the Closing Date, together with the continuing employees business. Notice of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred any increase in compensation for any Employee shall be referred given to herein the BANK as a “Non-Hired Employeesoon as possible.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Independent Bank Corp /Mi/)
Employee Matters. As of the Closing, each Seller shall terminate the employment of all employees of such Seller (athe “Pre-Closing Employees”) Not less than thirty (30) Business Days prior and shall be solely responsible for satisfying any Liabilities that such Seller may have to the Pre-Closing DateEmployees (other than those included as Current Liabilities) (the “Non Assumed Pre-Closing Employee Liabilities”). The Buyer shall, subject to the Buyer’s receipt of background checks satisfactory to the Buyer may using the standard practices for the employees of the Buyer, offer employment, commencing employment as of the Closing Date, to certain Pre-Closing Employees and such individuals identified offers of employment shall be on Section 5.6(a) of terms and conditions and with such benefits as the Seller Disclosure Letter Buyer shall determine (the “Schedule 5.6(a) Transferred Employees”) as it may determine ), and the Sellers shall assist the Buyer in its discretionefforts to hire such employees, including by providing the Buyer with access to such employees and the personnel records of such employees, encouraging such employees to accept offers of employment from the Buyer and not taking any action which would reasonably be expected to impede, hinder, interfere or otherwise compete with the Buyer’s efforts to hire such employees. The Buyer shall take all steps necessary deliver to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days the Sellers a list of those Pre-Closing Employees on or prior to the Closing Date, Buyer shall notify Seller date of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employmentthis Agreement. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation The Sellers shall be responsible for all Liabilities providing notices and obligations under continuation of coverage that is or may be required to be provided to each individual who is or becomes an “M&A Qualified Beneficiary”, as defined in Treasury Regulation Section 54.4980B-9, in connection with the Worker Adjustment consummation of the Transactions. Nothing herein express or implied shall be deemed to require the Buyer to employ any such person for any period of time or on any particular terms and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation conditions. The Buyer and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller Sellers hereby acknowledge and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller agree that all provisions contained in this regard specifically includes any Claim by any Section 6.7 are included for the sole benefit of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of Sellers and that nothing in this Section 5.6 and agree to provide each 6.7, whether express or implied, shall create any third party beneficiary or other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6rights in any other Person.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diamond Resorts International, Inc.)
Employee Matters. (a) Not less than thirty Purchaser shall offer employment to all Participants who are Active Employees, except (30i) Business Days Participants ("Brainerd Participants") whose employment as determined in Purchaser's sole discretion relates principally to the operation of the Brainerd Facility or Excluded Brainerd Assets, and (ii) any other Participants ("Non-Continuing Participants") who are identified by Purchaser to Seller prior to the Closing Date(or, Buyer may in the case of a Participant who as of Closing is on an approved leave of absence (other than long-term disability), and who within 90 days following the Closing Date presents himself or herself to Purchaser as ready, willing and able to commence active employment with Purchaser, identified by Purchaser to Seller following Purchaser's decision not to offer employment to such Participant) as Participants to whom Purchaser shall not offer employment. Purchaser shall determine in its sole discretion the terms and conditions of employment to be offered to Participants who accept such offer (collectively, commencing the "Continued Employees"). "Active Employees" means each employee of or with respect to the Business who is actively at work as of the Closing, or on vacation, holiday, jury duty or bereavement leave. In addition, each other employee of or with respect to the Business who as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on an approved leave of absence on) (other than long-term disability), and who within 90 days following the Closing DateDate presents himself or herself to Purchaser as ready, together willing and able to commence active employment with the continuing employees of the Material SubsidiariesPurchaser, shall be referred deemed to herein as “Transferred be an Active Employee. For the avoidance of doubt, "Active Employees,” and " excludes each Schedule 5.6
(a) Employee employee of or with respect to the Business who is not a Transferred Employee shall be referred to herein on long-term disability as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsClosing.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Sappi LTD)
Employee Matters. (a) Not less than thirty As promptly as practicable following the date hereof, the Purchaser shall use its reasonable commercial efforts to determine and identify to PCN which employees of the Sellers, if any, the Purchaser does not wish to employ from and after the Closing Date (30) Business Days the "Designated Employees"). Anything contained in this Agreement to the contrary notwithstanding, following the identification by the Purchaser to PCN of any Designated Employees, the Sellers may, in their sole and absolute discretion, terminate the employment of any one or more of the Designated Employees prior to the Closing DateDate and incur a Severance Obligation (as defined in Section 5.18 above) as a result thereof (a "Designated Employee Severance Obligation"); provided, Buyer may offer employmenthowever, commencing to the extent that any Designated Employee is, as of the Closing Datedate hereof, eligible to receive a Sale Bonus (as defined in Section 5.18 hereof), the Designated Employee Severance Obligation with respect to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Designated Employee shall be referred deemed to herein as a “Non-Hired be the severance obligation of PCN set forth in the agreement between PCN and such Designated Employee establishing the terms upon which the Sale Bonus will be paid to any such Designated Employee.”
(b) Following As promptly as practicable following the Closing date hereof, the Purchaser and PCN shall seek to establish and implement a bonus or incentive plan pursuant to which certain employees of the Sellers identified by the Purchaser and PCN will receive bonuses (the "Medical Manager Retention Bonuses") in the event that such employees remain in the Sellers' and/or the Purchaser's employ for a specified period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationtime following the date hereof.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Samples: Asset Purchase Agreement (Physician Computer Network Inc /Nj)
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and On or prior to the Closing Date, Seller shall provide Buyer present all Affected Employees with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences termination letter terminating their employment with Buyer Seller effective as of (on the Closing Date and shall pay to each such Affected Employee any and all required salary, bonuses and vacation pay owing. On or who is on approved leave of absence on) prior to the Closing Date, together with the continuing employees Purchaser or one or more of the Material Subsidiariesits Affiliates, shall provide an offer of employment to the Affected Employees. All such offers of employment will be referred for a substantially similar position with substantially similar duties and stature, and will provide salary and benefits which are, in the aggregate, substantially similar or superior to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employeethat provided by Seller on the Closing Date.”
(b) Following Purchaser shall have the Closing for a period right to meet with and offer employment to members of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, Seller’s management at reasonable times and received severance compensation from, Seller unless and until Buyer reimburses Seller for a under reasonable portion of such severance compensationcircumstances.
(c) Following Within twenty (20) Business Days after the Closing for a period Date, Purchaser shall provide stock options of one Parent in an amount equal to fifty thousand (150,000) yearin the aggregate, none to certain employees of Buyerthe Business as specified by the Seller pursuant to stock option agreements on Parent’s standard form; provided, Generation or their Affiliates however, that Xxxx Xxxxxx and Xxxx Xxxxxx shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain eligible as recipients of such employee for a reasonable time and purposeoptions.
(d) Buyer, Generation and the Subsidiaries of Generation Purchaser shall be responsible for all Liabilities and shall reimburse Seller for statutory termination pay which may be required to be paid by Seller pursuant to applicable law to any Affected Employee arising from the termination of employment of any Affected Employee pursuant to Section 6.06(a). For the avoidance of doubt, Purchaser’s obligations under this Section 6.06(d) shall exclude any and all required salary, bonuses and vacation pay which are the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimspursuant to Section 6.06(a).
(e) Buyer Seller is obligated and shall assume all responsibility for all claims, liabilities, costs, and obligations, which may arise from:
(i) the termination of employment of any Affected Employee;
(ii) any contractual obligations (other than common law severance obligations) owed to Affected Employees.
(f) Purchaser is obligated and shall assume all responsibility for all claims, liabilities, costs, and obligations, including, without limitation, contractual and common law obligations, which may arise from the dismissal or alleged dismissal on or after the Closing Date of any Affected Employee other than the contractual obligations assumed by Seller under Section 6.06(e)(ii).
(g) Purchaser is not, and shall cooperate as reasonably necessary not be deemed to implement be, a successor employer to Seller with respect to any of Seller’s employee benefit plans or programs, including the provisions items listed on Schedule 2.16 (collectively, “Seller Plans”). Purchaser does not and shall not assume any Seller Plan, including, without limitation, any severance plans of Seller.
(h) Seller will retain responsibility for, and continue to pay, all hospital, medical, life insurance, disability, supplemental unemployment and all other welfare plan expenses and benefits for the employees hired by Purchaser (and their covered dependents) with respect to claims incurred by such employees or their covered dependents on or prior to the Closing Date. Seller will retain responsibility for, and continue to pay, any life, health or other welfare benefits payable to each former employee (and their dependents) of Seller who terminated employment with Seller on or prior to the Closing Date in respect of claims incurred on their behalf on or prior to the Closing Date. For purposes of this Section 5.6 and agree clause (h), a claim is deemed incurred when the event that first gave rise to provide each other with the claim occurred, notwithstanding the fact that such records and information as benefits may be necessary paid at a subsequent date. Seller is responsible for any liabilities that may arise with respect to application of Part 6 of Subtitle B of Title I of the Employee Retirement Income Security Act (“ERISA”) and appropriate the Consolidated Omnibus Budget Reconciliation Act (“COBRA”) with respect to carry out any of their respective obligations under employees or covered dependents as a result of the transactions contemplated by this Section 5.6Agreement, as well as for any prior COBRA violations which occurred prior to Closing. Purchaser is not a successor employer for ERISA or COBRA purposes.
Appears in 1 contract
Samples: Asset Purchase Agreement (Zvue Corp)
Employee Matters. (a) Not less Within forty five (45) days after the filing of the Bankruptcy Case, the Buyer shall provide the Sellers with a list of all employees of the Sellers to whom the Buyer or any of its Affiliates intends to offer employment, and the Buyer or any of its Affiliates shall promptly thereafter make offers of employment to such employees. Prior to the delivery of such list, if requested by the Buyer and as soon as practicable thereafter, Sellers shall provide accrued vacation benefit information regarding any employees identified by Buyer for use by Buyer and its Affiliates in determining whether to make offers of employment to such persons. Any such offer of employment by the Buyer or any of its Affiliates shall be made for employment commencing on the Closing Date and shall be, at a minimum, consistent with the Buyer's standard compensation arrangements other than thirty (30) Business Days prior to the Buyer's defined benefit plans. On the Closing Date, the Buyer may offer employment, commencing shall provide the Sellers with a complete list of all employees of the Sellers who shall be (or have been) hired by the Buyer or any of its Affiliates as of the Closing Date, to Date (any such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee employee shall be referred to herein as a “Non-Hired "Transferred Employee"). In the event that neither the Buyer nor any of its Affiliates makes an offer of employment to any employee of a Seller identified by the Buyer on the list described in the first sentence of this Section 3.13
(a) (provided that this sentence shall not apply to any employee identified by the Buyer on such list who does not accept the offer of employment of Buyer or any of its Affiliates), then the Buyer shall promptly reimburse the Sellers for any retention bonus or related payment that is due to any such employee upon the consummation of the transactions contemplated by this Agreement. Transferred Employees shall be employed on an at will basis, and no provision of this Agreement shall be construed as providing to such Transferred Employees a guarantee of continued employment. The Buyer shall not be responsible for any liabilities and obligations with respect to the Transferred Employees or any other employee of the Sellers other than (x) in accordance with Section 1.6 hereof; (y) in accordance with Section 3.1 hereof or (z) in accordance with applicable Laws. Nothing in this Section 3.13 or elsewhere in this Agreement shall be deemed to make any employee of the Sellers a third party beneficiary of this Agreement.”
(b) Following For a period of 180 days after the Closing Date, or in the event that this Agreement is terminated prior to the consummation of the transactions contemplated hereby, for a period of one (1) yearyear following such termination, none of Buyer, Generation or their Affiliates the Buyer shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated bynot, and received severance compensation fromshall not permit any of its Affiliates, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly indirectly, to solicit or employ any of the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) employees of a Seller or its Affiliates who is are not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates Transferred Employees without the prior written consent of SellerFlorsheim; provided, which may however, that nothing contained herein shall prohibit the Buyer from generally advertising for personnel, not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for specifically targeting any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any employees of the Transferred Employees for back paySellers or their Affiliates, front payand employing employees of the Sellers or their Affiliates who respond to such general personnel advertisements. If, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring within 180 days after the Closing Date and Seller’s costsexcept as permitted by the preceding sentence, including reasonable attorney’s feesthe Buyer hires an employee of a Seller who is not a Transferred Employee, the Buyer shall promptly notify Florsheim and reimburse the Sellers for any amounts that the Sellers are required to pay in defending connection with the termination of such employee and, for any such Claimsemployee who is a party to a written employment agreement, assume all obligations that accrue from and after the Closing Date under such employment agreement and reimburse the Sellers for any damages arising from the Sellers' rejection of such employment agreement.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days prior As of the Closing, Seller shall terminate each Employee designated on Section 8.6 of the Disclosure Schedule effective as of 11:59 pm Eastern time on March 31, 2024. Subject to and with effectiveness upon the Closing, U.S. Purchaser shall offer employment to each such Employee, on an “at will” basis, on the same terms and conditions as currently applicable to the Closing Daterespective Employees at the time of U.S. Purchaser’s offer (as such terms and conditions will be modified by the Seller’s proposed compensation changes to be effective on or about March 1, Buyer may offer employment2024, commencing which terms and conditions as so modified shall be, for purposes of this Agreement, considered such Employees’ compensation terms and conditions as of the Closing DateApril 1, to such individuals identified on Section 5.6(a2024) of and the Seller Disclosure Letter (shall provide the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance Purchasers with Applicable Law. Not fewer than twenty (20) Business Days prior access to the Closing Datepersonnel records, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer employee data and other information as may be reasonably required to make such offers of employment. After All such persons to whom employment is offered hereunder and who accept employment with the date hereof and prior to the Closing Date, Seller U.S. Purchaser shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each become employees of the Schedule 5.6
(a) Employees who commences employment with Buyer U.S. Purchaser effective as of (or who is on approved leave of absence on) the Closing DateApril 1, together with the continuing employees of the Material Subsidiaries2024, shall be and are sometimes hereinafter referred to herein as the “Transferred Employees,.” Seller hereby consents to the hiring of any such employees by the U.S. Purchaser and each Schedule 5.6
(a) Employee who is not a waives, with respect to the employment by the U.S. Purchaser of such Transferred Employees, any claims or rights the Seller may have against the U.S. Purchaser or any such Transferred Employee shall be referred to herein as a “Nonunder any non-Hired Employeecompetition, confidentiality or employment agreement.”
(b) Following For the Closing 12-month period commencing on April 1, 2024, the U.S. Purchaser will provide the Transferred Employees with: (i) a base salary or base wage rate that is no less favorable than that in effect for a period of one such Transferred Employee immediately prior to Closing; (1ii) year, none of Buyer, Generation or their Affiliates shall hire target annual cash bonus opportunities that are no less favorable than the applicable target opportunity in any capacity effect for such Transferred Employee immediately prior to Closing; and (whether as an employee, consultant, independent contractor or otherwiseiii) any Non-Hired Employee who has been terminated byemployee benefits that in the aggregate are substantially equivalent to, and received severance compensation fromno less favorable than, Seller unless and until Buyer reimburses Seller for a reasonable portion of those provided to such severance compensationTransferred Employees immediately prior to the Closing.
(c) Following The Seller shall use commercially reasonable efforts to assist the Closing for a period U.S. Purchaser in connection with the transfer of one employment of the Transferred Employees, including, to the extent permitted by applicable Law, by providing all information relating to each Transferred Employee as the U.S. Purchaser may reasonably require (1) yearincluding initial employment dates, none termination dates, reemployment dates, attendance records, personnel and status records, hours of Buyerservice, Generation or their Affiliates compensation and tax withholding history). The Seller shall directly or indirectly solicit provide transition services to the employment or services ofPurchasers in accordance with the terms contained in the Transition Services Agreement. The Seller shall provide the notices, or hire in if any, required under the U.S. Workers Adjustment and Retraining Notification Act and satisfy any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Sellercomparable state Law notice requirements, which may not be unreasonably withheld, conditioned required as a result of any employment losses caused by the transaction or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposeby reason of any events occurring at or after the Closing Date.
(d) BuyerThe Seller will have performed and discharged all requirements, Generation and if any, under, the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the federal Worker Adjustment and Retraining Notification Act and any similar foreignstate or local “mass layoff’ or “plant closing” Law (collectively, state the “WARN Act”) and local rules, statutes and ordinances resulting from under applicable Laws for the actions notification of Buyer, Generation and its employees of any “employment loss” within the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any meaning of the Transferred Employees for back payWARN Act or any “mass termination” under applicable Law which occurred on or prior to April 1, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims2024.
(e) Buyer In accordance with the terms of the Transition Services Agreement, by April 1, 2024, the Seller will have paid all accrued salaries, bonuses, commissions, wages, vacation pay and paid time off of the Transferred Employees due to be paid. However, U.S. Purchaser shall be responsible for all such accrued amounts due to the Transferred Employees for the period starting on the Closing Date and ending on March 31, 2024, and shall reimburse Seller for all such amount paid by Seller as part of the Post-Closing Adjustment.
(f) The Seller shall cooperate remain solely responsible, and the Purchasers shall have no obligations whatsoever for, any compensation or other amounts payable to any Employee (including the Transferred Employees), officer, director, independent contractor or consultant of Seller, including hourly pay, commission, bonus, salary, accrued vacation, fringe, sharing benefits or severance pay for any period relating to the service with Seller at any time on or prior to 11:59 p.m. Eastern time on the Closing Date. The Purchasers shall be responsible vis-à-vis the Seller (as reasonably necessary Seller will be performing the transition services as per the Transition Services Agreement) for the payment of compensation, bonus or other payment owed to any Transferred Employee arising after the Closing Date as a result of the Purchasers’ employment of such Transferred Employee. The Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, workers’ compensation, health accident or disability benefits brought by any Transferred Employees and their dependents or beneficiaries, which claims incurred prior to 11:59 p.m. Eastern time on March 31, 2024. For purposes of this Agreement, (i) a claim for medical or dental benefits will be deemed to have been incurred on the date of treatment, (ii) a claim for prescription benefits will be deemed to have been incurred on the date the prescription is filled, and (iii) a claim for life insurance, workers’ compensation, health accident or disability benefits will be deemed to have been incurred upon the occurrence of the event giving rise thereto.
(g) The Purchasers shall be responsible for any claims relating to the employment of any Transferred Employee, or by any Transferred Employee, arising in connection with or following the Closing Date.
(h) During the period beginning on the Closing Date and ending on the day that is 180 days thereafter, the Purchaser shall not implement any plant closings, mass layoffs, or similar events that individually or in the provisions aggregate would give rise to any Liability on the part of the Seller under the WARN Act, and the Purchasers shall provide any required notice under the WARN Act, and otherwise comply with any such legal requirement with respect to any “plant closing” or “mass layoff” (each as defined in the WARN Act) or employee layoff or similar event affecting the Transferred Employees.
(i) The parties hereby agree that any and all accrued vacation leave due to each Employee who does not become a Transferred Employee shall be borne by the Seller.
(j) The terms and conditions of this Section 5.6 8.6 are for the sole benefit of the Seller and agree the Purchasers and shall not confer any rights on any current or former Employee or any other Person as a third-party beneficiary. Nothing contained herein, express or implied shall be construed to provide each other with such records establish, amend or modify any Employee Plan or employee benefit plan of the Purchasers or to prohibit the termination of any Transferred Employee’s employment at any time and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6for any reason.
Appears in 1 contract
Employee Matters. (a) Not Except as specifically provided in this Section 5.7: (i) neither the Buyer Parties nor any of their respective Affiliates shall adopt, become a sponsoring employer of, or 58 have any obligations under or with respect to the Employee Plans, and the Seller shall be solely responsible for any and all liabilities and obligations that have been incurred or may be incurred under or in connection with any Employee Plan; (ii) the Seller shall be solely responsible for any and all liabilities arising out of or relating to the employment of Business Employees who do not become Transferring Employees (as defined below), whether such liabilities arise before, on or after the Closing Date; and (iii) the Seller shall be solely responsible for any and all liabilities arising out of or relating to the employment of any Transferring Employee before the date such employee actually commences work with Parent and/or its Affiliates pursuant to Section 5.7(b).
(b) Parent shall extend offers of employment to each Business Employee listed on Schedule 3.9(a) of the Disclosure Schedules who is actively at work as of the Closing Date (all such employees who accept Parent’s offer of employment are referred to as the “Transferring Employees”). For purposes of this Agreement, any Business Employee who is not at work on the Closing Date due to a short-term absence (including due to vacation, holiday, jury duty, illness, medical, pregnancy, parental or adoption leave, authorized short-term leave of absence or short-term disability) shall be deemed to be “actively at work.” The Seller shall terminate the employment of all Transferring Employees immediately prior to the consummation of the transactions contemplated hereby, and shall cooperate with and use its commercially reasonable best efforts to assist Parent in its efforts to secure satisfactory employment arrangements with those employees of the Seller to whom Parent makes offers of employment.
(c) The Seller shall comply with the requirements of the WARN Act or any similar state, provincial or local law with respect to any “plant closing” or “mass layoff,” as those terms are defined in the WARN Act or such other applicable law, which may result from the Seller’s termination of the employment of any of its employees in connection with the transactions contemplated hereby through the Closing Date.
(d) For a period of [***] months following the Closing, Parent shall provide each Transferring Employee with base compensation that is not less than, in the aggregate (i) the base compensation and (ii) cash bonus opportunities under annual bonus and incentive plans, if any (and other than thirty any equity, equity-based or long-term incentive plans) paid to such Transferring Employee immediately prior to the Closing Date; provided, that the foregoing clause (30ii) Business Days shall not apply to [***] or [***]. For a period of [***] months following the Closing, Parent shall, or shall cause its Affiliates to, provide each Transferring Employee who remains employed by Parent or its Affiliates during such period with employee benefits which are substantially comparable (in the aggregate) to those provided to similarly situated employees of Parent and its Affiliates when applying the same eligibility criteria applicable in the ordinary course of business to employees of Parent and its Affiliates, and taking into account prior service with the Seller except to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the Employee Plans, or is not permitted to be recognized under Parent’s or its Affiliates’ employee benefit plans.
(e) The Seller and its ERISA Affiliates shall comply with the provisions of COBRA, as set forth in Section 4980B of the Code and Part 6 of Title I of ERISA, with respect to any employee, former employee or beneficiary of any such employee or former employee who is covered under any group health plan, as defined in Section 5000(b)(1) of the Code (a “Group Health Plan”), maintained by the Seller and its ERISA Affiliates as of the Closing Date or whose “qualifying event” within the meaning of Section 4980B(f) of the Code occurred on or prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior whether pursuant to the Closing Date, Buyer shall notify Seller provisions of the Schedule 5.6
(a) Employees who have accepted Buyer’s offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor COBRA or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, . The Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities providing or causing to be provided continuation coverage under COBRA to the extent required by applicable law to Transferring Employees and obligations under former employees of the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller their covered dependents who are M&A qualified beneficiaries (as defined in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such ClaimsTreas.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty Effective as of immediately before the Closing, Buyer may offer (30or may cause its Affiliates to offer) employment, on such terms of employment as Buyer may reasonably determine. All of the employees of Seller related to the Business Days are listed on Schedule 6.8(a) (collectively, the “Identified Employees”). All Identified Employees who accept any offers of employment with Buyer that may be made prior to the Closing DateDate are hereinafter referred to as the “Transferred Employees” and such acceptance of offers shall be effective immediately after the Closing. Notwithstanding the foregoing or anything else to the contrary in this Section 6.8 or any other provision of this Agreement, Buyer (i) shall not communicate with or solicit to hire (in each case, directly or indirectly) any of the Identified Employees or other employees of Seller prior to the date on which an Approval Order is entered with respect to Buyer and this Agreement and (ii) shall not, during the period commencing on the Closing Date and ending on February 15, 2024, without first obtaining Seller’s written consent (which consent may offer not be unreasonably withheld), communicate with or solicit to hire (in each case, directly or indirectly) any of the Identified Employees or other employees of Seller who do not become Transferred Employees at the Closing. All communications (including, without limitation, interviews and offers of employment) by or on behalf of Buyer with the Identified Employees or other employees of Seller shall be undertaken, commencing conducted or made solely as and when permitted by this Section 6.8 and with all applicable Laws.
(c) With respect to any Identified Employee who is a foreign national who requires a visa or other work permit in order to work for the Business in his or her current position, Seller shall use its commercially reasonable efforts to transfer such visa or work permit to Buyer or its Affiliate and take any other actions necessary to ensure that such Identified Employee may continue to work in such position for Buyer or its Affiliate as a Transferred Employee as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6.
(ad) Buyer shall, or shall cause its Affiliates to, credit Transferred Employees who have accepted Buyer’s offer of employment. After the date hereof for service earned on and prior to the Closing DateDate with Seller and its Affiliates or any of their respective predecessors, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) to the extent that service is relevant for purposes of Seller eligibility, vesting, benefit accrual or the calculation of vacation, sick days or other paid time off under any Benefit Plan or such other employee benefit plan, program, policy, practice or arrangement maintained by Buyer and its Affiliates who is not for such Transferred Employees (each a Schedule 5.6(a“Buyer Benefit Plan”) Employee or and (ii) for such additional purposes as may be required by applicable Law; provided that nothing herein shall result in a duplication of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsbenefits.
(e) For purposes of each Buyer Benefit Plan, Buyer may cause all preexisting condition exclusions of such Buyer Benefit Plan to be waived for each Transferred Employee and Seller his or her covered dependents to the extent waived under any comparable Benefit Plan. With respect to any Buyer Benefit Plan that provides group health benefits, Buyer may cause any eligible expenses incurred by a Transferred Employee and his or her covered dependents during the portion of the plan year of any such Benefit Plan ending on the date such Transferred Employee’s participation in the corresponding Buyer Benefit Plan begins to be taken into account under the Buyer Benefit Plan for purposes of satisfying all deductible, coinsurance and maximum out-of- pocket requirements applicable to such Transferred Employee and his or her covered dependents for the applicable plan year as if such amounts had been paid in accordance with such Buyer Benefit Plan.
(f) Nothing contained herein is intended to or shall cooperate as reasonably necessary (i) confer upon any Transferred Employee any separate right to implement employment or continued employment with Seller, Buyer or any of their respective Affiliates or any benefits under any applicable Benefit Plan or Buyer Benefit Plan, or (ii) create any third-party beneficiary rights or other rights of any kind with respect to any Person other than the Parties to this Agreement.
(g) The provisions of this Section 5.6 6.8 are for the sole benefit of the Parties and agree nothing herein, express or implied, is intended or shall be construed to provide each other with such records and information (i) constitute the establishment or adoption of or an amendment to any employee benefit plan for purposes of ERISA or otherwise be treated as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.an amendment or modification of any Benefit Plan or other
Appears in 1 contract
Employee Matters. (a) Not less than thirty Buyer shall assume the employment agreements, in the form provided to Buyer, of Xxxxxxx X. Xxxxxx and [**], and each of such employees shall receive credit for the years of service at Seller (30and its predecessor Atrix Laboratories, Inc.) Business Days for purposes of determining any severance benefits payable to such employees in the event of any subsequent termination of employment. On the Effective Date, Buyer shall offer employment to all employees employed by Seller as of December 31, 2006 whose employment and responsibilities relate primarily to the Business, with such offers remaining open until January 1, 2007 (except with respect to any employees that cease to be employed between the making of such offer and January 1, 2007) and being conditioned upon the actual occurrence of the Closing (each a "Transferred Employee"). A current list of such employees is set forth on Schedule 4.12
(a) The terms of Buyer's offer letter shall provide that upon commencement of employment with Buyer upon the date indicated in their respective offer letters, such employee shall be deemed to have resigned as an employee of Seller. Buyer shall use its commercially reasonable efforts to offer to each such employee a position similar to his or her position immediately prior to the Closing Date at either the same or higher base pay and at the same location at which such employee was employed immediately prior to the Closing Date. Employees who are on short-term disability leave, Buyer may offer employment, commencing authorized leave of absence or military service as of the Closing DateDate shall be offered employment to the same extent, if any, as Seller would be required to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are offer employment in accordance with Applicable Lawapplicable Legal Requirements. Not fewer than twenty (20) Business Days prior to Notwithstanding the Closing Dateprovisions of Section 6.02(a), Buyer shall notify Seller as of the Effective Date Buyer has offered employment to those Transferred Employees set forth on Schedule 5.6
(a) 6.02(a), and such Transferred Employees who have accepted Buyer’s 's offer of employment. After employment (which offer, other than the date hereof and prior to thereof, shall otherwise conform with the Closing Dateprovisions of Section 6.02(a)), Seller shall provide with such exceptions as Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable noticeconsiders, in a manner that causes minimum disruption to its reasonable discretion, shall not impair or interfere with the operations of Seller. Each operation of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) Business after the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired EmployeeClosing.”
(b) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation Transferred Employees shall be responsible for all Liabilities employees at will and obligations under nothing expressed or implied in this Agreement (except as set forth in this Section 6.02(b)) will obligate the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and provide continued employment to defend and hold Seller harmless any Transferred Employee for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claimsspecified ---------- ** Confidential Treatment Requested.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Each Seller shall terminate the employment of all Business Days prior to Employees with the applicable Seller, effective upon the Closing Date, and simultaneous therewith Buyer shall offer employment to each Business Employee (or with respect to Business Consultants shall offer the opportunity to continue to provide consulting services to the business) effective upon the Closing Date on an “at will” basis at the same salary or hourly wage rate and upon substantially similar terms and conditions of employment or consultancy, as the case may be, as those applicable to each Business Employee or Business Consultant immediately prior to the Closing; provided, however, that Buyer may amend or modify such terms and conditions of employment or consultancy after the Closing as it shall determine in its sole discretion.
(b) Notwithstanding the foregoing, with respect to each Business Employee identified on Schedule 5.6 who is on a leave of absence from the Business at the time of the Closing, such Business Employee shall remain an employee of the applicable Seller, unless and until such time as such Business Employee returns from such approved leave of absence, at which time such Seller shall terminate the employment of such Business Employee and Buyer shall offer employmentemployment to each Business Employee on an “at will” basis at the same salary or hourly wage rate and upon substantially similar terms and conditions of employment as those applicable to such Business Employee immediately prior to the Closing; provided, commencing however, that Buyer may amend or modify such terms and conditions of employment after the Closing as of it shall determine in its sole discretion.
(c) Effective on the Closing Date, each Seller shall, and hereby does, release all Business Employees from any employment, non-compete and/or confidentiality agreement previously entered into between such Seller and such Business Employees to the extent necessary to allow such individuals identified on Section 5.6(aBusiness Employees to serve Buyer.
(d) Parent and Buyer agree as follows with respect to the transitional matters concerning tax-qualified 401(k) plans for the benefit of the Seller Disclosure Letter Business Employees:
(the “Schedule 5.6(ai) Employees”) As soon as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to administratively practicable after the Closing Date, Buyer shall notify Seller adopt and implement a tax-qualified 401(k) plan for the benefit of the Schedule 5.6Business Employees (“Buyer’s 401(k) Plan”).
(aii) Employees who have accepted As soon as administratively practicable after the adoption of Buyer’s offer 401(k) Plan, Parent shall cause the account balances of employment. After each Business Employee who participates in Parent’s 401(k) Plan, valued as of the date hereof and of transfer (the “Transfer Date”), to be transferred from the trust maintained under Parent’s 401(k) Plan (the “Parent 401(k) Trust”) to the trust maintained under Buyer’s 401(k) Plan (the “Buyer 401(k) Trust”), in accordance with Section 414(l) of the Code. Any shares of Seller or Parent stock held in a Business Employee’s account under Parent’s 401(k) Plan shall be sold prior to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours Transfer Date and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, cash proceeds from such sale shall be referred transferred to herein as “Transferred Employees,” and each Schedule 5.6
(aBuyer 401(k) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Employee.”
(b) Following Trust and, unless the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensation.
(c) Following the Closing for a period of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller 401(k) Plan provides otherwise, initially invested in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Sellerdefault investment fund maintained under Buyer’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.401(k)
Appears in 1 contract
Samples: Asset Purchase Agreement (Hudson Highland Group Inc)
Employee Matters. (a) Not less than thirty Prior to Closing, except as set forth on Schedule 5.9(a), Purchaser will provide each Employee of the Sellers (30excluding any independent contractors or leased employees engaged by the Sellers or employees of such independent contractors) Business Days prior with a written offer of at-will employment with the Purchaser, such employment to be effective immediately as of the Closing DateClosing, Buyer may offer employmentand Sellers shall terminate the employment of each such Employee, commencing such termination to be effective immediately as of the Closing Date(each such Employee, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days prior to the Closing Date, Buyer shall notify Seller of the Schedule 5.6
(a) Employees who have accepted Buyer’s upon accepting an offer of employment. After employment from the date hereof and prior Purchaser, a “Transferred Employee”); provided that, (i) any offer to the Closing Date, Seller shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or an Employee who is on approved a leave of absence on(including disability leave) on the Closing Date shall be effective on the later of the Closing Date or the date such Employee is released to return to active employment, and (ii) the employees listed on Schedule 5.9(a)(ii) shall be retained by the Sellers and shall not be considered Transferred Employees. The Closing Date, together Date and any such later date upon which an Employee accepts employment with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee Purchaser shall be referred to herein as a “Non-Hired Purchaser Employment Date.” Notwithstanding the foregoing, nothing herein will require the Purchaser to retain any Transferred Employee for any period of time or otherwise restrict or limit the Purchaser’s right to terminate or otherwise alter the terms of employment of any such Transferred Employee, each of whom will be considered an employee “at will” except to the extent covered by an employment agreement or a severance agreement. Purchaser shall be responsible for effectuating the transfer of individuals employed through temporary agencies to employment by Purchaser in cooperation with the appropriate temporary agencies.”
(b) Following As of the Closing for a period first day following the applicable Purchaser Employment Date, to the extent permitted by the applicable plan, program or arrangement, each Transferred Employee shall be permitted to participate in plans, programs and arrangements of one (1) yearthe Purchaser and its Affiliates relating to compensation and employee benefits as are provided to other employees of the Purchaser with similar responsibilities, none of Buyer, Generation or their Affiliates provided that Purchaser shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired assume the Assumed Employee who has been terminated by, Benefit Plans and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationwill continue to provide them to Transferred Employees after the Closing.
(c) Following As of the Closing Date, each Transferred Employee will be given full prior service credit for a period their employment with the Sellers under each Purchaser employee benefit plan under which the Purchaser employees participate and where such prior credit is permitted by the terms of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any such Purchaser employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purposebenefit plan.
(d) Buyer, Generation and the Subsidiaries of Generation Purchaser shall be solely responsible for all Liabilities and obligations any liability or obligation under the The Worker Adjustment and Retraining Notification Act and (WARN Act) or any similar foreign, state and local rules, statutes and ordinances resulting from law incurred or arising as a result of the actions termination of Buyer, Generation and the Subsidiaries of Generation any Transferred Employee on or after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.
Appears in 1 contract
Employee Matters. (a) Not less than thirty (30) Business Days prior to the Closing Date, Buyer may offer employment, commencing as of the Closing Date, to such individuals identified on Section 5.6(a) of the Seller Disclosure Letter (the “Schedule 5.6(a) Employees”) as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days On or prior to the Closing Date, Buyer shall notify Seller extend offers of the Schedule 5.6
(a) employment to all of each Seller's Property Employees who have accepted are employed at the Property on the date such offer is extended, other than each Seller's Reserved Employees. Each Property Employee who accepts Buyer’s 's offer of employment. After the date hereof and prior to the Closing Date, Seller employment shall provide Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences commence employment with Buyer effective as of (or who is on approved leave of absence on) the Closing DateClosing, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) except that any Property Employee who is not actively at work on the Closing Date (other than due to a Transferred short-term absence (e.g., vacation, holiday, jury duty, maternity leave, paternity leave or bereavement leave, illness or injury of shorter duration than would provide for coverage under each of Seller's long-term disability leave policies) in compliance with applicable policies of the applicable Seller) shall commence employment with Buyer effective as of the date such employee presents himself or herself to Buyer for active employment following the Closing Date. Each Property Employee who so commences employment with Buyer shall hereinafter be referred to herein as a “Non"Transferred Employee" as of the day each commences employment with Buyer. To the knowledge of each Seller, following the Closing, each of its Transferred Employees shall be at-Hired Employeewill employees, other than those employees covered by a collective bargaining agreement or whose employment agreements are set forth on Section 8.4(a) of the applicable Seller Disclosure Letter.”
(b) Following Effective as of the Closing for a period Closing, Buyer shall assume the employment agreements set forth in Section 8.4(a) of one (1) year, none the Seller Disclosure Letter to the extent in effect as of Buyer, Generation or their Affiliates shall hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationthe Closing.
(c) Following Subject to the Closing terms and conditions of any applicable collective bargaining agreement which is currently in effect or which may be in effect at any time in the future, (x) for a period of at least one (1) yearyear immediately following the Closing Date, none Buyer shall provide each Transferred Employee with base compensation which is not less than the base compensation of Buyersuch Transferred Employee immediately prior to the Closing and (y) for a period of at least one (1) year immediately following the Closing Date, Generation Buyer shall provide the Transferred Employees with bonus opportunity and annual and long-term incentive compensation (other than equity-based compensation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (iSeller Benefit Plan containing similar benefits to those plans set forth on Section 8.4(c) of the Buyer Disclosure Letter) that are in the aggregate, on an employee by employee basis, no less favorable than those which the Transferred Employees were provided by the applicable Seller or its Affiliates who is not a Schedule 5.6(aimmediately prior to the Closing; provided, however, that the Transferred Employees that are parties to the employment agreements which are assumed pursuant to Section 8.4(b) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may hereof shall not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller entitled to retain such employee for a reasonable time and purposeany rights under this Section 8.4(c).
(d) BuyerSubject to the terms and conditions of any applicable collective bargaining agreement which is currently in effect or which may be in effect at any time in the future, Generation for a period of at least one (1) year immediately following the Closing Date, Buyer shall, pursuant to plans and arrangements established or maintained by Buyer (the Subsidiaries of Generation shall be responsible for all Liabilities "Buyer Benefit Plans"), provide the Transferred Employees with pension, health and obligations welfare benefits which in the aggregate are substantially comparable to those which the Transferred Employees were provided under the Worker Adjustment Seller Benefit Plans (with the exception of equity-based Seller Benefit Plans , those plans set forth on Section 8.4(c) of the Buyer Disclosure Letter and Retraining Notification Act any other Seller Benefit Plans that contains similar benefits to those set forth on Section 8.4(c) of the Buyer Disclosure Letter) immediately prior to the Closing. Buyer shall ensure that the Buyer Benefit Plans treat employment with any of the Sellers or their respective Affiliates prior to the Closing the same as employment with any of Buyer and similar foreign, state its Affiliates from and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing DateDate for purposes of eligibility, vesting, and benefit accrual under the Buyer Benefit Plans (except (x) to the extent giving such credit would result in duplication of benefits, (y) with respect to the benefits accruals under any defined benefit plan (whether or not tax qualified) and (z) any Buyer Benefit Plan which provides severance benefits).
(e) Effective immediately after the Closing, Buyer shall cause the Transferred Employees to be covered by one or more medical benefit plans ("Buyer's Medical Plans") which shall provide benefits to the Transferred Employees and their dependents which in the aggregate are substantially comparable to the benefits which were provided to the Transferred Employees and their dependents by the applicable Seller's medical plans. Buyer agrees to indemnify Seller and to defend and hold Seller harmless for Buyer's Medical Plans shall not contain any breach of such responsibility and Buyer’s indemnification of Seller in this regard specifically includes any Claim by "pre-existing conditions" exclusions or limitations or "actively at work" requirements which would cause any of the Transferred Employees for back pay, front pay, benefits or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring their dependents to be excluded from Buyer's Medical Plans immediately after the Closing Date and Seller’s costs, including reasonable attorney’s feesClosing. Buyer shall give effect, in defending determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, such Claimsemployees for the calendar year in which the Closing occurs under any welfare benefit plans maintained or contributed to by the applicable Seller for their benefit immediately prior to the Closing Date.
(ef) Effective as of the Closing Date, Buyer shall establish or designate a defined contribution retirement plan which is qualified or eligible for qualification under Section 401(a) of the Code ("Buyer's 401(k) Plan"). Subject to the terms and conditions of any applicable collective bargaining agreement which is currently in effect or which may be in effect at any time in the future, each Transferred Employee who participates in the Xxxxxx'x Entertainment, Inc. Savings and Retirement Plan, the Grand Casinos 401(k) Savings Plan or the Restated Park Place Entertainment Corporation 401(k) Savings Plan, as applicable (the applicable plan for each Seller, the "Seller 401(k) Plan") who satisfies the eligibility requirements of Buyer's 401(k) Plan shall become eligible to participate in Buyer's 401(k) Plan on the date he or she becomes an employee of Buyer and shall be credited with eligibility service and vesting service for all periods of service with the applicable Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree to provide each or any other entity if so credited with such records and information as may be necessary and appropriate to carry out their respective obligations service under this Section 5.6.the Seller 401(k)
Appears in 1 contract
Samples: Asset Purchase Agreement (Caesars Entertainment Inc)
Employee Matters. (a) Not less than thirty (30) Business Days prior Prior to the Closing Date, Buyer may offer shall make offers of full-time employment, commencing effective as of the Closing Date, to such individuals identified on Section 5.6(a) employees of the Seller Disclosure Letter (Acquired Business, at the “Schedule 5.6(a) Employees”) same or greater base salaries as it may determine in its discretion. Buyer shall take all steps necessary to ensure that its hiring decisions and practices in this regard are in accordance with Applicable Law. Not fewer than twenty (20) Business Days deems appropriate; provided, that, prior to making a decision not to offer employment to any current employee of the Closing DateAcquired Business, Buyer shall notify consult in good faith with the compensation committee of Seller with respect to such matters. Any employee of the Schedule 5.6
(a) Employees Acquired Business who have accepted Buyer’s accepts an offer of employment. After the date hereof and prior to the Closing Date, Seller shall provide employment from Buyer with access, during reasonable business hours and upon reasonable notice, to the Schedule 5.6
(a) Employees, and Buyer agrees that it shall use its best efforts to conduct its hiring process, during reasonable business hours and upon reasonable notice, in a manner that causes minimum disruption to the operations of Seller. Each of the Schedule 5.6
(a) Employees who commences employment with Buyer effective as of (or who is on approved leave of absence on) the Closing Date, together with the continuing employees of the Material Subsidiaries, shall be referred to herein as “Transferred Employees,” and each Schedule 5.6
(a) Employee who is not a Transferred Employee shall be referred to herein as a “Non-Hired Transferred Employee”. All employment offers made by Buyer to any employee of the Acquired Business shall be contingent on the Closing. In the event that this Agreement is terminated, such offers of employment shall be null and void. For a period of one year following the Closing Date, Buyer shall provide each Transferred Employee with compensation and benefits (other than equity based benefits, individual agreements or arrangements providing benefits or payments upon a change of control) that are substantially comparable in the aggregate.”
(b) Following In the Closing event that Buyer determines not to make an offer of full-time employment to a current employee of the Acquired Business, Buyer shall pay to each such employee (or reimburse Seller) an amount of severance equivalent to the severance that would have been payable to such individuals had such individuals been entitled to severance under Buyer Parent’s severance plan. Seller shall be solely liable for a period all severance or similar liabilities incurred or arising in respect of one (1) yearan employee of the Acquired Business who does not accept Buyer’s offer of full time employment; provided, none that Buyer’s offer of Buyer, Generation or their Affiliates shall hire full time employment is on terms set forth in any capacity (whether as an employee, consultant, independent contractor or otherwise) any Non-Hired Employee who has been terminated by, and received severance compensation from, Seller unless and until Buyer reimburses Seller for a reasonable portion of such severance compensationSection 5.10(a).
(c) Following the Closing for a period As of one (1) year, none of Buyer, Generation or their Affiliates shall directly or indirectly solicit the employment or services of, or hire in any capacity (whether as an employee, consultant, independent contractor or otherwise) any employee (i) of Seller or its Affiliates who is not a Schedule 5.6(a) Employee or (ii) of Energy or its Affiliates without the prior written consent of Seller, which may not be unreasonably withheld, conditioned or delayed absent significant business rationale for Seller to retain such employee for a reasonable time and purpose.
(d) Buyer, Generation and the Subsidiaries of Generation shall be responsible for all Liabilities and obligations under the Worker Adjustment and Retraining Notification Act and similar foreign, state and local rules, statutes and ordinances resulting from the actions of Buyer, Generation and the Subsidiaries of Generation after the Closing Date. Buyer agrees to indemnify Seller and to defend and hold Seller harmless , each Transferred Employee shall be eligible for any breach of such responsibility and Buyer’s indemnification of Seller participation in this regard specifically includes any Claim by any of the Transferred Employees for back pay, front pay, benefits plans or compensatory or punitive damages, any Claim by any Governmental Authority for penalties regarding any issue of prior notification (or lack thereof) of any plant closing or mass layoff occurring after the Closing Date and Seller’s costs, including reasonable attorney’s fees, in defending any such Claims.
(e) Buyer and Seller shall cooperate as reasonably necessary to implement the provisions of this Section 5.6 and agree programs to provide each medical, dental, vision care, life insurance, disability, severance, vacation and other with such records and information as may be necessary and appropriate to carry out their respective obligations under this Section 5.6.welfare benefits on the same basis as
Appears in 1 contract
