Employees and Contractors. (a) The Company shall cooperate and work with Acquiror to help Acquiror identify key employees of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee of the Company who receives a new offer of employment from Acquiror or an Affiliate of Acquiror, the Company shall assist Acquiror or such Affiliate of Acquiror, as applicable, with its efforts to enter into an Offer Letter with such employee as soon as practicable after the Agreement Date and in any event prior to the Closing Date, provided that the Company is not obligated to make any payments to employees in furtherance of obtaining their signatures. (b) As of the Closing, Acquiror or its Subsidiaries shall make available to employees of the Company and the Company Subsidiaries who are based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting (other than with respect to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years of service prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employee. (c) The provisions of this Section 5.10 are solely for the benefit of the parties hereto and nothing in this Section 5.10, express or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or 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 5.10, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company or any of their respective Affiliates from terminating any employee of the Company or terminating or modifying to any extent or in any respect any employee benefit plan that Acquiror, the Company or any of their respective Affiliates may establish or maintain.
Appears in 1 contract
Employees and Contractors. (a) The Prior to the Closing, the Company shall cooperate with Parent and work with Acquiror assist Parent in its reasonable efforts to help Acquiror identify key (i) obtain written consents, waivers or other agreements from the employees of the Company and each the Subsidiaries with respect to the amendment or termination of any Company Subsidiary Employee Plans or the adoption of new arrangements with such employees reasonably required to be amended, terminated or adopted in connection with this Agreement or the treatment of Company PSUs as contemplated hereby and (ii) identify employees and/or contractors of the Company and the Subsidiaries to whom Acquiror will seek Parent may elect to enter into new offer continued employment arrangements (including amended employment agreements or new service with Parent, the Surviving Corporation or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquirorsuch Subsidiaries. With respect to any such employee of the Company or any Subsidiary who receives a new an offer of employment from Acquiror Parent or an Affiliate of Acquirorthe Surviving Corporation, the Company shall reasonably assist Acquiror or such Affiliate of Acquiror, as applicable, Parent with its efforts to enter into an the Employment Offer Letter Documents with such employee as soon as practicable after the Agreement Date receipt of such offer and in any event prior to the Closing Date, provided that but with effectiveness expressly conditioned upon the Closing. Notwithstanding anything in this Section 6.8 to the contrary, none of Parent and its Affiliates (including the Surviving Corporation following the Merger) shall have any obligation to make an offer of employment or service to any employee or contractor of the Company is not obligated or any Subsidiary. With respect to make matters described in this Section 6.8, the Company shall consult with Parent and at least two Business Days prior to distribution, shall provide Parent with copies of any payments notices or other communications materials intended to be distributed to employees in furtherance of obtaining their signatures.
(b) As of the Closing, Acquiror or Company and its Subsidiaries and shall make available consider in good faith the reasonable advice and comment of Parent prior to sending any notices or other communication materials to employees of the Company and the Company Subsidiaries who are based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting (other than with respect to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years of service prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employee.
(c) The provisions of this Section 5.10 are solely for the benefit of the parties hereto and nothing in this Section 5.10, express or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or 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 5.10, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company or any of their respective Affiliates from terminating any employee of the Company or terminating or modifying to any extent or in any respect any employee benefit plan that Acquiror, the Company or any of their respective Affiliates may establish or maintain.
Appears in 1 contract
Samples: Merger Agreement (Meru Networks Inc)
Employees and Contractors. (a) Following the Closing, Purchaser shall provide certain Continuing Employees with the right to participate in a pool of retention equity awards to be valued (pursuant to Purchaser’s standard methodology for valuing equity awards) at $20,000,000 in the aggregate (the “Employee Retention Pool”), based on the Purchaser Stock Price. The Company Employee Retention Pool shall cooperate be allocated in the sole discretion of Purchaser following consultation with the Seller Agent.
(b) For a period of 12 months from the Closing, and work with Acquiror in each case to help Acquiror identify key the extent required by Applicable Law, Purchaser shall provide or cause to be provided to each Continuing Employee (i) an annual base salary (or wage level, as applicable) no less favorable than that provided by the Purchaser to similarly situated employees of the Company Purchaser and each Company Subsidiary (ii) the opportunity to whom Acquiror will seek participate in Purchaser’s benefit plans, with benefits that in the aggregate are commensurate with the benefits provided to enter into new employment arrangements similarly situated employees of Purchaser. To the extent permitted by the applicable Purchaser health and welfare benefit plans (including amended employment agreements or new or amended offer letters) without any modifications thereto), Purchaser shall use commercially reasonable efforts to waive all limitations as to pre-existing conditions, exclusions and waiting periods with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any participation and coverage requirements applicable to the Continuing Employees, to the extent that such employee of the conditions, exclusions and waiting periods would not apply under a similar Company who receives a new offer of employment from Acquiror or an Affiliate of Acquiror, the Company shall assist Acquiror or Employee Plan in which such Affiliate of Acquiror, as applicable, with its efforts to enter into an Offer Letter with such employee as soon as practicable after the Agreement Date and in any event employees participated prior to the Closing Date. To the extent permitted by the applicable Purchaser health and welfare benefit plans (without any modifications thereto), provided that Purchaser shall use commercially reasonable efforts to provide all Continuing Employees with credit for all service with the Company is not obligated performed at any time prior to make any payments to employees in furtherance of obtaining their signatures.
(b) As of the Closing, Acquiror or its Subsidiaries shall make available to employees of the Company and the Company Subsidiaries who are based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s under all employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect and arrangements and employment policies maintained by Purchaser in which they become participants to the calculation of any severance or redundancy payments in extent such service was taken into account under the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting (other than with respect to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years of service analogous Company Employee Plan immediately prior to the Closing Date credited for Date; provided that no such purposes under corresponding Company Employee Plans, provided such credit does not prior service shall be taken into account to the extent that it would result in the duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue benefits to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employee.
(c) The provisions of this Section 5.10 are solely for Sellers shall cause the benefit Company to give all notices and other information required to be given to the employees of the parties hereto Company and nothing in this Section 5.10, express or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or legal representative or beneficiary thereofthe Company Subsidiaries, any rights or remedies, including collective bargaining unit representing any right to employment or continued employment for any specified period, or compensation or benefits group of any nature or kind whatsoever under this Agreement. Nothing in this Section 5.10, express or implied, shall be (i) deemed an amendment employees of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company or any of their respective Affiliates from terminating any employee of the Company or terminating or modifying to Subsidiaries, and any extent or in any respect any employee benefit plan that Acquirorapplicable government authority under the WARN Act, the Company or National Labor Relations Act, as amended, the Code, COBRA and any of their respective Affiliates may establish or maintainother Applicable Law in connection with the Transactions.
Appears in 1 contract
Employees and Contractors. (a) The Company shall cooperate and work with Acquiror to help Acquiror identify key employees of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee of the Company who receives a new offer of employment from Acquiror or an Affiliate of Acquiror, the Company shall assist Acquiror or such Affiliate of Acquiror, as applicable, with its efforts to enter into an Offer Letter with such employee as As soon as reasonably practicable after the Agreement Date and in any event prior to the Closing DateEffective Time, provided Parent shall ensure that the Company Continuing Employees shall receive retirement, health and welfare benefits that in the aggregate for each such employee are no less favorable than those provided to a similarly situated employee of Parent or its Affiliates who is not obligated to make any payments to employees in furtherance of obtaining their signaturesa Continuing Employee taking into account the employee’s geographic location.
(b) As Except to the extent necessary to avoid the duplication of benefits, Parent shall, and shall cause the ClosingSurviving Corporation and its other Affiliates to, Acquiror recognize the service of each Continuing Employee with the Company or its Subsidiaries shall make available Affiliates before the Effective Time (to employees of the same extent recognized by the Company and the Company Subsidiaries who are based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, immediately prior to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, ) as if such service had been performed with Parent or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit its Affiliates for all Company’s accrued benefits other than accrual of benefits purposes under defined benefit the vacation, paid time off and severance plans (e.g., accrued vacation days, years of service accrued with respect to maintained by Parent or its Affiliates after the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) Effective Time and for purposes of eligibility eligibility, vesting, level of benefit and benefit accrual (but not for purposes of benefit accrual under a defined benefit pension plan) under all other employee benefit plans or arrangements maintained by Parent or its Affiliates that such employees may be eligible to participate and vesting (other than with respect to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years of service prior to in after the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing EmployeeEffective Time.
(c) The provisions With respect to any welfare plan maintained by Parent or its Affiliates in which Continuing Employees are eligible to participate after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its other Affiliates to, to the extent permitted by the relevant welfare plan and consistent with such plans’ application to similarly situated employees of this Parent or its Affiliates who are not Continuing Employees, waive all limitations as to waiting periods, actively-at-work requirements, evidence or insurability requirements, preexisting condition limitations and other exclusions with respect to participation and coverage requirements applicable to such employees (and their spouses, domestic partners and dependents) to the extent such conditions and exclusions were satisfied or did not apply under the welfare plans maintained by the Company or its Affiliates prior to the Effective Time.
(d) This Section 5.10 are shall be binding upon and inure solely for to the benefit of each party hereto (meaning, for the parties hereto avoidance of doubt, Parent, Sub and the Company), and nothing in this Section 5.10Agreement, express or implied, is intended to or shall confer upon any employee other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Section 5.10. In no event shall the terms of this Agreement be deemed to (including any U.S. Continuing Employee or Non-U.S. Continuing Employee)i) establish, amend, or legal representative modify any Company Benefit Plan or beneficiary thereofany other benefit plan, program, agreement or arrangement maintained or sponsored by Parent, the Company or any rights Subsidiary of the Company or remediesany of their respective Affiliates, including (ii) alter or limit the ability of Parent or any of its subsidiaries (including, after the Effective Time, the Surviving Corporation or any Subsidiary of the Surviving Corporation) to amend, modify or terminate any of the Company Employee Plans or any other benefit or employment plan, program, agreement or arrangement after the Effective Time or (iii) confer upon any current or former employee or other service provider of the Company or the Subsidiaries, 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 5.10, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company continued service with Parent or any of its subsidiaries (including, following the Effective Time, the Surviving Corporation or any Subsidiary of the Surviving Corporation), or constitute or create an employment or agreement with, or modify the at-will status of any, employee or other service.
(e) Parent shall, or shall cause the Surviving Corporation and its other Affiliates to (x), assume and honor the obligations of the Company and the Subsidiaries under the Company’s Executive Change in Control and Severance Benefits Agreements and any other consulting, retirement and other compensation contracts, arrangements, commitments or understandings providing for the payment of severance, in accordance with their respective Affiliates from terminating terms, subject to the right to make amendments or modifications to the extent permitted by such terms and subject to any employee applicable Employment Offer Documents and (y) honor all provisions with respect to vesting, accelerated vesting and/or payment of any Unvested Company Options, Unvested Company RSUs or Unvested Company PSUs following the Merger and cause all such provisions to apply to payment of the Unvested Cash (Options/RSUs) and Unvested Cash (PSUs) to the same extent as if the applicable Unvested Company Options, Unvested Company RSUs or Unvested Company PSUs had been assumed by Parent hereunder, subject to the right to make amendments or modifications to the extent permitted by the terms thereof and subject to any applicable Employment Offer Documents.
(f) The Compensation Committee of the Company Board has finally and conclusively determined that the annual cash incentive awards under the 2017 Annual Bonus Plans for Executives, Officers and other Company employees, as applicable, relating to the 2017 calendar year shall be paid to those participants in the plan who remain employees of the Company or terminating or modifying a Subsidiary on the earlier of (i) February 28, 2018 and (ii) immediately prior to any extent or Closing (the “Bonus Payment Date”) in any respect any employee benefit plan that Acquiror, the amount set forth on Schedule 5.10(f) of the Company or any of their respective Affiliates may establish or maintainDisclosure Letter, and such bonuses shall be paid on the Bonus Payment Date.
Appears in 1 contract
Samples: Merger Agreement (Broadsoft, Inc.)
Employees and Contractors. (a) The Company shall cooperate and work with Acquiror to help Acquiror identify key employees of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee of the Company or its Subsidiaries who receives a new an offer of employment from Acquiror Acquirer or an Affiliate of Acquirorthe Surviving Corporation, the Company shall reasonably assist Acquiror or such Affiliate of Acquiror, as applicable, Acquirer with its efforts to enter into an Offer Letter Employment Documents with such employee as soon as practicable after the Agreement Date date hereof and in any event prior to the Closing Date. Notwithstanding any of the foregoing, provided that neither Acquirer nor Merger Sub (including the Surviving Corporation) shall have any obligation to make an offer of employment to any employee of the Company is (other than the Employment Documents previously extended to and executed by the Key Employees on the Agreement Date). With respect to matters described in this Section 5.9, the Company will not, and shall cause each of its Subsidiaries not obligated to, send any notices or other communication materials to make any payments of their respective employees that may adversely affect Acquirer’s attempt to hire or retain such employees in furtherance of obtaining their signatureswithout Acquirer’s prior written consent.
(b) As of promptly as reasonably practicable after the ClosingEffective Time, Acquiror Acquirer shall, or its Subsidiaries shall make available to cause the Surviving Corporation to, enroll the employees of the Company and who continue as employees of Acquirer or the Company Subsidiaries Surviving Corporation (each a “Continuing Employee”) in Acquirer’s employee benefit plans for which such employees are eligible (the “Acquirer Benefit Plans”), on substantially similar terms applicable to employees of Acquirer who are based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees , to the extent permitted by the terms of Acquiror or its Subsidiariesthe applicable Acquirer Benefit Plans. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programsAcquirer shall, or policies (shall cause the “Acquiror Surviving Corporation to, recognize the prior service with the Company of each of the Continuing Employees for purposes of initial eligibility only, under the Acquirer Benefit Plans”); provided,, howeverto the extent permitted by the terms of, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation the applicable Acquirer Benefit Plans. To the extent Acquirer is permitted by Law and the terms of coverage for any healththe applicable Acquirer Benefit Plan, dentalAcquirer shall, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such healthshall cause the Surviving Corporation to, dentalwaive all limitations as to preexisting conditions, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued exclusions and waiting periods with respect to the calculation of participation and coverage requirements applicable to such Continuing Employees under any severance or redundancy payments Acquirer Benefit Plan that is a welfare benefit plan in the event of termination of which such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility Employees may be eligible to participate and vesting (after the Closing Date, other than limitations or waiting periods that are already in effect with respect to equity such Continuing Employees and equity-based awards and incentive compensation) that have not been satisfied as of the Closing Date under Acquiror Benefit Plans any welfare benefit plan maintained for years of service such employees immediately prior to the Closing Date credited Date. Notwithstanding anything herein to the contrary, this Section 5.9(b) shall not operate to (a) duplicate any benefit provided to any Continuing Employee or to fund any such benefit, (b) require Acquirer or its subsidiaries or affiliates or any Acquirer Benefit Plan or trust related thereto to pay for such purposes under corresponding Company Employee any benefits that relate to any time period prior to the Continuing Employees’ participation in the Acquirer Benefit Plans, provided such credit does not result (c) require Acquirer to continue to maintain any employee benefit plan in duplication of benefits. Employees effect following the Effective Time for Acquirer’s employees, including the Continuing Employees, or (d) be construed to mean the employment of the Company and the Company Subsidiaries who are Continuing Employees is not based in the United States and remain employed terminable by Acquiror Acquirer at will at any time, with or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Datewithout cause, unless agreed upon otherwise by for any such Non-U.S. Continuing Employeereason or no reason.
(c) The provisions of this Section 5.10 are solely for Company shall use commercially reasonable efforts to retain each Person specified on Schedule 5.9(c) (the benefit of the parties hereto “Specified Contractors”) and nothing in this Section 5.10, express or implied, shall confer upon any employee to cause such Specified Contractors to enter into a contractor agreement with Acquirer (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or 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 5.10, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (iidesignee) construed prior to prevent Acquirorthe Closing. Unless otherwise agreed in writing by Acquirer, the Company shall cause the relationships of each consultant or any of their respective Affiliates from terminating any employee of independent contractor with the Company and each Subsidiary who are not Specified Contractors to be terminated at or terminating or modifying prior to any extent or the Closing and Company Options held by such Persons to be terminated in any respect any employee benefit plan that Acquiror, accordance with their terms at the Company or any time of their respective Affiliates may establish or maintainsuch termination.
Appears in 1 contract
Employees and Contractors. (a) The Company Parent shall cooperate and work with Acquiror to help Acquiror identify key employees ensure that the Continuing Employees shall receive the benefits set forth in Schedule 5.10(a) of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate Disclosure Letter for the period of Acquiror. With respect to any such employee of the Company who receives a new offer of employment from Acquiror or an Affiliate of Acquiror, the Company shall assist Acquiror or such Affiliate of Acquiror, as applicable, with its efforts to enter into an Offer Letter with such employee as soon as practicable after the Agreement Date and in any event prior to the Closing Date, provided that the Company is not obligated to make any payments to employees in furtherance of obtaining their signaturestime described therein.
(b) As Except to the extent necessary to avoid the duplication of benefits, Parent shall, and shall cause the Closing, Acquiror Surviving Corporation and its other Affiliates to recognize the service of each Continuing Employee with the Company or its Subsidiaries shall make available Affiliates before the Effective Time (to employees of the same extent recognized by the Company and or its Affiliates immediately prior to the Company Subsidiaries who are based in Effective Time) as if such service had been performed with Parent or its Affiliates under the United States and remain employed by Acquiror terms of plans of Parent or one any of its Affiliates following Affiliates. For the Closing Date (“U.S. Continuing Employees”avoidance of doubt, the recognition of service under this Section 5.10(b) shall apply to eligibility and vesting and level of benefit and benefit accrual under all employee health and welfare benefits that are substantially comparable, in benefit plans or arrangements maintained by the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror Parent or its Subsidiaries. As promptly as practicable following Affiliates (including vacation and severance plans) that such employees may be eligible to participate in after the Effective Time, Acquiror but shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and apply for purposes of eligibility to participate and vesting (other than with respect to equity and equity-based awards and incentive compensation) benefit accrual under Acquiror Benefit Plans for years of service prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employeea defined benefit plan.
(c) The With respect to any welfare plan maintained by Parent or its Affiliates in which Continuing Employees are eligible to participate after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its other Affiliates, to the extent permitted by the relevant welfare plan, and consistent with such plans’ application to similarly situated employees of Parent or its Affiliates who are not Continuing Employees, to waive all limitations as to waiting periods, actively-at-work requirements, evidence of insurability requirements, preexisting conditions and other exclusions with respect to participation and coverage requirements applicable to such employees (and their spouses, domestic partners and dependents) to the extent such conditions and exclusions were satisfied or did not apply to such employees (or their spouses, domestic partners or dependents) under the welfare plans maintained by the Company or its Affiliates prior to the Effective Time.
(d) Notwithstanding anything to the contrary in the foregoing provisions of this Section 5.10, the provisions of Section 5.10 shall apply only with respect to Continuing Employees (and their dependents and beneficiaries) who are solely covered under Company Employee Plans that are maintained primarily for the benefit of employees employed in the parties United States (including Continuing Employees regularly employed outside the United States to the extent they participate in such Company Employee Plans). With respect to Continuing Employees not described in the preceding sentence, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, comply with all applicable Laws, directives and regulations relating to employees and employee benefits matters applicable to such employees.
(e) This Section 5.10 shall be binding upon and inure solely to the benefit of each party hereto (meaning, for the avoidance of doubt, Parent, Sub and the Company), and nothing in this Section 5.10Agreement, express or implied, is intended to or shall confer upon any employee other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Section 5.10. In no event shall the terms of this Agreement be deemed to (including any U.S. Continuing Employee or Non-U.S. Continuing Employee)i) establish, amend, or legal representative modify any Company Benefit Plan or beneficiary thereofany other benefit plan, program, agreement or arrangement maintained or sponsored by Parent, the Company or any rights Subsidiary or remediesany of their respective Affiliates, including (ii) alter or limit the ability of Parent or any of its subsidiaries (including, after the Effective Time, the Surviving Corporation or any Subsidiary of the Surviving Corporation) to amend, modify or terminate any of the Company Employee Plans or any other benefit or employment plan, program, agreement or arrangement after the Effective Time or (iii) confer upon any current or former employee or other service provider of the Company or Subsidiaries, any right to employment or continued employment for or continued service with Parent or any specified periodof its subsidiaries (including, following the Effective Time, the Surviving Corporation or any Subsidiary of the Surviving Corporation), or compensation constitute or benefits create an employment or agreement with, or modify the at-will status of any nature any, employee or kind whatsoever under this Agreement. Nothing in this Section 5.10other service provider.
(f) Parent shall, express or impliedshall cause the Surviving Corporation and its other Affiliates to, shall be (i) deemed an amendment assume and honor the obligations of the Company and the Subsidiaries under the CIC Plan and any other contracts, providing for the payment of severance set forth on Schedule 2.12(j) or Schedule 2.17(a)(vii) of the Company Disclosure Letter, in accordance with their terms, and (ii) honor all provisions with respect to vesting, accelerated vesting under the CIC Plan and any retention agreement set forth on Schedule 1.8(a) of the Company Disclosure Letter and/or payment of any Unvested Company Options, Unvested Company RSUs or Unvested Company PSUs following the Merger and cause all such provisions to apply to payment of the Unvested Cash (Options/RSUs) and Unvested Cash (PSUs) to the same extent as if the applicable Unvested Company Options, Unvested Company RSUs or Unvested Company PSUs had been assumed by Parent hereunder, subject in each case to the right to make amendments or modifications to the extent permitted by such terms and subject to any applicable Employment Offer Documents.
(g) During the period from the Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company will not (i) sponsor or maintain any new Company Employee Plan or any employee new benefit plan maintained by Acquiror or its Affiliatesunder existing Company Employee Plans which is not in effect as of the Agreement Date except for non-material changes made in the Ordinary Course of Business to ERISA-covered health and welfare plans as part of an annual renewal process, or (ii) construed to prevent Acquiror, increase its matching contribution formula under the Company 401(k) Plan or any (iii) increase its percentage of their respective Affiliates from terminating any employee employer cost sharing contribution to Company Employee Plans in excess of the Company or terminating or modifying percentage of cost sharing in effect as of the Agreement Date except for non-material changes to copays and deductibles (but not premiums) for any extent or in any respect any employee benefit ERISA-covered health plan that Acquiror, the Company or any as part of their respective Affiliates may establish or maintainan annual renewal process.
Appears in 1 contract
Employees and Contractors. (a) The Company shall cooperate and work with Acquiror to help Acquiror identify key employees of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee of the Company who receives a new offer of employment from Acquiror or an Affiliate of AcquirorOffered Employees, the Company shall use commercially reasonable efforts to assist Acquiror or such Affiliate of Acquiror, as applicable, Acquirer with its efforts to enter into an Offer Letter Employment Documents with such employee as soon as practicable after the Agreement Date date hereof and in any event prior to the Closing Date. Notwithstanding any of the foregoing, provided that neither Acquirer, Sub I nor Sub II (including the First Step Surviving Corporation and the Final Surviving LLC) shall have any obligation to make an offer of employment to any employee of the Company is (other than the Employment Documents previously extended to and executed by the Tier 1 Key Employees and Tier 2 Key Employees on the Agreement Date). The Company will not, and shall cause each of its Subsidiaries not obligated to, send any notices or other communication materials to make any payments of their respective employees that may reasonably be expected to adversely affect Acquirer’s attempt to hire or retain such employees, without Acquirer’s prior written consent. Effective no later than immediately prior to the Closing, the Company shall, and shall cause its Subsidiaries to, terminate the employment of each of those Company and Subsidiary employees in furtherance and officers who have not received an offer of obtaining their signaturescontinued employment with the First Step Surviving Corporation, the Final Surviving LLC or Acquirer prior to the Closing Date (the “Designated Employees”), subject to payment of the severance amounts contemplated by Section 1.16.
(b) As The Company shall use commercially reasonable efforts to retain each of the Closing, Acquiror Offered Employees and to cause such Persons to enter into an employment agreements with Acquirer (or its Subsidiaries designee) prior to the Closing.
(c) Acquirer shall make available use commercially reasonable efforts to employees of the Company and the Company Subsidiaries who are based permit Continuing Employees to enroll in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in AcquirorAcquirer’s employee benefit plans, programs, or policies and arrangements (the “Acquiror Benefit Acquirer Plans”); provided) on substantially similar terms applicable to employees of Acquirer who are similarly situated based on levels of responsibility, howeverto the extent permitted by the terms of the applicable Acquirer Plans. Effective as of, and following, the Closing, Acquirer and its subsidiaries will provide credit for each Continuing Employee’s length of service with the Company (including any length of service with any subsidiary of the Company) for all purposes (including eligibility, vesting and benefit accrual) under each Acquirer Plan, except that Acquiror shall take commercially reasonable efforts such prior service credit will not be required (i) with respect to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for accrued benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under any defined benefit plans pension plan, (e.g.ii) to the extent that it results in a duplication of benefits, accrued vacation days, years of service accrued (iii) with respect to the calculation vesting of any severance awards under Acquirer’s equity compensation plans, if any, or redundancy payments in (iv) with respect to personal time, vacation time, or sick time accrual, to the event of termination extent the amount of such U.S. accruals exceeds 320 hours creditable by Acquirer following the Closing. Section 5.8 and Section 5.9 shall not operate to (a) duplicate any benefit provided to any Continuing Employee’s Employee or to fund any such benefit, (b) be construed to mean the employment of the Continuing Employees is not terminable by Acquiror Acquirer at will at any time, with or participation in without cause, for any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting reason or no reason (other than as may be set forth in an employment agreement with respect to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years of service prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employee.
) or (c) amend any ERISA plan or create any third party rights of causes of action for any person (including any employee representative, union, or labor organization). The provisions Continuing Employees will not be third party beneficiaries of this Section 5.10 are solely for the benefit of the parties hereto 5.9 and nothing in this Section 5.10, express or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or 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 5.10, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company or any of their respective Affiliates from terminating any employee of the Company or terminating or modifying to any extent or in any respect any employee benefit plan that Acquiror, the Company or any of their respective Affiliates may establish or maintain5.11.
Appears in 1 contract
Samples: Agreement and Plan of Reorganization (Synaptics Inc)
Employees and Contractors. (a) The During the Pre-Closing Period, the Company shall reasonably cooperate and work with Acquiror to help Acquiror identify key employees of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee of the Company who receives a new offer of employment from Acquiror or an Affiliate of Acquiror, during the Pre-Closing Period, the Company shall reasonably assist Acquiror or such Affiliate of Acquiror, as applicable, with its efforts to enter into an Offer Letter with such employee as soon as practicable after the Agreement Date and and, with respect to the employees set forth on Schedule 6.3(f) of the Disclosure Letter, in any event prior to the Closing Date, provided that the Company is not obligated to make any payments to employees in furtherance of obtaining their signatures.
(b) As of the Closing, Acquiror or its Subsidiaries shall make available to employees of the Company and the Company Subsidiaries who are based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparableequivalent, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Each Continuing Employee to shall receive credit for all Company’s accrued benefits under the Company Employee Plans other than accrual of benefits under defined benefit plans (e.g., credit for accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting (other than with respect to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years of service prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employee.
(c) The provisions of this Section 5.10 5.11 are solely for the benefit of the parties hereto and nothing in this Section 5.105.11, express or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or 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 5.105.11, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company or any of their respective Affiliates from terminating any employee of the Company or terminating or modifying to any extent or in any respect any employee benefit plan that Acquiror, the Company or any of their respective Affiliates may establish or maintain.
Appears in 1 contract
Samples: Merger Agreement (Sailpoint Technologies Holdings, Inc.)
Employees and Contractors. (a) The Company Parent shall cooperate and work with Acquiror offer employment to help Acquiror identify key employees each employee of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee its Subsidiaries as of the Company who receives a new offer of employment from Acquiror or an Affiliate of Acquiror, the Closing Date. The Company shall assist Acquiror or such Affiliate of Acquiror, as applicable, Parent with its efforts to enter into an Offer Letter and a Proprietary Information and Inventions Agreement with each such employee as soon as practicable after the Agreement Date and in any event prior to the Closing Date. With respect to matters described in this Section 6.10, provided that the Company will consult with Parent (and will consider in good faith the advice of Parent) prior to sending any notices or other communication materials to its employees. Each employee of the Company who is not obligated offered and accepts employment with Parent as of the Closing Date shall be referred to make any payments to employees in furtherance of obtaining their signaturesas a “Continuing Employee”.
(b) As of Parent covenants and agrees that to the Closingextent the existing benefit plans and arrangements provided by the Company to its employees are terminated on or after the Closing Date, Acquiror or its Subsidiaries such employees shall make be entitled to participate in all benefit plans and arrangements which are available and subsequently become available to Parent’s employees (the “Parent Benefit Plans”) on substantially similar terms applicable to employees of the Company and the Company Subsidiaries Parent who are based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees , to the extent permitted by the terms of Acquiror the applicable Parent Benefit Plans. Parent shall recognize the prior service with the Company or its Subsidiaries. As promptly as practicable following Subsidiaries of each of the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility to participate under the Parent Benefit Plans, and vesting (other than with respect to equity and equity-based awards and incentive compensation) under Acquiror for Parent Benefit Plans relating to vacation or severance Parent shall recognize such prior service for years purposes of service determination of benefit levels, to the extent permitted by the terms of, or by the providers for, the applicable Parent Benefit Plans. Notwithstanding anything herein to the contrary, this Section 6.10 shall not operate to (i) duplicate any benefit provided to any Continuing Employee or to fund any such benefit, (ii) require Parent or its subsidiaries or affiliates or any Parent Benefit Plan or trust related thereto to pay for any benefits that relate to any time period prior to the Closing Date credited for such purposes under corresponding Company Employee Continuing Employees’ participation in the Parent Benefit Plans, provided such credit does not result (iii) require Parent to continue to maintain any employee benefit plan in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates effect following the Closing Date (“Non-U.S. for Parent’s employees, including the Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employee.
(c) The provisions of this Section 5.10 are solely for the benefit of the parties hereto and nothing in this Section 5.10, express or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or 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 5.10, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (iiiv) be construed to prevent Acquiror, mean the Company or any of their respective Affiliates from terminating any employee employment of the Company Continuing Employees is not terminable by Parent at will at any time, with or terminating without cause, for any reason or modifying to any extent or in any respect any employee benefit plan that Acquiror, the Company or any of their respective Affiliates may establish or maintainno reason.
Appears in 1 contract
Samples: Merger Agreement (Network Equipment Technologies Inc)
Employees and Contractors. (a) The Except for the Company Employees identified on Schedule 5.3(a), each of whom shall cooperate be terminated by the Company on or prior to the Closing Date at Sellers’ sole cost and work expense, the Company will, and Purchaser will cause the Company to, continue to employ on and after the Closing Date each of the Company Employees who are employed by the Company as of the Closing Date (“Retained Company Employees”), with Acquiror (i) base salary or wage rate and annual cash bonus opportunities substantially comparable to help Acquiror identify key the base salary or wage rate and annual cash bonus opportunities provided to such Retained Company Employees immediately prior to the Closing Date, and (ii) employee benefits (excluding any defined benefit pension benefits or equity awards) that are substantially comparable in the aggregate to those in which Retained Company Employees participate immediately prior to the Closing. Such Retained Company Employees shall be eligible to participate in the employee benefit and compensation plans of the Purchaser (or any Affiliate of Purchaser), as applicable (each, a “Purchaser Employer”), that are generally available to similarly situated employees of the Purchaser Employer, effective as of immediately following the Closing. Purchaser or its Affiliates will use its reasonable best efforts to cause each Retained Company Employee to be credited to the extent such service was credited by the relevant Benefit Plan prior to the Closing Date for purposes of eligibility to participate and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) vesting and benefit accrual with Acquiror or a post-Closing Affiliate of Acquiror. With respect to vacation, paid time off and sick leave (but excluding benefit accrual under any such employee defined benefit, retiree welfare, or severance plan or program); provided, however, that the foregoing will not apply to the extent it would result in any duplication of benefits for the same period of service. Purchaser or its Affiliates will use commercially reasonable efforts to (i) cause any pre-existing conditions or limitations and eligibility waiting periods under any group health plans of Purchaser or its Affiliates to be waived with respect to Retained Company Employees and their eligible dependents, (ii) give each Retained Company Employee credit for the plan year in which the Closing occurs towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred prior to the Closing for which payment has been made. To the extent that Sellers or its Affiliates provide to Purchaser or its Affiliates amounts to be payable to any Retained Company Employees or Transferred Business Employees in respect of vested or unvested restricted stock units in Parent or its Affiliates, Purchaser shall, or shall cause the Purchaser Employer to, (A) pay the amount specified by Sellers or its Affiliates to each of the Retained Company Employees and Transferred Business Employee who receives a new remains employed with the Purchaser Employer through the date after the Closing designated by Sellers with respect to such Retained Company Employee or Transferred Business Employee (such amount to be payable in the next administratively practicable payroll date following such designated date) or (B) return to Sellers the amount specified by Sellers or its Affiliates for each of the Retained Company Employees and Transferred Business Employees who does not remain employed with the Purchaser Employer through the date after the Closing designated by Sellers with respect to such Retained Company Employee or Transferred Business Employee (such amount to be returned within ten (10) days following the date on which such Retained Company Employee or Transferred Business Employee ceased to be employed by the Purchaser Employer).
(b) Purchaser will offer of employment from Acquiror or an Affiliate of Acquirorengagement, to commence immediately following the Closing, with Purchaser, the Company or any it Affiliates to each of the Business Employees (other than the Czech/Slovak Business Employees whose transfer terms and conditions are specified in Section 5.3(e) of this Agreement) set forth on Schedule 5.3(b); provided, that, offers of engagement shall only apply to such Business Employees who are engaged prior to the Closing as independent contractors. Sellers will use commercially reasonable efforts to assist Acquiror Purchaser (or such any Affiliate of AcquirorPurchaser) (each, as applicable, a “Purchaser Employer”) with its efforts to enter into an Offer Letter offer letters with such employee Business Employees as soon as reasonably practicable after the Agreement Date date hereof and in any event prior to the Closing Date, provided that which offer letters and employment or engagement, as applicable, with a Purchaser Employer thereunder will become effective as of the Company is not obligated Closing Date. No Business Employee or any other Employee will be deemed to make any payments to employees in furtherance be a third party beneficiary of obtaining their signaturesthis Agreement.
(bc) As With respect to each such Business Employee set forth on Schedule 5.3(b) who accepts an offer of employment or engagement with the Purchaser Employer (each, a “Transferred Business Employee”), Sellers will (or will cause their Affiliates to) terminate the employment or engagement of such Transferred Business Employee and take such other action as is necessary to pay such Transferred Business Employee all accrued and unpaid salary or wages owing to him or her in respect of his or her employment or engagement with any Seller or any of its Affiliates through the last day of employment or engagement, as applicable, with Seller or any of its Affiliates.
(d) During the period beginning on the Closing Date and ending on the first (1st) anniversary of the Closing Date, Purchaser shall, or shall cause its Affiliates to, provide Transferred Business Employees with (i) base salary or wage rate and annual cash bonus opportunities that are no less favorable in the aggregate than the base salary or wage rate and annual cash bonus opportunities provided to such Transferred Business Employees immediately prior to the Closing Date and (ii) employee benefits (excluding any defined benefit pension benefits and equity awards) that are substantially comparable in the aggregate to those in which Transferred Business Employees participate immediately prior to the Closing. Such Transferred Business Employees shall be entitled to the benefits and such other terms and conditions of employment or engagement described in their respective offers of employment or engagement, Acquiror or its Subsidiaries shall make as applicable, and eligible to participate in the employee benefit and compensation plans of the applicable Purchaser Employer that are generally available to similarly situated employees of the Company and Purchaser Employer immediately following the Company Subsidiaries who are based in the United States and remain employed by Acquiror Closing. Purchaser or one of its Affiliates following will cause each Transferred Business Employee to be credited to the extent such service was credited by the relevant Seller or Sellers’ Affiliates prior to the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting (other than and benefit accrual with respect to equity vacation, paid time off and equitysick leave (but excluding benefit accrual under any defined benefit, retiree welfare, or severance plan or program); provided, however, that the foregoing will not apply to the extent it would result in any duplication of benefits for the same period of service. Purchaser or its Affiliates will use commercially reasonable efforts to (i) cause any pre-based awards existing conditions or limitations and incentive compensationeligibility waiting periods under any group health plans of Purchaser or its Affiliates to be waived with respect to Transferred Business Employees and their eligible dependents, and (ii) under Acquiror Benefit Plans give each Transferred Business Employee credit for years of service the plan year in which the Closing occurs towards applicable deductibles and annual out-of-pocket limits for medical expenses incurred prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employeewhich payment has been made.
(ce) The provisions of this Section 5.10 are solely for the benefit transfer of the parties hereto Service Agreements (as defined in the Implementation Business Transfer Agreement) and related transfer of Czech/Slovak Business Employees and the terms and conditions in connection with such transfer is set forth in the Implementation Business Transfer Agreement. Purchaser (i) shall cause Purchaser Czech Affiliate and Purchaser Slovak Affiliate to observe, perform and discharge in a timely manner all of their respective obligations set forth in the Implementation Business Transfer Agreement, (ii) unconditionally and irrevocably guarantees to Seller, the Company, Seller Czech Affiliate, and Seller Slovak Affiliate, the observance, performance and discharge of the obligations of Purchaser Czech Affiliate and Purchase Slovak Affiliate pursuant to the Implementation Business Transfer Agreement, and (iii) shall indemnify and hold harmless Seller, the Company, Seller Czech Affiliate and Seller Slovak Affiliate, as applicable, against all Liabilities arising from or in respect of the failure by Purchaser, Purchaser Czech Affiliate or Purchaser Slovak Affiliate, as applicable, to observe, perform or discharge in a timely manner, their respective obligations set forth in the Implementation Business Transfer Agreement or otherwise breach their respective obligations thereunder. Sellers (i) shall cause Seller Czech Affiliate and Seller Slovak Affiliate to observe, perform and discharge in a timely manner all of their respective obligations set forth in the Implementation Business Transfer Agreement, (ii) unconditionally and irrevocably guarantees to Purchaser, the Company (after Closing), Purchaser Czech Affiliate, and Purchaser Slovak Affiliate, the observance, performance and discharge of the obligations of Seller Czech Affiliate and Seller Slovak Affiliate pursuant to the Implementation Business Transfer Agreement, and (iii) shall indemnify and hold harmless Purchaser, the Company (after Closing), Purchaser Czech Affiliate and Purchaser Slovak Affiliate, as applicable, against all Liabilities arising from or in respect of the failure by Sellers, Seller Czech Affiliate or Seller Slovak Affiliate, as applicable, to observe, perform or discharge in a timely manner, their respective obligations set forth in the Implementation Business Transfer Agreement or otherwise breach their respective obligations thereunder.
(f) The Company will not take any action prior to the Closing that would or could reasonably be expected to constitute a plant closing or mass layoff within the meaning of, or otherwise trigger notice, compensation, or other obligations under the WARN Act. Except as set forth in the Implementation Business Transfer Agreement, nothing in this Section 5.10Agreement will require Purchaser or its Affiliates to employ any Business Employee or Retained Company Employee on anything other than an at-will basis, terminable at any time with or without cause, except as otherwise required by Applicable Law. In addition, nothing contained in this Agreement, whether express or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or legal representative or beneficiary thereof, any rights or remedies, including any right will be construed 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 5.10, express or implied, shall be (i) deemed an amendment create any third party beneficiary or other rights in any current or former Employee of the Company, any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company Seller or any of their respective Affiliates from terminating (including any dependent or beneficiary thereof) or any other Person (including any participant in any Benefit Plan or any dependent or beneficiary thereof) other than the Parties, (ii) interfere with the rights of Purchaser to amend or terminate any employee benefit plans at any time (to the extent permitted by Applicable Law), discharge or discipline any Business Employee or Retained Company Employee, or change the terms of employment or engagement of any Business Employee or Retained Company Employee (to the Company extent permitted by Applicable Law), or terminating or modifying to any extent or in any respect (iii) amend any employee benefit plan that Acquiror, the Company of Purchaser or any of their respective Affiliates may establish or maintainits Affiliates.
Appears in 1 contract
Samples: Membership Interest and Asset Purchase Agreement (Smith Micro Software, Inc.)
Employees and Contractors. (a) The Company shall cooperate and work with Acquiror to help Acquiror identify key employees of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee of the those Company employees and officers who receives a new receive an offer of continued employment from Acquiror with the Surviving Corporation or an Affiliate of AcquirorAcquirer prior to the Closing Date (the “Offered Employees”), the Company shall use commercially reasonable efforts to assist Acquiror or such Affiliate of Acquiror, as applicable, Acquirer with its efforts to enter into an Offer Letter the necessary employment documentation with such employee as soon as practicable after the Agreement Date date hereof and in any event prior to the Closing Date. Notwithstanding any of the foregoing, provided Acquirer shall have no obligation to make an offer of employment to any employee of the Company. The Company will not send any notices or other communication materials to any of its employees that may reasonably be expected to adversely affect Acquirer’s attempt to hire or retain such employees, without Acquirer’s prior written consent. Effective no later than immediately prior to the Closing, the Company is shall terminate the employment of each of those Company employees and officers who have not obligated received an offer of continued employment with the Surviving Corporation or Acquirer prior to make any payments to employees in furtherance of obtaining their signaturesthe Closing Date.
(b) As Acquirer shall offer compensation to Offered Employees at least comparable to the compensation offered by Acquirer for similarly-situated Acquirer employees and shall permit those Offered Employees who accept the offer of employment with the Closing, Acquiror Surviving Corporation or its Subsidiaries shall make available Acquirer prior to employees of the Company and the Company Subsidiaries who are based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (the “U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, to enroll in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in AcquirorAcquirer’s employee benefit plans, programs, or policies and arrangements (the “Acquiror Benefit Acquirer Plans”); provided) on substantially similar terms applicable to employees of Acquirer who are similarly situated based on levels of responsibility, howeverto the extent permitted by the terms of the applicable Acquirer Plans. Effective as of, and following, the Closing, Acquirer and its subsidiaries will provide credit for each Continuing Employee’s length of service with the Company (including any length of service with any subsidiary of the Company) for all purposes (including eligibility, vesting and benefit accrual) under each Acquirer Plan, except that Acquiror shall take commercially reasonable efforts such prior service credit will not be required (i) with respect to let accrued benefits under any defined benefit pension plan, (ii) to the extent that it results in a lapse or cessation duplication of coverage for any health, dentalbenefits, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued iii) with respect to the calculation vesting of awards under Acquirer’s equity compensation plans, if any. This Section 5.15 shall not operate to (a) duplicate any severance benefit provided to any Continuing Employee or redundancy payments in to fund any such benefit, (b) be construed to mean the event employment of termination of such U.S. the Continuing Employee’s employment Employees is not terminable by Acquiror Acquirer at will at any time, with or participation in without cause, for any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting reason or no reason (other than as may be set forth in an employment agreement with respect to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years of service prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employee.
) or (c) amend any ERISA plan or create any third party rights of causes of action for any person (including any employee representative, union, or labor organization). The provisions Continuing Employees will not be third party beneficiaries of this Section 5.10 are solely for the benefit of the parties hereto and nothing in this Section 5.10, express or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or 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 5.10, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company or any of their respective Affiliates from terminating any employee of the Company or terminating or modifying to any extent or in any respect any employee benefit plan that Acquiror, the Company or any of their respective Affiliates may establish or maintain5.15.
Appears in 1 contract
Samples: Merger Agreement (Sigma Designs Inc)
Employees and Contractors. (a) The Company shall cooperate and work with Acquiror to help Acquiror identify key employees of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee of the Company who receives a new offer of employment from Acquiror or an Affiliate of AcquirorSeller acknowledges that, the Company shall assist Acquiror or such Affiliate of Acquiror, as applicable, with its efforts to enter into an Offer Letter with such employee as soon as practicable effective ------------------------- immediately after the Agreement Date and in any event prior to the Closing Date, provided that the Company is not obligated to make any payments to employees in furtherance of obtaining their signatures.
(b) As of the Closing, Acquiror Purchaser intends to hire all or its Subsidiaries shall make available to substantially all of Seller's employees of and contractors who work primarily for the Company Business, as Purchaser's employees and the Company Subsidiaries who are based in the United States contractors on terms and remain employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparableconditions which are, in the aggregate, to such benefits no less favorable than those provided to other similarly situated (based on levels of responsibility) employees of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting (other than with respect to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years of service prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans Seller as of the Closing Date, unless agreed upon otherwise including, without limitation, employee benefit plans and benefit arrangements which, in the aggregate, are at least comparable to such employee benefit plans and benefit arrangements as are currently provided by Seller to the Transferred Employees. Seller will cooperate fully in providing the necessary information or to perform any such Non-U.S. Continuing other duties as may be reasonably requested by Purchaser to accomplish this result. Any current employee or contractor of Seller who shall be hired by Purchaser shall be referred to herein as a "Transferred Employee.
(c) The provisions " Each Transferred Employee shall be terminated by -------------------- Seller immediately prior to the Closing Date and deemed a "new hire" by Purchaser. Purchaser shall take such reasonable actions as are necessary to allow employees of this Section 5.10 are solely for Seller to participate in the benefit programs of Purchaser or, to the extent permitted by, and subject to compliance with, applicable Law, continue the plans of Seller (as assumed by Purchaser) as Shareholder may determine through June 30, 1998, and, after June 30, 1998, Purchaser may determine after first consulting with Shareholder. For purposes of satisfying the terms and conditions of such programs, to the extent permitted by its benefit programs or applicable Law, Purchaser shall give full credit for eligibility, vesting and benefit accrual for each participant's period of service with Seller and, if necessary to give such credit, shall amend its benefit programs. It is the intention of the parties hereto and nothing in this Section 5.10that the benefit programs applicable to the Transferred Employees after the Closing, express either be identical to the benefit programs existing prior to the Closing or implied, shall confer upon any employee (including any U.S. Continuing Employee or Non-U.S. Continuing Employee), or 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 5.10, express or implied, shall be (i) deemed an amendment of any Company Employee Plan or any employee resemble the same benefit plan maintained by Acquiror or its Affiliates, or (ii) construed to prevent Acquiror, the Company or any of their respective Affiliates from terminating any employee of the Company or terminating or modifying to any extent or in any respect any employee benefit plan that Acquiror, the Company or any of their respective Affiliates may establish or maintainprograms as reasonably possible.
Appears in 1 contract
Samples: Agreement of Purchase and Sale of Assets (Data Processing Resources Corp)
Employees and Contractors. (a) The Company Parent shall cooperate and work with Acquiror to help Acquiror identify key employees ensure that the Continuing Employees shall receive the benefits set forth in Schedule 5.10(a) of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate Disclosure Letter for the period of Acquiror. With respect to any such employee of the Company who receives a new offer of employment from Acquiror or an Affiliate of Acquiror, the Company shall assist Acquiror or such Affiliate of Acquiror, as applicable, with its efforts to enter into an Offer Letter with such employee as soon as practicable after the Agreement Date and in any event prior to the Closing Date, provided that the Company is not obligated to make any payments to employees in furtherance of obtaining their signaturestime described therein.
(b) As Except to the extent necessary to avoid the duplication of benefits, Parent shall, and shall cause the Closing, Acquiror Surviving Corporation and its other Affiliates to recognize the service of each Continuing Employee with the Company or its Subsidiaries shall make available Affiliates before the Effective Time (to employees of the same extent recognized by the Company and or its Affiliates immediately prior to the Company Subsidiaries who are based in Effective Time) as if such service had been performed with Parent or its Affiliates under the United States and remain employed by Acquiror terms of plans of Parent or one any of its Affiliates following Affiliates. For the Closing Date (“U.S. Continuing Employees”avoidance of doubt, the recognition of service under this Section 5.10(b) shall apply to eligibility and vesting and level of benefit and benefit accrual under all employee health and welfare benefits that are substantially comparable, in benefit plans or arrangements maintained by the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees of Acquiror Parent or its Subsidiaries. As promptly as practicable following Affiliates (including vacation and severance plans) that such employees may be eligible to participate in after the Effective Time, Acquiror but shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and apply for purposes of eligibility to participate and vesting (other than with respect to equity and equity-based awards and incentive compensation) benefit accrual under Acquiror Benefit Plans for years of service prior to the Closing Date credited for such purposes under corresponding Company Employee Plans, provided such credit does not result in duplication of benefits. Employees of the Company and the Company Subsidiaries who are not based in the United States and remain employed by Acquiror or one of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employeea defined benefit plan.
(c) The With respect to any welfare plan maintained by Parent or its Affiliates in which Continuing Employees are eligible to participate after the Effective Time, Parent shall, and shall cause the Surviving Corporation and its other Affiliates, to the extent permitted by the relevant welfare plan, and consistent with such plans’ application to similarly situated employees of Parent or its Affiliates who are not Continuing Employees, to waive all limitations as to waiting periods, actively-at-work requirements, evidence of insurability requirements, preexisting conditions and other exclusions with respect to participation and coverage requirements applicable to such employees (and their spouses, domestic partners and dependents) to the extent such conditions and exclusions were satisfied or did not apply to such employees (or their spouses, domestic partners or dependents) under the welfare plans maintained by the Company or its Affiliates prior to the Effective Time.
(d) Notwithstanding anything to the contrary in the foregoing provisions of this Section 5.10, the provisions of Section 5.10 shall apply only with respect to Continuing Employees (and their dependents and beneficiaries) who are solely covered under Company Employee Plans that are maintained primarily for the benefit of employees employed in the parties United States (including Continuing Employees regularly employed outside the United States to the extent they participate in such Company Employee Plans). With respect to Continuing Employees not described in the preceding sentence, Parent shall, and shall cause the Surviving Corporation and its Subsidiaries to, comply with all applicable Laws, directives and regulations relating to employees and employee benefits matters applicable to such employees.
(e) This Section 5.10 shall be binding upon and inure solely to the benefit of each party hereto (meaning, for the avoidance of doubt, Parent, Sub and the Company), and nothing in the Original Agreement or this Section 5.10Agreement, express or implied, is intended to or shall confer upon any employee other Person any right, benefit or remedy of any nature whatsoever under or by reason of this Section 5.10. In no event shall the terms of this Agreement be deemed to (including any U.S. Continuing Employee or Non-U.S. Continuing Employee)i) establish, amend, or legal representative modify any Company Benefit Plan or beneficiary thereofany other benefit plan, program, agreement or arrangement maintained or sponsored by Parent, the Company or any rights Subsidiary or remediesany of their respective Affiliates, including (ii) alter or limit the ability of Parent or any of its subsidiaries (including, after the Effective Time, the Surviving Corporation or any Subsidiary of the Surviving Corporation) to amend, modify or terminate any of the Company Employee Plans or any other benefit or employment plan, program, agreement or arrangement after the Effective Time or (iii) confer upon any current or former employee or other service provider of the Company or Subsidiaries, any right to employment or continued employment for or continued service with Parent or any specified periodof its subsidiaries (including, following the Effective Time, the Surviving Corporation or any Subsidiary of the Surviving Corporation), or compensation constitute or benefits create an employment or agreement with, or modify the at-will status of any nature any, employee or kind whatsoever under this Agreement. Nothing in this Section 5.10other service provider.
(f) Parent shall, express or impliedshall cause the Surviving Corporation and its other Affiliates to, shall be (i) deemed an amendment assume and honor the obligations of the Company and the Subsidiaries under the CIC Plan and any other contracts, providing for the payment of severance set forth on Schedule 2.12(j) or Schedule 2.17(a)(vii) of the Company Disclosure Letter, in accordance with their terms, and (ii) honor all provisions with respect to vesting, accelerated vesting under the CIC Plan and any retention agreement set forth on Schedule 1.8(a) of the Company Disclosure Letter and/or payment of any Unvested Company Options, Unvested Company RSUs or Unvested Company PSUs following the Merger and cause all such provisions to apply to payment of the Unvested Cash (Options/RSUs) and Unvested Cash (PSUs) to the same extent as if the applicable Unvested Company Options, Unvested Company RSUs or Unvested Company PSUs had been assumed by Parent hereunder, subject in each case to the right to make amendments or modifications to the extent permitted by such terms and subject to any applicable Employment Offer Documents.
(g) During the period from the Original Agreement Date and continuing until the earlier of the termination of this Agreement and the Effective Time, the Company will not (i) sponsor or maintain any new Company Employee Plan or any employee new benefit plan maintained by Acquiror or its Affiliatesunder existing Company Employee Plans which is not in effect as of the Original Agreement Date except for non-material changes made in the Ordinary Course of Business to ERISA-covered health and welfare plans as part of an annual renewal process, or (ii) construed to prevent Acquiror, increase its matching contribution formula under the Company 401(k) Plan or any (iii) increase its percentage of their respective Affiliates from terminating any employee employer cost sharing contribution to Company Employee Plans in excess of the Company or terminating or modifying percentage of cost sharing in effect as of the Original Agreement Date except for non-material changes to copays and deductibles (but not premiums) for any extent or in any respect any employee benefit ERISA-covered health plan that Acquiror, the Company or any as part of their respective Affiliates may establish or maintainan annual renewal process.
Appears in 1 contract
Samples: Agreement and Plan of Merger (Acacia Communications, Inc.)
Employees and Contractors. (a) The Company shall cooperate and work with Acquiror to help Acquiror identify key employees of the Company and each Company Subsidiary to whom Acquiror will seek to enter into new employment arrangements (including amended employment agreements or new or amended offer letters) with Acquiror or a post-Closing Affiliate of Acquiror. With respect to any such employee of the Company who receives a new offer of employment from Acquiror or an Affiliate of If requested by Acquiror, the Company Acquired Companies shall assist Acquiror or such Affiliate of Acquiror, as applicable, with its any efforts to enter into an Offer Letter Package with such employee Continuing Employees as soon as practicable after the Agreement Date date hereof. With respect to matters described in this Section 5.9, Company will consult with Acquiror (and will consider in any event good faith the advice of Acquiror) prior to the Closing Date, provided that the sending any notices or other communication materials to any Company is not obligated to make any payments to employees in furtherance of obtaining their signaturesemployees.
(b) As To the extent reasonably requested by Acquiror, Company shall use reasonable efforts to obtain confirmatory assignments of Intellectual Property from the employees and independent contractors and consultants set forth on Schedule 1.4(b)(xix) of the ClosingCompany Disclosure Letter, in each case in a form reasonably acceptable to Acquiror.
(c) Acquiror shall pay, or cause to be paid, not later than the date upon which Acquiror pays annual bonuses for 2015 to its Subsidiaries shall make available employees in the ordinary course of business, to employees of the Company and its Subsidiaries who remain employed with Acquiror or any of its Affiliates as of immediately following the Closing (“Continuing Employees”) and remain employed through the payment date of such bonus, the amount of the Xxxxx Pro Rata Bonus Accrual.
(d) Prior to the Closing, Company shall pay, discharge and satisfy in full (including full amounts that may have accrued under any Acquired Company policy or pursuant to Legal Requirement) with respect to all U.S. employees of the Acquired Companies, all accrued but unpaid vacation and paid-time-off for all periods up to and through the Effective Time, including all employer-side payroll Taxes associated therewith.
(e) Following the Closing, Acquiror shall use its commercially reasonable efforts to provide continuing United States employees of the Company Subsidiaries who are based in the United States and remain continue to be employed by Acquiror or one of its Affiliates following the Closing Date (“U.S. Continuing Employees”) employee health and welfare benefits that are substantially comparable, in the aggregate, to such benefits provided to other similarly situated (based on levels of responsibility) employees an United States Affiliate of Acquiror or its Subsidiaries. As promptly as practicable following the Effective Time, Acquiror shall enroll U.S. Continuing Employees, and their eligible dependents where applicable, in Acquiror’s employee benefit plans, programs, or policies (the “Acquiror Benefit Plans”); provided, however, that Acquiror shall take commercially reasonable efforts not to let a lapse or cessation of coverage for any health, dental, or vision benefits of U.S. Continuing Employees occur before such U.S. Continuing Employees’ eligibility for benefits under such health, dental, or vision plans of the Acquiror Benefit Plans becomes effective. Acquiror shall take commercially reasonable efforts to cause each U.S. Continuing Employee to receive credit for all Company’s accrued benefits other than accrual of benefits under defined benefit plans (e.g., accrued vacation days, years of service accrued with respect to the calculation of any severance or redundancy payments in the event of termination of such U.S. Continuing Employee’s employment by Acquiror or participation in any Acquiror Benefit Plans) and for purposes of eligibility to participate and vesting (other than under the employee benefit plans or arrangements maintained by Acquiror or its Affiliates in which such continuing employees participate for such employees’ service with respect the Acquired Companies to equity and equity-based awards and incentive compensation) under Acquiror Benefit Plans for years the same extent recognized by comparable plans of service the Acquired Companies immediately prior to the Closing Date credited for such purposes under corresponding Company Employee PlansDate, provided such except where credit does not would result in duplication of benefits. Employees benefits or would be prohibited under the terms of the Company such Acquiror benefit plans or arrangements and the Company Subsidiaries who are such prohibition is not based in the United States and remain employed by Acquiror or one removed through Acquiror’s use of its Affiliates following the Closing Date (“Non-U.S. Continuing Employees”) shall continue to be enrolled in Company Employee Plans commercially reasonable efforts as of the Closing Date, unless agreed upon otherwise by any such Non-U.S. Continuing Employeerequired hereunder.
(cf) The provisions of this Section 5.10 are solely for the benefit of the parties hereto and nothing Nothing in this Section 5.10, express or implied, Agreement shall confer upon any employee (including or other service provider of any U.S. Continuing Employee or Non-U.S. Continuing Employee), or legal representative or beneficiary thereof, any rights or remedies, including Acquired Company any right to employment continue in the employ or continued employment service of Acquiror or any Affiliate of Acquiror, or shall interfere with or restrict in any way the rights of Acquiror or any of its Affiliates, which rights are hereby expressly reserved, to discharge or terminate the services of any such employee or other service provider at any time for any specified periodreason whatsoever, with or compensation or benefits of without cause. Notwithstanding any nature or kind whatsoever under provision in this Agreement. Nothing Agreement to the contrary, nothing in this Section 5.10, express or implied, 5.9 shall be (i) be deemed or construed to be an amendment or other modification of any Company Employee Plan or any employee benefit plan maintained by plan, program or arrangement of Acquiror or any of its Affiliates, or (ii) construed to prevent create any third party rights in any current or former employee, director, contractor or other service provider of Acquiror, any Acquired Company the Company or any of their respective Affiliates from terminating any employee of the Company or terminating or modifying to any extent or in any respect any employee benefit plan that Acquiror, the Company (or any of their respective Affiliates may establish beneficiaries or maintaindependents thereof).
Appears in 1 contract
Samples: Merger Agreement (Rapid7, Inc.)
