Employee-Related Covenants. (a) As soon as practicable, the Purchaser shall make offers of employment, to be effective as of the Closing Date, to each of the Business Employees listed on Schedule 5.14(a) (the "Offered Employees"), each such offer to include continuation of base salary or wages at an aggregate annual level no less favorable than that in effect as of the date hereof. Those Offered Employees who accept offers of employment with the Purchaser under this Section 5.14(a) and who commence employment with the Purchaser on the Closing Date shall be referred to herein as "Transferred Employees." (b) Except as provided in Section 5.14(g), as of the Closing Date, the Transferred Employees shall be eligible to participate in employee benefit plans, programs, policies and arrangements of the Purchaser in which similarly situated employees of the Purchaser participate (such plans, programs, policies and arrangements, the "Purchaser Plans"). Each Transferred Employee shall be given credit for all purposes for such person's service with the Seller and its affiliates (or any other employer to the extent credited under such Benefit Plan) to the same extent recognized by the Seller under the Benefit Plans prior to the Closing Date for purposes of eligibility, vesting and entitlement to benefits under any analogous Purchaser Plans in which Transferred Employees participate following the Closing Date, except to the extent that giving such service credit would result in an accrual of defined benefit pension benefits. For purposes of clarifying the intent of the preceding sentence, as an example, a Transferred Employee who has been credited under a severance plan of the Seller with five years of service as of the Closing Date and who is terminated by the Purchaser one year following the Closing Date shall be credited with six years of service under the Purchaser's severance plan. To the extent applicable, the Purchaser shall, and shall cause its Affiliates and the Purchaser Plans to, (i) waive all limitations as to preexisting conditions, exclusions and waiting periods and service requirements with respect to participation and coverage requirements applicable to the Transferred Employees under any Purchaser Plan, other than limitations, waiting periods or service requirements that are already in effect with respect to such persons and that have not been satisfied as of the Closing under any Benefit Plan immediately prior to the Closing and (ii) provide each Transferred Employee with credit for any co-payments and deductibles paid prior to the Closing in satisfying any applicable deductible or out-of-pocket requirements under any analogous Purchaser Plan. (c) On the Closing Date, the Seller shall pay to each Transferred Employee all accrued commissions and bonuses earned under the plans listed in Section 5.14(c) of the Disclosure Schedule from January 1, 2007 through the Closing. All payments required to be made pursuant to this Section 5.14(c) shall be made as if (i) the relevant Transferred Employee remained employed with the Seller through the end of 2007, and (ii) all performance measures contained in each relevant plan were satisfied to the greatest extent possible. All payments required pursuant this Section 5.14(c) shall be prorated for the amount of time that the Transferred Employee was actually employed by the Seller during 2007. On the Closing Date, the Seller shall provide the Purchaser with a schedule of amounts paid to each Transferred Employee pursuant to this Section 5.14(c). (d) The Seller shall be liable for the provision of notices and continuation coverage for each individual who is or becomes an "M&A Qualified Beneficiary" (as such term is defined in Treas. Reg. Section 54.4980B-9) as a result of the consummation of the transactions contemplated by this Agreement. (e) Effective as of the Closing Date, the Transferred Employees shall no longer actively participate in the Fremont General Corporation and Affiliated Companies Investment Incentive Plan, as amended (the "Seller's Savings Plan"). The Purchaser shall designate a tax-qualified defined contribution plan (such plan, the "Purchaser's Savings Plan") that either (i) provides for the receipt from Transferred Employees of "eligible rollover distributions" (as such term is defined under Section 402 of the Code) or (ii) shall be amended as soon as practicable following the Closing Date to provide for the receipt from the Transferred Employees of eligible rollover distributions. The Seller shall take all actions necessary to provide that the account balances of the Transferred Employees in the Seller's Savings Plan shall be fully vested as of the Closing Date. As soon as practicable following the Closing Date, (x) the Purchaser shall provide the Seller with such documents and other information as the Seller shall reasonably request to assure itself that the Purchaser's Savings Plan is tax qualified and provides for the receipt of eligible rollover distributions, and (y) the Seller shall provide the Purchaser with such documents and other information as the Purchaser shall reasonably request to assure itself that the accounts of the Transferred Employees would be eligible rollover distributions. Each Transferred Employee who is a participant in the Seller's Savings Plan shall be given the opportunity to receive a distribution of his or her account balance and shall be given the opportunity to elect to "roll over" such account balance to the Purchaser's Savings Plan, subject to and in accordance with the provisions of such plan(s) and applicable law. The Sellers shall provide the Purchaser with copies of such personnel and other records pertaining to the Transferred Employees and such records of any agent or representative of the Seller pertaining to the Transferred Employees, in each case pertaining to the Seller's Savings Plan and as the Purchaser may reasonably request in order to administer and manage the accounts and assets rolled over to the Purchaser's Savings Plan. (f) The Seller agrees that the Purchaser shall be permitted during normal business hours to have reasonable access to the Business Employees to discuss such Business Employee's possible employment with the Purchaser, provided that such discussions do not materially interfere with the Business Employee's performance of his or her duties with the Seller. (g) From and after the Closing Date until January 1, 2008 (the "Continuation Period"), the Seller shall cause each of the Transferred Employees (and, to the extent applicable, the dependents of the Transferred Employees) to be covered pursuant to COBRA under all Benefit Plans which are subject to the requirements of COBRA (the "Continuation Coverage"). As between the Purchaser and the Seller, 100% of the cost of the Continuation Coverage (for the sake of clarity, such cost shall include, without limitation, administrative costs for which the Seller shall be permitted to require payment of amounts in excess of 100% of applicable premiums in accordance with Treas. Reg. Section 54.4980B-8) shall be borne by the Purchaser, and will be billed to the Purchaser on a monthly basis. In order to ensure a smooth transition to the Continuation Coverage for each Transferred Employee and their applicable dependents, each such Transferred Employee and each applicable dependent will be deemed to have made the election generally described in Treas. Reg. Section 54.4980B-6, with the understanding that in order to actually be provided Continuation Coverage, each Transferred Employee shall be responsible for electing and enrolling for such coverage with the Seller. The Purchaser agrees that during the Continuation Period it shall not require a Transferred Employee or a dependent thereof to remit to the Purchaser (whether by means of direct payment, payroll deduction or otherwise) in respect of the Continuation Coverage an amount greater than such Transferred Employee or dependent thereof is required to remit with respect to such benefits as an active participant in the relevant Benefit Plan as of the date immediately prior to the Closing Date. During the Continuation Period, the Purchaser shall promptly notify the Seller that a Transferred Employee has been given, or has given, notice of termination of employment with the Purchaser or has otherwise requested to discontinue Continuation Coverage ("Termination Notice"), provided, that the Purchaser shall be responsible for the cost of the Continuation Coverage for such Transferred Employee and his or her applicable dependents until the effective date of such termination of employment or election to discontinue Continuation Coverage, as applicable. From and after such date, any continuing obligation for the continuation coverage under COBRA for such Transferred Employee and any applicable dependents (including, but not limited to, premium costs) shall be the responsibility of the Seller and the Transferred Employee, as applicable. The Purchaser shall indemnify and hold harmless the Seller and its affiliates for any liabilities assessed against Seller with respect to (i) any violation of COBRA or analogous state law which arises from the Purchaser's failure to notify the Seller of a termination of employment or election to discontinue Continuation Coverage in accordance with this Section 5.14(g); and (ii) any violation of the Health Insurance Portability and Accountability of 1996, as amended, or other applicable law concerning the protection of the privacy of the Transferred Employees and their dependents, in any case, which arises through the process of billing the Purchaser with respect to Continuation Coverage pursuant to this Section 5.14(g). Effective January 1, 2008, the Purchaser shall make available to the Transferred Employees who remain employed by the Purchaser and its affiliates as of such date a group health plan or plans which are of the type (for the sake of clarity, as used herein, "type" refers to kind of benefits provided—e.g., medical, dental, flexible spending account, etc.—and not the level or structure of benefits provided) provided by the Seller pursuant to the Continuation Coverage. (h) Nothing in this Agreement shall be construed as (i) prohibiting the Purchaser from terminating the employment of a Transferred Employee at any time and for any reason following the Closing Date, (ii) requiring the Purchaser to provide any particular employee benefit plan, (iii) prohibiting the Purchaser from amending or terminating any Purchaser Plan or (iv) creating any employee benefit plan. (i) The Seller shall not engage in any action with respect to the Business Employees that would give rise to any obligation or liability under WARN without complying with all of the obligations of WARN. The Purchaser shall not engage in any action with respect to the Transferred Employees on or after the Closing Date that would give rise to any obligation or liability to the Seller under WARN. If any notice is required under WARN with respect to any "employment loss" or "mass layoff" (as those terms are defined by WARN) of any Business Employees that occurs on or before the Closing Date, the Seller shall be solely responsible and liable for providing such notice. If any notice is required under WARN with respect to any "employment loss" or "mass layoff" (as those terms are defined by WARN) of any Transferred Employees that occurs after the Closing Date, the Purchaser shall be solely responsible and liable for providing such notice.
Appears in 1 contract
Employee-Related Covenants. (a) As soon In the event that any person who is an employee of the Company or any of its Subsidiaries on the Closing Date and who has a contractual right to severance benefits as practicableset forth on Section 6.7(a) of the Company Disclosure Schedule (each an “Affected Employee”) is discharged by the Company at the direction of Purchasers or their Affiliates after the Closing Date under circumstances entitling the Affected Employee to severance, then the Purchaser Company (on behalf of Purchasers) and not Sellers shall make offers be responsible for those severance costs set forth on Section 6.7(a) of employmentthe Company Disclosure Schedule for such Affected Employee. Except for the severance benefits set forth on such Section 6.7(a) and severance benefits provided based on Purchasers’ severance policy for similarly situated employees of Purchasers (which has previously been disclosed to Sellers), as may be amended from time to be effective as time, following the Closing Date to employees of the Company or any of its Subsidiaries (other than those set forth on such Section 6.7(a)) who are terminated at the direction of Purchasers following the Closing Date, Purchasers shall not be responsible for any severance costs relating to each employees of the Business Employees listed on Schedule 5.14(aCompany or any of its Subsidiaries.
(b) Each employee of the Company or any of its Subsidiaries who continues as an employee of Purchasers or any of their Subsidiaries following the Closing Date (the "Offered “Continuing Employees"), each such offer ”) shall be eligible for coverage under benefit plans that are substantially comparable in the aggregate to include continuation the benefit plans generally provided to similarly situated employees of base salary or wages at an aggregate annual level no less favorable than that Purchasers and their Subsidiaries as in effect from time to time; provided, that, for purposes of the foregoing, the benefit plans generally provided to employees of the Company and its Subsidiaries as of the date hereof. Those Offered Employees who accept offers of employment with the Purchaser under this Section 5.14(a) and who commence employment with the Purchaser on immediately prior to the Closing Date shall be referred deemed to herein as "Transferred Employees."
satisfy the foregoing standard, it being understood that the Continuing Employees may commence participating in the benefit plans of Purchasers and their Subsidiaries on different dates following the Closing Date with respect to different benefit plans. Under the employee benefit plans of Purchasers and their Subsidiaries providing benefits to Continuing Employees (b) Except as provided in Section 5.14(geach, a “Post-Closing Plan”), as of the Closing Date, the Transferred Employees shall be eligible to participate in employee benefit plans, programs, policies and arrangements of the Purchaser in which similarly situated employees of the Purchaser participate (such plans, programs, policies and arrangements, the "Purchaser Plans"). Each Transferred i) each Continuing Employee shall be given credit for all purposes for such person's credited with his or her years of service with the Seller and its affiliates (or any other employer to the extent credited under such Benefit Plan) to the same extent recognized by the Seller under the Benefit Plans prior to Company as of the Closing Date for purposes of eligibility, vesting and, solely for purposes of vacation and entitlement severance, benefit accrual, to benefits the same extent as such service credit was provided before the Closing Date under any analogous Purchaser Plans in which Transferred Employees participate following similar plans of the Closing DateCompany, except to the extent that giving such service credit would result in an accrual duplication of benefits for the same period and other than under any defined benefit pension benefits. For purposes of clarifying the intent of the preceding sentence, as an example, a Transferred Employee who has been credited under a severance retirement plan or retiree medical plan or frozen or grandfathered plan of Purchasers or their Subsidiaries, and (ii) each Purchaser shall use commercially reasonable efforts to cause (A) each Post-Closing Plan providing for healthcare benefits to waive pre-existing condition limitations to the Seller with five years of service as of the Closing Date and who is terminated by the Purchaser one year following the Closing Date shall be credited with six years of service extent waived or not applicable under the Purchaser's severance plan. To the extent applicable, the Purchaser shallanalogous Benefit Plan, and shall cause its Affiliates and (B) the Purchaser Plans to, (i) waive all limitations as Continuing Employees to preexisting conditions, exclusions and waiting periods and service requirements with respect to participation and coverage requirements applicable to be given credit under each Post-Closing Plan that provides for healthcare benefits for amounts paid under the Transferred Employees under any Purchaser Plan, other than limitations, waiting periods or service requirements that are already in effect with respect to such persons and that have not been satisfied as of the Closing under any analogous Benefit Plan immediately prior to the Closing and (ii) provide each Transferred Employee with credit Date during the year in which the Closing Date occurs for any purposes of applying deductibles, co-payments and deductibles out of pocket maximums, as though such amounts had been paid prior in accordance with the terms and conditions of the Post-Closing Plan, in each case, provided that such information is timely provided to Purchasers or the administrator of the Post-Closing Plans, as applicable, in a form reasonably acceptable to the Closing in satisfying any applicable deductible or out-of-pocket requirements under any analogous Purchaser Planplan administrator.
(c) On Without limiting the Closing Dategenerality of Section 10.10, the Seller shall pay to each Transferred Employee all accrued commissions and bonuses earned under the plans listed in Section 5.14(c) of the Disclosure Schedule from January 1, 2007 through the Closing. All payments required to be made pursuant to this Section 5.14(c) shall be made as if (i) the relevant Transferred Employee remained employed with the Seller through the end of 2007, and (ii) all performance measures contained in each relevant plan were satisfied to the greatest extent possible. All payments required pursuant this Section 5.14(c) shall be prorated for the amount of time that the Transferred Employee was actually employed by the Seller during 2007. On the Closing Date, the Seller shall provide the Purchaser with a schedule of amounts paid to each Transferred Employee pursuant to this Section 5.14(c).
(d) The Seller shall be liable for the provision of notices and continuation coverage for each individual who is or becomes an "M&A Qualified Beneficiary" (as such term is defined in Treas. Reg. Section 54.4980B-9) as a result of the consummation of the transactions contemplated by this Agreement.
(e) Effective as of the Closing Date, the Transferred Employees shall no longer actively participate in the Fremont General Corporation and Affiliated Companies Investment Incentive Plan, as amended (the "Seller's Savings Plan"). The Purchaser shall designate a tax-qualified defined contribution plan (such plan, the "Purchaser's Savings Plan") that either (i) provides for the receipt from Transferred Employees of "eligible rollover distributions" (as such term is defined under Section 402 of the Code) or (ii) shall be amended as soon as practicable following the Closing Date to provide for the receipt from the Transferred Employees of eligible rollover distributions. The Seller shall take all actions necessary to provide that the account balances of the Transferred Employees in the Seller's Savings Plan shall be fully vested as of the Closing Date. As soon as practicable following the Closing Date, (x) the Purchaser shall provide the Seller with such documents and other information as the Seller shall reasonably request to assure itself that the Purchaser's Savings Plan is tax qualified and provides for the receipt of eligible rollover distributions, and (y) the Seller shall provide the Purchaser with such documents and other information as the Purchaser shall reasonably request to assure itself that the accounts of the Transferred Employees would be eligible rollover distributions. Each Transferred Employee who is a participant in the Seller's Savings Plan shall be given the opportunity to receive a distribution of his or her account balance and shall be given the opportunity to elect to "roll over" such account balance to the Purchaser's Savings Plan, subject to and in accordance with the provisions of such plan(s) and applicable law. The Sellers shall provide this Section 6.7 are solely for the Purchaser with copies of such personnel and other records pertaining to the Transferred Employees and such records of any agent or representative benefit of the Seller pertaining to the Transferred EmployeesCompany and Purchasers, in each case pertaining to the Seller's Savings Plan and as the Purchaser may reasonably request in order to administer and manage the accounts and assets rolled over to the Purchaser's Savings Plan.
(f) The Seller agrees that the Purchaser no current or former employee or any other individual associated therewith shall be permitted during normal business hours to have reasonable access to the Business Employees to discuss such Business Employee's possible employment with the Purchaser, provided that such discussions do not materially interfere with the Business Employee's performance regarded for any purpose as a third-party beneficiary of his or her duties with the Seller.
(g) From and after the Closing Date until January 1, 2008 (the "Continuation Period"), the Seller shall cause each of the Transferred Employees (and, to the extent applicable, the dependents of the Transferred Employees) to be covered pursuant to COBRA under all Benefit Plans which are subject to the requirements of COBRA (the "Continuation Coverage"). As between the Purchaser and the Seller, 100% of the cost of the Continuation Coverage (for the sake of clarity, such cost shall include, without limitation, administrative costs for which the Seller shall be permitted to require payment of amounts in excess of 100% of applicable premiums in accordance with Treas. Reg. Section 54.4980B-8) shall be borne by the Purchaser, and will be billed to the Purchaser on a monthly basisthis Agreement. In order to ensure a smooth transition to no event shall the Continuation Coverage for each Transferred Employee and their applicable dependents, each such Transferred Employee and each applicable dependent will terms of this Agreement be deemed to have made the election generally described in Treas. Reg. Section 54.4980B-6, with the understanding that in order to actually be provided Continuation Coverage, each Transferred Employee shall be responsible for electing and enrolling for such coverage with the Seller. The Purchaser agrees that during the Continuation Period it shall not require a Transferred Employee or a dependent thereof to remit to the Purchaser (whether by means of direct payment, payroll deduction or otherwise) in respect of the Continuation Coverage an amount greater than such Transferred Employee or dependent thereof is required to remit with respect to such benefits as an active participant in the relevant Benefit Plan as of the date immediately prior to the Closing Date. During the Continuation Period, the Purchaser shall promptly notify the Seller that a Transferred Employee has been given, or has given, notice of termination of employment with the Purchaser or has otherwise requested to discontinue Continuation Coverage ("Termination Notice"), provided, that the Purchaser shall be responsible for the cost of the Continuation Coverage for such Transferred Employee and his or her applicable dependents until the effective date of such termination of employment or election to discontinue Continuation Coverage, as applicable. From and after such date, any continuing obligation for the continuation coverage under COBRA for such Transferred Employee and any applicable dependents (including, but not limited to, premium costs) shall be the responsibility of the Seller and the Transferred Employee, as applicable. The Purchaser shall indemnify and hold harmless the Seller and its affiliates for any liabilities assessed against Seller with respect to (i) establish, amend, or modify any violation Benefit Plan or any “employee benefit plan” as defined in Section 3(3) of COBRA ERISA, or analogous state law which arises from any other benefit plan, program, agreement or arrangement maintained or sponsored by Purchasers, the Purchaser's failure to notify the Seller Company or any of a termination of employment or election to discontinue Continuation Coverage in accordance with this Section 5.14(g)their respective Affiliates; and (ii) alter or limit the ability of Purchasers or any violation of the Health Insurance Portability and Accountability of 1996their Subsidiaries (including, as amended, or other applicable law concerning the protection of the privacy of the Transferred Employees and their dependents, in any case, which arises through the process of billing the Purchaser with respect to Continuation Coverage pursuant to this Section 5.14(g). Effective January 1, 2008, the Purchaser shall make available to the Transferred Employees who remain employed by the Purchaser and its affiliates as of such date a group health plan or plans which are of the type (for the sake of clarity, as used herein, "type" refers to kind of benefits provided—e.g., medical, dental, flexible spending account, etc.—and not the level or structure of benefits provided) provided by the Seller pursuant to the Continuation Coverage.
(h) Nothing in this Agreement shall be construed as (i) prohibiting the Purchaser from terminating the employment of a Transferred Employee at any time and for any reason following the Closing Date, (ii) requiring the Purchaser to provide any particular employee benefit plan, (iii) prohibiting the Purchaser from amending or terminating any Purchaser Plan or (iv) creating any employee benefit plan.
(i) The Seller shall not engage in any action with respect to the Business Employees that would give rise to any obligation or liability under WARN without complying with all of the obligations of WARN. The Purchaser shall not engage in any action with respect to the Transferred Employees on or after the Closing Date that would give rise to any obligation or liability to the Seller under WARN. If any notice is required under WARN with respect to any "employment loss" or "mass layoff" (as those terms are defined by WARN) of any Business Employees that occurs on or before the Closing Date, the Seller shall be solely responsible and liable for providing such notice. If any notice is required under WARN with respect to any "employment loss" or "mass layoff" (as those terms are defined by WARN) of any Transferred Employees that occurs after the Closing Date, the Purchaser shall be solely responsible Company and liable its Subsidiaries) to amend, modify or terminate any Benefit Plan, employment agreement or any other benefit or employment plan, program, agreement or arrangement after the Closing Date; or (iii) confer upon any current or former employee, officer, partner, member, director or consultant, any right to employment or continued employment or continued service with Purchasers or any of their Subsidiaries (including, following the Closing Date, the Company and its Subsidiaries), preclude the ability of Purchasers or any of their Subsidiaries (including, following the Closing Date, the Company and its Subsidiaries) to terminate the employment or services of any employee, officer, partner, member, director or consultant for providing any reason, or constitute or create an employment agreement with any such noticeperson.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Lions Gate Entertainment Corp /Cn/)
Employee-Related Covenants. 9.2.1 The Purchaser agrees and undertakes that (without prejudice to the adjustment to the Purchase Price in respect of the Accrued Benefits Adjustment pursuant to Clause 3.1), it shall:
(a) As soon as practicablecredit each Transferring Employee with any accrued and unused vacation, the Purchaser shall make offers of employmentleave provision entitlement, to be effective sick and personal days accrued by such Transferring Employee as of the Closing Date, to each of the Business Employees listed on Schedule 5.14(a) (the "Offered Employees"), each such offer to include continuation of base salary or wages at an aggregate annual level no less favorable than that in effect as of the date hereof. Those Offered Employees who accept offers of employment with the Purchaser under this Section 5.14(a) and who commence employment with the Purchaser on the Closing Date shall be referred to herein as "Transferred Employees.";
(b) Except assume and pay or perform when due all liabilities related to leave encashment, accrued bonus, and accrued gratuity as provided in Section 5.14(g)they relate to the Transferring Employees;
(c) with respect to the Transferring Employees, as take on all other liabilities arising on account of the Employee Benefit Plans of the Purchaser that are brought into existence on or after the Closing Date;
(d) assume and pay or perform when due all Post-Closing Employee Liabilities.
9.2.2 On and from the Closing Date, the Transferred Employees shall be eligible to participate in employee benefit plans, programs, policies and arrangements if any Employee who is not a Transferring Employee is present at any of the Purchaser in which similarly situated employees of the Purchaser participate (such plansAcquired Facilities, programs, policies and arrangements, the "Purchaser Plans"). Each Transferred Employee shall be given credit for all purposes for such person's service with the Seller and its affiliates (or any other employer to the extent credited under such Benefit Plan) to the same extent recognized by the Seller under the Benefit Plans prior to the Closing Date for purposes of eligibility, vesting and entitlement to benefits under any analogous Purchaser Plans in which Transferred Employees participate following the Closing Date, except to the extent that giving such service credit would result in an accrual of defined benefit pension benefits. For purposes of clarifying the intent of the preceding sentence, as an example, a Transferred Employee who has been credited under a severance plan of the Seller with five years of service as of the Closing Date and who is terminated by the Purchaser one year following the Closing Date shall be credited with six years of service under the Purchaser's severance plan. To the extent applicable, the Purchaser shall, and shall cause its Affiliates and the Purchaser Plans to, (i) waive all limitations as to preexisting conditions, exclusions and waiting periods and service requirements with respect to participation and coverage requirements applicable to the Transferred Employees under any Purchaser Plan, other than limitations, waiting periods or service requirements that are already in effect with respect to such persons and that have not been satisfied as of the Closing under any Benefit Plan immediately prior to the Closing and (ii) provide each Transferred Employee with credit for any co-payments and deductibles paid prior to the Closing in satisfying any applicable deductible or out-of-pocket requirements under any analogous Purchaser Plan.
(c) On the Closing Date, then the Seller shall pay forthwith remove, in so far as it is within its powers to each Transferred Employee all accrued commissions and bonuses earned under do so, such Employees from the plans listed in Section 5.14(c) premises of the Disclosure Schedule from January 1, 2007 through the ClosingAcquired Facilities. All payments The Seller will be solely liable for any severance payment required to be made pursuant to this Section 5.14(c) shall be made as if (i) the relevant Transferred Employee remained employed with the Seller through the end of 2007, and (ii) all performance measures contained in each relevant plan were satisfied to the greatest extent possible. All payments required pursuant this Section 5.14(c) shall be prorated for the amount of time that the Transferred Employee was actually employed by the Seller during 2007. On the Closing Date, the Seller shall provide the Purchaser with a schedule of amounts paid to each Transferred Employee pursuant to this Section 5.14(c).
(d) The Seller shall be liable for the provision of notices and continuation coverage for each individual who is or becomes an "M&A Qualified Beneficiary" (as such term is defined in Treas. Reg. Section 54.4980B-9) Employees as a result of the consummation of the transactions contemplated by this Agreement.
(e) Effective as of the Closing Date, the Transferred Employees shall no longer actively participate in the Fremont General Corporation and Affiliated Companies Investment Incentive Plan, as amended (the "Seller's Savings Plan"). The Purchaser shall designate a tax-qualified defined contribution plan (such plan, the "Purchaser's Savings Plan") that either (i) provides for the receipt from Transferred Employees of "eligible rollover distributions" (as such term is defined under Section 402 of the Code) or (ii) shall be amended as soon as practicable following the Closing Date to provide for the receipt from the Transferred Employees of eligible rollover distributions. The Seller shall take all actions necessary to provide that the account balances of the Transferred Employees in the Seller's Savings Plan shall be fully vested as of the Closing Date. 9.2.3 As soon as practicable following the Closing Date, (x) the Purchaser shall provide the Seller with such documents and other information as the Seller shall reasonably request to assure itself that the Purchaser's Savings Plan is tax qualified and provides for the receipt of eligible rollover distributions, and (y) the Seller shall provide the Purchaser with such documents and other information as the Purchaser shall reasonably request to assure itself that the accounts of the Transferred Employees would be eligible rollover distributions. Each Transferred Employee who is a participant in the Seller's Savings Plan shall be given the opportunity to receive a distribution of his or her account balance and shall be given the opportunity to elect to "roll over" such account balance to the Purchaser's Savings Plan, subject to and in accordance with the provisions of such plan(s) and applicable law. The Sellers shall provide the Purchaser with copies of such personnel and other records pertaining to the Transferred Employees and such records of any agent or representative of the Seller pertaining to the Transferred Employees, in each case pertaining to the Seller's Savings Plan and as the Purchaser may reasonably request in order to administer and manage the accounts and assets rolled over to the Purchaser's Savings Plan.
(f) The Seller agrees that the Purchaser shall be permitted during normal business hours to have reasonable access to the Business Employees to discuss such Business Employee's possible employment with the Purchaser, provided that such discussions do not materially interfere with the Business Employee's performance of his or her duties with the Seller.
(g) From and after the Closing Date until January 1, 2008 (the "Continuation Period"), the Seller shall cause each of the Transferred Employees (and, to the extent applicable, the dependents of the Transferred Employees) to be covered pursuant to COBRA under all Benefit Plans which are subject to the requirements of COBRA (the "Continuation Coverage"). As between the Purchaser and the Seller, 100% Seller will in good faith agree upon a reputable firm of the cost of the Continuation Coverage (for the sake of clarity, such cost shall include, without limitation, administrative costs for which the Seller shall be permitted to require payment of amounts actuaries in excess of 100% of applicable premiums in accordance with Treas. Reg. Section 54.4980B-8) shall be borne by the Purchaser, India and will be billed cause such firm to the Purchaser on a monthly basis. In order to ensure a smooth transition to the Continuation Coverage for each Transferred Employee and their applicable dependentsdetermine, each such Transferred Employee and each applicable dependent will be deemed to have made the election generally described in Treas. Reg. Section 54.4980B-6, with the understanding that in order to actually be provided Continuation Coverage, each Transferred Employee shall be responsible for electing and enrolling for such coverage with the Seller. The Purchaser agrees that during the Continuation Period it shall not require a Transferred Employee or a dependent thereof to remit to the Purchaser (whether by means of direct payment, payroll deduction or otherwise) in respect of the Continuation Coverage an amount greater than such Transferred Employee or dependent thereof is required to remit with respect to such benefits as an active participant in the relevant Benefit Plan effective as of the date immediately prior to the Closing Date. During the Continuation Period, the Purchaser shall promptly notify the Seller that a Transferred Employee has been given, or has given, notice of termination of employment with the Purchaser or has otherwise requested to discontinue Continuation Coverage ("Termination Notice"), provided, that the Purchaser shall be responsible for the cost of the Continuation Coverage for such Transferred Employee and his or her applicable dependents until the effective date of such termination of employment or election to discontinue Continuation Coverage, as applicable. From and after such date, any continuing obligation for the continuation coverage under COBRA for such Transferred Employee and any applicable dependents (including, but not limited to, premium costs) shall be the responsibility of the Seller and the Transferred Employee, as applicable. The Purchaser shall indemnify and hold harmless the Seller and its affiliates for any liabilities assessed against Seller with respect to (i) any violation of COBRA or analogous state law which arises from the Purchaser's failure to notify the Seller of a termination of employment or election to discontinue Continuation Coverage in accordance with this Section 5.14(g); and (ii) any violation of the Health Insurance Portability and Accountability of 1996, as amended, or other applicable law concerning the protection of the privacy of the Transferred Employees and their dependents, in any case, which arises through the process of billing the Purchaser with respect to Continuation Coverage pursuant to this Section 5.14(g). Effective January 1, 2008, the Purchaser shall make available to the Transferred Employees who remain employed by the Purchaser and its affiliates as of such date a group health plan or plans which are of the type (for the sake of clarity, as used herein, "type" refers to kind of benefits provided—e.g., medical, dental, flexible spending account, etc.—and not the level or structure of benefits provided) provided by the Seller pursuant to the Continuation Coverage.
(h) Nothing in this Agreement shall be construed as (i) prohibiting the Purchaser from terminating the employment of a Transferred Employee at any time and for any reason following the Closing Date, (ii) requiring the Purchaser to provide any particular employee benefit plan, (iii) prohibiting the Purchaser from amending or terminating any Purchaser Plan or (iv) creating any employee benefit plan.
(i) The Seller shall not engage in any action with respect to the Business Employees that would give rise to any obligation or liability under WARN without complying with all of the obligations of WARN. The Purchaser shall not engage in any action with respect to the Transferred Employees on or after the Closing Date that would give rise to any obligation or liability to the Seller under WARN. If any notice is required under WARN with respect to any "employment loss" or "mass layoff" (as those terms are defined by WARN) of any Business Employees that occurs on or before the Closing Date, the value of the gratuity, leave travel assistance and leave encashment benefits of the Transferring Employees as of the Closing Date (the “Accrued Benefits Adjustment”) determined as if the Transferring Employees terminated employment with the Seller shall as of the Closing Date.
9.2.4 Effective as of the Closing Date, the Transferring Employees will no longer participate in the Seller’s “Officers Superannuation Fund of Bilt Chemicals Limited” (the “Superannuation Scheme”), and the Seller will have taken all such action prior to the Closing Date as may be solely responsible and liable for providing such noticerequired to achieve this result. If any notice is required under WARN with respect to any "employment loss" or "mass layoff" (Effective as those terms are defined by WARN) of any Transferred Employees that occurs after the Closing Date, the Purchaser will establish a replacement defined benefit pension plan (the “New Superannuation Scheme”), and a related trust, for the benefit of the Transferring Employees who were members of the Superannuation Scheme immediately prior to Closing, the terms of which plan and trust will be substantially identical to the terms of the Superannuation Scheme. The Purchaser will recognize the service of the Transferring Employees with the Seller prior to the Closing Date for all purposes under the New Superannuation Scheme.
9.2.5 As soon as practicable following the date of this Agreement, the Seller will cause its actuaries to determine, effective as of the Closing Date, the credit balance of each Transferring Employee in the Superannuation Scheme (the aggregate amount thereof being the “Transferring Scheme Corpus”) equal to the present value of benefits accrued to the Closing Date for all Transferring Employees , determined as if the Transferring Employees terminated employment with the Seller as of the Closing Date and with regard to only those benefits to which the Transferring Employees would be eligible based on their age and service as of the Closing Date. The Seller will promptly following determination of the Transferring Scheme Corpus take such steps as are required to cause the Transferring Scheme Corpus to be transferred to the New Superannuation Scheme.
9.2.6 This Clause 9.2 shall be solely responsible operate exclusively for the benefit of the Parties to this Agreement and liable not for providing such noticethe benefit of any other Person, including the Employees or any other employee, consultant, former employee or independent contractor or other Person who performs or performed services to the Seller.
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Employee-Related Covenants. (a) As soon as practicable, the Purchaser shall make offers of employment, to be effective as of the Closing Date, to each of the Business Employees listed on Schedule 5.14(a) (the "“Offered Employees"”), each such offer to include continuation of base salary or wages at an aggregate annual level no less favorable than that in effect as of the date hereof. Those Offered Employees who accept offers of employment with the Purchaser under this Section 5.14(a) and who commence employment with the Purchaser on the Closing Date shall be referred to herein as "“Transferred Employees."”
(b) Except as provided in Section 5.14(g), as of the Closing Date, the Transferred Employees shall be eligible to participate in employee benefit plans, programs, policies and arrangements of the Purchaser in which similarly situated employees of the Purchaser participate (such plans, programs, policies and arrangements, the "“Purchaser Plans"”). Each Transferred Employee shall be given credit for all purposes for such person's ’s service with the Seller and its affiliates (or any other employer to the extent credited under such Benefit Plan) to the same extent recognized by the Seller under the Benefit Plans prior to the Closing Date for purposes of eligibility, vesting and entitlement to benefits under any analogous Purchaser Plans in which Transferred Employees participate following the Closing Date, except to the extent that giving such service credit would result in an accrual of defined benefit pension benefits. For purposes of clarifying the intent of the preceding sentence, as an example, a Transferred Employee who has been credited under a severance plan of the Seller with five years of service as of the Closing Date and who is terminated by the Purchaser one year following the Closing Date shall be credited with six years of service under the Purchaser's ’s severance plan. To the extent applicable, the Purchaser shall, and shall cause its Affiliates and the Purchaser Plans to, (i) waive all limitations as to preexisting conditions, exclusions and waiting periods and service requirements with respect to participation and coverage requirements applicable to the Transferred Employees under any Purchaser Plan, other than limitations, waiting periods or service requirements that are already in effect with respect to such persons and that have not been satisfied as of the Closing under any Benefit Plan immediately prior to the Closing and (ii) provide each Transferred Employee with credit for any co-payments and deductibles paid prior to the Closing in satisfying any applicable deductible or out-of-pocket requirements under any analogous Purchaser Plan.
(c) On the Closing Date, the Seller shall pay to each Transferred Employee all accrued commissions and bonuses earned under the plans listed in Section 5.14(c) of the Disclosure Schedule from January 1, 2007 through the Closing. All payments required to be made pursuant to this Section 5.14(c) shall be made as if (i) the relevant Transferred Employee remained employed with the Seller through the end of 2007, and (ii) all performance measures contained in each relevant plan were satisfied to the greatest extent possible. All payments required pursuant this Section 5.14(c) shall be prorated for the amount of time that the Transferred Employee was actually employed by the Seller during 2007. On the Closing Date, the Seller shall provide the Purchaser with a schedule of amounts paid to each Transferred Employee pursuant to this Section 5.14(c).
(d) The Seller shall be liable for the provision of notices and continuation coverage for each individual who is or becomes an "“M&A Qualified Beneficiary" ” (as such term is defined in Treas. Reg. Section 54.4980B-9) as a result of the consummation of the transactions contemplated by this Agreement.
(e) Effective as of the Closing Date, the Transferred Employees shall no longer actively participate in the Fremont General Corporation and Affiliated Companies Investment Incentive Plan, as amended (the "“Seller's ’s Savings Plan"”). The Purchaser shall designate a tax-qualified defined contribution plan (such plan, the "“Purchaser's ’s Savings Plan"”) that either (i) provides for the receipt from Transferred Employees of "“eligible rollover distributions" ” (as such term is defined under Section 402 of the Code) or (ii) shall be amended as soon as practicable following the Closing Date to provide for the receipt from the Transferred Employees of eligible rollover distributions. The Seller shall take all actions necessary to provide that the account balances of the Transferred Employees in the Seller's ’s Savings Plan shall be fully vested as of the Closing Date. As soon as practicable following the Closing Date, (x) the Purchaser shall provide the Seller with such documents and other information as the Seller shall reasonably request to assure itself that the Purchaser's ’s Savings Plan is tax qualified and provides for the receipt of eligible rollover distributions, and (y) the Seller shall provide the Purchaser with such documents and other information as the Purchaser shall reasonably request to assure itself that the accounts of the Transferred Employees would be eligible rollover distributions. Each Transferred Employee who is a participant in the Seller's ’s Savings Plan shall be given the opportunity to receive a distribution of his or her account balance and shall be given the opportunity to elect to "“roll over" ” such account balance to the Purchaser's ’s Savings Plan, subject to and in accordance with the provisions of such plan(s) and applicable law. The Sellers shall provide the Purchaser with copies of such personnel and other records pertaining to the Transferred Employees and such records of any agent or representative of the Seller pertaining to the Transferred Employees, in each case pertaining to the Seller's ’s Savings Plan and as the Purchaser may reasonably request in order to administer and manage the accounts and assets rolled over to the Purchaser's ’s Savings Plan.
(f) The Seller agrees that the Purchaser shall be permitted during normal business hours to have reasonable access to the Business Employees to discuss such Business Employee's ’s possible employment with the Purchaser, provided that such discussions do not materially interfere with the Business Employee's ’s performance of his or her duties with the Seller.
(g) From and after the Closing Date until January 1, 2008 (the "“Continuation Period"”), the Seller shall cause each of the Transferred Employees (and, to the extent applicable, the dependents of the Transferred Employees) to be covered pursuant to COBRA under all Benefit Plans which are subject to the requirements of COBRA (the "“Continuation Coverage"”). As between the Purchaser and the Seller, 100% of the cost of the Continuation Coverage (for the sake of clarity, such cost shall include, without limitation, administrative costs for which the Seller shall be permitted to require payment of amounts in excess of 100% of applicable premiums in accordance with Treas. Reg. Section 54.4980B-8) shall be borne by the Purchaser, and will be billed to the Purchaser on a monthly basis. In order to ensure a smooth transition to the Continuation Coverage for each Transferred Employee and their applicable dependents, each such Transferred Employee and each applicable dependent will be deemed to have made the election generally described in Treas. Reg. Section 54.4980B-6, with the understanding that in order to actually be provided Continuation Coverage, each Transferred Employee shall be responsible for electing and enrolling for such coverage with the Seller. The Purchaser agrees that during the Continuation Period it shall not require a Transferred Employee or a dependent thereof to remit to the Purchaser (whether by means of direct payment, payroll deduction or otherwise) in respect of the Continuation Coverage an amount greater than such Transferred Employee or dependent thereof is required to remit with respect to such benefits as an active participant in the relevant Benefit Plan as of the date immediately prior to the Closing Date. During the Continuation Period, the Purchaser shall promptly notify the Seller that a Transferred Employee has been given, or has given, notice of termination of employment with the Purchaser or has otherwise requested to discontinue Continuation Coverage ("“Termination Notice"”), provided, that the Purchaser shall be responsible for the cost of the Continuation Coverage for such Transferred Employee and his or her applicable dependents until the effective date of such termination of employment or election to discontinue Continuation Coverage, as applicable. From and after such date, any continuing obligation for the continuation coverage under COBRA for such Transferred Employee and any applicable dependents (including, but not limited to, premium costs) shall be the responsibility of the Seller and the Transferred Employee, as applicable. The Purchaser shall indemnify and hold harmless the Seller and its affiliates for any liabilities assessed against Seller with respect to (i) any violation of COBRA or analogous state law which arises from the Purchaser's ’s failure to notify the Seller of a termination of employment or election to discontinue Continuation Coverage in accordance with this Section 5.14(g); and (ii) any violation of the Health Insurance Portability and Accountability of 1996, as amended, or other applicable law concerning the protection of the privacy of the Transferred Employees and their dependents, in any case, which arises through the process of billing the Purchaser with respect to Continuation Coverage pursuant to this Section 5.14(g). Effective January 1, 2008, the Purchaser shall make available to the Transferred Employees who remain employed by the Purchaser and its affiliates as of such date a group health plan or plans which are of the type (for the sake of clarity, as used herein, "“type" ” refers to kind of benefits provided—e.g., medical, dental, flexible spending account, etc.—and not the level or structure of benefits provided) provided by the Seller pursuant to the Continuation Coverage.
(h) Nothing in this Agreement shall be construed as (i) prohibiting the Purchaser from terminating the employment of a Transferred Employee at any time and for any reason following the Closing Date, (ii) requiring the Purchaser to provide any particular employee benefit plan, (iii) prohibiting the Purchaser from amending or terminating any Purchaser Plan or (iv) creating any employee benefit plan.
(i) The Seller shall not engage in any action with respect to the Business Employees that would give rise to any obligation or liability under WARN without complying with all of the obligations of WARN. The Purchaser shall not engage in any action with respect to the Transferred Employees on or after the Closing Date that would give rise to any obligation or liability to the Seller under WARN. If any notice is required under WARN with respect to any "“employment loss" ” or "“mass layoff" ” (as those terms are defined by WARN) of any Business Employees that occurs on or before the Closing Date, the Seller shall be solely responsible and liable for providing such notice. If any notice is required under WARN with respect to any "“employment loss" ” or "“mass layoff" ” (as those terms are defined by WARN) of any Transferred Employees that occurs after the Closing Date, the Purchaser shall be solely responsible and liable for providing such notice.
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