Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”). (b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule. (c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan. (d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries. (e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement. (f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing. (g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date. (h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Merger Agreement (Walgreens Boots Alliance, Inc.), Merger Agreement (Rite Aid Corp)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12Except as otherwise provided in this Section 5.4, Section 5.4(a) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provideDisclosure Schedule, or shall cause the Surviving Corporation to provideas required by applicable Law, to the employees of the Company and its Subsidiaries shall cease to be eligible to participate in or accrue further benefits under the Benefit Plans as of the Effective Time. Following the Effective Time and until such time as Purchaser in its sole discretion and in accordance with applicable Law determines otherwise, the employees of the Company and its Subsidiaries shall participate in employee benefit plans maintained by Purchaser or its subsidiaries who are not represented by a labor organization Affiliates as Purchaser shall determine in its sole discretion.
(b) The Seller shall be responsible for all obligations arising under COBRA and who continue any other similar Law related to be employed by coverage under the Seller’s Benefit Plans for current or former employees of the Company and its Subsidiaries (and their spouses and dependents) whose termination of employment (or other qualifying event) occurs on or before the Surviving Corporation Effective Time. Purchaser shall be responsible for any obligations arising under COBRA and any other similar Law arising from coverage under group health plans maintained by Purchaser or any subsidiary of its Affiliates for employees of the Company and its Subsidiaries (and their spouses and dependents) whose termination of employment (or Affiliate thereof other qualifying event) occurs after the Effective Time. The Seller shall be solely responsible for any self-insured welfare plan liabilities under any of the Seller’s Benefit Plans.
(the “Continuing Non-Union Employees”), (ic) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to As of the Effective Time, (ii) the Seller shall cause each employee incentive compensation opportunities which are no less favorable of the Company who is a participant in the aggregate than Kforce 401(k) Retirement Savings Plan (the incentive compensation opportunities provided “Seller 401(k) Plan”), the Kforce Nonqualified Deferred Compensation Plan and the Kforce Executive Investment Plan to such Continuing Non-Union Employees be fully vested in his or her account balance thereunder. Within sixty (60) days following the Effective Time, each employee of the Company and its Subsidiaries, who is immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable a participant in the aggregate (including with respect to the proportion of employee costSeller 401(k) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing DatePlan, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent eligible for a distribution of his or her entire vested account balance from the Seller 401(k) Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Seller 401(k) Plan, and shall further be given the option to elect a direct rollover of his or her entire account balance, including up to two participant loans which are not in default status, into the employee pension benefit plan that includes a cash or deferred arrangement under Section 401(k) maintained by Purchaser or its Affiliates (the “Purchaser 401(k) Plan”), subject to the terms of the Purchaser 401(k) Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company The Seller shall provide make all payments of deferred compensation to Parent a schedule of all Company eligible employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or and its subsidiariesSubsidiaries in a timely manner in accordance with the terms of the applicable Benefit Plans and in accordance with the requirements of Section 409A of the Code.
(e) The Company shallThis Section 5.4 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing nothing in this Agreement Section 5.4, express or implied, shall confer upon any Continuing Employee other Person any right to continue in the employ rights or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services remedies of any Continuing Employee at any time for any nature whatsoever under or by reason whatsoever, with or without cause, except to of this Section 5.4. The Parties hereto acknowledge and agree that the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing terms set forth in this Section 6.9 5.4 shall (i) be deemed or construed to be an amendment or other modification not create any right in any employee of the Company, any Company Plan, Parent Plan of its Subsidiaries or any other employee benefit planPerson to any continued employment with the Company, (ii) prevent Parentits Subsidiaries, the Surviving Corporation Purchaser or any Affiliate of Parent from amending their respective Affiliates or terminating compensation or benefits of any Company Plans in accordance with their terms nature or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)kind whatsoever.
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (Kforce Inc)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve No later than ten (1210) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately Business Days prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provideprovide Buyer with an updated version of Schedule 3.13(a). Buyer shall, or shall cause an Affiliate of Buyer to, offer employment, no later than five (5) Business Days prior to the Surviving Corporation to provideClosing Date, effective immediately following the Closing, to such Business Employees as Buyer shall identify on Schedule 5.9(a) (the Continuing Non-Union Business Employees who accept such employment and commence employment with Buyer immediately following the Closing, the “Transferred Employees”). If a Business Employee is listed on Schedule 5.9(a) immediately prior to the Closing, then, effective immediately prior to the Closing, Parent and the applicable Company shall terminate such individual’s employment and all severance obligations (if any) with respect to such individual shall be the responsibility of Parent. In the event that (i) Schedule 5.9(a) does not include such number of Business Employees as is necessary to avoid triggering obligations or liability under the WARN Act by reason of the termination by Parent or the applicable Company of all Business Employees, severance benefits which and/or (ii) the offers of employment made by Buyer or an Affiliate to Business Employees are not on sufficient terms and conditions to avoid triggering obligations or liability under the WARN Act, Parent shall have the option to delay the Closing Date by sixty five (65) days from the then scheduled Closing Date (or such longer notice period as is required under any state or local WARN Act). Notwithstanding the forgoing or any other provisions of this Agreement to the contrary, Buyer shall be under no less favorable than those set forth in obligation to hire any present or former employee of Parent or any Company.
(b) To the extent Parent has provided adequate records to Buyer to permit it to comply with this Section 6.9(b)(i) 5.9(b), with respect to any Buyer Benefit Plans for the benefit of any Transferred Employee, effective as of the Company Disclosure Schedule Closing, Buyer shall, or shall cause an Affiliate to, recognize all service of the Transferred Employees with the Companies or their Affiliates, as if such service were with Buyer, for vesting and eligibility but not accrual purposes; provided, however, that (i) such service shall not be recognized to the extent that (A) such recognition would result in a duplication of benefits or (B) such service was not recognized under the corresponding Employee Benefit Plan, and (ii) from and after in the Effective Timecase of any such Buyer Benefit Plans that are governed by an insurance policy, Parent shall cause to the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) consent of the Company Disclosure Schedule (eachrelevant insurance carrier, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Scheduleif required.
(c) With respect to each benefit planthe 401(k) plan covering the Transferred Employees, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including prior to the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate Closing Date (the “Parent Plans401(k) Plan”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries Parent shall (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving CorporationAffiliate that sponsors such plan to) amend such plan to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) fully vest all of the base compensation (salary or wage rate)Transferred Employees in their accounts under the plan, and bonus; (ii) to make all employer contributions for the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement Transferred Employees in respect of the Company’s classification of each such position or job as exempt or non-exempt for purposes period through the Closing Date, without regard to any provision of the Federal Fair Labor Standards Act. Such schedule shall plan requiring that the Transferred Employees be true and complete as employed on the last day of the date plan year, have completed a minimum number of hours of service, or dates set forth on the schedule, each of which shall be no more than ten (10) days prior satisfied any similar allocation requirement in order to the date of deliveryreceive such employer contribution. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon Effective as soon as administratively feasible following the Closing.
, Buyer shall make reasonable efforts (gi) At Parent’s request, the Company Board shall adopt resolutions providing to cause a Buyer Benefit Plan that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans is intended to be qualified within the meaning of under Section 401(a) of the Code to accept eligible rollover distributions (within the “Company 401(kmeaning of Section 402(c) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing Code) from a Transferred Employee with respect to such Transferred Employee’s vested account balance under the preparation Parent 401(k) Plan and execution (ii) to accept rollovers of outstanding Parent 401(k) Plan loans, if so elected by the Transferred Employee.
(d) Neither Buyer nor any Affiliate thereof shall be deemed a successor plan sponsor with respect to any Employee Benefit Plan, and Parent and the Companies shall retain all Liabilities under such plans and shall remain obligated for all claims, benefits, and benefit entitlements under such plans and benefits. Furthermore, Parent and the Companies shall be responsible for all obligations to the Transferred Employees for the payment of all documentation necessary wages and other remuneration due with respect to effect their services to Parent, the foregoing terminationCompanies and each of their respective Affiliates through the Closing, including, but not limited to, severance, and shall pay (i) pro rata bonus payments under Employee Benefit Plans for periods through the Company shall provide Parent a reasonable opportunity Closing, and (ii) to review and comment on all such documentation. To the extent required by applicable Law, all accrued but unused paid-time off benefits, including but not limited to vacation, for periods through the Closing (such that neither Buyer nor any Affiliate thereof shall assume or otherwise incur any Liability associated with such benefits).
(e) Parent and the Companies shall, or shall cause an Affiliate to, provide health care continuation coverage under the Consolidated Omnibus Budget Reconciliation Act (COBRA) to all Business Employees (other than the Transferred Employees), and all other former employees of Parent and the Companies, and all other COBRA qualified beneficiaries with respect thereto, for the maximum period required by COBRA (without regard to any shortening of such period due to plan termination) such that neither Buyer nor any Affiliate thereof shall assume or otherwise be liable, in any manner, for any COBRA obligations of Parent or the Companies in respect of such Business Employees.
(f) This Section 5.9 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 5.9, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 5.9. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the Company 401(k) Plans are terminated pursuant terms set forth in this Section 5.9 shall not create any right in any Transferred Employee or any other Person to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent any continued employment with Buyer or any of its subsidiaries Affiliates or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ compensation or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services benefits of any Continuing Employee at any time for any reason nature or kind whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (Marcus Corp)
Employees and Employee Benefits. (a1) For Buyer shall make commercially reasonable efforts to hire Seller’s staff at the Branches. Schedule 14(m) contains a period beginning list of all current employees of Seller employed at the Branches, including the employee’s name and position. Buyer shall make a written offer of employment to each employee of Seller selected by Buyer to be an employee of Buyer following the Closing Date. Each offer of employment shall be effective on the Closing Date. No later than 30 days following the date of this Agreement, (i) Buyer shall communicate the offers of employment consistent with the terms of this Section 14(m) to those employees to whom it determines to extend an offer and (ii) Buyer shall provide Seller with a written list of those employees to whom Buyer will make an offer of employment, and Seller shall take such action as is necessary to terminate such employees not included on such list or transfer their employment within Seller and its affiliates, in both cases effective as of the Closing Date. Each employee who accepts Buyer’s offer of employment (regardless of whether they are active employees or on leave of absence status as of the Closing Date) shall be a “Hired Employee” for purposes of this Agreement, effective upon the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent this date shall provide, or shall cause the Surviving Corporation be referred to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary Hired Employee’s “Transfer Date.” Subject to applicable Legal Requirements, on and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on after the Closing Date, the Surviving Corporation Hired Employees shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of become employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”)Buyer, and except to Buyer shall have the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ dismiss any or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee all Hired Employees at any time for any reason whatsoevertime, with or without cause, except and to change the terms and conditions of their employment (including compensation and employee benefits provided to them). Each employee who is not offered employment by Buyer, or who fails to accept Buyer’s offer of employment shall be an “Excluded Employee” for purposes of this Agreement. Nothing in this Agreement shall give any employee any rights to claim status as a third party beneficiary of this Agreement.
(2) Buyer shall reimburse Seller for overtime or any other wages and all associated Taxes incurred by Seller in connection with any interviewing, training or orientation conducted by Buyer, its employees, officers, directors, agents or representatives prior to the Closing Date, which such interviewing, training or orientation shall only occur outside of normal business hours.
(3) Except as expressly provided in this Agreement, Seller shall pay, discharge, and be responsible for (but only to the extent expressly provided otherwise in a written agreement between Parentrequired by Seller’s Employee Benefit Plans and/or applicable Legal Requirement), the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall indemnify Buyer and its Affiliates for (i) be deemed all salary, wages (including, without limitation, payment for any and all accrued paid time off, vacation, sick time or construed to be an amendment or other modification personal days accrued by the Hired Employees as of any Company Planthe Transfer Date), Parent Plan or bonuses, commissions and any other employee benefit planform of compensation (including, without limitation, any deferred compensation) arising out of the employment of the Hired Employees prior to the Transfer Date, and (ii) prevent Parentany employee benefits under the Seller’s Employee Benefit Plans arising out of Seller’s employment of the Hired Employees, including, without limitation, welfare benefits with respect to claims incurred prior to the Surviving Corporation Transfer Date but reported after the Transfer Date. Following the Closing, Hired Employees shall become employees of Buyer.
(4) Seller and the Employee Benefit Plans shall retain responsibility for all claims incurred by employees prior to the date they become Hired Employees.
(5) Seller shall be solely and fully responsible for the Excluded Employees in the transfer of Excluded Employees to other positions with Seller or in the termination of their employment with Seller. Seller shall be fully liable for any claims, demands, damages orders, awards and/or judgments arising out of or relating in any way to Seller’s treatment of and/or termination of Excluded Employees, including but not limited to any obligations that may arise under the Federal or any Affiliate applicable state or local Worker Adjustment and Retraining Notification (“WARN”) law. Buyer shall indemnify, defend and hold harmless Seller and its directors, officers, directors, agents and Affiliates from and against any claims, damages, suits, liability, administrative actions, costs and expenses, including reasonable attorneys’ fees, arising out of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current way in connection with the Hired Employees, which relates to any act or former service provider of omission occurring on or after the Company or its Affiliates (or any beneficiaries or dependents thereof)Closing Date.
Appears in 2 contracts
Samples: Purchase and Assumption Agreement (United Community Financial Corp), Purchase and Assumption Agreement (Croghan Bancshares Inc)
Employees and Employee Benefits. (a) For a period beginning Effective as of the Closing Date, Seller shall terminate all employees of the Branches. After the Final Approval Date, Purchaser shall determine the Bank Employees to whom Purchaser will offer employment upon terms and conditions described in subsection (b) below and subject to the Closing. Purchaser may not interview or otherwise contact any Bank Employee regarding employment with Purchaser until five (5) days after the public announcement of this transaction, and then only with the permission of Seller. Nothing contained in this Agreement shall be construed as an employment contract between Purchaser and any Transferred Employee.
(b) Purchaser shall provide each Transferred Employee with the following:
(i) Each Transferred Employee will be eligible to participate in any qualified profit sharing plan/401(k) plan or plans of Purchaser, if he or she is eligible based on each plan’s eligibility criteria as of the close of business on the Closing Date Date. Purchaser shall credit each Transferred Employee with the period of years of service with Seller, its Affiliates and ending predecessors in determining eligibility to participate, vesting and level of matching contributions in such plan or plans;
(ii) Each Transferred Employee will be eligible to participate in the Purchaser’s employee stock ownership plan, if he or she is eligible based on each such plan’s eligibility criteria as of the close of business on the twelve Closing Date. Purchaser shall credit each Transferred Employee with the period of years of service with Seller, its Affiliates and predecessors in determining eligibility to participate, vesting and eligibility to receive benefits (12but not accrual of benefits under any defined benefit plan) month anniversary in Purchaser’s plan(s); provided, however, that such crediting of service shall not operate to duplicate any benefit or the funding of any benefit for any period of service;
(iii) Each Transferred Employee will receive credit for years of service with Seller, its Affiliates and predecessors for purposes of calculation of benefits and waiting period eligibility and vesting in Purchaser’s non-retirement benefits programs, including but not limited to, vacation, severance, leaves of absence, education assistance, sick leave, short and long-term disability plans and other similar benefits;
(iv) On the Closing Date, each Transferred Employee will become immediately eligible to participate in the Purchaser’s health and welfare plans (if he or she is eligible based upon each plan’s eligibility criteria as of the Closing Date (or, if shorter, during an employee’s period close of employment following business on the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefitslimited to, postmedical, dental, life insurance and short and long-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiariesterm disability plans. Each applicable Parent Plan Purchaser shall waive eligibility waiting periods and any pre-existing condition limitations with respect to such Transferred Employee and his or her dependents, to the extent such pre-existing condition limitation can be waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent PlanPurchaser’s plans.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Purchase Agreement (First Niagara Financial Group Inc), Purchase Agreement (Legacy Bancorp, Inc.)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve Sellers shall provide Buyers with an update to Schedule 3.7
(12a) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable First Stage Closing Date. Unless otherwise agreed in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately writing prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the First Stage Closing Date, the Surviving Corporation Buyers shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions make offers of employment of employees to all of the Company Business Employees of Sellers as of the First Stage Closing Date, provided that Sellers shall comply with the covenant set forth in Section 5.15(b). Business Employees who accept such offer of employment, as of the effective date of their employment with Buyers or one of its subsidiaries Affiliates (the "Transfer Date"), shall be referred to as "Transferred Employees." All liabilities, costs and Actions related to Business Employees who are covered do not accept such offers of employment shall be Excluded Liabilities hereunder. Each offer of employment shall provide for a base salary no less than their base salary as an employee of Sellers as of the First Stage Closing Date and health, welfare, retirement and severance benefits as shall be applicable to comparable Buyers' employees generally; provided, however, that any Transferred Employee who is a Key Employee shall receive base salary and health, welfare, retirement and severance benefits (other than any defined benefit plans) that are, taken as a whole, substantially equivalent to that currently enjoyed by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Transferred Employee as an employee of Sellers.
(b) (i) For To the twelve (12) month period following the Closing Dateextent permitted by law, Parent shall provideBuyers' benefit plans and policies, or shall cause the Surviving Corporation to provideincluding vacation, to the Continuing Non-Union Employeesfloating holidays, retirement, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Timewelfare plans, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefitsrecognize, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), participate all service with Sellers that was recognized by Sellers for a similar purpose under a corresponding Benefit Plan. Nothing in this paragraph (b) shall require the Company Buyers to provide duplicate benefits to any Transferred Employee.
(c) Except as specifically provided in this Section 5.4: (i) no Buyer or any of its Affiliates shall adopt, become a sponsoring employer of, or have any obligations under or with respect to the Benefit Plans, and its subsidiaries Sellers shall be responsible for any and all liabilities which have arisen or may arise under or in connection with any Benefit Plan; and (ii) Sellers shall be responsible for any and all liabilities relating to or predecessor employers arising out of the employment of any Business Employee by Sellers before the First Stage Closing Date.
(d) Buyers shall be responsible for all liabilities, costs and Actions to the extent arising out of, or resulting from, facts, events and circumstances occurring, or which accrue, after the Company provides First Stage Closing Date (other than due to any failure to comply or has recognized past service creditbreach of any Sellers or any of their Affiliates, whether before, on or after the First Stage Closing Date) related to (i) the Transferred Employees, and (ii) the Business Employees with respect to whom Buyers have not extended an offer as required under Section 5.4(a) and whose employment with Sellers terminates within two (2) months after the First Stage Closing Date (other than due to any failure or breach of any Sellers or any of its Affiliates, whether before, on or after the First Stage Closing Date). Sellers shall be treated as service provide within three (3) months after the First Stage Closing Date written reconciliation of any amount owed with Parent respect to such Transferred Employees and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods Business Employees, from and pre-existing condition limitations to after the extent waived First Stage Closing Date, including without limitation: (A) claims for the type of benefits described in Section 3(1) of ERISA (whether or not included under the corresponding Company Plan. Parent agrees covered by ERISA but in no event to use commercially reasonable efforts include such claims with respect to give or cause its subsidiaries (including the Surviving Corporation) Business Employees to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibleswhom offers have not been extended, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees who are on long term disability) and for workers compensation, in each case that sets forth the following information are incurred by or with respect to any Transferred Employee on or after his or her Transfer Date, and (B) claims relating to severance, redundancy and similar pay, salary continuation, and similar obligations (collectively, "Severance Pay") relating to the termination or alleged termination of employment of any Business Employee described in clause (ii) of this Section 5.4(d) with Sellers, whether arising under a Benefit Plan, an Employment Agreement or other agreement, in each case only with respect to those which have been disclosed to Buyers on Schedule 3.7(b), with an individual listedBusiness Employee, or applicable Law. Buyers shall indemnify and hold harmless Sellers from: (i) the base compensation (salary or wage rate), all COBRA Coverage and bonus; related Losses attributable to "qualifying events" with respect to any Business Employees described in clause (ii) of this Section 5.4(d) and his or her beneficiaries and dependents that occur on or after the titleFirst Stage Closing Date (other than due to any failure to comply or breach of any of the Sellers or any of their Affiliates, position and/or job classificationwhether before, date of hire, credited service on or seniority, (iiiafter the First Stage Closing) full time versus part time status, active or leave status; (iv) location of each employee; and (vii) a statement all liabilities, costs, claims and Actions arising under the Worker Adjustment and Retraining Notification Act ("WARN") with respect to any Business Employees described in clause (ii) of this Section 5.4(d) because of the Company’s classification failure of each such position Buyers or job their Affiliates to extend offers of employment to Business Employees as exempt required by Section 5.4(a) (other than due to any failure to comply or non-exempt for purposes breach of any of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as Sellers or any of their Affiliates, whether before, on or after the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesFirst Stage Closing).
(e) The Company shallBuyers shall provide Sellers with information concerning the employment status of Transferred Employees, including any date of termination from Buyers and shall cause each of its subsidiaries toAffiliates, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date so as to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or enable Sellers to administer its subsidiaries, with any labor organizations Benefit Plans with respect to such Transferred Employees. Such information shall be provided from time to time in such form (including any Continuing Union-Represented Employees affected electronic media) as reasonably requested by the transactions contemplated by this AgreementSellers.
(f) Parent Buyers shall credit each Transferred Employee with vacation accrued but not used through his or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing her Transfer Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Broadwing Inc), Purchase and Sale Agreement (Corvis Corp)
Employees and Employee Benefits. (a) For All Business Employees and the date of their employment, date of birth, annual salary, total compensation for the 2000 calendar year, Benefit Plan participation and election, job title, job location and the immediate supervisor of each of them as of the date of this Agreement are listed on Schedule 5.08. Schedule 5.08 also identifies each of the Business Employees who is a period beginning on party to any contract or agreement with any of Sellers or Sellers' Affiliates, and each such employment contract or agreement which is in writing is included in Schedule 3.05B. Purchaser shall have the Closing Date and ending on right, but not the twelve (12) month anniversary obligation, to offer employment effective as of the Closing Date (or, if shorter, during an employee’s period to any or none of the Business Employees as Purchaser chooses in its sole discretion. If Purchaser offers employment following to any of the Business Employees effective as of the Closing Date)Date pursuant to this Agreement, Parent such offer shall providebe not less than the salary in effect for such Business Employee on the date of this Agreement and with benefits that are not less than those generally available to Purchasers' employees on the date of this Agreement. Sellers and Shareholders shall use commercially reasonable efforts to assist Purchaser in hiring Business Employees designated by Purchaser as Transferred Employees. Sellers and Shareholders shall not offer other employment to any Transferred Employee on or after the Closing Date without the prior written consent of Purchaser. Any severance obligations to Business Employees relating to the transactions contemplated hereby shall be borne solely by Sellers.
(b) At Closing Sellers shall pay to all Transferred Employees compensation for all accrued but not taken vacation, all accrued salary and wages and all accrued bonuses. Nothing in this Agreement shall be construed as limiting in any way the right of Purchaser after the Closing Date to terminate the employment of any Transferred Employees, to change his or her salary or wages, or shall cause to modify the Surviving Corporation to provide, to the employees of the Company benefits or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Transferred Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit planTransferred Employee:
(i) Sellers and Sellers' Benefit Plans or Shareholders or Shareholders' Benefit Plans, programas the case may be, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time shall be responsible for all claims of and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except sums due to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of Transferred Employees incurred on or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during Closing Date. For this purpose, a claim is incurred when the calendar year medical or other service giving rise to the claim is performed, except that in which the Effective Time occurs under case of death or disability, a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after claim is incurred on the date hereof, of death or date of disability as the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonuscase may be; and
(ii) the title, position and/or job classification, date of hire, credited service or seniorityExcept as otherwise expressly provided in this Section 5.08, (iiiA) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule Purchaser shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shallresponsible for, and shall cause its subsidiaries indemnify and Affiliates to: (A) not disclose such information to hold harmless Sellers and Shareholders against, any third partiesactions, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit claims or hire any employee of the Company proceedings brought by or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms on behalf of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with Transferred Employee at any labor organizations time with respect to any Continuing Union-Represented Employees affected by event occurring or condition first arising after the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue afterClosing Date, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a(B) of the Code (the “Company 401(k) Plans”) Sellers and Shareholders shall be terminatedresponsible for, as and shall indemnify and hold harmless Purchaser against, any actions, claims or proceedings brought by or on behalf of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing any Transferred Employee at any time with respect to the preparation and execution of all documentation necessary any event occurring or condition existing on or prior to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(hd) Nothing in this Agreement Sellers or Shareholders shall confer upon any Continuing Employee any right be responsible for all deferred compensation due to continue in the employ Transferred Employees under Sellers' or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere Shareholders deferred compensation plans with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, respect to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except rendered prior to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or Closing Date by any Affiliate of Parent and the Continuing Transferred Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Goran Capital Inc), Asset Purchase Agreement (Symons International Group Inc)
Employees and Employee Benefits. (a) For a period beginning on Neither the Closing Date and ending on the twelve (12) month anniversary Purchaser nor any Affiliate of the Closing Date (or, if shorter, during an employee’s period Purchaser shall have any obligation to hire or make offers of employment to any Employee or to assume any liabilities or obligations related to any Employee Plans. However, the Seller agrees that the Purchaser or an Affiliate of the Purchaser may offer employment to any Employee on such terms and conditions as determined by the Purchaser or an Affiliate of the Purchaser with such employment commencing immediately following the Closing Date). To that end, Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than within ten (10) days prior to after execution of this Agreement, the date Seller shall provide the Purchaser with a list of delivery. Parent shallall Employees and their job titles, compensation and benefits; provided, that the Purchaser shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third partiesparty other than an Affiliate of the Purchaser or a third party engaged by the Purchaser or an Affiliate of the Purchaser to assist in employment or employee benefit matters. The Purchaser or an Affiliate of the Purchaser shall have reasonable access to the Facility, and all Employees shall be made available to the Purchaser or an Affiliate of the Purchaser for the purpose of conducting employment interviews with Employees. The Purchaser or an Affiliate of the Purchaser shall conduct the interviews as expeditiously as possible prior to the Closing Date. Access and availability shall be provided by the Seller and the Project Company upon reasonable prior notice by the Purchaser during normal business hours. At least fifteen (B15) limit days prior to the distribution of such information within Parent to those scheduled Closing Date, the Purchaser shall provide the Seller with a legitimate need for list of Employees (the “Listed Employees”) to whom the Purchaser or an Affiliate of the Purchaser intends to make offers of employment with such information offers to be contingent on (i) the Closing, and (Cii) not use such scheduled information the standard hiring requirements or conditions of the Purchaser or an Affiliate of Purchaser, including completion of background checks and drug tests. Nothing herein shall be deemed to solicit require the Purchaser or any Affiliate of the Purchaser to hire any employee Employee or to continue the employment of or provide any particular level of compensation or benefits to any Listed Employee actually hired by the Purchaser or any Affiliate of the Company Purchaser. The Purchaser and its Affiliates shall indemnify and hold harmless the Seller and its Affiliates and their officers, directors, employees and shareholders in connection with any Liability or Loss arising from the decision of the Purchaser or any of its Affiliates to hire or not to hire any Employee without regard to the limitations in Article X. The Seller and its Affiliates shall indemnify and hold harmless the Purchaser and its Affiliates and their officers, directors, employees and shareholders in connection with any Liability or Loss arising from the Seller’s or its subsidiaries.
(eAffiliate’s breach of the representation in Section 5.12(d) The Company shall, and shall cause each or from employment practices related to the termination of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law any Employee on or before the Closing Date without regard to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.limitations in Article X.
(fb) Parent Subject to the Seller’s obligations under Section 7.2, nothing in this Agreement shall or shall cause be deemed to require the Surviving Corporation and its Affiliates Seller to continue to honor all Collective Bargaining Agreements until their respective expirationthe employment of, modification or amendment. To the extent required by Law provide any particular level of compensation or benefits to, any applicable Collective Bargaining AgreementEmployee, Parent shall assume or become party to including any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s requestListed Employee, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon Date; provided, however, that the occurrence Seller or an Affiliate of the Closing). The Company Seller shall be responsible for (i) the payment of all wages and Parent shall cooperate in good faith other remuneration due to Employees or former Employees with respect to their services as employees of the Seller or an Affiliate of the Seller through the close of business on the Closing Date, including all bonuses and vacation pay earned on or prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation payment of any termination or any Affiliate severance payments and the provision of Parent from amending or terminating any Company Plans health plan continuation coverage in accordance with their terms or the requirements of COBRA, (iii) create any third-party rights in any current claims made or incurred by Employees, former service provider Employees and their beneficiaries under the Employee Plans and (iv) compliance with the requirements, if any, of the Company or its Affiliates (or any beneficiaries or dependents thereof)WARN Act.
Appears in 2 contracts
Samples: Purchase and Sale Agreement (Southern Power Co), Purchase and Sale Agreement (Alabama Power Co)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation Prior to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation Buyer shall observe the terms of all existing Collective Bargaining Agreements that govern the wagesdetermine in its sole discretion which Business Employees, hours if any, to offer employment, and other shall set initial terms and conditions of employment of for any such employees of the Company or its subsidiaries to whom it offers employment, including wages, benefits, job duties and responsibilities, and work assignments. Only Business Employees who are covered offered and accept such offers of employment, and actually commence employment with Buyer based upon the initial terms and conditions set by Buyer, shall become “Buyer Employees” after the Closing Date. Seller shall make available for interviews the Business Employees if so requested by Buyer to facilitate Buyer’s right to offer employment to such Collective Bargaining Agreements and who continued employees in its sole discretion pursuant to this Section 6.03(a). Buyer shall be employed by responsible for any liability, obligation or commitment arising out of or relating to the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries employment (including the Surviving Corporationapplication for or termination of employment) following of any Buyer Employee by Buyer arising after the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except Closing Date pursuant to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted employment set by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate)Buyer, and bonus; (ii) the title, position and/or job classification, date provision of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior services by any other Person to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following Buyer after the Closing Date.
(hb) Nothing in this Agreement Seller shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parentterminate, or shall interfere cause to be terminated, on or prior to the Closing Date the employment and service of all Business Employees (which shall include releasing such Business Employees from any obligations to Seller or its Affiliates following the Closing Date incurred or that arose in connection with such employment or restrict in service, including confidentiality, non-competition and non-solicitation agreements) who are offered and accept offers of employment with Buyer pursuant to this Section 6.03. For the avoidance of doubt, (i) Buyer shall not be obligated to provide any way severance, separation pay, final wage payments, or other payment or benefits to any Business Employee on account of any termination of such Business Employee’s employment on or before the rights Closing Date, and (ii) Seller acknowledges and agrees that any and all liabilities, obligations or commitments of ParentSeller to pay any employee or former employee of Seller (including the Buyer Employees) for any salary, bonus, commission, vacation pay, severance, separation, key employee retention payments, or other compensation earned or accrued on or prior to the Surviving Corporation Closing Date, shall be an Excluded Liability and be borne solely by Seller.
(c) Seller shall have full responsibility under the WARN Act or any other labor or employment Law relating to any obligation, act, or omission of Seller prior to or on the Closing Date with respect to the Business Employees including, without limitation, any Liabilities that result from the Business Employees’ separation of employment from Seller or Business Employees not becoming Buyer Employees.
(d) With respect to any employee benefit plan maintained by Buyer or an Affiliate of ParentBuyer for the benefit of any Buyer Employee (collectively, which rights are hereby expressly reserved“Buyer Benefit Plans”), effective as of the Closing, Buyer shall, or shall cause its Affiliate to, recognize, to discharge or terminate the services extent permitted under applicable Law, all service of the Buyer Employees with Seller, as if such service were with Buyer, for purposes of any Continuing Employee at any time for any reason whatsoeverapplicable Buyer Benefit Plan; provided, however, such service shall not be recognized to the extent that (x) such recognition would result in a duplication of benefits or (y) such service was not recognized under the corresponding Benefit Plan. Further, with respect to each Buyer Benefit Plan, in which any Buyer Employee will be eligible to participate effective as of the Closing, Buyer shall, or without causeshall cause its applicable Affiliate(s) to, (i) waive, to the extent permitted under applicable Law, all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Buyer Employee under any such Buyer Benefit Plan in which such Buyer Employee may be eligible to participate on or after the Closing, except to the extent expressly provided otherwise such pre-existing conditions, exclusions or waiting periods would apply under the analogous Benefit Plan; and (ii) to the extent permitted under applicable Law, provide each such Buyer Employee with credit for any payments made under any cost-sharing provisions prior to the Closing (to the same extent such credit was given under the analogous Benefit Plan prior to the Closing) in a written agreement between Parentsatisfying any applicable cost-sharing provisions in any Buyer Benefit Plan in which such Buyer Employee may be eligible to participate on or after the Closing.
(e) Effective as of the Closing Date, the Surviving CorporationBuyer Employees shall cease active participation in the Benefit Plans. Seller shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Business Employees on or prior to the Closing Date. For purposes of this Agreement, the Company following claims shall be deemed to be incurred as follows: (i) life, accidental death and dismemberment, short-term disability, and workers’ compensation insurance benefits, on the event giving rise to such benefits; (ii) medical, vision, dental, and prescription drug benefits, on the date the applicable services, materials or any Affiliate of Parent supplies were provided; and (iii) long-term disability benefits, on the Continuing Employee. Notwithstanding any provision eligibility date determined by the long-term disability insurance carrier for the plan in which the applicable Business Employee participates.
(f) Buyer and Seller intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Business Employee who accepts an employment offer by Buyer that is consistent with the requirements of Section 6.03(b), including for purposes of any Benefit Plan that provides for separation, termination or severance benefits (if any). Each Buyer Employee shall resign from Seller and accept employment with Buyer at the same time resulting in no period of unemployment. Buyer shall be liable and hold Seller harmless for any claims relating to the contraryemployment of any Buyer Employee only to the extent such claims relate to activity occurring after the Closing Date.
(g) This Section 6.03 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.9 6.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the terms set forth in this Section 6.03 shall not create any right in any Business Employee, Buyer Employee or any other Person to any continued employment with Buyer or any of its Affiliates or compensation or benefits of any nature or kind whatsoever.
(h) Seller shall follow the “standard procedure” for preparing and filing Internal Revenue Service Forms W-2 (Wage and Tax Statements), as described in Revenue Procedure 2004-53 for Buyer Employees. Under this procedure, (i) be deemed or construed Seller shall provide all required Forms W-2 to be an amendment or (x) all Buyer Employees reflecting wages paid and Taxes withheld by Seller in respect of such Buyer Employees’ employment with Seller through the Closing Date, and (y) all other modification employees and former employees of any Company PlanSeller who are not Buyer Employees reflecting all wages paid and taxes withheld by Seller, Parent Plan or any other employee benefit plan, and (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates Buyer (or any beneficiaries one of its Affiliates) shall provide all required Forms W-2 to all Buyer Employees reflecting all wages paid and taxes withheld by Buyer (or dependents thereof)one of its Affiliates) after the Closing Date.
Appears in 2 contracts
Samples: Asset Purchase Agreement (Jupiter Wellness, Inc.), Asset Purchase Agreement (SOCIAL REALITY, Inc.)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (orcontinuing thereafter for 12 months, if shortersubject to any contractual obligations that may apply, during an employee’s period of employment following the Closing Date), Parent TopCo shall provide, or shall cause the MSLO Surviving Corporation and its Subsidiaries to provide, to the employees of MSLO as of the Company or its subsidiaries who are not represented by a labor organization and Closing who continue to be employed by the Company or the Surviving Corporation employment with TopCo or any subsidiary or Affiliate thereof of its Subsidiaries, including MSLO Surviving Corporation, following the Closing (the “Continuing Non-Union Employees”), ) with (i) the same wage or base salary and wage rate as levels (but not any short-term incentive compensation opportunities or other bonus plans (other than the base salary and wage rate provided to such Continuing Non-Union Employee commission sales plan set forth in Section 6.11(a) of the MSLO Disclosure Schedule)) that are not less than those in effect immediately prior to the Effective Time, and (ii) employee incentive compensation opportunities which benefits (excluding equity-based compensation) that are no less favorable comparable in the aggregate than the incentive compensation opportunities provided to either those in effect for such Continuing Non-Union Employees immediately prior to the Effective Time or those provided to similarly-situated employees of Sequential from time-to-time, provided that, (x) until December 31, 2015, Topco and the MSLO Surviving Corporation agree to keep in effect all employee benefits (excluding equity-based compensation) that are applicable to employees of MSLO as of the date hereof and (iiiy) employee benefits which are substantially comparable in notwithstanding the aggregate immediately preceding clause (including with respect to x), until the proportion one year anniversary of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, TopCo and the MSLO Surviving Corporation agree to keep in effect all severance plans, practices and policies that are applicable to employees of MSLO as of the date hereof and set forth on Section 6.11(a) of the MSLO Disclosure Schedule. Nothing herein shall observe be deemed to limit the right of TopCo or any of their respective Affiliates to (A) terminate the employment of any Continuing Employee at any time, (B) change or modify the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and or conditions of employment of employees of the Company for any Continuing Employee, or (C) change or modify any Sequential Benefit Plan, MSLO Benefit Plan or other employee benefit plan or arrangement in accordance with its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)terms.
(b) For all purposes under the employee benefit plans, programs and arrangements established or maintained by TopCo and its respective Affiliates in which Continuing Employees may be eligible to participate after the Closing (the “New Benefit Plans”), each Continuing Employee shall be credited with the same amount of service as was credited by MSLO as of the Closing under similar or comparable MSLO Benefit Plans in which such Continuing Employee participated immediately prior to the Closing (except (i) For for purposes of benefit accrual under defined benefit plans and retiree medical arrangements or (ii) to the twelve extent such credit would result in a duplication of benefits). In addition, and without limiting the generality of the foregoing, (12i) month period with respect to any New Benefit Plans in which the Continuing Employees may be eligible to participate following the Closing DateClosing, Parent shall provideeach Continuing Employee will immediately be eligible to participate in such New Benefit Plans, or shall cause the Surviving Corporation to providewithout any waiting time, to the extent coverage under such New Benefit Plans replaces coverage under a similar or comparable MSLO Benefit Plan in which such Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) Employee was eligible to participate immediately before such commencement of the Company Disclosure Schedule participation and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of each New Benefit Plan providing medical, dental, pharmaceutical and/or vision benefits to any Continuing Employee, TopCo shall cause all Company Stock Planspreexisting condition exclusions and actively-at-work requirements of such New Benefit Plan to be waived for such Continuing Employee and his or her covered dependents, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of any such exclusions or entitlement to pension benefits, post-employment requirements were waived or retiree welfare benefits, special were inapplicable under any similar or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers comparable MSLO Benefit Plan in which such Continuing Employee participated immediately prior to the extent the Company provides or has recognized past service credit) Closing. TopCo shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give cause any eligible expenses incurred by such Continuing Employee and his or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time her covered dependents during the calendar portion of the plan year of the MSLO Benefit Plan ending on the date such Continuing Employee’s participation in which the Effective Time occurs corresponding New Benefit Plan begins to be taken into account under a corresponding Company such New Benefit Plan for purposes of applying deductiblessatisfying all deductible, copayments coinsurance and maximum out-of-pocket maximums requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year as though if such amounts had been paid in accordance with the terms and conditions of the Parent such New Benefit Plan.
(dc) To The terms of this Section 6.11 are included for the extent permitted by applicable Lawsole benefit of the respective parties hereto and shall not confer any rights or remedies upon any Continuing Employee or former employee of MSLO, no later any participant or beneficiary in any MSLO Benefit Plan or any other Person or Governmental Entity (whether as a third party beneficiary or otherwise) other than thirty (30) days after the date hereof, the Company parties hereto. Nothing contained in this Agreement shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base constitute or be deemed to constitute an amendment to any MSLO Benefit Plan or other compensation (salary or wage rate)benefit plan, and bonus; policy, program or arrangement of MSLO, Sequential or any other Person, (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company obligate TopCo or any of its subsidiaries that are defined contribution plans intended Subsidiaries to be qualified within (A) maintain any particular benefit plan or arrangement or (B) retain the meaning employment of Section 401(aany particular employee; or (iii) of prevent the Code (the “Company 401(k) Plans”) shall be terminatedMSLO Surviving Corporation, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent TopCo or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent their Subsidiaries from amending or terminating any Company Plans in accordance with their terms benefit plan or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)arrangement.
Appears in 2 contracts
Samples: Merger Agreement (Martha Stewart Living Omnimedia Inc), Merger Agreement (Sequential Brands Group, Inc.)
Employees and Employee Benefits. (a) For Following the date hereof, Seller shall reasonably cooperate and work with Purchaser to help Purchaser identify employees and contractors of Seller to whom Purchaser may elect to offer employment or a period beginning on contractor relationship with Purchaser (each such employee and contractor that Purchaser elects to offer employment or a contractor relationship with Purchaser, an “Offered Service Provider”). With respect to any Offered Service Provider, Seller, at no cost or expense to it, shall reasonably assist Purchaser with its efforts to enter into an employment agreement or contractor arrangement with such Offered Service Provider, as applicable, as soon as practicable after the Closing Date date of this Agreement and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following in any event prior to the Closing Date). Upon an Offered Service Provider becoming a Continuing Service Provider, Parent shall provideSeller may not involuntarily terminate (except for cause) its employment and/or contractor relationship, or shall cause the Surviving Corporation to provideas applicable, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to with such Continuing Non-Union Employee immediately Service Provider prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date. Notwithstanding any of the foregoing, the Surviving Corporation Purchaser shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions not have any obligation to make an offer of employment or contractor services to any employee or contractor of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Seller.
(b) (i) For the twelve (12) month period Except as otherwise mutually agreed to by Seller and Purchaser prior to or following the Closing Date, Parent Seller shall providebe solely responsible, and Purchaser shall have no obligations whatsoever, for any compensation or shall cause the Surviving Corporation other amounts payable to provideany Seller Service Provider, to the Continuing Non-Union Employeesincluding hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending pay or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and outchange-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt control transactions for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior any period relating to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to service with Seller at any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately time prior to the Closing Date (including but conditioned upon the occurrence not limited to any such compensation arising out of the Closing). The Company consummation of this Agreement and Parent the Transactions) and Seller shall cooperate pay all such amounts to all entitled persons if, as and when due.
(c) Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in good faith respect of the Key Employees and the current or former employees, independent contractors or consultants employed or engaged by Seller or the spouses, dependents or beneficiaries of any of the foregoing, which claims relate to events occurring prior to the Closing with respect to the preparation and execution Date. Seller shall remain solely responsible for all worker’s compensation claims of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of employees, officers, directors, managers, independent contractors or consultants employed or engaged by Seller which relate to events occurring prior to the Company Closing Date. Seller shall pay, or its Affiliates cause to be paid, all such amounts to the appropriate persons if, as and when due.
(d) Notwithstanding anything to the contrary herein, it is understood and agreed that Seller shall not be responsible for any compensation, benefits or other amounts payable to any Seller Service Provider pursuant to any Contract entered into by TheMaven, Purchaser or any beneficiaries of their Affiliates that becomes effective at or dependents thereof)following the Closing.
Appears in 2 contracts
Samples: Asset Purchase Agreement, Asset Purchase Agreement (theMaven, Inc.)
Employees and Employee Benefits. (a) For a period beginning on Buyer hereby agrees to offer employment, effective the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following day after the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries all individuals who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)are, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wagesactive, hours and other terms and conditions of employment of full or part-time employees (including employees on short-term leave) of the Company or its subsidiaries Newspaper. With respect to each such employee to whom Buyer offers employment, Buyer shall offer to employ such person at a base compensation that is no less than the base compensation that was paid to such employee immediately prior to Closing. Each employee of the Newspaper who are covered by such Collective Bargaining Agreements and who continued accepts employment with Buyer on the Closing Date is hereinafter referred to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the as a “Continuing Union-Represented EmployeesNew Employee”).
(b) Except as set forth in subsection (ia) For the twelve (12) month period following above, Buyer, in its sole discretion, shall determine what employee benefits will be made available to New Employees; provided, however, that Buyer will offer medical coverage to New Employees on and after the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Nonextent permitted by Buyer’s health plans, shall waive for New Employees any pre-Union existing condition limitations and waiting periods that may apply under its health plans, and shall recognize New Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) ’ service with Sellers or any of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance their respective affiliates as if it were service with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” Buyer for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) satisfying any vesting requirements under any benefit plans offered by Buyer (but not for purposes of benefit accrual or for determining the Company Disclosure Scheduleamount of benefits payable under any benefit plan other than a vacation plan).
(c) With respect to each benefit planBuyer shall be responsible for any obligations under federal, programstate or local plant closing statutes, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectivelyWARN Act, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before events occurring after the Closing Date to inform and consult (or otherwise), under applicable Law and other than any such obligations arising from the terms consummation of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(fd) Parent Sellers shall or be responsible for and timely pay all compensation owed to the New Employees and shall cause be responsible for and timely provide New Employees with all benefits owed under the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendmentEmployee Benefit Programs through the Closing Date. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions Sellers will accrue after, and that retain all of the Company Plans sponsored or maintained by the Company or Employee Benefit Programs, including all employee benefit plans and pension plans, and Buyer will not assume obligations under any of its subsidiaries that are defined contribution plans intended to such programs. Sellers shall be qualified within the meaning of Section 401(a) fully and solely responsible for any costs, expenses, obligations and liabilities arising out of the Code (pension or retirement obligations attributable to the “Company 401(k) Plans”) shall be terminated, as of immediately Newspaper’s current or former employees related to the period on or prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement (GateHouse Media, Inc.), Asset Purchase Agreement (Champion Industries Inc)
Employees and Employee Benefits. (a) For Purchaser may, but is not required to, offer employment to employees at the Branches. Each such employee who accepts Purchaser’s offer of employment shall be a period beginning on “Transferred Employee” for purposes of this Agreement effective upon the Closing Date and ending on the twelve (12) month anniversary later of the Closing Date (oror the return of such employee to active employment. A Transferred Employee’s employment with Purchaser shall be on an “at-will” basis, if shorter, during and nothing in this Agreement shall be deemed to constitute an employee’s employment agreement with any such person or to obligate Purchaser to employ any such person for any specific period of employment following time or in any specific position or to restrict Purchaser’s right to terminate the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by any such Collective Bargaining Agreements person at any time and who continued for any reason satisfactory to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)it.
(b) (i) For the twelve (12) month period following the Closing DateWith respect to each Branch employee who does not become a Transferred Employee, Parent Seller shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in be responsible for all “Continuation Coverage” under Section 6.9(b)(i) 4980B of the Company Disclosure Schedule Code and (ii) from Section 601 of ERISA and after any severance costs associated with terminating the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, employment of such employee in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent Seller’s severance policies and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedulepractices.
(c) With respect Each Transferred Employee shall cease to each be covered by the employee welfare benefit planplans, programincluding plans, practiceprograms, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time policies and in arrangements which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees provide medical and dental coverage, life and accident insurance, disability coverage, and vacation and severance pay (collectively, the “Continuing EmployeesBenefit Plans”) participate (of Seller and all other benefit and compensation plans of Seller on the “Parent Plans”), and except to date the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of Transferred Employee becomes a Transferred Employee or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included on such later date specified under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give terms of an applicable Benefit Plan or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes other plan of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent PlanSeller.
(d) To Attached as Schedule 8.3 is a true and correct report listing each employee employed at the extent permitted by applicable Law, no later than thirty (30) days after Branches as of the date hereofthe report is prepared to include name, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary position, exempt or wage rate), and bonus; (ii) the title, position and/or job classificationnonexempt status, date of hirehire and total years of service, credited service present salary, date of last salary increase, employment status (permanent or senioritytemporary, (iii) full full-time versus part time statusor part-time, active or leave status; (ivrecipient and type of leave). Seller represents and warrants to Purchaser that the report and all information delivered in connection with this Section 8.3(d) location of each employee; will be complete and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Actaccurate in all material respects. Such schedule shall The report will be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than updated within ten (10) calendar days prior to of Closing. Purchaser shall maintain in confidence the date of delivery. Parent shall, information on the employees and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those use it only for legitimate business purposes in connection with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Purchase and Assumption Agreement, Purchase and Assumption Agreement (CenterState Banks, Inc.)
Employees and Employee Benefits. (a) For a During the period beginning on the Closing Date and ending on the twelve first (121st) month anniversary of the Closing Date (orDate, if shorter, during an employee’s period of employment following Buyer shall provide the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the salaried employees of the Company or any of its subsidiaries who are not represented by a labor organization and Subsidiaries who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof of its Subsidiaries (the “Continuing Non-Union Company Employees”)) with base compensation, (i) the same base salary commission and wage rate as the base salary annual bonus opportunities and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which that are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the base compensation, commission and annual bonus opportunities and employee benefits provided to such Continuing Non-Union Company Employees immediately prior to the Effective TimeClosing Date, excluding, for all purposes any incentive compensation and defined-benefit pension benefits. Commencing In addition, for the period beginning on the Closing Date and ending on the first (1st) anniversary of the Closing Date, Buyer shall provide severance benefits in amounts that are no less than the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements amounts that govern the wageswould be calculated under that certain PSAV Severance Policy effective January 1, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof 2013 (the “Continuing Union-Represented EmployeesSeller Severance Policy”).
, upon termination of the employment of any Company Employee who would be eligible to receive severance under the Seller Severance Policy, notice of which termination is given during such period (band subject to such Company Employee’s execution and delivery of a general release of claims in addition to any conditions currently in effect under such policy). In addition, with respect to calendar year 2013, Buyer shall honor all annual bonus and incentive plans (and any awards granted thereunder) (ibut excluding any equity- or equity-based incentives and any transaction-vesting bonus and incentive plans) For identified on Section 4.4 of the twelve (12) month period following Seller Disclosure Letter in accordance with their terms in effect immediately prior to the Closing Date, Parent and shall providecalculate any applicable performance metrics for purposes of such annual bonus and incentive plans in a manner substantially consistent with the past practice of the Company and its Subsidiaries. Buyer further agrees that, or from and after the Closing Date, Buyer shall and shall cause the Surviving Corporation Company and its Subsidiaries to provide, credit the Company Employees with the same amount of service as was credited by the Company and its Subsidiaries prior to the Continuing NonClosing Date (i) for eligibility and vesting purposes (but not for purposes of accruals under any defined-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(ibenefit pension plan) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plansvacation accrual and severance benefit determinations, Company Plans in the case of each of (i) and related trusts set forth in Section 6.9(b)(iii(ii) of the Company Disclosure Schedule.
(c) With respect to each under any benefit or compensation plan, program, practice, policy agreement or arrangement maintained by Parent in which they participate of Buyer or the Company any of its subsidiaries Subsidiaries on or after the Closing Date, except to the extent that such a credit would result in the duplication of benefits. In addition, Buyer shall (including the Surviving CorporationA) following the Effective Time cause to be waived all pre-existing condition exclusions and actively at work requirements and similar limitations, eligibility waiting periods and evidence of insurability requirements under any employee benefit plan in which any of the Continuing Non-Union Company Employees or Continuing Union-Represented Employees commence to participate following the Closing Date (collectivelyany such plan, the a “Continuing EmployeesNew Plan”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included satisfied by a Company Employee under the corresponding any Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Benefit Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductiblesthey are then participating and (B) cause any deductible, copayments co-insurance and covered out-of-pocket maximums as though such amounts had been expenses paid under any Company Benefit Plan in accordance with the terms and conditions plan year in which commencement of participation in the Parent Plan.
New Plan occurs by any Company Employee (dor covered dependent thereof) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt be taken into account for purposes of satisfying the Federal Fair Labor Standards Actcorresponding deductible, coinsurance and maximum out of pocket provisions under any applicable New Plan in the year of initial participation. Such schedule shall be true and complete as of the date Nothing contained herein, express or dates set forth on the scheduleimplied, each of which shall be no more than ten (10) days prior is intended to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire confer upon any employee of the Company or its subsidiariesSubsidiaries any right to continued employment for any period or continued receipt of any specific employee benefit, or shall constitute an amendment to or any other modification of any New Plan or Company Benefit Plan.
(eb) The Company No later than the first payroll date following the Closing Date, Buyer shall, and or shall cause each of its subsidiaries the Company to, comply make the payments to the Persons named on the Phantom Plan Payment Schedule and the LTIP Payment Schedule in all material respects with the respective amounts specified therein for each such Person. Such payments shall be in full and final satisfaction of their respective obligations such Persons’ rights under applicable Law before the Phantom Plan and the LTIP.
(c) Buyer and its Affiliates shall not at any time prior to ninety days after the Closing Date effectuate a “plant closing” or “mass layoff” as such terms are defined in the Worker Adjustment and Retraining Notification Act of 1988 (“WARN”) or effectuate any similar triggering event under any other applicable Law, affecting in whole or in part any site of employment, facility, operating unit or Company Employee. Buyer agrees to inform provide any required notice under WARN and consult (or otherwise), under any other applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, to otherwise comply with any labor organizations such statute with respect to any Continuing Union-Represented Employees affected by “plant closing” or “mass layoff” (as defined in WARN) or any similar triggering event under any other applicable Law occurring on or after the Closing or arising as a result of the transactions contemplated by this Agreement.
(f) Parent hereby. Seller shall or shall cause the Surviving Corporation and its Affiliates deliver to continue to honor Buyer at Closing a list of all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified employees whose employment terminated within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately 90 days prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Datereason for each termination.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Stock Purchase Agreement, Stock Purchase Agreement (PSAV, Inc.)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the 7.1 Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date Closing, Sellers will terminate the employment of all of their offshore employees who are compensated on either a hourly or day rate basis (but conditioned upon “Offshore Employees”). Buyer hereby agrees that it will as promptly as practicable after the occurrence date hereof offer employment to all of the Offshore Employees, to be effective as of the Closing. As promptly as practicable after the date hereof, but in any event at least five (5) days before the Closing Date, Buyer shall offer employment to a majority of Sellers’ other employees who are listed on Exhibit G attached hereto (“Other Employees”). The Company All of the Offshore Employees and Parent Other Employees who accept employment with Buyer shall cooperate be employed by Buyer on terms as to salary and insurance benefits substantially equivalent to those presently provided by Sellers. Sellers have made and will make no other representation or warranty or any other statement or communication regarding Buyer’s right, ability, plan or intention to employ any employee of Sellers or the terms and conditions upon which any such employee may be employed by Buyer or its Affiliates, and will not make any such representations, warranties, statements or communications during the period beginning on the date hereof and ending on the Closing Date. Sellers shall pay in good faith full all compensation, bonuses, accrued severance, and other payments that may result from the termination of employment by Sellers of any employee(s) of Sellers and any compensation due such employees up to and including the Closing Date. Sellers shall provide Buyer a list of those employees terminated by Sellers on or before the Closing Date and shall confirm to Buyer in writing the communication of said terminations. Buyer or its designee shall be responsible for and shall assume any and all costs, obligations or liabilities directly related to the termination by Buyer or Buyer’s designee of any former employee of Seller who is hired by Buyer or Buyer’s designee on or after the Closing Date. After the Closing Date, Buyer shall provide to employees of Sellers hired by Buyer the seniority such persons had as Seller’s employees, for purposes of determining employee benefits, including health insurance and benefit plans of every kind, and such newly hired employees shall be entitled to participate in all employee benefits (including health insurance) immediately upon the Closing Date, with no waiting period prior to the Closing participation, if allowed by applicable laws and regulations. Neither Buyer nor its designee is, or shall be deemed to be, a successor employer to Sellers with respect to any employee benefit plans or programs of Seller or its Affiliates, and no plan or program adopted or maintained by Buyer or its designee after the preparation Closing Date is or shall be deemed to be a “successor plan,” as such term is defined in ERISA or the Code, of any such plan or benefit program of Sellers or their Affiliates.
7.2 Sellers shall make available to Buyer records which provide information regarding employees’ names, Social Security numbers, dates of hire by Sellers, date of birth, number of hours worked each calendar year, attendance and execution salary histories for all employees of all documentation Sellers offered employment by Buyer. Sellers shall not provide records pertaining to performance ratings and evaluations, disciplinary records and medical records.
7.3 With respect to Sellers’ employees who are hired by Buyer, Buyer shall take such actions as are necessary to effect the foregoing termination, and the Company shall provide Parent cause a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a Section 401(k) plan maintained by Parent or any the Buyer to accept direct rollovers of its subsidiaries or Affiliates such employee’s eligible rollover distributions (including plan loan notes) from the Sellers’ Section 401(k) plan as soon as practicable following the Closing Dateelected by such employees.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 2 contracts
Samples: Asset Purchase Agreement (Cal Dive International Inc), Asset Purchase Agreement (Stolt Offshore S A)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, Seller and its Affiliates shall (i) assign to Buyer the Surviving Corporation shall observe Employee Confidentiality Agreement signed by each employee of the terms Business who is actively employed by Seller or its Affiliates on the Closing Date and (ii) terminate the employment of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries Business who are covered by such Collective Bargaining Agreements and who continued to be actively employed by Seller on the Company or Closing Date, and Buyer will issue a confirmation letter to each such employee, except for those employees of the Surviving Corporation or Business set forth on Section 6.02(a) of the Disclosure Schedules, offering employment on an "at will" basis and stating each such employee’s title, compensation and benefits. Seller shall bear any subsidiary or Affiliate thereof (and all obligations and liability under the “Continuing Union-Represented Employees”)WARN Act resulting from employment losses pursuant to this Section 6.02.
(b) (i) For the twelve (12) month period following the Closing DateSeller shall be solely responsible, Parent and Buyer shall providehave no obligations whatsoever for, any compensation or shall cause the Surviving Corporation other amounts payable to provideany current or former employee, to the Continuing Non-Union Employeesofficer, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) director, independent contractor or consultant of the Company Disclosure Schedule and (ii) from and after the Effective TimeBusiness, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included amounts payable under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information agreements with respect to each individual listed: (i) a disposition of the base compensation (salary Business or wage rate)the Purchased Assets, and including, without limitation, hourly pay, commission, bonus; (ii) the title, position and/or job classificationsalary, date of hireaccrued vacation, credited service fringe, pension or seniority, (iii) full time versus part time status, active profit sharing benefits or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt severance pay for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior any period relating to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to service with Seller at any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit time on or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon including severance pay resulting from any termination of employment pursuant to Section 6.02(a)), and Seller shall pay all such amounts to all entitled persons on a time schedule consistent with Seller’s normal pay practices.
(c) Seller shall remain solely responsible for the occurrence satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Closing). The Company and Parent shall cooperate in good faith Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing with respect to the preparation and execution Date. Seller also shall remain solely responsible for all worker's compensation claims of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider employees, officers, directors, independent contractors or consultants of the Company Business which relate to events occurring on or its Affiliates prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.
(d) Seller shall pay or any beneficiaries or dependents thereof)cause to be paid to Buyer the amounts set forth on Section 6.02(d) of the Disclosure Schedules.
Appears in 1 contract
Employees and Employee Benefits. From and after the Closing Date, the Purchaser shall grant all employees of the Partnership and the Subsidiaries credit for all service (ato the same extent as service with the Purchaser or any subsidiary of the Purchaser is taken into account with respect to similarly situated employees of the Purchaser and the subsidiaries of the Purchaser) For a period beginning on with the Partnership and any Subsidiary and their respective predecessors (including, without limitation, United and Covia Partnership) prior to the Closing Date for all purposes as if such service with the Partnership or any Subsidiary or predecessor was service with the Purchaser or any subsidiary of the Purchaser (provided, however, that no such past service credit shall be granted to the extent it would result in duplicative accrual of benefits for the same period of service), and, with respect to any medical or dental benefit plan, the Purchaser shall waive any pre-existing condition exclusions and ending on actively-at-work requirements (provided, however, that no such waiver shall apply to a pre-existing condition of any employee of the twelve (12) month anniversary Partnership or any Subsidiary who was, as of the Closing Date, excluded from participation in a Plan by virtue of such pre-existing condition) and provide that any covered expenses incurred on or before the Closing Date (or, if shorter, during by an employee or an employee’s period 's covered dependent shall be taken into account for purposes of employment following satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date), Parent Date to the same extent as such expenses are taken into account for the benefit of similarly situated employees of the Purchaser and subsidiaries of the Purchaser. The Purchaser shall provide, provide or shall cause the Surviving Corporation Partnership and each Subsidiary to provide, provide benefits to the employees any employee of the Company or its subsidiaries who Partnership and each Subsidiary which are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities benefits provided to similarly situated employees of the Purchaser and subsidiaries of the Purchaser, excluding flight benefits; provided, however, that nothing in this Section 5.12 shall require the Purchaser to provide benefits to any such 45 employee that are more favorable than the benefits provided or proposed to be provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation Partnership or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of Subsidiary immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: General Partnership Interest Purchase Agreement (Galileo International Inc)
Employees and Employee Benefits. (a) For a period beginning on From the date of this Agreement until the date mutually agreed upon in writing by Seller and Purchaser (which date shall be no later than (30) Business Days immediately following the Closing Date and ending on shall be referred to herein as the twelve “Employee Transition Date”), Seller and its Affiliates shall make all Business Employees reasonably available to Purchaser for the purpose of Purchaser interviewing the Business Employees. During such period, Seller and its Affiliates shall use reasonable efforts to cooperate with Purchaser’s efforts and to assist Purchaser upon request in connection with Purchaser’s efforts to hire Business Employees desired to be hired by Purchaser, including providing Purchaser reasonable access to such records of Seller and its Affiliates regarding each such Business Employee as is requested by Purchaser and as Seller and its Affiliates may lawfully provide to Purchaser including for purposes of payroll set-up and benefit enrollment. The initial contact by Purchaser to Business Employees (12individually or as a group) month anniversary shall be coordinated in advance between Seller and Purchaser. Once Purchaser engages in direct communication with particular Business Employees, Purchaser may communicate directly with any such Business Employees without the prior approval of Seller. Seller and its Affiliates shall not discuss with any such Business Employees any increase or expansion of the Closing Date (or, if shorter, during an employee’s period compensation of employment following benefits that such Business Employees are then entitled to receive with the Closing Date), Parent shall provide, or shall cause the Surviving Corporation intention of influencing such Business Employees to provide, decline to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be become employed by the Company or following the Surviving Corporation or any subsidiary or Affiliate thereof Closing.
(b) No later than twenty Business Days following the Closing, Purchaser shall provide to Seller in writing a list of those Business Employees to whom Purchaser intends to make an offer of employment (the “Continuing Non-Union Offered Employees”)) and Purchaser shall offer employment to the Offered Employees within three Business Days thereafter. Such offers of employment shall be in writing, and shall include, at a minimum: (i) a position located in the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee metropolitan area held immediately prior to the Effective Time, Closing Date; (ii) employee a base salary (or wages) and bonus and incentive compensation opportunities which are no less favorable in generally comparable to the aggregate than the base salary (or wages) and bonus and incentive compensation opportunities provided to such Continuing Non-Union Employees Transferred Employee (excluding Account Executives, with respect to which those receiving offers of employment will be offered compensation comparable to similarly situated Account Executives employed by Purchaser and/or its Subsidiaries) immediately prior to the Effective Time Closing Date; and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee costincluding, but not limited to, retirement and welfare benefits, paid time off, equity and equity- based compensation or benefits, nonqualified deferred compensation, severance, and life, medical, and accident insurance) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(iemployee benefits (including, but not limited to, retirement and welfare benefits, paid time off, equity and equity-based compensation or benefits, nonqualified deferred compensation, severance, and life, medical, and accident insurance) provided to similarly situated employees of Purchaser. Those Business Employees who are not Offered Employees are hereinafter referred to as “Non-Selected Employees.” Seller and its Affiliates shall cause the employment of the Company Disclosure Schedule Offered Employees who accept Purchaser’s offer of employment (the “Transferred Employees”) to be terminated on the Business Day designated in writing to Seller by Purchaser that is at least two Business Days prior to the Employee Transition Date, and Seller and its Affiliates shall immediately prior to or as soon as administratively practicable following the Transferred Employees’ termination (i) pay all salaries, wages, paid time off or accrued vacation and all bonuses payable through the Employee Transition Date (including any bonus, change-in-control or similar payment obligations of Seller or its Affiliates resulting from the consummation of the Transactions) due to all Transferred Employees, including the Offered Employees, (ii) from pay all separation, severance, salary continuation and after insurance continuation payments (if any), due or to become due to the Effective TimeTransferred Employees (whether arising under the policies of Seller or its Affiliates, Parent Contracts with the respective employees, applicable Law or otherwise), (iii) provide all notices to the Transferred Employees required by Law, including any required notice under COBRA, and (iv) terminate all awarded paid time off policies and all incentive and bonus plans for all Transferred Employees; provided, however, within sixty days following the Employee Transition Date, the Purchaser shall cause reimburse Seller for all severance pay and benefits, accrued vacation or paid time off actually paid by Seller or its Affiliates to the Surviving Corporation Non-Selected Employees under the terms of the applicable Business Benefit Plan as in effect as of the date of this Agreement; provided, further, that such reimbursement with respect to severance pay paid to each Non-Selected Employee shall not exceed the lesser of (x) in the aggregate, fifty-two (52) weeks of such employee’s base pay or (y) such employee’s base pay for two (2) weeks multiplied by his or her years of service with Seller and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(iiAffiliates plus his or her base pay for two (2) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Scheduleweeks.
(c) With respect to each any Business Employee, Purchaser shall not assume, honor or be obligated to perform, and Seller and its Affiliates shall remain solely responsible for, any duties, responsibilities, commitments or obligations of Seller or its Affiliates with respect to any Business Benefit Plan, qualified or non-qualified employee benefit plan, program, practice, policy or arrangement plan presently maintained by Parent Seller or its subsidiaries Affiliates or for the benefit of Business Employees or any other Contract or commitment (including without limitation with respect to wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, whether due before or after the Surviving CorporationEmployee Transition Date) following the Effective Time between Seller or its Affiliates and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except such Business Employee. Subject to the extent necessary to avoid duplication provisions of benefitssubparagraph (b) above, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planemployment, if any, offered by Purchaser to any Offered Employee shall be determined by Purchaser in Purchaser’s sole discretion.
(d) To The Purchaser shall be solely responsible for complying with the extent permitted WARN Act, in any case, applicable to the Business Employees as a result of any action or omission by applicable Law, no later than thirty (30) days the Purchaser or its Affiliates on or after the date hereof, Closing Date. The Purchaser shall indemnify and hold harmless Seller and its Affiliates against any and all Losses arising in connection with any failure to comply with the Company shall provide to Parent a schedule requirements of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage ratethis Section 7.6(d), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shallCCOI or its Affiliate (other than the Company) shall assume, bear and shall cause each discharge all obligations and Liabilities pursuant to Code Section 4980B and Part 6 of its subsidiaries to, comply in Subtitle B of Title I of ERISA (“COBRA”) with respect to all material respects with each of their respective obligations under applicable Law before the Closing Date to inform employees and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of former employees of the Company or its subsidiaries, with any labor organizations Seller Group Entities with respect to any Continuing Union-Represented Employees affected by qualifying events occurring on or before the Employee Transition Date, including the employees who terminate employment with a Seller Group Entity as a result of the transactions contemplated by in this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions This Section 7.6 will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) not create any third-party beneficiary rights in nor will it be enforceable by any current employee, any person representing the interest of employees or former service provider any spouse, dependent or beneficiary of any employee, nor will anything herein be deemed an amendment to any employee benefit plan. This Section 7.6 is solely an agreement between and for the benefit of the Company Parties to this Agreement and will be enforceable by them. No term of this Agreement will be deemed to create any Contract with any employee or its Affiliates (to interfere with Company’s or any beneficiaries or dependents thereof)of its Affiliate’s (including, after the Closing, Purchaser) right to terminate the employment of any employee at any time.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary The Buyer or one of the Closing Date (or, if shorter, during an employee’s period of its Affiliates will offer employment following the Closing Date), Parent shall provideto, or shall cause the Surviving Corporation will offer to provideenter into a consulting relationship with, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof all Employees (the “Continuing Non-Union Employees”), (ix) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing listed on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(iSchedule 4.15(a) of the Company Disclosure Schedule and Letter or (iiy) from and after proposed by the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries Buyer to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule in writing within forty-five (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (3045) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained who remain actively employed by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence “Identified Employees”) on terms and conditions determined by the Buyer or such Affiliate. All Identified Employees who accept such offer of employment (other than those Identified Employees who are offered a consulting relationship) are herein referred to as the Closing“Transferred Employees.” Neither the Buyer nor any of its Affiliates will have any obligation to any Employee who is not an Identified Employee or to any Identified Employee who does not become a Transferred Employee (or who does not become a consultant to Buyer or one of its Affiliates as contemplated by this Section 4.15(a)). The Company and Parent shall cooperate in good faith prior to the Closing An Identified Employee who is offered a consulting relationship with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Buyer or any of its subsidiaries or Affiliates as soon contemplated by this Section 4.15(a) shall not be treated as practicable following the Closing Datea Transferred Employee.
(hb) Each Transferred Employee’s active participation in the Company Benefit Plans shall cease as of the Closing or as otherwise provided under the terms of such Company Benefit Plan or applicable Law.
(c) For purposes of vesting, eligibility to participate, and solely with respect to severance and paid time off plans, level of benefits under the employee benefit plans of the Buyer providing benefits to any Transferred Employees after the Closing (the “New Plans”), each Transferred Employee shall be credited with his or her years of service with the Company, its Subsidiaries and their respective predecessors before the Closing, to the same extent as such Transferred Employee was entitled, before the Closing, to credit for such service under any similar benefit plan in which such Transferred Employee participated, or was eligible to participate, immediately prior to the Closing; provided that the foregoing shall not apply to the extent that its application would result in a duplication of benefits.
(d) Nothing contained in this Agreement shall confer upon any Continuing Transferred Employee or other Employee any right with respect to continue in employment by the employ Buyer or service of Parentits Affiliates, the Surviving Corporation or any Affiliate of Parent, or nor shall anything herein interfere with the right of the Buyer or restrict in any way its Affiliates, following the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reservedClosing, to discharge or terminate the services employment of any Continuing such Transferred Employee or other Person at any time for any reason whatsoevertime, with or without cause, except or restrict the Buyer or its Affiliates in the exercise of their independent business judgment in modifying any of the terms and conditions of the employment or engagement of any such Transferred Employee or other Person. The Buyer shall have no obligation with respect to the extent expressly provided otherwise any severance obligation arising out of or in a written agreement between Parent, the Surviving Corporation, connection with any Employee’s relationship with the Company or its Subsidiaries, and any Affiliate of Parent and such obligation shall be the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider obligation of the Company or such Subsidiary; provided, however, that if an Employee’s employment with the Company or its Subsidiaries is terminated and such Employee is subsequently hired by (or becomes a consultant to) Buyer or one of its Affiliates within ninety (90) days following Closing, then Buyer shall reimburse the Company for all cash severance costs incurred by the Company or its Subsidiaries in connection with such Employee’s termination of employment with the Company or its Subsidiaries to the extent consistent in all respects with the severance arrangement covering such Employee as of immediately prior to the date hereof, as set forth on Section 4.15(d) of the Company Disclosure Letter (and disregarding any amendments that would increase such cash severance that are made on or after the date hereof) (for the avoidance of doubt, any such reimbursement shall not include any liabilities or losses under the WARN Act).
(e) The provisions of this Agreement are for the benefit of the parties to this Agreement only and shall not be construed to grant any rights, as a third party beneficiary or otherwise, to any Person who is not a party to this Agreement, nor shall any provision of this Agreement be deemed to be the adoption of, or an amendment to, any employee benefit plan or arrangement or otherwise limit the right of the Buyer or any beneficiaries of its Affiliates to amend, modify or dependents thereof)terminate any employee benefit plan or arrangement at any time and for any reason.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary 7.5.1 Liberty anticipates offering employment to substantially all of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization SSE, subject to review of personnel files and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)such employment criteria for particular positions as Liberty customarily applies, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to following the Effective Time and (iii) of the Merger.
7.5.2 Each employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to SSE who remains employed by Liberty following the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees Time of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule Merger (each, a “Company AgreementContinuing Employee”); provided that nothing herein ) shall prevent the Surviving Corporation from amending or terminating any be entitled to participate in (i) such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” employee benefit plans, deferred compensation arrangements, bonus or incentive plans and other compensation and benefit plans of SSE that Liberty may continue for purposes the benefit of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) Continuing Employees following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”)Merger, and except to (ii) whatever employee benefit plans and other compensation and benefit plans that Liberty may maintain for the extent necessary to avoid duplication benefit of benefitsits similarly situated employees, if such Continuing Employee is not otherwise then participating in a similar plan under subsection (i). Each Continuing Employee shall be credited with service as a SSE employee for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of his or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included her status under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information Liberty’s policies with respect to each individual listed: (i) the base compensation (salary or wage rate)vacation, and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours sick and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendmentleave. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with With respect to the preparation and execution Liberty defined benefit pension plan, each Continuing Employee shall be credited with hours of all documentation necessary service as a SSE employee for the prior employment period with SSE in order to effect determine when the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall employee would be eligible to participate in the plan, but not for purposes of calculating benefits under the plan. With respect to the Liberty defined contribution plan, each Continuing Employee shall be eligible to participate, but will not be credited with prior years of service as a 401(k) SSE employee for purposes of vesting. With respect to any Liberty plan maintained by Parent which is a health, life or disability insurance plan, each Continuing Employee shall not be subject to any pre-existing condition limitation for conditions covered under such plans. Nothing herein shall limit the ability of Liberty to amend or terminate any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Liberty Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create at any third-party rights in any current or former service provider time.
7.5.3 Section 7.5.3 of the Company SSE Disclosure Schedule contains all employment and change of control, severance and similar agreements, arrangements, policies or its Affiliates (programs with any employee or director of SSE or any beneficiaries of the SSE Subsidiaries (“Benefit Agreements”). Liberty shall honor the terms of all Benefit Agreements unless Liberty and the affected employee, officer or dependents thereof)director shall agree otherwise. After the Effective Date of the Merger, any Continuing Employee whose employment is actually terminated by Liberty other than for cause within six (6) months of the Effective Date of the Merger or any employee of SSE who is not offered a position at Liberty, other than employees who are parties to an existing employment, change in control, stay bonus or severance agreement with SSE, shall receive three (3) weeks salary (W-2 based compensation) for each year of service with a maximum payment based on fifteen (15) weeks salary.
Appears in 1 contract
Samples: Merger Agreement (Southern Connecticut Bancorp Inc)
Employees and Employee Benefits. (a) For a period beginning on All individuals employed by the Company or any of its Subsidiaries immediately prior to the Closing Date and ending on the twelve (12“Covered Employees”) month anniversary shall automatically become employees of Acquiror as of the Closing Date (or, if shorter, during an employeefor the purposes of the Acquiror Benefit Plans and shall receive credit for unused vacation time and their years of service with the Company in calculating their vacation time under Acquiror’s period of employment applicable paid time off policies. As soon as administratively practicable following the Closing Date)Closing, Parent shall provideAcquiror shall, or shall cause the Surviving Corporation to provideEntity to, maintain employee benefit plans and compensation opportunities for the benefit of Covered Employees that provide employee benefits and compensation opportunities that, in the aggregate, are substantially comparable to the employee benefits and compensation opportunities that are made available to similarly-situated employees of Acquiror under the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)Acquiror Benefit Plans; provided, however, that: (i) the same base salary and wage rate as the base salary and wage rate provided in no event shall any Covered Employee be eligible to such Continuing Non-Union Employee immediately prior to the Effective Time, participate in any closed or frozen Acquiror Benefit Plan; (ii) employee incentive compensation opportunities which are no less favorable until such time as Acquiror shall cause the Covered Employees to participate in the aggregate than Acquiror Benefit Plans, a Covered Employee’s continued participation in the incentive compensation opportunities provided corresponding Company Benefit Plans shall be deemed to such Continuing Non-Union Employees immediately prior satisfy the foregoing provisions of this sentence (it being understood that participation in the Acquiror Benefit Plans may commence at different times with respect to the Effective Time each Acquiror Benefit Plan); and (iii) employee benefits which are substantially comparable in if any Covered Employee is terminated by Acquiror without cause on or before the aggregate (including with respect to the proportion first anniversary of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Dateand is not entitled to contractual severance or change in control benefits, the Surviving Corporation such Covered Employee shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees be provided with severance benefits as described in Section 7.4 of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Acquiror Disclosure Schedules.
(b) For all purposes (iother than purposes of benefit accruals) For under the twelve Acquiror Benefit Plans providing benefits to the Covered Employees (12the “New Plans”), each Covered Employee shall be credited with his or her years of service with the Company and its Subsidiaries and their respective predecessors to the same extent as such Covered Employee was entitled to credit for such service under any applicable Company Benefit Plan in which such Covered Employee participated or was eligible to participate immediately prior to the Transition Date; provided, however, that the foregoing shall not apply to the extent that its application would result in a duplication of benefits with respect to the same period of service.
(c) month period following In addition, and without limiting the Closing generality of the foregoing, as of the Transition Date, Parent shall provideAcquiror shall, or shall cause the Surviving Corporation to provideEntity to, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries provide that: (including i) each Covered Employee shall be immediately eligible to participate, without any waiting time, in any and all New Plans to the Surviving Corporation) extent coverage under such New Plan is similar in type to give the Continuing Employees credit under the an applicable Parent Company Benefit Plan for amounts paid in which such Covered Employee was participating immediately prior to the Effective Time Transition Date (such Company Benefit Plans prior to the Transition Date collectively, the “Old Plans”); (ii) for purposes of each New Plan providing medical, dental, pharmaceutical, vision or similar benefits to any Covered Employee, all pre-existing condition exclusions and actively-at-work requirements of such New Plan shall be waived for such Covered Employee and his or her covered dependents, unless such conditions would not have been waived under the Old Plan in which such Covered Employee, as applicable, participated or was eligible to participate immediately prior to the Transition Date; and (iii) any eligible expenses incurred by such Covered Employee and his or her covered dependents during the calendar portion of the plan year in which of the Effective Time occurs Old Plan ending on the Transition Date shall be taken into account under a corresponding Company such New Plan for purposes of applying deductiblessatisfying all deductible, copayments coinsurance and maximum out-of-pocket maximums requirements applicable to such Covered Employee and his or her covered dependents for the applicable plan year as though if such amounts had been paid in accordance with the terms and conditions of the Parent such New Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date Buyer shall, and ending on the twelve (12) month anniversary Parent shall cause Buyer to, offer employment effective as of the Closing Date (or, if shorter, during an employee’s period to all of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company Business identified on Section 3.18(a) of the Disclosure Schedules (“Eligible Employees”) in the same, substantially the same, or its subsidiaries who are not represented by a labor organization and who continue superior positions of responsibility to be employed by performed at the Company same location as prior to the Closing Date, with equivalent or the Surviving Corporation superior (taken as a whole) annual wages and periodic performance bonus (without regard to any equity compensation, change of control payments or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”similar compensation amounts), (i) the same base salary and wage rate employment benefits as the base salary and wage rate provided to such Continuing Non-Union Employee Eligible Employees had with Seller immediately prior to the Closing Date. Individuals who accept such offer and commence employment with Buyer being called “Transferring Employees.” Until the Closing Date Seller shall maintain its current health care benefits for the Eligible Employees. Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion as of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, (A) Seller shall terminate the Surviving Corporation shall observe the terms employment of all existing Collective Bargaining Agreements Transferring Employees and eliminate (i) any contractual provisions or other restrictions that govern would otherwise prevent the wagesTransferring Employees from becoming an employee of Buyer and (ii) any confidentiality restrictions that would prevent the Transferring Employees who accept employment with Buyer from using or transferring to Buyer any information relating to or useful for the Business and Purchased Assets and (B) the Transferring Employees shall cease accruing any benefits under any Seller Benefit Plan, hours and other terms and conditions of employment of employees of the Company Seller shall take, or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued cause to be employed by taken, all such actions as may be necessary to effect such cessation of such participation (subject to the Company right of participants to make claims following the Closing Date in respect of events occurring on or prior to the Surviving Corporation Closing Date. Seller shall bear any and all obligations and liability under the WARN Act resulting from employment losses pursuant to this Section 5.02; provided, that Buyer and Parent comply with all of their obligations under this Section 5.02. In the event that Buyer or Parent does not comply with its obligations under this Section 5.02, Buyer shall bear any subsidiary or Affiliate thereof (and all obligations and liability under the “Continuing Union-Represented Employees”)WARN Act resulting from employment losses. All Transferring Employees shall be subject to Buyer’s employment policies in effect from time to time.
(b) (i) For Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the twelve (12) month Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, relating to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (Seller at any time on or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent Seller shall cooperate in good faith pay all such amounts to all entitled persons on or prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(hc) Nothing Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in this Agreement respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Seller also shall confer upon remain solely responsible for all worker’s compensation claims of any Continuing Employee any right current or former employees, officers, directors, independent contractors or consultants of the Business which relate to continue in events occurring on or prior to the employ or service of Parent, the Surviving Corporation or any Affiliate of ParentClosing Date. Seller shall pay, or shall interfere with or restrict in any way the rights of Parentcause to be paid, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except all such amounts to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent appropriate persons as and the Continuing Employee. Notwithstanding any when due.
(d) No provision in this Agreement to the contrary, nothing in this Section 6.9 5.02 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party beneficiary or other rights in any current employee or former service provider employee (including any beneficiary or dependent thereof) of Seller or any other Person other than the Company parties hereto and their respective successors and permitted assigns, (ii) constitute or create an employment agreement or (iii) constitute or be deemed to constitute an amendment to any employee benefit plan sponsored or maintained by Buyer or its Affiliates (or any beneficiaries or dependents thereof)affiliates.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning Buyer and Seller agree that on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of Seller employed solely in the Company or its subsidiaries who are not represented by a labor organization Business (the "Business Employees") shall cease to be employees of Seller and who continue to shall be employed by Buyer on an employment-at-will basis (except to the Company extent otherwise agreed in writing by Buyer or to the Surviving Corporation extent employment agreements are assumed by Buyer pursuant to Section 2.8). Seller shall be responsible for payment of any vested vacation or any subsidiary holidays or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately similar benefits earned prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, even if such vacation or holidays are taken after the Surviving Corporation shall observe Closing Date. Seller represents that pursuant to Exhibit 2.4 (continued) its vacation policies the terms full amount of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees vacation to which an employee of the Company or its subsidiaries who are covered by Business is entitled in any fiscal year vests on the first day of such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)fiscal year.
(b) (i) For Concurrently with the twelve (12) month period Closing, Seller shall notify the employees of the Business of such employees' rights to receive the full amount of vested vacation pay in connection with the termination of such employees' employment with Seller and shall permit such employees to waive the right to receive such payment at such time and in lieu thereof to receive such payments from Buyer. Within 30 days following the Closing Date, Parent Seller shall provideprovide to Buyer a list of all employees electing to so defer the payment of such vacation pay, each such employee's salary or wage rate and the aggregate amount of such vacation pay for 1996 based upon such salary and wage rates, and Seller shall cause pay to Buyer such aggregate amount at such time. Buyer shall permit employees of the Surviving Corporation Business to provide, take vacation time during 1996 consistent with Seller's vacation policies (with such employees' service with Seller to the Continuing Non-Union Employees, severance benefits which are no less favorable than those constitute service with Buyer for such purpose) and shall pay such employees set forth in Section 6.9(b)(ithe list described in the foregoing sentence (at the salary rate set forth in such list) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, such vacation pay upon two-weeks' written notice therefor in accordance with their termsSeller's current vacation pay policy. All amounts received by Buyer pursuant to this Section 7.3(b) shall be maintained by Buyer in a segregated account until applied from time to time to fund the payment to employees of vacation pay as contemplated hereby and, all Company Plans set forth in Section 6.9(b)(ii) prior to such time such funds are so applied, such funds shall not be commingled with other funds of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleBuyer.
(c) With respect Seller shall, if requested by Buyer, assign to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including Buyer the Surviving Corporation) following the Effective Time unemployment insurance and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except worker's compensation experience ratings applicable to the extent necessary Business and take such steps as Buyer shall reasonably request to avoid duplication of benefitseffect such assignment, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though if such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent assignment is permitted by applicable Lawlaw and is not prejudicial to Seller. Buyer shall pay to Seller any cost, no later than thirty (30) days after the date hereof, the Company shall provide expense or penalty of Seller relating to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesassignment.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on Purchaser understands and acknowledges that all of the health and welfare benefits (including, but not limited to, retirement, medical, dental, life insurance and disability plans) provided to Employees as of the date hereof are provided under any Seller Benefit Plans which will not be available to the Company or any Subsidiary following the Closing. Effective as of the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Datesubject to Section 5.6(c), Parent shall providePurchaser shall, or shall cause the Surviving Corporation Company to, provide each Employee with employee benefits under one or more employee benefit plans offered by Purchaser to provide, to the similarly situated employees of Purchaser or other companies affiliated with Purchaser (collectively, “Purchaser Sponsored Plans”) in accordance with the Company or its subsidiaries who are not represented by a labor organization and who continue terms of the Purchaser Sponsored Plans. Purchaser shall use reasonable best efforts to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), ensure that all Purchaser Sponsored Plans provide that (i) the same base salary any waiting periods or limitations regarding pre-existing conditions with respect to all Employees and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Timetheir beneficiaries under any Purchaser Sponsored Plans will be waived, (ii) employee incentive compensation opportunities which are no less favorable in each Purchaser Sponsored Plan will give each such Employee credit for such Employee’s service with the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately Company prior to the Effective Time Closing for purposes of eligibility to participate in Purchaser Sponsored Plans, and (iii) employee benefits which are substantially comparable in each Employee’s vacation and personal time off accrued through the aggregate Closing Date shall continue to be honored after the Closing Date. Following the Closing, (including x) Seller shall be responsible for, and shall indemnify Purchaser, the Company and the Subsidiaries from and against any and all liability with respect to the proportion any Seller Benefit Plan, including any liability incurred by Purchaser as a result of employee costPurchaser’s receipt of asset rollovers from Seller’s 401(k) Plan as provided for in Section 5.6(b) (other than any obligations to the employee benefits provided make distributions with respect to such Continuing Non-Union rollovers) and any claims made or incurred by or related to Employees immediately prior or Former Employees and their dependents related to the Effective Time. Commencing any Seller Benefit Plan, and (y) Purchaser shall be responsible for, and shall hold harmless and indemnify Seller from, any and all claims incurred by or related to Employees and their eligible dependents (other than claims related to a Seller Benefit Plan) on or after the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For Without limiting the twelve (12) month period following generality of Section 5.6(a), effective as of the Closing Date, Parent all Employees shall provide, or shall cause cease to participate in the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(iPlatinum Equity 401(k) of the Company Disclosure Schedule and Plan (ii“Seller’s 401(k) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent PlansPlan”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company Purchaser shall provide to Parent a schedule of all Company employees that sets forth such Employees the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible right to participate in a 401(k) plan maintained by Parent offered to similarly situated employees of Purchaser or other companies affiliated with Purchaser (any such 401(k) plan is referred to as “Purchaser’s 401(k) Plan”). Eligible Employees shall receive credit for all service with the Company and any Subsidiary for purposes of eligibility and vesting, but not benefit accrual, under Purchaser’s 401(k) Plan. Effective after the Closing Date, each Employee who, as of the Closing Date, is a participant in Seller’s 401(k) Plan shall be entitled to a distribution of his or her account balance in accordance with the terms of Seller’s 401(k) Plan as in effect from time to time and applicable Law, and Purchaser shall take any and all action necessary to ensure that Purchaser’s 401(k) Plan can accept asset rollovers, including “direct rollovers” within the meaning of Section 401(a)(31) of the Code, from Seller’s 401(k) Plan subject to Purchaser’s receipt of reasonable evidence from Seller that Seller’s 401(k) Plan is qualified under Section 401(a) of the Code as of the time of distribution.
(c) Without limiting the generality of Section 5.6(a), Purchaser or one of its subsidiaries Affiliates, shall establish a flexible spending account for medical and dependent care expenses under a new or Affiliates existing plan established or maintained under Section 129 of the Code (“Purchaser’s FSA”), for each Employee who, on or prior to such date, is a participant in a flexible spending account for medical or dependent care expenses under a Seller Benefit Plan (“Seller’s FSA”). In a manner agreed by the parties and consistent with Internal Revenue Service Ruling 2002-32, Seller’s FSA shall transfer to Purchaser’s FSA, as soon as practicable following after the Closing Date, the Employees’ account balances and liabilities under Seller’s FSA, and Purchaser’s FSA shall accept responsibility therefore, including responsibility for reimbursement of eligible claims incurred prior to the Closing Date.
(hd) Nothing Without limiting the generality of Section 5.6(a), each Employee of any Company or any Subsidiary who is on long term disability leave immediately prior to the Closing shall continue to be covered by the long term disability plan sponsored by Seller as of the date hereof. Purchaser shall ensure that each Company and each Subsidiary continues to provide short term disability benefits (i.e., salary continuation) to all Employees on short-term disability as of the Closing Date. Seller shall give all notices and take any other steps required to ensure that its long term disability insurance plan will cover any Employees who are receiving short-term disability benefits as of the Closing Date and become eligible for long term disability benefits based on the disability for which they are receiving short-term disability as of the Closing Date without returning to work after the Closing Date.
(e) Without limiting the generality of Section 5.6(a), Seller shall provide COBRA continuation coverage for any Person who becomes a “qualified beneficiary” (as defined in this Agreement Section 4980B of the Code) with respect to “qualifying events” (as defined in Section 4980B of the Code) that occur on or prior to the Closing. Purchaser shall confer upon any Continuing Employee any right provide COBRA continuation coverage for all Employees with respect to continue in qualifying events that occur after the employ or service Closing.
(f) All obligations and liabilities of Parentthe Company and the Subsidiaries under the Broadspire Management Services, Inc. 2003 Participation Plan (the “Participation Plan”) and all obligations and liabilities of the Company and the Subsidiaries under those certain letter agreements between Broadspire Management Services, Inc. and certain Employees dated as of June 29, 2006 (each, a “Change of Control Agreement” and, collectively, the Surviving Corporation “Change of Control Agreements”), will be Excluded Liabilities and will be assigned to and assumed by Seller or any an Affiliate of ParentSeller (other than the Company or a Subsidiary) prior to the Closing. No later than ten (10) business days prior to the date on which Seller is required to make any payment under the Participation Plan or under any Change of Control Agreement, Seller shall provide written notice to Purchaser identifying (i) the persons to whom such payments are to be made, (ii) the anticipated payment date and (iii) whether such payment is being made pursuant to the Participation Plan or a Change of Control Agreement. If any such payment is being made pursuant to a Change of Control Agreement and the person to whom such payment is to be made is no longer employed by the Company or a Subsidiary (or an Affiliate) at the time Purchaser receives the notice of the proposed payment, Purchaser shall inform Seller that such person is no longer so employed and shall provide Seller with such additional information as Seller may reasonably request, to enable Seller to determine whether or not such payment is required to be made under the applicable Change of Control Agreement. No later than two business days prior to the proposed payment date, Seller shall transmit to Purchaser (or to the Company or a Subsidiary, as Purchaser may request) the aggregate amount of the payments to be paid, together with a final list of the persons to whom such payments are to be made and the amounts of each such payment, and Purchaser shall pay, or shall interfere with cause the Company or restrict in any way a Subsidiary to pay each such payment on the rights of Parentdesignated payment date. To the extent permitted by applicable Tax Laws, Seller and Purchaser shall treat all payments contemplated by this Section 5.6(f) as compensation paid by Seller for all Tax purposes, and Purchaser (or the Surviving Corporation Company or any Affiliate of ParentSubsidiary making such payments) shall be treated as a paying agent for Seller. Seller shall be responsible for, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporationand shall hold harmless and indemnify Purchaser, the Company or any Affiliate Subsidiary from any Damages incurred by Purchaser arising out of Parent or related to the Change of Control Agreements, including any net Tax liability incurred by Purchaser, the Company or any Subsidiary as a result of the payment of amounts due under the Change of Control Agreements in accordance with this Section 5.6(f) or any claim by an Employee against Purchaser, the Company or any Subsidiary arising out of or related to a Change of Control Agreement.
(g) From the date hereof through the Closing Date, to the extent permitted by applicable Laws, Seller shall provide to Purchaser at its request any information, data or records of the Company and the Continuing Employee. Notwithstanding any provision in this Agreement Subsidiaries that Purchaser reasonably requires to facilitate Purchaser’s ability to provide benefits to Employees under the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Purchaser Sponsored Plans in accordance with their terms this Section 5.6, and Seller shall use commercially reasonable efforts to provide such information, data or (iii) create any third-party rights records in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)format requested by Purchaser.
Appears in 1 contract
Employees and Employee Benefits. (a) For Matria and Seller shall use all reasonable business efforts to retain the services of the Key Employees through the Closing Date and to assist and support Purchaser in hiring all Key Employees and all other employees of the Seller that Purchaser shall seek to hire as of the Closing Date. Prior to or at the Closing, Purchaser may offer employment to some or all employees of the Seller other than the employees listed on Schedule 5.3 attached hereto, in the Purchaser's sole discretion, upon such terms and conditions as shall be determined by Purchaser in its sole discretion. The Seller will retain all of the Benefit Plans currently maintained by the Seller as of the date of this Agreement, and Purchaser will not assume any obligations under any such plans. Matria and Seller will indemnify, defend and hold harmless Purchaser (and its directors, officers, employees and affiliates) with respect to such Benefit Plans for and against any and all claims, actions, judgments or causes of action based upon or arising out of or otherwise in respect of any such plan. All employees of the Seller hired by Purchaser shall be given full credit for all time worked for the Seller for purposes of determining their participation and vesting under the employee benefit plans and programs of Purchaser applicable to such employees. Unless prohibited by law, the Seller shall provide to Purchaser all personnel records for the employees of the Seller hired by Purchaser, including, without limitation, names, social security numbers, dates of hire, dates of birth, number of hours worked each year, and salary history. Matria and Seller hereby agrees not to employ, directly or indirectly, for a period beginning of 12 months after the Closing Date, any employee of Seller to whom Purchaser has offered employment prior to or on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of who decides not to accept employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Purchaser.
(b) Without limiting any of the provisions herein, Purchaser will not assume any of the Benefit Plans, or any rights, duties, obligations or liabilities thereunder, nor shall it become a successor employer or be responsible in any way for Seller's or a common control entity's (ias such term is defined under section 4.14(a) For or (b) of the twelve (12Internal Revenue Code of 1986, as such term may be amended from time to time) month period following participation in or obligations or responsibilities with respect to any Benefit Plan, nor shall it be obligated by this Agreement to make any provision with respect to employee benefits after the Closing Date, Parent except as required by this Section 5.3 and by Section 1.4(b). No assets of any Benefit Plan shall providebe transferred to Purchaser or to any plan of Purchaser. Seller shall, or shall cause after the Surviving Corporation to provideClosing Date, comply with the continuation coverage requirements of Section 601 through 609 of ERISA and Section 4980B of the Code with respect to the Continuing Non-Union Employeesemployees; provided, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Timehowever, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement continuing coverage obligations resulting from a qualifying event that occurs after such employees are enrolled in accordance with its terms. Parent and Purchaser's health plan shall be the Company hereby agree that the occurrence responsibility of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure SchedulePurchaser.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Lawlaw, no later than thirty (30) days after the date hereof, the Company shall provide Purchaser will be permitted reasonable access to Parent a schedule records of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), of Seller and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days Matria prior to Closing for the date purpose of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need setting up Purchaser's benefit plans for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesemployees.
(ed) The Company shallWith respect to any persons who received "equity based" incentives calculated based upon the fair market value of shares of WebMD, Inc. (f/k/a Endeavor Technologies, Inc.) (the "WebMD benefits") and who are hired by Purchaser pursuant to Section 5.3 herein, Matria shall cause each provide that solely for the purposes of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law determining eligibility and the terms exercise rights of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations such persons with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s requestsuch WebMD Benefits, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all employment of the Company Plans sponsored or maintained by the Company such persons with Purchaser (or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”assigns) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)continued employment by Seller. .
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary Effective as of the Closing Date (orDate, if shorter, during Buyer or an employee’s period Affiliate of Buyer shall offer employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) each Business Employee at the same base salary and wage rate as the base salary and wage rate provided of pay applicable to such Continuing Non-Union Business Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to Closing and with such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employment, including other compensation and benefits, as may be provided by Buyer or its employing Affiliate to similarly situated employees of the Company Buyer or Buyer’s employing Affiliate. Each Business Employee who accepts Buyer’s or its subsidiaries who Affiliate’s offer of employment is referred to herein as a “Transferred Employee.” Upon the request of Buyer, Sellers shall provide Buyer timely access to benefit census data (including computer data) regarding the Transferred Employees.
(b) Subject to the provisions of this Section 4.8, Sellers shall be responsible for all liabilities to and claims of Transferred Employees and any other employees of Sellers and their Affiliates arising out of their employment with Sellers prior to the Closing Date, regardless of when such liabilities are covered by asserted, including, but not limited to, any claims arising out of any Employee Benefit Plans. Subject to the provisions of this Section 4.8, Buyer and its Affiliates shall be responsible for all liabilities to and claims of Transferred Employees and any other employees of Buyer and its Affiliates arising out of their employment with Buyer or its Affiliates on and after the Closing Date, regardless of when such Collective Bargaining Agreements liabilities are asserted, including, but not limited to, any claims arising out of any employee benefit plans, programs, policies and who continued to be employed by the Company arrangements of Buyer or the Surviving Corporation or any subsidiary or Affiliate thereof its Affiliates (collectively, the “Continuing Union-Represented EmployeesBuyer Employee Benefit Plans”).
(bc) (i) For the twelve (12) month period following the Closing DateBuyer shall, Parent shall provide, or and shall cause its Affiliates to, credit the Surviving Corporation to provide, to Transferred Employees with all service that Sellers and their Affiliates recognized under the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Employee Benefit Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence as of the Closing shall constitute a “Change in Control” Date as service with Buyer and its Affiliates for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of vesting and entitlement to benefits (but not for accrual purposes of or entitlement benefit accrual, other than for purposes of vacation benefits) under all Buyer Employee Benefit Plans. With respect to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programsTransferred Employees (and their covered dependents), service Buyer shall cause the Buyer Employee Benefit Plans that constitute welfare benefit plans (within the meaning of section 3(1) of the Employee Retirement Income Security Act of 1974, as amended) to (1) waive any exclusions, restrictions or limitations with the Company and its subsidiaries (respect to pre-existing conditions or predecessor employers waiting periods thereunder to the extent that the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent same were waived or not included satisfied by a Transferred Employee on the Closing Date under a corresponding Employee Benefit Plan and (2) if Sellers provide the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees necessary data in a timely fashion, credit under the applicable Parent Plan for any amounts paid prior to the Effective Time by a Transferred Employee or his or her covered dependents under a corresponding Employee Benefit Plan during the calendar year in which the Effective Time Closing Date occurs under a corresponding Company Plan for purposes of applying deductiblessatisfying any applicable deductible, copayments coinsurance and maximum out-of-pocket maximums as though provisions under such corresponding Buyer Employee Benefit Plan to the extent such amounts had been paid in accordance with were taken into account for a similar purpose under the terms corresponding Employee Benefit Plan; provided, however, that the provisions of clauses (1) and conditions (2) of this Sections 4.8(c) shall not apply to any Buyer Employee Benefit Plan that is insured unless the Parent Planapplicable insurer consents to the foregoing. Buyer shall use its commercially reasonable efforts to obtain such applicable consents.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days Immediately prior to the date of delivery. Parent shallClosing, all Transferred Employees shall cease active participation in all Employee Benefit Plans and Sellers shall cause its subsidiaries and Affiliates to: (Aeach Transferred Employee to be 100% vested in his or her accrued benefits under each Employee Benefit Plan that is intended to be qualified under section 401(a) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesCode.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with With respect to any Continuing Union-Represented Employees affected by accrued but unused vacation, personal time off, or sick leave time which has been accrued in the transactions contemplated by this Agreementcurrent calendar year (and not carried over from a prior year) to which any Transferred Employee is entitled pursuant to the vacation or leave policy applicable to such Transferred Employee immediately prior to the Closing, Buyer shall, or shall cause its employing Affiliate to, allow such Transferred Employee to use such accrued vacation or other leave time during the remainder of the current calendar year.
(f) Parent shall Effective as of the Closing Date, Buyer shall, or shall cause the Surviving Corporation and its Affiliates an Affiliate of Buyer to, make available to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are Transferred Employees participation in a defined contribution plans intended to be plan which is qualified within the meaning of Section under section 401(a) of the Code (the “Company 401(kBuyer’s Defined Contribution Plan”). Transferred Employees who receive an eligible rollover distribution (within the meaning of section 402(f)(2) of the Code) from Sellers’ defined contribution and/or defined benefit plan(s) that are qualified under section 401(a) of the Code (“Sellers’ Qualified Plans”) may, if Buyer or an Affiliate of Buyer is provided with a copy of a current favorable determination letter with respect to such Sellers’ Qualified Plans at the time of such rollover, make a cash rollover contribution to the Buyer’s Defined Contribution Plan. To the extent that, pursuant to the foregoing provisions of this paragraph (f), a Transferred Employee makes a direct rollover contribution (within the meaning of section 401(a)(31) of the Code) of an eligible rollover distribution (within the meaning of section 402(f)(2) of the Code) to the Buyer’s Defined Contribution Plan, such direct rollover contribution may also include promissory notes which have not previously been defaulted and become a taxable distribution to such Transferred Employee for loans made to such Transferred Employee under Sellers’ Qualified Plans, but shall be terminatednot include any “in-kind” distribution of securities.
(g) Effective immediately following the Closing Date, as Buyer shall, or shall cause an Affiliate of immediately prior the Buyer to, permit Transferred Employees to participate in a cafeteria plan within the meaning of section 125 of the Code (the “Buyer’s Cafeteria Plan”). Buyer’s Cafeteria Plan shall contain provisions that assume and recognize any before-tax salary deferral elections and contributions of Transferred Employees for the plan year in which the Closing Date occurs under the cafeteria plan maintained by the Sellers (the “Sellers’ Cafeteria Plan”) and the Buyer’s Cafeteria Plan shall recognize payments or reimbursements made with respect to Transferred Employees (and their eligible dependents) under the Sellers’ Cafeteria Plan for the plan year in which the Closing Date occurs. As of the Closing Date, Sellers shall transfer to Buyer, in cash, an amount equal to the difference between (a) an amount equal to the amount contributed to the Sellers’ Cafeteria Plan by Transferred Employees (through payroll deductions or otherwise) for the plan year of the Sellers’ Cafeteria Plan in which the Closing Date occurs and ending on the Closing Date (but conditioned upon the occurrence “Coverage Period”), less the total payments from the Sellers’ Cafeteria Plan for the Coverage Period (determined as of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date).
(h) Nothing It is understood and agreed among the parties that all provisions contained in this Agreement with respect to employee benefit plans or employee compensation are included for the sole benefit of the respective parties hereto and do not and shall confer upon any Continuing Employee not create any right to continue in the employ any other Person, including, but not limited to, any Transferred Employee, any participant in any benefit or service of Parent, the Surviving Corporation compensation plan or any Affiliate of Parentbeneficiary thereof. The representations, or shall interfere with or restrict in any way the rights of Parentprovisions, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent warranties and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing undertakings contained in this Section 6.9 4.8 shall (i) be deemed or construed binding solely on the parties to be an amendment this Agreement, and no other Persons shall have any third party beneficiary or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)right hereunder.
Appears in 1 contract
Employees and Employee Benefits. (a) For a Seller shall terminate all Employees of the Business on or before the Closing Date, and pay-out all accrued vacation or other benefits at and through the Closing Date. Seller will perform all obligations in connection therewith or contemplated by this Agreement, including without limitation giving any required notices under the WARN Act, any comparable state or local statutes, or otherwise. At Buyer's sole discretion, Buyer may offer employment, on an "at will" basis, to any or all Employees of the Business.
(b) Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any Employee (or former Employee) of Seller, including, without limitation, hourly pay, commission, bonus, salary, accrued vacations, fringe, pension, profit sharing or other benefits, or severance pay payable to any Employee (or former Employee) of Seller for any period beginning relating to the service with Seller at any time prior to the Closing Date and Seller shall pay all such amounts to all entitled Employees on or prior to the Closing Date. In addition, Seller shall be responsible for satisfying all Seller's other obligations to employees or former employees on account of their employment or former employment by Seller, including obligations, if any, for providing COBRA health plan continuation coverage to former employees and their dependents if they are on COBRA health plan continuation coverage on the day before the Closing Date and to employees of Seller who are not employed by Buyer on the Closing Date and ending on their dependents; and performing any obligations required by the twelve (12) month anniversary Fair Labor Standards Act of 1938, the Closing Date (orEqual Pay Act, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provideapplicable wage and hour laws, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Scheduleapplicable laws.
(c) With Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health, accident, disability or other benefits brought by or in respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing or former Employees”) participate (the “Parent Plans”), and except or agents of Seller which claims relate to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid events occurring prior to the Effective Time during Closing Date. Seller also shall remain solely responsible for all worker's compensation claims of any Employees (or former Employees) or agents of Seller which relate to events occurring prior to the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductiblesClosing Date. Seller shall pay, copayments and out-of-pocket maximums as though or cause to be paid, all such amounts had been paid in accordance with to the terms appropriate persons as and conditions of the Parent Planwhen due.
(d) To Seller shall cooperate with Buyer for the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), interview and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement potential hiring of the Company’s classification Key Employees, but Seller shall have no authority to extend or promise offers of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information employment to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesEmployee.
(e) The Company shallNotwithstanding the foregoing, Buyer shall assume and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before be responsible for the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees payment of the Company or its subsidiaries, with any labor organizations with respect severance benefit of three (3) months' pay to any Continuing Union-Represented Employees affected by the transactions contemplated by this AgreementXxxx Xxxxxxx under his employment agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Asset Purchase Agreement (American Brewing Company, Inc.)
Employees and Employee Benefits. (a) For a Acquiror shall, or shall cause an Affiliate of Acquiror to, offer employment effective on the Closing Date, to all Employees listed on Section 6.04(a) of the Disclosure Schedule (the Employees who accept such employment and commence employment on the Closing Date, the “Transferred Employees”).
(b) During the period beginning commencing on the Closing Date and ending on the twelve date which is 12 months from the Closing (12) month anniversary or if earlier, the date of the Closing Date (or, if shorter, during an employeeTransferred Employee’s period termination of employment following the Closing Datewith Acquiror or an Affiliate of Acquiror), Parent shall provideAcquiror shall, or shall cause the Surviving Corporation to providean Affiliate of Acquiror to, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), provide each Transferred Employee with: (i) the same base salary or hourly wages which are set forth next the Transferred Employee’s name on Section 6.04(a) of the Disclosure Schedule, and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which that are no less favorable than those set forth in Section 6.9(b)(i6.04(b) of the Company Disclosure Schedule and (ii) from and after Schedule. Notwithstanding the Effective Timeforegoing, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans except as set forth in Section 6.9(b)(ii6.04(c) below, Transferor shall be solely responsible, and Acquiror shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Company Disclosure Schedule (eachBusiness, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or terminating profit sharing benefits or severance pay for any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except period relating to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (Transferor at any time on or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent Transferor shall cooperate in good faith pay all such amounts to all entitled persons on or prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(hc) Nothing As of the Closing Date, Transferred Employees shall be eligible for employee benefit plans maintained by Acquiror or its Affiliate that are provided to similarly situated employees of Acquiror and its Affiliates. With respect to any employee benefit for the benefit of any Transferred Employee, effective as of the Closing, Acquiror shall, or shall cause its Affiliate to, recognize all service of the Transferred Employees with Transferor, as if such service were with Acquiror, for vesting, eligibility and accrual purposes (but only to the extent permitted by the Acquiror’s applicable benefit plans); provided, however, such service shall not be recognized to the extent that (x) such recognition would result in a duplication of benefits (y) such service was not recognized under the corresponding Benefit Plan or (z) service credit for benefit accruals under a defined benefit pension plan.
(d) Effective as of the Closing, the Transferred Employees shall cease active participation in the Benefit Plans. Transferor shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Employees prior to the Closing Date.
(e) Acquiror and Transferor intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Transferred Employee who accepts an employment offer by Acquiror that is consistent with the requirements of this Section 6.04 for purposes of any Benefit Plan that provides for severance benefits and that each such Transferred Employee will have continuous employment immediately before and immediately after the Closing.
(f) This Section 6.04 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Agreement Section 6.04, express or implied, shall confer upon any Continuing Employee other Person any right to continue in the employ rights or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services remedies of any Continuing Employee at nature whatsoever under or by reason of this Section 6.04. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any time for any reason whatsoeverbenefit plan, with program, agreement or without cause, except to arrangement. The parties hereto acknowledge and agree that the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing terms set forth in this Section 6.9 6.04 shall (i) be deemed or construed to be an amendment or other modification of not create any Company Plan, Parent Plan right in any Transferred Employee or any other employee benefit planPerson, (ii) prevent Parent, the Surviving Corporation including to any continued employment with Acquiror or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or compensation or benefits of any beneficiaries nature or dependents thereof)kind whatsoever.
Appears in 1 contract
Samples: Asset Acquisition Agreement (Cesca Therapeutics Inc.)
Employees and Employee Benefits. (a) For a period beginning on Buyer hereby agrees to offer employment, effective the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following day after the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries all individuals who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)are, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wagesactive, hours and other terms and conditions of employment of full or part-time employees (including employees on short-term leave) of the Company or its subsidiaries Newspaper. With respect to each such employee to whom Buyer offers employment, Buyer shall offer to employ such person at a base compensation that is no less than the base compensation that was paid to such employee immediately prior to Closing. Each employee of the Newspaper who are covered by such Collective Bargaining Agreements and who continued accepts employment with Buyer on the Closing Date is hereinafter referred to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the as a “Continuing Union-Represented EmployeesTransferred Employee”).
(b) Except as set forth in subsection (ia) For above, Buyer, in its sole discretion, shall determine what employee benefits will be made available to Transferred Employees; provided, however, that Buyer will offer medical coverage to Transferred Employees on and after the Closing Date, shall waive for Transferred Employees any pre-existing condition limitations and waiting periods that may apply under its health plans, and shall recognize Transferred Employees’ service with Sellers or any of their respective affiliates as if it were service with Buyer for purposes of satisfying any vesting requirements under any benefit plans offered by Buyer (but not for purposes of benefit accrual or for determining the amount of benefits payable under any benefit plan other than a vacation plan).
(c) Buyer shall pay to each full-time Transferred Employee who is involuntarily terminated by Buyer without cause during the twelve (12) month period following the Closing Date separation payments equal to one (1) week of pay for each year (or part thereof) of continuous employment with Gannett, Gannett’s affiliates or the Newspaper (without regard to the Newspaper’s ownership) either prior to or after the Closing Date, Parent shall providewith a minimum of two (2) weeks of pay. Buyer agrees to indemnify, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule defend and (ii) hold Sellers harmless from and against all direct and indirect costs, expenses or liabilities arising from or relating to claims made by Transferred Employees with respect to termination of employment by Buyer after the Effective TimeClosing Date, Parent shall cause the Surviving Corporation and its subsidiaries to honorincluding, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not limited to, any claims for accrual of improper termination or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planseverance payments.
(d) To Buyer shall be responsible for any obligations under federal, state or local plant closing statutes, including the extent permitted by applicable LawWARN Act, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before events occurring after the Closing Date to inform and consult (or otherwise), under applicable Law and other than any such obligations arising from the terms consummation of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(fe) Parent Gannett shall or be responsible for and timely pay all compensation owed to the Transferred Employees and shall cause be responsible for and timely provide Transferred Employees with all benefits owed under the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendmentEmployee Benefit Programs through the Closing Date. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions Gannett will accrue after, and that retain all of the Company Plans sponsored or maintained by the Company or Employee Benefit Programs, including all employee benefit plans and pension plans, and Buyer will not assume obligations under any of its subsidiaries that are defined contribution plans intended to such programs. Gannett shall be qualified within the meaning of Section 401(a) fully and solely responsible for any costs, expenses, obligations and liabilities arising out of the Code (pension or retirement obligations attributable to the “Company 401(k) Plans”) shall be terminated, as of immediately Newspaper’s current or former employees related to the period on or prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of Sellers will terminate its employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service relationships with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Transferred Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(hii) Nothing in this Agreement Each Buyer and/or one or more of its designees shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reservedoffer employment, to discharge or terminate be effective as of the services Closing Date, to substantially all of the employees previously employed by Sellers at the Acquired Stores the assets of which are being purchased by such Buyer hereunder. The employment of any Continuing Employee at any time for any reason whatsoever, employees of Sellers to whom a Buyer offers employment and who accept such employment with a Buyer after the Closing Date (the "Transferred Employees") shall be at-will.
(iii) Sellers shall retain the following liabilities or without cause, except obligations to employees of the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall Acquired Stores: (i) be deemed all claims for compensation, including but not limited to, any severance obligations or construed accrued but unused vacation where relevant, for periods prior to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit planthe Closing Date, (ii) prevent Parentexcept with respect to COBRA as specified in paragraph (iv) below, all liabilities under the Employee Benefit Plans, and (iii) all liabilities incurred as a result of the failure to provide notice or severance pay, if any, that may be due to any employee of Sellers as a result of such Seller's termination of employee's employment in connection with the consummation of the transactions contemplated hereby. Each Buyer shall be responsible for any obligations arising under COBRA with respect to all "M&A qualified beneficiaries" in respect of the Acquired Stores, the Surviving Corporation assets of which are being purchased by such Buyer, as defined in Treasury Regulation Section 54.4980B-9.
(iv) Sellers shall provide Buyers with a list of every person who is or may be a qualified beneficiary eligible to elect or actually covered by COBRA under Seller's group health plans, a description of the qualifying event (which may include the sale contemplated by this Agreement and the failure to become a Transferred Employee), the date as of which the COBRA coverage period began or will begin for each such person, and such other data as Buyers shall request in order to provide continuation coverage under Buyers' group health plans. In addition, Sellers shall provide all information to Buyers as may be necessary or appropriate to determine whether there have been any failures to comply with the requirements of COBRA for any current or former employee of Seller, or any Affiliate spouse, former spouse, dependent child or former dependent child of Parent from amending any such employee on or terminating prior to the Closing Date so that such failures may be corrected. Subject to Sellers' provision of the foregoing data requirements in this Section 5(h)(iv), Buyers shall be responsible for any Company Plans obligations arising under COBRA as a successor employer with respect to all "M&A qualified beneficiaries" in respect of the Acquired Stores as defined in Treasury Regulation Section 54.4980B-9.
(v) Effective as of the Closing Date, each Buyer shall make available to its Transferred Employees the employee benefit plan(s) maintained by such Buyer (or one of its Affiliates) generally for its employees (the "Buyer Plans") in accordance with their terms. To the extent permitted by the terms or (iii) create any third-party rights in any current or former service provider of the Company Buyer Plans, each Buyer will (i) waive all deductibles, waiting periods and limitations with respect to pre-existing conditions covered under any group health Buyer Plans that would otherwise be applicable to employees of Sellers under such Buyer Plans as of the date hereof, and (ii) grant full past service credit with the Sellers for eligibility, benefit accrual and for vesting to the Transferred Employees for service with Sellers under any of the Buyer Plans.
(vi) Neither this Agreement nor the consummation of the transactions contemplated by this Agreement will entitle any employee, including but not limited to, Transferred Employees, to any other severance or its Affiliates (or seniority benefits from Buyers nor will it accelerate compensation due any beneficiaries or dependents thereof)such Transferred Employee as of the Closing Date from Buyers.
Appears in 1 contract
Employees and Employee Benefits. (a) For Purchaser shall, or shall cause an Affiliate of Purchaser to, offer employment to (or where required by law, to continue the employment of), effective as of the day following the Closing Date, all Employees listed on Section 4.15(a) of the Disclosure Schedules (to the extent such Employees continue to be employed by Seller through the Closing), including Employees who are absent due to vacation, family leave, short-term disability or other approved leave of absence, except for those Employees listed on Section 6.04(a) of the Disclosure Schedules (the Employees who accept such employment and commence employment on the day following the Closing Date (or whose employment automatically transfers by operation of law), being the “Transferred Employees”). Within five (5) Business Days after the Closing Date, Purchaser shall provide Seller a written notice setting forth the names of all Employees listed on Section 4.15(a) of the Disclosure Schedules (except those listed on Section 6.04(a) of the Disclosure Schedules) who either were not offered employment by Purchaser or who did not accept Purchaser’s offer of employment.
(b) During the period beginning commencing on the Closing Date and ending on December 31, 2013 (or if earlier, the twelve (12) month anniversary date of the Closing Date (or, if shorter, during an employeeTransferred Employee’s period termination of employment following the Closing Datewith Purchaser or an Affiliate of Purchaser), Parent shall providePurchaser shall, or shall cause the Surviving Corporation to providean Affiliate of Purchaser to, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), provide each Transferred Employee with: (i) the same base salary and wage rate as or hourly wages which are no less than the base salary and wage rate or hourly wages provided to such Continuing Non-Union Employee by Seller immediately prior to the Effective Time, Closing; (ii) employee incentive compensation target bonus opportunities (excluding equity-based compensation), if any, which are no less than the target bonus opportunities (excluding equity-based compensation) provided by Seller immediately prior to the Closing; and (iii) retirement and welfare benefits that are no less favorable in the aggregate (excluding, for the purpose of such determination, any equity based compensation, any defined benefit pension plans and any severance plans) than the incentive compensation opportunities those provided to such Continuing Non-Union Employees by Seller immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleClosing.
(c) With respect to each any employee benefit plan, programseverance policy, practiceor vacation, sick, holiday or other paid leave policy or arrangement maintained by Parent Purchaser or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any an Affiliate of the Continuing Non-Union Employees or Continuing Union-Represented Employees Purchaser (collectively, the “Continuing EmployeesPurchaser Benefit Plans”) participate for the benefit of any Transferred Employee, effective as of the Closing or as soon as administratively practicable thereafter, Purchaser shall, or shall cause its Affiliate to take the following actions:
(i) recognize all service of the “Parent Plans”)Transferred Employees with Seller, as if such service were with Purchaser, for vesting, eligibility and accrual purposes, except to the extent necessary to avoid that such recognition would result in a duplication of benefits, for purposes benefits or such service was not recognized under the corresponding plan or policy;
(ii) enable Transferred Employees to direct tax-deferred rollovers of determining eligibility their outstanding plan loans from Seller’s Qualified Benefit Plans to participate, vesting, accrual of and entitlement to benefits one or more tax-qualified defined contribution plans maintained by Purchaser;
(but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers iii) to the extent permitted by the Company provides or has recognized past service credit) shall be treated third party administrators of any Purchaser Benefit Plan, waive all limitations as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and to pre-existing condition limitations exclusions and waiting periods applicable to such employees to the same extent such exclusions and waiting periods would have been waived or would otherwise not be excluded or required under the plans in which such employees were participating immediately prior to the Closing; and
(iv) to the extent waived or not included permitted by the third party administrators of any Purchaser Benefit Plan, credit all deductibles and co-pays under any of Seller’s health plans, during the applicable plan year that includes the Closing, towards deductibles and co-pays under the corresponding Company Planhealth plan of Purchaser or one of Purchaser’s Affiliates.
(d) Effective as of the Closing, the Transferred Employees shall cease active participation in the Benefit Plans.
(e) Purchaser and Seller intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Employee who accepts an employment offer by Purchaser that is consistent with the requirements of Section 6.04(b), including for purposes of any Benefit Plan that provides for separation, termination or severance benefits, and that each such Employee will have continuous employment immediately before and immediately after the Closing. Parent agrees Purchaser shall be liable and hold Seller harmless for: (i) any statutory, common law, contractual or other severance with respect to any Transferred Employee for any events occurring after the Closing Date; and (ii) any claims relating to the employment of any Transferred Employee arising following the Closing.
(f) Purchaser shall indemnify and hold harmless Seller with respect to any liability under the WARN Act or other similar applicable law arising from the actions (or in actions) of Purchaser or its Affiliates after the Closing Date, and Seller shall indemnify and hold harmless Purchaser with respect to any liability under the WARN Act or other similar applicable law arising from the actions (or in actions) of Seller or its Affiliates prior to the Closing Date.
(g) For a period of seven (7) years from and after the Closing, Purchaser shall use commercially reasonable efforts to give or cause its subsidiaries make available to Seller upon reasonable notice, but in no event to be less than twenty-four (including 24) hours’ notice, the Surviving Corporation) to give Transferred Employees for the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductiblesassisting Seller with any then-ongoing litigation of Seller or any of Seller’s Affiliates; provided, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Lawhowever, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) this Section 6.04(g) shall not apply to any litigation that is adverse to Purchaser or the base compensation (salary or wage rate)interests of the Business, and bonus; (ii) the titleif any Transferred Employee does not wish to assist Seller, position and/or job classification, date of hire, credited service or seniorityPurchaser shall have no obligation to take any action to cause such Transferred Employee to assist Seller, (iii) full time versus part time status, active or leave status; Purchaser may refuse to make any Transferred Employee available if doing so would adversely affect the Business and (iv) location Seller shall bear all costs and expenses of each employee; and (v) a statement of the Company’s classification of each any such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the scheduleassistance that is provided, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need including reimbursing Purchaser for such information and (C) not use such scheduled information to solicit or hire any employee of Transferred Employee’s time away from employment in the Company or its subsidiariesBusiness.
(eh) The Company shall, Seller and Purchaser shall cause each of its subsidiaries to, comply in cooperate and coordinate all material respects with each of their respective obligations under applicable Law before employee-related Tax withholding and reporting for calendar year 2013. Without limiting the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees generality of the Company or its subsidiariesforegoing, with any labor organizations with respect to any Continuing Unionall Transferred Employees in the United States, Seller will cooperate with Purchaser and Purchaser’s agents to provide Purchaser the payroll tax records required by federal and state agencies necessary for Purchaser to optimize federal and state payroll tax law relating to successor-Represented Employees affected by in-interest transactions, including the transactions contemplated by this Agreement. Such cooperation shall include, but shall not be limited to, providing Purchaser and its agents with the following: (i) an executed release form granting permission to Purchaser and its agents to obtain quarterly payroll data from all states within which the Business was conducted by Seller; (ii) if required by state taxing agencies, signatures (or notarized signatures) necessary to grant permission for Purchaser and its agents to file for transfers of experience of payroll tax accounts in states which require a signed release by the predecessor employer; and (iii) the most recent Annual 940 Report (including Schedule A), and most recent years “tax rate notices” received from individual state agencies; (iv) copies of all quarterly wage detail reports filed with individual state agencies in the calendar year through the Closing Date. If Seller used an outside payroll tax administrator, then Seller will provide Purchaser with a contact person at such payroll tax administrator and hereby grants to Purchaser permission to have access to relevant successor-in-interest reports from such payroll tax administrator (e.g., state tax rate notices, state quarterly contribution reports, W2s and federal recap reports such as 940 and 941).
(fi) Parent This Section 6.04 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.04, express or implied, shall cause confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.04. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law terms set forth in this Section 6.04 shall not create any right in any Transferred Employee or any applicable Collective Bargaining Agreement, Parent shall assume or become party other Person to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company continued employment with Purchaser or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Affiliates or any of its subsidiaries compensation or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services benefits of any Continuing Employee at any time for any reason nature or kind whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provideBuyer shall, or shall cause an Affiliate of Buyer to, offer employment effective on the Surviving Corporation to provideClosing Date, to the employees of the Company or its subsidiaries who are not represented by a labor organization Key Employees and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof certain other Employees at Buyer’s sole discretion (the “Continuing Non-Union Employees”), (i) the same base salary Employees who accept such employment and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing commence employment on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Transferred Employees”).
(b) Provided that Buyer is provided with the data necessary to do so in a form reasonably acceptable to Buyer, with respect to any employee benefit plan maintained by Buyer or an Affiliate of Buyer (icollectively, “Buyer Benefit Plans”) For for the twelve benefit of any Transferred Employee, effective as of the Closing, Buyer shall, or shall cause its Affiliate to, recognize all service of the Transferred Employees with Seller, as if such service were with Buyer, for vesting, and eligibility purposes; provided, however, such service shall not be recognized to the extent that (12x) month period such recognition would result in a duplication of benefits or (y) such service was not recognized under the corresponding Benefit Plan.
(c) Effective as soon as practicable following the Closing Date, Parent Buyer may, but shall provide, not be obligated to cause one or shall cause the Surviving Corporation more defined contribution savings plans intended to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(iqualify under sections 401(a) and 401(k) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate Code (the “Parent PlansBuyer Savings Plan”) to provide for the receipt of Transferred Employees’ lump sum cash distributions, in the form of an eligible rollover distribution from a defined contribution retirement plan maintained by Seller (the “Seller Savings Plan”), provided such rollovers are made at the election of the Transferred Employees and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Buyer Savings Plan. Seller shall cause the Seller Savings Plan to fully vest Transferred Employees in their accounts immediately prior to the Closing.
(d) To Effective as of the extent permitted by applicable Law, no later than thirty (30) days after the date hereofClosing, the Company Transferred Employees shall provide cease active participation in the Benefit Plans. Seller shall remain solely liable for all eligible claims for benefits under the Benefit Plans that are incurred prior to Parent a schedule the Closing Date. For purposes of all Company employees that sets forth this Agreement, the following information with respect claims shall be deemed to each individual listedbe incurred as follows: (i) the base compensation (salary or wage rate)life, accidental death and dismemberment, short-term disability, and bonusworkers’ compensation insurance benefits, on the event giving rise to such benefits; (ii) medical, vision, dental, and prescription drug benefits, on the titledate the applicable services, position and/or job classification, date of hire, credited service materials or seniority, supplies were provided; and (iii) full time versus part time statuslong-term disability benefits, active or leave status; (iv) location of each employee; and (v) on the eligibility date determined by the long-term disability insurance carrier for the plan in which the applicable Employee participates, provided however, that all claims relating to a statement of hospital confinement that begins before the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule Closing but continues thereafter shall be true and complete treated as of incurred before the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesClosing.
(e) The Company shallXxxxx and Seller intend that the Transactions should not constitute a separation, termination or severance of employment of any Employee who accepts an employment offer by Xxxxx, including for purposes of any Benefit Plan that provides for separation, termination or severance benefits, and that each such Employee will have continuous employment immediately before and immediately after the Closing. Buyer shall cause each be liable and hold Seller harmless for any claims relating to any actions of its subsidiaries toBuyer with respect to the employment of any Transferred Employee that arises in connection with or following the Closing.
(f) Seller shall be solely responsible, comply in all material respects and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with each of their respective obligations under applicable Law before Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to inform all entitled persons on or prior to the Closing Date.
(g) Buyer shall be responsible for the provision of notices and consult continuation coverage required by the Consolidated Omnibus Budget and Reconciliation Act of 1985, as amended for each individual who is or becomes an “M&A qualified beneficiary” (or otherwise), under applicable Law and as such term is defined in Treasury Regulation Section 54.4980B-9) in connection with the terms consummation of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(fh) Parent This Section 6.05 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.05, express or implied, shall cause confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.05. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law terms set forth in this Section 6.05 shall not create any right in any Transferred Employee or any applicable Collective Bargaining Agreement, Parent shall assume or become party other Person to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company continued employment with Buyer or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Affiliates or any of its subsidiaries compensation or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services benefits of any Continuing Employee at any time for any reason nature or kind whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. The following provisions shall act exclusively for the benefit of the parties to this Agreement and not for the benefit of any other person or entity:
(a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary Effective as of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation Buyer shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of offer employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of Seller who is employed at any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of Newspaper immediately prior to the Closing Date (but conditioned upon collectively, the occurrence "Assumed Employees"). Except as otherwise provided in this Section 6.3 or as any employment agreement between Buyer and any Assumed Employee may otherwise require, Buyer shall offer employment to the Assumed Employees on terms and conditions that are substantially similar in the aggregate to the terms and conditions of employment of such employees with Seller or its Affiliates as of the Closing)Closing Date, including the provision of retirement and health care benefits, if any. The Company Buyer shall assume all contracts of employment of the Assumed Employees and Parent shall cooperate notwithstanding anything in good faith prior the foregoing to the contrary, to the extent such employment contract assumed hereunder provides for terms and conditions in addition to those referenced in the preceding sentence, Buyer shall assume the terms thereof. Each Assumed Employee shall receive credit for past service with Seller and its predecessors for all purposes under Buyer's benefits plans and compensation arrangements; provided, however, that Buyer shall not be required to provide any Assumed Employee with credit for service with the Seller for purposes of benefit accrual under any defined benefit pension plan sponsored or maintained by Buyer.
(b) Buyer shall offer health plan coverage to all Assumed Employees and their dependents under the terms and conditions generally applicable to such employees and their dependents with Seller or its affiliates as of the Closing Date. For purposes of providing such coverage, Buyer shall waive all preexisting condition limitations for all Assumed Employees and their dependents covered by Seller's group health plan as of the Closing Date and shall provide such health care coverage effective as of the Closing Date without the application of any eligibility period for coverage. In addition, Buyer shall credit all employee and dependent payments toward deductible and co-payment obligations limits under Seller's health care plans for the plan year which includes the Closing Date as if such payments had been made for similar purposes under Buyer's health care plans during the plan year which includes the Closing Date, with respect to the preparation Assumed Employees and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Datetheir dependents.
(hc) Nothing in this Agreement Buyer shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time assume full responsibility and liability for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent offering and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).providing "Continuation Coverage" to
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on As soon as administratively practicable after the Closing Agreement Date and ending on the twelve but in no event later than ten (1210) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following Business Days prior to the Closing Date), Parent shall provideBuyer, or an affiliate of Buyer, shall cause the Surviving Corporation communicate with, and, subject to providenormal onboarding procedures, extend an offer for regular employment to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) each Employee on substantially the same base salary terms and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate conditions (including with respect to the proportion same compensation and substantially the same benefits) as they had with the Seller Entities effective as of the Closing. Without limiting the forgoing, such employment shall be on an at will basis. Each Employee who accepts Xxxxx’s offer of employment shall commence employment as of the Closing Date and shall be referred to hereinafter as a “Transferred Employee.” Seller shall take all action necessary to terminate the employment of each Transferred Employee effective as of the Closing Date. With respect to each Transferred Employee, Buyer shall: (i) recognize the service completed by the Transferred Employee with Seller for purposes of determining eligibility service, vesting service and level of benefits under any employee costbenefit plan, program or arrangement maintained by the Buyer for their employees on or after the Closing Date (other than any defined benefit pension plan or equity compensation plan), and (ii) provide that each Transferred Employee be located within fifty (50) miles of their employment location as of the Closing Date or permitted to work remotely. Seller shall be solely responsible for any liability, claim or expense with respect to employment, termination of employment, compensation or employee benefits of any nature (including, but not limited to the benefits to be provided under any Benefit Plans) owed to any independent contractor, director, officer, employee or former employee of any Seller Entity (or the beneficiary of any such individual) whether or not such individual becomes an employee of Buyer, that arises out of or relates to the provision of services to or on behalf of, or the employment relationship between, any of the Seller Entities and any such individual or the termination of such relationship or provision of services on and before the Closing Date. Without limiting the foregoing, Seller shall be responsible for the payment of any severance payment or benefits provided that become due to any independent contractor, director, officer, employee or former employee as a result of the termination of such Continuing Non-Union Employees immediately individual by any Seller Entity. Any liability under the Worker Adjustment and Retraining Notification Act of 1988 or similar state law (“WARN Act”) arising from acts and/or occurrences at or prior to the Effective TimeClosing Date shall be borne solely by Seller; provided, however, that Buyer shall offer employment to all the Seller’s Employees located at each Real Property. Commencing on The Parties do not anticipate that Seller will be required to make any announcements to the Closing DateEmployees under the WARN Act; however, Buyer shall cooperate with Seller in connection with any required announcements under the Surviving Corporation WARN Act to the Employees. Promptly following execution of this Agreement, Seller shall observe make the terms requisite announcements and filings under the WARN Act, as and to the extent applicable. As of Closing, Seller shall terminate all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of such Employees who accept employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof with Buyer (the “Continuing Union-Represented Transferred Employees”). Each Transferred Employee will receive seniority in position and benefits to account for their responsibilities and time incurred with any Seller Entity. Buyer shall be permitted to (x) conduct employee onboarding sessions including handing out new hire packets and employee applications and answering questions regarding employee policies and procedures at least four weeks prior to Closing and (y) conduct employee training of new systems and procedures at least five (5) days prior to Closing.
(b) Promptly upon execution of this Agreement but in no event later than five (i5) For Business Days after the twelve (12) month period following the Closing Agreement Date, Parent Seller shall provideprovide Buyer with a current, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule accurate and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes complete list of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which individuals that are currently eligible and/or receiving COBRA coverage under any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Seller Health Benefit Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the scheduleAgreement Date, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminatedsupplemented, as of immediately prior in writing to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment Buyer on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(hc) Nothing The Seller shall take such commercially reasonable actions as may be necessary or appropriate to cause the transfer of the Assumed Benefit Plans to the Buyer or its applicable Affiliate, provided that neither the Seller nor any of its Affiliates guarantees or represents that any third Person whose consent or participation in connection with any transfer of the Assumed Benefit Plans will be provided or obtainable. To the extent that any third Person shall not consent to and/or participate in the transfer of any Assumed Benefit Plan such that Buyer is unable to assume the Assumed Benefit Plan, then such Assumed Benefit Plan shall not be deemed an Assumed Benefit Plan for all purposes of this Agreement.
(d) The Buyer and its applicable Affiliates shall be responsible for any liability and obligation, and neither the Seller nor any of its Affiliates shall have any liability or obligation, in respect of the Assumed Benefit Plans to the extent arising from the sponsorship of the Assumed Benefit Plans or the operation or administration of same by the Buyer or any of its Affiliates on and after the Closing Date.
(e) This Section 6.09 shall be binding upon and inure solely to the benefit of each of the Parties to this Agreement, and nothing in this Agreement Section 6.09, express or implied, shall confer upon any Continuing Employee other Person any right to continue in the employ rights or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services remedies of any Continuing Employee at nature whatsoever under or by reason of this Section 6.09. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any time for any reason whatsoeverBenefit Plan, with program, agreement or without cause, except to arrangement. The Parties hereto acknowledge and agree that the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing terms set forth in this Section 6.9 6.09 shall (i) be deemed or construed to be an amendment or other modification of not create any Company Plan, Parent Plan right in any Transferred Employee or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation Person to any continued employment with Buyer or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or compensation or benefits of any beneficiaries nature or dependents thereof)kind whatsoever.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on Should the Closing Date Transition Agreement fail for any reason to be valid and ending on the twelve (12) month anniversary binding and in full force and effect as of the Closing Date (orClosing, if shorter, during an employee’s period Buyer will ensure that Buyer and Seller are nonetheless in compliance with each and all of employment following the Closing Date), Parent shall provide, or shall cause requirements of the Surviving Corporation Ordinance and Proposition 10 with respect to provide, to the employees of the Company Buyer or its subsidiaries who are not represented Seller, including by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)offering, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective TimeClosing, (ii) employee incentive compensation opportunities which are no less favorable in employment to all of Seller’s employees and by accepting and assuming, effective as of the aggregate than Closing, all rights and obligations of Seller under the incentive compensation opportunities provided IBEW Collective Bargaining Agreement. Unless Buyer has obtained the written consent of the IBEW to such Continuing Non-Union Employees immediately prior release Seller from any obligation to require Buyer to assume the IBEW Collective Bargaining Agreement, Seller shall be entitled to represent to the Effective Time IBEW that Buyer will, effective as of the Closing, accept and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe assume or otherwise maintain the terms of all existing the IBEW Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Agreement.
(b) (i) For the twelve (12) month period following Prior to the Closing Date, Parent Buyer shall provideprovide employment welcome letters describing the wage rate, or leave accrual rate/balance, retirement contribution, job assignment and supervisor for each ML&P bargaining unit member covered by the IBEW Collective Bargaining agreement, with such terms becoming effective for those bargaining unit members that have elected to remain employed as of 12:01 AM on the Closing Date. If the Transition Agreement is not in full force and effect at the time that Buyer provides such employment welcome letters, the terms of such employment welcome letters shall cause replicate the Surviving Corporation to provideterms of the IBEW Collective Bargaining Agreement. If the Transition Agreement is in full force and effect at the time that Buyer provides such employment welcome letters, the terms of such employment welcome letters shall, except to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) extent that the Transition Agreement varies the terms of the Company Disclosure Schedule and (ii) from and after IBEW Collective Bargaining Agreement, replicate the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) terms of the Company Disclosure Schedule (each, a “Company IBEW Collective Bargaining Agreement”); provided that nothing herein . Seller shall prevent terminate the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence employment of all current non-temporary full-time employees of the Business effective as of 12:01 AM on the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleDate.
(c) Except with respect to Accrued Leave, Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, official, manager, independent contractor or consultant of the Business, including hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Seller at any time prior to the Closing Date and Seller shall pay all such amounts to all entitled persons not later than three (3) days following the Closing Date.
(d) Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health, accident, or disability benefits brought by or in respect of current or former employees, independent contractors, or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing Date. Seller also shall remain solely responsible for all workers’ compensation claims of any current or former employees, officials, managers, independent contractors or consultants of the Business which relate to events occurring on or prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as required by applicable Law.
(e) For those non-temporary full-time employees not covered by the Transition Agreement, Buyer will offer full-time employment in Comparable Positions and set forth in a written notice to Seller delivered not later than thirty (30) days prior to Closing.
(f) For each individual non-temporary full-time employee not covered by the Transition Agreement, Xxxxx will maintain a salary (excluding overtime or Retention Benefits under the Retention Agreements) and retirement contribution combined total value that is at least equal to the amount incurred by ML&P at the time of Closing; all other compensation and benefits will be consistent with Buyer policies in place at the time of Closing.
(g) With respect to each any employee benefit plan, program, practice, policy or arrangement plan maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and Xxxxx in which any former ML&P employees not covered by the Transition Agreement will participate effective as of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectivelyClosing Date, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication Buyer will recognize all service of benefitssuch employees with ML&P as if such service were with Buyer, for purposes of determining vacation entitlements or eligibility and vesting in any benefit plan in which such employees may be eligible to participate, vesting, accrual of and entitlement to benefits participate after the Closing.
(but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credith) Buyer shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries third-party insurance providers or third party administrators to (including i) waive any pre-existing conditions, actively at work requirements and waiting periods, to the Surviving Corporation) extent such pre-existing condition, actively at work requirements and waiting periods did not apply to give the Continuing Employees credit or had been satisfied by, Seller’s employees who become employed by Buyer under the applicable Parent Plan for amounts paid a comparable plan covering such employees prior to the Effective Time Closing, and (ii) cause such plans to honor any expenses incurred by the employees and their beneficiaries under similar plans of the Seller during the calendar year in which the Effective Time Closing occurs under a corresponding Company Plan for purposes of applying deductiblessatisfying applicable deductible, copayments co-insurance and maximum out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planexpenses.
(di) To The provisions of this Section 6.05 are for the extent sole benefit of the parties to this Agreement and nothing herein, expressed or implied, is intended or shall be construed to confer upon or give to any person (including, for the avoidance of doubt, any employee), other than the parties and their respective permitted successors and assigns, any legal or equitable or other rights or remedies under or by applicable Lawreason of any provision of this Agreement. Nothing contained herein, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listedexpress or implied: (i) the base compensation (salary shall be construed to establish, amend, or wage rate)modify any benefit plan, and bonusprogram, agreement or arrangement; (ii) the title, position and/or job classification, date of hire, credited service shall alter or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution ability of such information within Parent Seller or to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shallamend, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge modify or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parentprogram, the Surviving Corporation agreement or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms arrangement; or (iii) create any third-party rights in is intended to confer upon any current or former service provider employee any right to employment or continued employment for any period of the Company or its Affiliates (time by reason of this Agreement, or any beneficiaries right to a particular term or dependents thereof)condition of employment.
Appears in 1 contract
Samples: Asset Purchase and Sale Agreement
Employees and Employee Benefits. (a) For a period beginning on Unless otherwise agreed to by the parties, all employees of the Company and any Subsidiary prior to the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the continue as employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)such Subsidiary, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Timecase may be, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective TimeClosing Date; provided, Parent shall cause the Surviving Corporation and its subsidiaries to honorhowever, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company contained in this Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations construed to the extent waived or not included under the corresponding Company Plan. Parent agrees require Buyer to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year retain in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire employment any employee of the Company or any Subsidiary for any length of time; provided, further, that Seller shall have the right, but not the obligation, to transfer the employees of the Company and any Subsidiary listed in Disclosure Schedule 4.7(a) from employment by the Company or such Subsidiary to employment by Seller at any time prior to the Closing Date. Seller shall agree to abide by and pay any costs associated with its subsidiariesagreements with Xxxxxx Xxx and Xxxxx X. Xxxxxx.
(b) Any employee of the Company whose employment is terminated by action of Buyer from and after the Closing Date shall receive severance benefits in accordance with the terms of Buyer's severance plan or policy as then in effect. An employee's period of employment with the Company prior to and following the Closing Date shall be credited and treated for all purposes, including the determination of benefits, under Buyer's severance plan or policy as then in effect as if it were employment with Buyer.
(c) For each Plan, Benefit Program or Arrangement, including but not limited to the Company's pension plan, 401(k) plan and health plan, Buyer agrees that an employee's period of employment with the Company or any Subsidiary prior to and following the Closing Date shall be credited and treated for eligibility and vesting purposes as if it were employment with Buyer; provided, however, that nothing contained in this Agreement shall be construed to require Buyer to maintain any such Plan, Benefit Program or Arrangement for any length of time.
(d) Seller shall, or shall cause the Company to, amend the Company's 401(k) plan prior to the Closing Date to eliminate the Seller's common stock fund as an investment alternative for employees of the Company.
(e) The Company shall, and Seller shall cause each the ESOP to provide, to the extent not already allocated, a pro rata allocation of its subsidiaries to, comply in all material respects with each "company benefits" and of their respective obligations under applicable Law before "matching benefits" for the 1997 calendar plan year to the accounts of members employed by the Company as of the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to if the Closing Date (but conditioned upon were the occurrence year-end allocation date for such plan year and as if such members had met the eligibility requirements for such allocation for such plan year; provided, however, to the extent the foregoing violates the tax qualification requirements of the Closing). The Company and Parent ESOP, in lieu of compliance with such covenant, Seller shall cooperate in good faith prior provide cash payments to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates affected members having equivalent economic value as soon as practicable following the Closing Date. Seller shall cause the Company to withdraw from the ESOP prior to, but effective as of, the Closing Date.
(hf) Nothing in this Agreement As soon as practicable after the Closing Date, Seller shall confer upon any Continuing Employee any right to continue in cause a transfer of assets from the employ or service trustee of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except Seller's Master Trust attributable to the extent expressly provided otherwise in a written agreement between ParentRetirement Plan for Employees of Oil Dynamics, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement Inc. to the contrary, nothing in this Section 6.9 shall (i) be deemed trustee of Xxxxx Xxxxxx Incorporated Retirement Plan Master Trust Agreement or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)another trustee designated by Buyer.
Appears in 1 contract
Samples: Stock Purchase Agreement (Franklin Electric Co Inc)
Employees and Employee Benefits. (a) For a period beginning on Prior to or at the Closing Date and ending on the twelve (12) month anniversary Execution, ------------------------------- Purchaser may offer employment to some or all employees of the Closing Date Sellers, in the Purchaser's sole discretion (orother than the employees listed on Schedule 5.2 ------------ attached hereto which contains a list of all employees of the Sellers whom Endeavor shall not be precluded from employing) upon such terms and conditions as shall be determined by Purchaser in its sole discretion. The Sellers will retain all of the employee benefit plans and pension plans currently maintained by such Sellers as of the date of this Agreement, if shorterand Purchaser will not assume any obligations under any such plans. The Sellers will indemnify , during an employee’s period defend and hold harmless Purchaser (and its directors, officers, employees and affiliates) with respect to such employee benefit plans and pension plans for and against any and all claims, actions, judgments or causes of employment following action based upon or arising out of or otherwise in respect of any such plan. All employees of the Closing Date)Sellers hired by Purchaser shall be given full credit for all time worked for the Sellers for purposes of determining their participation and vesting under the employee benefit plans and programs of Purchaser applicable to such employees. Unless prohibited by law, Parent the Sellers shall provide, or shall cause the Surviving Corporation provide to provide, to Purchaser all personnel records for the employees of the Company Sellers hired by Purchaser, including, without limitation, names, social security numbers, dates of hire, dates of birth, number of hours worked each year, and salary history. Endeavor hereby agrees not to employ, directly or its subsidiaries who are not represented by indirectly, for a labor organization period of 12 months after the Execution Date, any Key Employee to whom Purchaser has offered employment prior to or on the Execution Date and who continue decides not to accept employment with Purchaser; provided, however that Purchaser and Endeavor hereby agree that Xxxx Xxxxx may be employed by the Company or the Surviving Corporation Endeavor, Purchaser or any subsidiary or Affiliate thereof (third party after a period of six months from the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Execution Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Asset Purchase Agreement (Webmd Inc)
Employees and Employee Benefits. (a) For a period beginning on From the date of this Agreement until the date mutually agreed upon in writing by Seller and Purchaser (which date shall be no later than (30) Business Days immediately following the Closing Date and ending on shall be referred to herein as the twelve “Employee Transition Date”), Seller and its Affiliates shall make all Business Employees reasonably available to Purchaser for the purpose of Purchaser interviewing the Business Employees. During such period, Seller and its Affiliates shall use reasonable efforts to cooperate with Purchaser’s efforts and to assist Purchaser upon request in connection with Purchaser’s efforts to hire Business Employees desired to be hired by Purchaser, including providing Purchaser reasonable access to such records of Seller and its Affiliates regarding each such Business Employee as is requested by Purchaser and as Seller and its Affiliates may lawfully provide to Purchaser including for purposes of payroll set-up and benefit enrollment. The initial contact by Purchaser to Business Employees (12individually or as a group) month anniversary shall be coordinated in advance between Seller and Purchaser. Once Purchaser engages in direct communication with particular Business Employees, Purchaser may communicate directly with any such Business Employees without the prior approval of Seller. Seller and its Affiliates shall not discuss with any such Business Employees any increase or expansion of the Closing Date (or, if shorter, during an employee’s period compensation of employment following benefits that such Business Employees are then entitled to receive with the Closing Date), Parent shall provide, or shall cause the Surviving Corporation intention of influencing such Business Employees to provide, decline to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be become employed by the Company or following the Surviving Corporation or any subsidiary or Affiliate thereof Closing.
(b) No later than twenty Business Days following the Closing, Purchaser shall provide to Seller in writing a list of those Business Employees to whom Purchaser intends to make an offer of employment (the “Continuing Non-Union Offered Employees”)) and Purchaser shall offer employment to the Offered Employees within three Business Days thereafter. Such offers of employment shall be in writing, and shall include, at a minimum: (i) a position located in the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee metropolitan area held immediately prior to the Effective Time, Closing Date; (ii) employee a base salary (or wages) and bonus and incentive compensation opportunities which are no less favorable in generally comparable to the aggregate than the base salary (or wages) and bonus and incentive compensation opportunities provided to such Continuing Non-Union Employees Transferred Employee (excluding Account Executives, with respect to which those receiving offers of employment will be offered compensation comparable to similarly situated Account Executives employed by Purchaser and/or its Subsidiaries) immediately prior to the Effective Time Closing Date; and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee costincluding, but not limited to, retirement and welfare benefits, paid time off, equity and equity-based compensation or benefits, nonqualified deferred compensation, severance, and life, medical, and accident insurance) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(iemployee benefits (including, but not limited to, retirement and welfare benefits, paid time off, equity and equity-based compensation or benefits, nonqualified deferred compensation, severance, and life, medical, and accident insurance) provided to similarly situated employees of Purchaser. Those Business Employees who are not Offered Employees are hereinafter referred to as “Non-Selected Employees.” Seller and its Affiliates shall cause the employment of the Company Disclosure Schedule Offered Employees who accept Purchaser’s offer of employment (the “Transferred Employees”) to be terminated on the Business Day designated in writing to Seller by Purchaser that is at least two Business Days prior to the Employee Transition Date, and Seller and its Affiliates shall immediately prior to or as soon as administratively practicable following the Transferred Employees’ termination (i) pay all salaries, wages, paid time off or accrued vacation and all bonuses payable through the Employee Transition Date (including any bonus, change-in-control or similar payment obligations of Seller or its Affiliates resulting from the consummation of the Transactions) due to all Transferred Employees, including the Offered Employees, (ii) from pay all separation, severance, salary continuation and after insurance continuation payments (if any), due or to become due to the Effective TimeTransferred Employees (whether arising under the policies of Seller or its Affiliates, Parent Contracts with the respective employees, applicable Law or otherwise), (iii) provide all notices to the Transferred Employees required by Law, including any required notice under COBRA, and (iv) terminate all awarded paid time off policies and all incentive and bonus plans for all Transferred Employees; provided, however, within sixty days following the Employee Transition Date, the Purchaser shall cause reimburse Seller for all severance pay and benefits, accrued vacation or paid time off actually paid by Seller or its Affiliates to the Surviving Corporation Non-Selected Employees under the terms of the applicable Business Benefit Plan as in effect as of the date of this Agreement; provided, further, that such reimbursement with respect to severance pay paid to each Non-Selected Employee shall not exceed the lesser of (x) in the aggregate, fifty-two (52) weeks of such employee’s base pay or (y) such employee’s base pay for two (2) weeks multiplied by his or her years of service with Seller and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(iiAffiliates plus his or her base pay for two (2) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Scheduleweeks.
(c) With respect to each any Business Employee, Purchaser shall not assume, honor or be obligated to perform, and Seller and its Affiliates shall remain solely responsible for, any duties, responsibilities, commitments or obligations of Seller or its Affiliates with respect to any Business Benefit Plan, qualified or non-qualified employee benefit plan, program, practice, policy or arrangement plan presently maintained by Parent Seller or its subsidiaries Affiliates or for the benefit of Business Employees or any other Contract or commitment (including without limitation with respect to wages or other benefits, bonuses, accrued vacation, workers’ compensation, severance, retention, termination or other payments, whether due before or after the Surviving CorporationEmployee Transition Date) following the Effective Time between Seller or its Affiliates and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except such Business Employee. Subject to the extent necessary to avoid duplication provisions of benefitssubparagraph (b) above, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planemployment, if any, offered by Purchaser to any Offered Employee shall be determined by Purchaser in Purchaser’s sole discretion.
(d) To The Purchaser shall be solely responsible for complying with the extent permitted WARN Act, in any case, applicable to the Business Employees as a result of any action or omission by applicable Law, no later than thirty (30) days the Purchaser or its Affiliates on or after the date hereof, Closing Date. The Purchaser shall indemnify and hold harmless Seller and its Affiliates against any and all Losses arising in connection with any failure to comply with the Company shall provide to Parent a schedule requirements of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage ratethis Section 7.6(d), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shallCCOI or its Affiliate (other than the Company) shall assume, bear and shall cause each discharge all obligations and Liabilities pursuant to Code Section 4980B and Part 6 of its subsidiaries to, comply in Subtitle B of Title I of ERISA (“COBRA”) with respect to all material respects with each of their respective obligations under applicable Law before the Closing Date to inform employees and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of former employees of the Company or its subsidiaries, with any labor organizations Seller Group Entities with respect to any Continuing Union-Represented Employees affected by qualifying events occurring on or before the Employee Transition Date, including the employees who terminate employment with a Seller Group Entity as a result of the transactions contemplated by in this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions This Section 7.6 will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) not create any third-party beneficiary rights in nor will it be enforceable by any current or former service provider employee, any person representing the interest of the Company or its Affiliates (employees or any beneficiaries spouse, dependent or dependents thereof).beneficiary of any employee, nor will anything herein be deemed an amendment to any employee benefit plan. This
Appears in 1 contract
Samples: Equity Purchase Agreement
Employees and Employee Benefits. (a) For Schedule 4.1(a)(1) contains a period beginning on the Closing Date and ending on the twelve (12) month anniversary list of regular Employees employed by Seller as of the Closing Date date hereof in connection with the Operation (orincluding active employees and employees who are on leave of absence or sick leave) (the “Regular Employees”) and the Regular Employees’ respective salary as of the Execution Date. Subject to the Regular Employee’s timely completion of Buyer’s employment application and Buyer’s acceptance of such application and Buyer’s standard background check, if shorter, during an employee’s period Buyer shall make employment offers to the Regular Employees prior to the termination of the Secondment Agreement with such offer of employment following to be effective as of the Closing Date), Parent shall provide, or shall cause termination of the Surviving Corporation Secondment Agreement at the Regular Employees’ respective salary and subject to provide, Buyer’s benefit plans and corporate policies generally provided to the newly hired employees of a similar position. Seller agrees that, concurrent with the Company or its subsidiaries termination of the Secondment Agreement, Seller shall terminate the employment with Seller of all Regular Employees. The Regular Employees who are not represented by a labor organization and who continue to begin their employment with Buyer (“Transferred Employees”) shall be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid Buyer in accordance with the terms and conditions set forth in subsections 4.1(b), 4.1(c), and 4.1(d) below.
(b) Buyer shall be responsible as of the Parent Plantermination of the Secondment Agreement for all Liabilities, salaries, benefits and similar employer obligations for the post-Secondment period for all Transferred Employees. Buyer’s responsibilities during the term of the Secondment Agreement are set forth therein and nothing in this Agreement shall be interpreted to supersede or otherwise affect such responsibilities.
(c) Buyer shall be responsible for Liabilities with respect to the termination of any Transferred Employee by Buyer on or after the date of the termination of the Secondment Agreement for such Transferred Employee, including without limitation, health care continuation coverage with respect to plans established or maintained by Buyer after the date of termination of the Secondment Agreement, and damages or settlements arising out of any claims of wrongful or illegal termination with respect to any such termination, and for complying with the requirements of all applicable laws with respect to any such termination.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company Seller shall provide to Parent a schedule of be responsible for all Company employees that sets forth the following information Liabilities with respect to each individual listed: (i) Seller’s employment of the base compensation (salary Regular Employees and the termination of employment of any such Regular Employees with Seller, including without limitation, health care continuation coverage under plans established or wage rate)maintained by Seller, any Liabilities for accrued vacation, paid time off, sick leave or similar benefits attributable to periods of employment or service of Regular Employees with Seller, any Liabilities arising out of any claims of wrongful or illegal termination by Seller, and bonus; (ii) compliance with the titlerequirements of all applicable laws, position and/or job classificationin each case, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of to the Company’s classification of each extent such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days Liabilities accrue prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee termination of the Company or its subsidiariesSecondment Agreement, and, for the term of the Secondment Agreement, Seller’s and Buyer’s responsibilities shall be in accordance with the terms of the Secondment Agreement.
(e) The Company shallSeller agrees that for a period of one (1) year from the Closing Date, and shall cause each it will not employ or solicit for employment, any employee of Buyer (or any of its subsidiaries toSubsidiaries) employed in Rochester, comply Minnesota (including any Regular Employee) or with whom Seller had contact in all material respects connection with each this transaction (so long as such person is employed by Buyer or any of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations Subsidiaries) unless with respect to any Continuing Union-Represented Employees affected by employee the transactions contemplated by this AgreementParties otherwise mutually agree; provided, however, that solicitation shall not include general employment advertising or the use of any independent employment agency or search firm not specifically directed to employees of Buyer or any of its Subsidiaries.
(f) Parent shall Buyer agrees that for a period of one (1) year from the Closing Date, it will not employ or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expirationsolicit for employment, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to employee of Seller (other than any Collective Bargaining Agreements effective upon the Closing.
Regular Employee) (g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(aSubsidiaries) of the Code with whom Buyer had contact in connection with this transaction (the “Company 401(k) Plans”) shall be terminated, so long as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained person is employed by Parent Seller or any of its subsidiaries Subsidiaries) unless with respect to any employee the Parties otherwise mutually agree; provided, however, that solicitation shall not include general employment advertising or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon use of any Continuing Employee any right independent employment agency or search firm not specifically directed to continue in the employ or service employees of Parent, the Surviving Corporation Seller or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)Subsidiaries.
Appears in 1 contract
Employees and Employee Benefits. From and after the Closing Date, Xxxxxx agrees, and will cause the Acquired Companies, to carry out the following:
(a) For a Parent shall, for the period beginning on the Closing Date and ending on December 31, 2024 (the twelve (12) month anniversary of the “Post-Closing Date (or, if shorter, during an employee’s period of employment following the Closing DateBenefit Period”), cause each Employee who remains employed by Parent shall provideor an Acquired Company during the Post-Closing Benefit Period to receive a base salary or base wage level (including commissions) and bonus opportunity (excluding, or shall cause for the Surviving Corporation to provideavoidance of doubt, any transaction bonus), to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)extent applicable, (i) the same base salary and wage rate at least as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable Employee as in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees effect immediately prior to the Effective Time. Commencing on before the Closing Date; provided, the Surviving Corporation that this Section 6.1(a) shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions not be deemed to be a guarantee of employment of employees to any Employee or to impose any obligation on Parent or any of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued Acquired Companies to be employed by continue the Company or the Surviving Corporation or employment of any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Person.
(b) Parent will ensure that during the Post-Closing Benefit Period, the Employee Benefit Plans available for Employees will provide benefits that, in the aggregate, are at least as favorable as the benefits provided under the Company’s Employee Benefit Plans (excluding any defined benefit pension plans) prior to the Closing Date. To the extent Employees become covered under Employee Benefit Plans maintained by the Parent Related Parties, Parent will use commercially reasonable efforts to provide that those plans will (i) For provide Employees with credit for their service with the twelve (12) month period following Company prior to the Closing Date, Parent shall provideto the same extent (or better) that such service would have been credited under the Company’s Employee Benefit Plans for all purposes (including for purposes of vesting credit, eligibility to participate and receive benefits and benefit accrual, but excluding for purposes of benefit accrual under defined benefit pension plans, for purposes of qualifying for subsidized early retirement benefits, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employeesextent it would result in duplication of benefits), severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from cause Employees to be eligible immediately to commence participation in such plans without regard to any eligibility period, waiting period, elimination period, evidence of insurability requirements and after the Effective Timecause any pre-existing condition limitations to be waived, Parent shall cause the Surviving Corporation and its subsidiaries to honor(iii) give effect, in accordance determining any deductible and maximum out-of-pocket limitations, to claims incurred and amounts paid by, and amounts reimbursed to, the Employees with their terms, all Company respect to the Company’s Employee Benefit Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of prior to the Closing shall constitute a “Change in Control” for Date. For purposes of all Company Stock Plansthis Section 6.1, Company reference to Employees and their rights under Employee Benefit Plans will extend to and related trusts set forth in Section 6.9(b)(iii) include the Employees’ respective dependents and other beneficiaries of such Employee Benefit Plans to the Company Disclosure Scheduleextent applicable.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively2023 calendar year, the “Continuing Employees”) participate (Acquired Companies shall pay to non-executive Employees commission, incentive or other bonus compensation that is substantially consistent in the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service aggregate with the Company and its subsidiaries (or predecessor employers amounts paid with respect to such Employees for calendar year 2022; provided, that the extent the Company provides or has recognized past service credit) Acquired Companies shall be treated as service with Parent and its subsidiariespermitted to make exceptions for individual Employees in their reasonable discretion. Each applicable Parent Plan The Acquired Companies shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid make such payments prior to the Effective Time during Closing Date.
(d) With respect to the portion of the 2024 calendar year ending on the Closing Date, the Acquired Companies shall make accruals in the ordinary course of business for potential payments of commissions, incentives or other bonuses to Employees under each Employee Benefit Plan, subject to proration based on the number of days which have elapsed between January 1, 2024, and the Effective Time occurs Closing Date.
(e) With respect to the 2024 calendar year, Parent shall pay or cause to be paid to each applicable Employee any commission, incentive or other bonuses owed to such Employees under a corresponding Company each Employee Benefit Plan for purposes (if any), the amount of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid which will be determined by Parent in accordance with the terms of the applicable Employee Benefit Plan (the “2024 Bonus Payments”). Parent shall make or cause to be made the 2024 Post-Closing Bonus Payments to the applicable Employees in the ordinary course of business, subject to the continued employment in good standing of each Employee through the date of payment and conditions all other policies and procedures of Parent.
(f) Subject to compliance with applicable Law, during the Post-Closing Benefit Period, or if shorter, the duration of such Employee’s employment with the Parent Related Parties after the Closing, Parent will honor, or will cause to be honored, all accrued but unused vacation time, sick leave and personal time of the Employees as of the Closing in accordance with the terms of the applicable program or policy in effect immediately prior to the Closing Date (in addition to, and not in lieu of, any vacation earned and accrued under the applicable vacation plans or policies of the Parent Plan.
(d) To Related Parties for services on or following the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide Closing). Subject to Parent a schedule of all Company employees that sets forth the following information compliance with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern applicable Contract, any accrued but unused vacation time, sick leave and personal time which remains unused following the wages, hours and other terms and conditions of employment of employees expiration of the Company or its subsidiaries, with Post-Closing Benefit Period will immediately expire without any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closingpayment.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision anything in this Agreement to the contrary, nothing contained in this Section 6.9 6.1, express or implied, shall (i) be deemed interpreted to confer upon any Person (including any current or construed former employee or any beneficiary thereof) any rights, benefits or remedies as third-party beneficiaries, including any rights of continued employment or service, any rights to a particular term of employment or service or any rights to any particular compensation or benefits of any nature or kind; or (ii) be treated as an amendment to, or other modification of prevent the termination of, any Company Plan, Parent Benefit Plan or any other employee benefit planEmployee Benefit Plan, program or arrangement of the Acquired Companies, Parent or any of their respective Affiliates.
(iih) prevent ParentDuring the Interim Period, before making any announcements or communications to the Employees regarding this Agreement or the Contemplated Transactions, the Surviving Corporation Company will obtain Parent’s prior written consent (not to be unreasonably withheld, conditioned or delayed) as to the content and timing of any Affiliate of Parent from amending such announcements or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)communications.
Appears in 1 contract
Samples: Merger Agreement (Shenandoah Telecommunications Co/Va/)
Employees and Employee Benefits. (ai) For Effective as of and following the Closing for the lesser of (A) a period beginning on of 12 months and (B) the Closing Date and ending on Company's next scheduled salary review in the twelve (12) month anniversary Ordinary Course of the Closing Date (or, if shorter, during an employee’s period of employment Business following the Closing Date), Parent each Company Employee shall providecontinue, or shall cause the Surviving Corporation to provide, to the employees of the for so long as such Company or its subsidiaries who are not represented by a labor organization and who continue to Employee may be employed by the Company or in the Surviving Corporation or any subsidiary or Affiliate thereof (sole and absolute discretion of the “Continuing Non-Union Employees”)Company following the Closing, (i) the same to receive a base salary and or hourly wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee no less than that in effect immediately prior to the Effective TimeClosing Date and after such period, (ii) employee incentive compensation opportunities which are no less favorable questions of salary and hourly wage shall be determined by Buyer in its sole discretion. During the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) 12 month period following the Closing Date, Parent such Company Employee shall providereceive benefits under employee benefit plans (excluding equity plans and other incentive compensation) that are substantially similar, or shall cause in the Surviving Corporation to provideaggregate, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of provided under the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in on Section 6.9(b)(ii3(s) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any to such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon Date. The Buyer agrees that if the occurrence Company terminates any of the Company Employees, at any time after Closing), it will be liable for severance benefits for such employee in accordance with its severance policy at such time and applicable Law, including, without limitation, liability for any severance payments under Law 80 applicable to Company Employees. In providing benefits to the Company Employees, for purposes of vesting, eligibility for participation and seniority, but not for purposes of benefit accrual under any defined benefit retirement plan or retiree medical plan, the Buyer shall cause each Company Employee to receive past service credit for such employee's service with (i) the Seller, (ii) any Affiliate of the Seller, and (iii) any predecessor employer, to the extent that service with the predecessor is credited under any comparable Company Plan as of the Closing Date. The Company shall pay, immediately prior to the Closing, and Parent shall cooperate in good faith be responsible for, the retention, transaction or similar bonuses arising on or prior to the Closing Date for Company Employees as well as those identified on Schedule 6(c)(i) attached hereto. The bonuses described in the preceding sentence shall not be included in the determination of Current Liabilities for purposes of the calculation of Working Capital to the extent they are paid by the Company on or prior to the Closing Date. The Seller shall indemnify Buyer for any payments becoming due or liabilities arising under any Company Plan with respect to the preparation and execution employment or termination of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification employment of any Company Plan, Parent Plan or Employee prior to the Closing Date and for any other employee benefit planliability arising under Title IV of ERISA by reason of the Company's membership in a controlled group under Section 414(b), (iic), (m) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iiio) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)Code.
Appears in 1 contract
Samples: Stock Purchase Agreement (Centennial Communications Corp /De)
Employees and Employee Benefits. (a) For a period beginning on Buyer hereby agrees to offer employment, effective the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following day after the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries all individuals who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)are, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms active, full or part-time employees (including employees on short-term leave) of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees any of the Company or its subsidiaries Newspapers. With respect to each such employee to whom Buyer offers employment, Buyer shall offer to employ such person at a base compensation that is no less than the base compensation that was paid to such employee immediately prior to Closing. Each employee of any of the Newspapers who are covered by such Collective Bargaining Agreements and who continued accepts employment with Buyer on the Closing Date is hereinafter referred to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the as a “Continuing Union-Represented EmployeesTransferred Employee”).
(b) Except as set forth in subsection (ia) For above, Buyer, in its sole discretion, shall determine what employee benefits will be made available to Transferred Employees; provided, however, that Buyer will offer medical coverage to Transferred Employees on and after the Closing Date, shall waive for Transferred Employees any pre-existing condition limitations and waiting periods that may apply under its health plans, and shall recognize Transferred Employees’ service with Sellers or any of their respective affiliates as if it were service with Buyer for purposes of satisfying any vesting requirements under any benefit plans offered by Buyer (but not for purposes of benefit accrual or for determining the amount of benefits payable under any benefit plan other than a vacation plan).
(c) Buyer shall pay to each full-time Transferred Employee who is involuntarily terminated by Buyer without cause during the twelve (12) month period following the Closing Date separation payments equal to one (1) week of pay for each year (or part thereof) of continuous employment with a Gannett Party, their respective affiliates or the applicable Newspaper (without regard to such Newspaper’s ownership) either prior to or after the Closing Date, Parent shall providewith a minimum of two (2) weeks of pay. Buyer agrees to indemnify, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule defend and (ii) hold Sellers harmless from and against all direct and indirect costs, expenses or liabilities arising from or relating to claims made by Transferred Employees with respect to termination of employment by Buyer after the Effective TimeClosing Date, Parent shall cause the Surviving Corporation and its subsidiaries to honorincluding, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not limited to, any claims for accrual of improper termination or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planseverance payments.
(d) To Buyer shall be responsible for any obligations under federal, state or local plant closing statutes, including the extent permitted by applicable LawWARN Act, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before events occurring after the Closing Date to inform and consult (or otherwise), under applicable Law and other than any such obligations arising from the terms consummation of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(fe) Parent The Gannett Parties shall or be responsible for and timely pay all compensation owed to the Transferred Employees and shall cause be responsible for and timely provide Transferred Employees with all benefits owed under the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendmentEmployee Benefit Programs through the Closing Date. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions The Gannett Parties will accrue after, and that retain all of the Company Plans sponsored or maintained by the Company or Employee Benefit Programs, including all employee benefit plans and pension plans, and Buyer will not assume obligations under any of its subsidiaries that are defined contribution plans intended to such programs. The Gannett Parties shall be qualified within the meaning of Section 401(a) fully and solely responsible for any costs, expenses, obligations and liabilities arising out of the Code (pension or retirement obligations attributable to the “Company 401(k) Plans”) shall be terminated, as of immediately Newspapers’ current or former employees related to the period on or prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning From and after the Closing Date, Buyer shall provide employment to each employee of the Business who is, as of the Closing Date, at work or out of work on illness or an approved absence or leave (whether paid or unpaid), other than long-term disability. Each such employee shall be deemed an employee of Buyer as of the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) provided the same base salary and or hourly wage rate and the same employment position as the base salary and wage rate provided to in effect for such Continuing Non-Union Employee employee immediately prior to the Effective TimeClosing Date. Any employee of the Business who is, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion as of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation out on long-term disability, shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of be provided employment of employees with Buyer as of the Company date such employee is willing and able to return to work at the same employment position and same salary or its subsidiaries hourly wage rate as in effect prior to the commencement of his long term disability or at a level of compensation and in a position that is commensurate with the skills and abilities of such employee. Each employee of the Business who are covered by such Collective Bargaining Agreements and who continued is entitled to be employed provided employment by Buyer from or after the Company or Closing Date shall hereinafter be referred to as a "TRANSFERRED EMPLOYEE", and the Surviving Corporation or any subsidiary or Affiliate thereof (first date on which each such Transferred Employee is entitled to be provided employ ment with Buyer in accordance with this Section shall hereinafter be referred to as the “Continuing Union-Represented Employees”)"TRANSFER DATE" with respect to such Transferred Employee.
(b) From and after the Closing, Buyer shall assume, honor and perform all obligations of Seller and its Affiliates under all written employment, compensation and severance agreements with any Transferred Employees. For a period of at least two years following the Closing, Buyer shall maintain or cause to be maintained Employee Benefits (as defined below) for the benefit of the Transferred Employees, which in the aggregate are at least as favorable to such Transferred Employees (and their domestic partners, dependents and beneficiaries) as the Employee Benefits provided to similarly situated employees of Buyer. Without limiting the foregoing, (i) For following the twelve (12) month period Closing, Buyer shall recognize all vacation and personal holidays accrued by each Transferred Employee as of the Closing and shall permit each such Transferred Employee to be compensated for such vacation and personal holidays following the Closing Datein accordance with the policies and practices applicable immediately prior to Closing, Parent shall provideprovided, or shall cause however, that such Transferred Employees may only use such vacation and personal holidays from and after the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth Closing in Section 6.9(b)(i) of the Company Disclosure Schedule accordance with Buyer's policies and practices and (ii) from and after for a period of at least one year following the Effective TimeClosing, Parent Buyer shall maintain or cause to be maintained for the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) benefit of the Company Disclosure Schedule (each, a “Company Agreement”); provided each Transferred Employee severance benefits that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect are at least as favorable to each benefit plan, program, practice, policy or arrangement maintained such Transferred Employee as the written severance benefits made available to such Transferred Employee by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).Seller
Appears in 1 contract
Samples: Asset Purchase Option Agreement (WTNH Broadcasting Inc)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date Certain current and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the former employees of the Company or and its subsidiaries who are not represented by Subsidiaries (including certain predecessor companies) participate in a labor organization and who continue to be employed by qualified defined benefit pension plan known as the Company or the Surviving Corporation or any subsidiary or Affiliate thereof WilTel Communications, LLC Pension Plan (the “Continuing Non-Union Employees”"Retirement Plan"). Prior to the Closing Date, Leucadia and the Seller shall take all necessary and appropriate action to: (i) cause the same base salary Company and wage rate as its Subsidiaries to amend or revise the base salary and wage rate provided to Retirement Plan so that no further benefits will be accrued by their employees under such Continuing Non-Union Employee immediately prior to plan on or after the Effective TimeClosing Date, (ii) employee incentive compensation opportunities which are no less favorable assume the sponsorship of the Retirement Plan and the related obligations and liabilities thereunder accrued in respect of the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately eligible employees prior to the Effective Time Closing Date, and (iii) employee benefits which are substantially comparable cause the Company and its Subsidiaries to cease to sponsor and maintain the Retirement Plan as of the date such sponsorship is assumed by Leucadia and the Seller; provided, however, that the covenants of the Seller set forth in clauses (i) through (iii) of this Section 7.12(a) shall be of no further force and effect upon the aggregate (including exercise by the Buyer of its Benefit Plan Substitution Right in accordance with respect Section 2.2(b). The Company and its Subsidiaries shall have no obligation to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing implement a qualified defined benefit pension plan for their employees on or after the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) Certain current and former employees of the Company and its Subsidiaries participate in a nonqualified deferred compensation plan known as the WilTel Communications, LLC Supplemental Executive Retirement Plan (i) For the twelve (12) month period following "Deferred Compensation Plan"). Prior to the Closing Date, Parent Leucadia and the Seller shall provide, or shall take all necessary and appropriate action to: (i) cause the Surviving Corporation Company and its Subsidiaries to provideamend or revise the Deferred Compensation Plan so that no further benefits will be accrued by their employees under such plan on or after the Closing Date, (ii) assume the sponsorship of the Deferred Compensation Plan and the related obligations and liabilities thereunder accrued in respect of the eligible employees prior to the Continuing Non-Union EmployeesClosing Date, severance benefits which are no less favorable than those and (iii) cause the Company and its Subsidiaries to cease to sponsor and maintain the Deferred Compensation Plan as of the date such sponsorship is assumed by Leucadia and the Seller; provided, however, that the covenants of the Seller set forth in Section 6.9(b)(iclauses (i) through (iii) of this Section 7.12(b) shall be of no further force and effect upon the Company Disclosure Schedule and (ii) from and after exercise by the Effective Time, Parent shall cause the Surviving Corporation and Buyer of its subsidiaries to honor, Benefit Plan Substitution Right in accordance with Section 2.2(b). The Company and its Subsidiaries shall have no obligation to implement a nonqualified deferred compensation plan for their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending employees on or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of after the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleDate.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) Within three days after the date hereof, the Company Seller shall provide deliver to Parent the Buyer a schedule list dated as of all Company employees that sets forth October 28, 2005 containing the following information with respect to each individual listed: (i) the base compensation (salary or wage rate)name, position, starting employment date, current annual salary, bonus and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location commissions in 2004 of each employee; and (v) a statement current employee of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee either of the Company or its subsidiariesRetained Subsidiaries.
(ed) The Company shall, and No provision of this Section 7.12 shall cause each of its subsidiaries to, comply create any third party beneficiary or other rights in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult any employee or former employee (including any beneficiary or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees dependent thereof) of the Company or of any of its subsidiariesSubsidiaries in respect of continued employment (or resumed employment) and no provision of this Section 7.12 shall create any such rights in any such Persons in respect of any benefits that may be provided, with directly or indirectly, under any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall employee plan or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored arrangement which may be established or maintained by the Company Buyer or any of its subsidiaries that are defined contribution plans intended Affiliates after the Closing Date. No provision of this Agreement shall constitute a limitation on rights to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminatedamend, as of immediately prior to modify or terminate after the Closing Date (but conditioned upon the occurrence any such plans or arrangements of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Buyer or any of its subsidiaries or Affiliates as soon as practicable following the Closing DateAffiliates.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the continuing thereafter for twelve (12) month anniversary of consecutive months (the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date“Continuation Period”), Parent Buyer shall provide, or shall cause the Surviving Corporation Company and its Affiliates to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and Subsidiary as of the Closing who continue to be employed by employment with the Company or its Subsidiary following the Surviving Corporation Closing (collectively, the “Company Employees”) with compensation (including rates of annual base salary or wage level and annual cash bonus opportunities, to the extent applicable, but not including change in control benefits or any subsidiary or Affiliate thereof (other equity-based compensation) and employee benefits that are substantially comparable, in the “Continuing Non-Union Employees”)aggregate, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior similarly situated employees of the Buyer; provided, that nothing herein shall be deemed to limit the Effective Time. Commencing on the Closing Dateright of Buyer, the Surviving Corporation shall observe Company or any of their respective Affiliates to (A) terminate the employment of any Company Employee at any time, (B) change or modify the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and or conditions of employment of employees of the for any Company Employee or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company (C) change or the Surviving Corporation modify any employee benefit plan or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)arrangement in accordance with their terms.
(b) For purposes of eligibility and vesting (but not for benefit accrual) under the employee benefit plans, programs and arrangements established or maintained by Buyer, the Company and their respective Affiliates in which Company Employees may be eligible to participate after the Closing (the “New Benefit Plans”), each Company Employee shall be credited with the same amount of service as was credited by the Company and its Affiliates as of the Closing under similar or comparable Company Benefit Plans; provided, that such crediting of service shall not operate to duplicate any benefit or the funding of any benefit. In addition, and without limiting the generality of the foregoing, (i) For with respect to any New Benefit Plans in which the twelve (12) month period Company Employees may be eligible to participate following the Closing DateClosing, Parent shall provide, or shall cause the Surviving Corporation each Company Employee will be eligible to provide, participate in such New Benefit Plans to the Continuing Non-Union Employeesextent coverage under such New Benefit Plans replaces coverage under a similar or comparable Company Benefit Plan in which such Company Employee was eligible to participate prior to the Closing (such plans, severance benefits which are no less favorable than those set forth in Section 6.9(b)(icollectively, the “Old Benefit Plans”) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all each New Benefit Plan providing medical, dental, pharmaceutical and/or vision benefits to any Company Stock PlansEmployee, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit planBuyer, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers Subsidiary shall use reasonable efforts to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and cause all pre-existing condition limitations exclusions and actively-at-work requirements of such New Benefit Plan to be waived for such Company Employee and his or her covered dependents, to the extent any such exclusions or requirements were waived or not included were inapplicable under the corresponding any similar or comparable Company Benefit Plan. Parent agrees to Buyer, the Company and its Subsidiary shall use commercially reasonable efforts to give cause any eligible expenses incurred by such Company Employee and his or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time her covered dependents during the calendar portion of the plan year of the Old Benefit Plan ending on the date such Company Employee’s participation in which the Effective Time occurs corresponding New Benefit Plan begins to be taken into account under a corresponding Company such New Benefit Plan for purposes of applying deductiblessatisfying all deductible, copayments coinsurance and maximum out-of-pocket maximums requirements applicable to such Company Employee and his or her covered dependents for the applicable plan year as though if such amounts had been paid in accordance with such New Benefit Plan.
(c) Buyer shall, or shall cause the Company and its Subsidiary to, honor all Company Benefit Plans in accordance with their terms and conditions of as in effect immediately prior to the Parent PlanClosing; provided, that nothing in this Agreement will prohibit the Buyer, the Company or the Company’s Subsidiary from amending or terminating any benefit plan or arrangement covering any Company Employees on or after the Closing Date.
(d) To the extent permitted With respect to any Company Employee whose employment is terminated by applicable Law, no later than thirty (30) days after the date hereofBuyer, the Company or any of their respective Affiliates during the six (6) months following the Closing Date, Buyer shall provide, or shall cause its Affiliates to provide, severance benefits to such Company Employee, which shall be determined and payable in accordance with the severance benefit plan or agreement maintained by Seller or any of its Affiliates for the benefit of such Company Employee immediately prior to the Closing Date, taking into account all service with Seller, Buyer and their respective Affiliates in determining the amount of severance benefits payable; provided, that notwithstanding anything to the contrary in this Agreement, under no circumstances shall Buyer or any of its Affiliates be responsible for providing severance benefits to any Control Employee pursuant to the employment agreement to which such Control Employee is a party or otherwise.
(e) At least seven (7) days before the Closing Date, Seller shall provide to Parent Buyer a schedule of all Company employees that sets forth (the following information with respect to each individual listed: “Payment Schedule”) containing the following:
(i) the base name of each Person who is thereafter, including at or after the Closing, entitled to receive from the Company or its Subsidiary, including in connection with or as a result of the Closing, (A) any payment under the Phantom Plan, (B) any bonus compensation for the year ended December 31, 2011 (salary excluding, for avoidance of doubt, Sales Commission Amounts) or wage rate), and bonus; (C) any Transaction Bonus Payment;
(ii) the title, position and/or job classification, date amount of hire, credited service or seniority, each payment contemplated by clause (i) of this Section 4.5(e);
(iii) full time versus part time statusfor each payment contemplated by clause (i) of this Section 4.5(e), active the amount of any employer payroll or leave status; other Taxes (that are not required to be withheld from any such payment) payable or to become payable by the Company or its Subsidiary in connection with such payment;
(iv) location the sum of (A) each employeeamount specified in clause (ii) of this Section 4.5(e) plus (B) each amount specified in clause (iii) of this Section 4.5(e); and and
(v) a statement the date on which payments described in clause (ii) of this Section 4.5(e) are required to be made.
(f) Buyer shall cause the Company’s classification of Company to make the payments to the Persons named on the Payment Schedule and in the respective amounts specified for each such position or job Person when and as exempt or non-exempt for purposes of such payments become due.
(g) At least two (2) days before the Federal Fair Labor Standards Act. Such schedule Closing Date, Seller shall be true and complete as of the date or dates set forth accrue on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee balance sheet of the Company or its subsidiaries.
(e) The Company shallSubsidiary, and shall cause each of its subsidiaries toas applicable, comply in all material respects with each of their respective obligations under applicable Law before amounts payable after the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of by the Company or its subsidiariesSubsidiary as Sales Commission Amounts.
(h) Prior the Closing Date, Seller shall amend the Phantom Plan to provide that, effective as of the Closing, (i) the only liabilities, rights and obligations of any Person thereunder shall be for the Company to make the Phantom Plan payments set forth on the Payment Schedule and for the Phantom Plan participants to receive such payments and (ii) upon the making of such payments, the Phantom Plan shall terminate without further obligation or liability of any Person thereunder.
(i) On or before the Closing Date, Seller shall provide Buyer with a true, correct and complete list of all employees whose employment has been terminated within ninety (90) days preceding the Closing Date, or whose work hours have been reduced within six (6) months preceding the Closing Date; such list will indicate the employee’s name, site of employment, position or job title, starting date of employment, and date of employment loss, termination or layoff, and, if applicable, the amount of hour reduction for each calendar month during the six (6) month period preceding the Closing Date. Subject to Seller providing the list described in the preceding sentence, Buyer shall be responsible for compliance with the WARN Act and any labor organizations similar applicable Law or plan provision with respect to employment of the Company Employees by Buyer on and after the Closing Date. The parties will use reasonable efforts to cooperate in good faith with regard to any Continuing Union-Represented Employees affected notification that may be required by the WARN Act or other similar applicable Law as a result of the transactions contemplated by this Agreement.
(fj) Parent During the COBRA Continuation Coverage Period, Buyer shall or shall cause provide each Control Employee with medical coverage in New Jersey that is substantially the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, same as of such Control Employee was receiving immediately prior to the Closing Date (but conditioned upon Closing. For purposes of this Section 4.5(j) the occurrence of the Closing). The Company and Parent “COBRA Continuation Coverage Period” shall cooperate in good faith prior to the Closing mean, with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s requesteach Control Employee, the Continuing Employees period beginning on the Closing Date and ending on the earlier of (x) the eighteen (18) month anniversary of the Closing Date and (y) the period during which the such Covered Employee pays the applicable premiums for such coverage. As a condition to the receipt of such coverage, such Control Employee shall be eligible required to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following complete the Closing Datecustomary process for COBRA coverage and pay the applicable premium cost.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Stock Purchase Agreement (Salix Pharmaceuticals LTD)
Employees and Employee Benefits. (a) For Prior to the Closing, Seller shall, or shall cause its Affiliates to, transfer the employment of each active Business Employee not already employed by the Bank Entities to one of the Bank Entities, other than those individuals set forth on Section 4.10(a)(i) of the Bank Disclosure Schedule. As of the Closing, the Bank Entities will have no employee who is not a Business Employee, other than those individuals set forth on Section 4.10(a)(ii) of the Bank Disclosure Schedule.
(b) Except as otherwise specifically provided in this Agreement or as required by applicable non-U.S. Law, Purchaser shall not assume any obligations under or liabilities with respect to, or receive any right or interest in any trusts relating to, any assets of or any insurance, administration or other Contracts pertaining to any Business Benefit Plan sponsored or maintained by Seller or its Affiliates (excluding the Bank Entities) (“Seller Plans”). Seller and the applicable Seller Plans shall retain, promptly pay, and discharge all liabilities under or with respect to each Seller Plan in accordance with the terms thereof (including terms related to the amendment or termination thereof) and any other benefit or compensation plan, policy, program, agreement or arrangement at any time sponsored or maintained by Seller or any of its Affiliates (excluding than the Bank Entities), regardless of when such liabilities arise or are incurred or reported. Except as expressly provided in this Agreement or as required by applicable Law, Seller shall cause each Continuing Employee to cease participating in and accruing additional benefits or service credit under any Seller Plan, effective as of the Closing Date, and shall cause the Bank Entities to cease to be participating employers in any Seller Plan effective as of the Closing Date. Seller shall cause each participant in any Seller Plans who is not a Continuing Employee (or a beneficiary or dependent thereof) to cease participating in and accruing additional benefits or service credit under all Bank Benefit Plans except those set forth on Section 4.10(b) of the Bank Disclosure Schedules, effective as of the Closing Date.
(c) If requested by the Purchaser at least five (5) Business Days prior to the Closing Date, Seller shall cause Bank to take all actions necessary to terminate Bank’s tax-qualified defined contribution retirement plan (the “Bank Retirement Plan”), or cause such plan to be terminated, effective as of no later than the day immediately preceding the Closing Date, and contingent upon the Closing, and provide that participants in the Bank Retirement Plan shall become fully vested in any unvested portion of his or her Bank Retirement Plan account as of the date such plan is terminated. Seller shall provide Purchaser with evidence reasonably acceptable to Purchaser that the Bank Retirement Plan has been terminated (effective no later than immediately prior to the Closing Date and contingent on the Closing). If the Bank Retirement Plan is terminated, then Purchaser shall designate a tax-qualified defined contribution retirement plan of the Purchaser (or an Affiliate of the Purchaser) with a qualified cash or deferred arrangement under Section 1081.01(a) of the PR Code that will cover Continuing Employees on and after the Closing Date (“Purchaser Retirement Plan”) and such Purchaser Retirement Plan shall permit each Continuing Employee to make rollover contributions (including rollover of loans), in the form of cash, notes (in the case of loans) or a combination thereof, in an amount equal to the full account balance distributed or distributable to such Continuing Employee from the Bank Retirement Plan to the Purchaser Retirement Plan, to the extent permitted under the PR Code.
(d) Purchaser acknowledges that, following the Closing, certain Continuing Employees will continue to hold equity awards in Seller or an Affiliate of Seller (other than the Bank Entities) (the “Participants”), which will continue to vest in accordance with their terms contingent upon the holder’s continued employment with the Bank Entities (or any successor entity thereto). Purchaser will timely notify Seller when a Participant’s employment with the Bank Entities terminates. Purchaser and Seller will cooperate prior to the Closing to identify a process for timely reporting to the appropriate taxing authorities any income recognizable by any such Participant associated with the vesting, transfer or disposition of such Participant’s equity awards, and timely withhold and remit any associated income or employment taxes (including the employer portion of any associated payroll taxes). Purchaser shall be fully indemnified by Seller for any taxes, fees, costs, penalties, interest or other amounts incurred by Purchaser or any of its Affiliates (including the Bank Entities) related to the Seller’s equity awards.
(e) Purchaser agrees that each Business Employee of the Bank Entities at the Closing who continues to remain employed with the Bank Entities (or any successor entity thereto) immediately following the Closing (each, a “Continuing Employee”) shall, during the period beginning on commencing at the Closing Date and ending on the twelve first (121st) month anniversary of the Closing Date Date, be provided during the term of their employment with the Bank Entities (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof successor entity thereto) with (the “Continuing Non-Union Employees”), (i1) the same base salary or base wage and target annual cash bonus opportunities that are, in each case, no less favorable than base salary/wage rate as the base salary and wage rate target annual cash bonus opportunities provided to each such Continuing Non-Union Employee immediately prior to the Effective TimeClosing Date by the Bank Entities, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii2) employee severance benefits which and retirement, health and welfare benefits (excluding any equity or equity-based plans, defined benefit plans and post-retirement health and welfare benefit plans) that are substantially comparable in the aggregate (including with respect to the proportion of employee costseverance benefits and retirement, health and welfare benefits (excluding any equity or equity-based plans, defined benefit plans and post-retirement health and welfare benefit plans) provided to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective TimeClosing Date by the Bank Entities.
(f) The rejection by any Business Employee of the automatic transfer of employment to Purchaser by virtue of the Stock Sale shall be deemed a voluntary resignation. Commencing on Such voluntary resignation will not entitle the Business Employee to severance or termination-related payments, benefits or notices from the Bank Entities, the Purchaser or any Affiliate of Purchaser, including but not limited to, statutory severance or any payments or benefits under any compensation plans, programs, agreements or arrangements that may be established or maintained by Purchaser or required to be paid under applicable Law. If the transfer of an individual to an entity other than the Bank Entities or the termination of any individual set forth in Section 4.10(a)(ii) of the Bank Disclosure Schedules entitles such individual to any notice, termination or severance payments under the existing terms of an applicable Business Benefit Plan or as required by U.S. or non-U.S. Law, then Seller shall indemnify and hold harmless Purchaser and its Affiliates for any such notice, termination and severance payments.
(g) Purchaser shall use reasonable best efforts to (1) cause any eligibility waiting periods under any group health plans of Purchaser or its Affiliates (collectively, “New Plans”) to be waived with respect to the Continuing Employees and their eligible dependents, to the extent coverage under group health plan is replacing comparable coverage under a Business Benefit Plan in which such Continuing Employee participated immediately before the Closing Date (collectively, “Old Plans”), (2) cause any pre-existing conditions, exclusions or limitations under any New Plans to be waived with respect to the Continuing Employees and their eligible dependents, to the extent such conditions were inapplicable or waived under the comparable Old Plans in which such Continuing Employee participated immediately prior to the Closing Date, (3) give each Continuing Employee credit for the Surviving Corporation shall observe the terms plan year of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent New Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time Closing occurs under a corresponding Company Plan for purposes of applying deductibles, copayments towards applicable deductibles and annual out-of-pocket maximums limits under such New Plan in which the Continuing Employee participates for any eligible medical expenses incurred prior to the Closing during the plan year of the Old Plan in which the Closing occurs for which payment has been made, as though if such amounts had been paid in accordance with such New Plan, and (4) give each Continuing Employee service credit for such Continuing Employee’s employment with the terms Bank Entities and conditions their Affiliates for purposes of vesting, benefit accrual and eligibility to participate under each applicable benefit plan of Purchaser and its Affiliates (including vacation accrual and severance benefit determinations), as if such service had been performed with Purchaser or the Parent Plan.
(d) To applicable Affiliate, except under defined benefit pension plans, under retiree medical plans, for the purposes of qualifying for subsidized early retirement benefits or to the extent permitted it would result in a duplication of benefits. Except as otherwise prohibited by applicable Law, no later than thirty (30) days after the date hereof, the Company Purchaser shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate)credit, and bonus; (ii) every Continuing Employee shall retain accrued but unused time-off entitlements, including vacation and sick leave balances, as applicable, accrued under Seller’s policies and programs immediately prior to the title, position and/or job classification, date Closing Date and /or accrued balances of hire, credited service paid time-off or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete similar programs with Seller as of the date or dates set forth on the scheduleClosing Date, each of which such accruals shall be provided to Purchaser no more later than ten (10) days Business Days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesClosing Date.
(eh) The Company shallPrior to the Closing, and shall cause each of its subsidiaries tobefore making any written or oral communications to the directors, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (officers or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company Bank Entities pertaining to compensation or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees benefit matters that are affected by the transactions contemplated by this Agreement.
(f) Parent , Purchaser shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all provide Seller with a copy of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) communication, Seller shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent have a reasonable opportunity period of time to review and comment on all the communication, and Purchaser shall consider any such documentation. To the extent that the Company 401(kcomments in good faith.
(i) Plans are terminated pursuant Nothing contained in this Agreement is intended to Parent’s request(1) be treated as an amendment of any particular Business Benefit Plan, (2) prevent Purchaser, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Bank Entities or any of its subsidiaries or their Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans of their benefit plans or, after the Closing, any Bank Benefit Plan in accordance with their terms terms, (3) prevent Purchaser, the Bank Entities or any of their Affiliates, after the Closing, from terminating the employment of any Continuing Employee, or (iii4) create any third-party beneficiary rights in any current or former service provider employee of the Company Bank Entities, any beneficiary or its Affiliates (dependent thereof, or any beneficiaries collective bargaining representative thereof, with respect to the compensation, terms and conditions of employment and/or benefits that may be provided to any Continuing Employee by Purchaser, the Bank Entities or dependents thereof)any of their Affiliates or under any benefit plan which Purchaser, the Bank Entities or any of their Affiliates may maintain. For the avoidance of doubt, Purchaser shall be responsible for any labor and employment-related liability related to the post-Closing employment of the Business Employees, including any post-Closing termination of such employees.
(j) Seller and Purchaser hereby acknowledge and agree to the covenants and agreements set forth in Section 4.10(j)-(p) of the Bank Disclosure Schedules.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, On or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Datedate hereof, the Surviving Corporation shall observe Company, Seller and Purchaser have agreed upon a form of joint announcement to employees concerning this Agreement and the terms of all existing Collective Bargaining Agreements that govern transactions contemplated hereby and a communication plan concerning the wages, hours method and other terms and conditions of employment of employees timing of the Company or its subsidiaries who are covered by delivery of such Collective Bargaining Agreements announcement. Contemporaneously with the execution and who continued delivery of this Agreement, the parties will deliver such announcement to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)employees in accordance with such communication plan.
(b) On and after the Closing Date, Purchaser shall be responsible with respect to all employees of the Company and any of its Subsidiaries for compliance with the Worker Adjustment and Retraining Notification Act of 1988 (ithe “WARN Act”) For and any similar state or local Laws. Purchaser shall not, and shall cause each of its Affiliates and Subsidiaries not to, with respect to any site of employment or facility of any of the twelve (12) month Company or any of its Subsidiaries, at any time during the 90-day period following the Closing Date, Parent shall providetake any employment action that would result in (i) a “plant closing” (as defined in the WARN Act), (ii) a “mass layoff” (as defined in the WARN Act), or shall cause (iii) any similar action under any applicable state or local Laws requiring notice to employees in connection with a plant closing or layoff, in each case without complying fully with the Surviving Corporation notice and other requirements of the WARN Act and any similar state or local Laws requiring notice to provideemployees. In addition, Purchaser hereby agrees to indemnify the Securityholder Indemnified Parties and to defend and hold the Securityholder Indemnified Parties harmless from and against any and all Losses which the Securityholder Indemnified Parties may incur in connection with any lawsuit, claim, arbitration, action or other proceeding brought against the Securityholder Indemnified Parties under the WARN Act or any similar state or local Laws, which relates, in whole or in part, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) any actions taken by Purchaser or any of its Affiliates or Subsidiaries with regard to any site of employment or facility of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and or any of its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleSubsidiaries.
(c) Notwithstanding anything herein to the contrary, Purchaser shall assume and agrees to honor in accordance with their terms all employment and severance agreements listed on Section 5.17(c) of the Disclosure Schedule, and all accrued benefits vested thereunder, and Purchaser shall take no action to amend, modify or terminate such agreements.
(d) For a period of at least one year from and after the Closing Date or for such longer period as provided in any employment or severance agreement listed on Section 5.17(c) of the Disclosure Schedule, Purchaser shall maintain, or cause the Company and its Subsidiaries to maintain, plans for the benefit of the employees of the Company and its Subsidiaries that provide benefits that are not materially less favorable in the aggregate (excluding benefits under incentive compensation, bonus, stock option, equity incentive and defined benefit pension plans and arrangements) to such employees than the benefits provided under the Company Plans immediately prior to the Closing.
(e) With respect to each employee benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries plan of Purchaser (including the Surviving Corporation“Purchaser Plan”) following the Effective Time and in which any employees of the Continuing Non-Union Employees or Continuing Union-Represented Employees Company and its Subsidiaries (collectively, the “Continuing Company Employees”) participate (after the “Parent Plans”), and except to the extent necessary to avoid duplication of benefitsClosing Date, for purposes of determining eligibility to participate, vesting, accrual of vesting and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs)including for severance benefits and vacation entitlement, service with the Company and or its subsidiaries Subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations Purchaser; provided, however, that such service need not be recognized to the extent waived that such recognition would result in a duplication of benefits or to the extent that such service was not included recognized under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty Purchaser shall cause any and all pre-existing condition (30or actively at work or similar) days after the date hereoflimitations, the Company shall provide eligibility waiting periods and evidence of insurability requirements under Purchaser Plans to Parent a schedule of all Company employees that sets forth the following information be waived with respect to each individual listed: (i) the base compensation (salary or wage rate)such Company Employees and their eligible dependents and shall provide them with credit for any co-payments, deductibles, and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult offsets (or otherwise), under applicable Law and similar payments) made during the terms of any Collective Bargaining Agreements that govern plan year including the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately period prior to the Closing Date (but conditioned upon for the occurrence purposes of the Closing). The Company and Parent shall cooperate satisfying any applicable deductible, out-of-pocket, or similar requirements under any Purchaser Plans in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans which they are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following after the Closing Date.
(hf) Nothing The parties hereto acknowledge and agree that all provisions contained in this Agreement Section 7.9 with respect to employees are included for the sole benefit of the respective parties hereto and shall confer upon any Continuing Employee not create any right to continue (i) in the employ or service of Parentany other person, the Surviving Corporation including, without limitation, any employees, former employees, any participant in any Company Plan or any Affiliate of Parent, beneficiary thereof or shall interfere (ii) to continued employment with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)Purchaser.
Appears in 1 contract
Employees and Employee Benefits. (a) For Except for certain headquarters employees of Xxxxx Fargo set forth on a period beginning list to be provided by Newco to Xxxxx Fargo at least five days prior to the Closing Date, Newco shall offer employment as of the Closing Date on an "at will" basis to substantially all employees of Xxxxx Fargo and its Subsidiaries who are actively employed on such date ("Active Employees"). Each such offer of ---------------- employment
(i) to each non-bargaining unit employee shall be on terms and conditions to be determined by Newco in its sole discretion and (ii) to each bargaining unit employee shall be at least the same wage rate and with substantially comparable benefits, other than participation in a tax-qualified defined benefit plan, in the aggregate (based on the prior year's cost), as in effect for such employee immediately prior to the Closing Date, and other terms and conditions to be determined by Newco in its sole discretion. All Active Employees who accept Newco's offer of employment by the Closing Date shall be deemed "Transferred Employees." Newco --------------------- shall also offer employment to employees of Xxxxx Fargo or any of its Subsidiaries who are not actively employed on the Closing Date and ending have a right to re-employment with Xxxxx Fargo or any of its Subsidiaries, on the twelve terms and conditions to be determined by Newco in its sole discretion; provided, however, that any such employee shall be offered employment by Newco only if he or she is fully able to return to active employment in accordance with Newco's employment policies within six (126) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following months after the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For With respect to each Transferred Employee, service with Xxxxx Fargo or any of its Affiliates shall be counted for purposes of determining any period of eligibility to participate or to vest in benefits under Newco's benefit plans to the twelve (12) month period following same extent such service was counted under any similar type of WF Benefit Plan under which such Transferred Employee was covered immediately prior to the Closing Date, Parent except that such service with Xxxxx Fargo shall provide, or shall cause the Surviving Corporation to provide, not be counted for purposes of Newco's severance policies to the Continuing Non-Union Employees, extent that Transferred Employees have received severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) for such service. Newco, for purposes of deductible limits under its welfare plans, shall credit each Transferred Employee with the amounts so credited with respect to the portion of the Company Disclosure Schedule and (ii) from and after calendar year preceding the Effective Time, Parent shall cause Closing Date under the Surviving Corporation and its subsidiaries to honor, same type of WF Benefit Plan in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any which such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence Transferred Employee is participating as of the Closing Date. With respect to each Transferred Employee, Newco's group health plans shall constitute a “Change not exclude coverage for pre-existing conditions that were not excluded under similar WF Benefit Plans in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) which such Transferred Employee is participating as of the Company Disclosure ScheduleClosing Date.
(c) With respect to each benefit planNewco agrees that, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) within ten business days after the date hereof, it will advise each union with which Xxxxx Fargo has a collective bargaining agreement that it does not intend to assume such collective bargaining agreement in connection with the Company shall provide to Parent a schedule of all Company employees transactions set forth herein. Newco also agrees that sets forth the following information it will bargain in good faith with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification representatives of each such position or job as exempt or non-exempt for purposes union regarding the employment terms and conditions of each bargaining unit employee.
(d) As of the Federal Fair Labor Standards Act. Such schedule Closing Date, Newco shall be true assume the obligations and complete liabilities under the Xxxxx Fargo Non-Officers Severance Compensation and Benefits Policy, as amended and restated as of October 29, 1996, and Senior Officer Severance Compensation and Benefits Policy, as adopted effective October 29, 1996, and Newco or its designee shall replace Xxxxx Fargo and its management as the date or dates set forth on the schedule, each of which shall be no more than ten plan administrator under both policies. At a time (10) days but in any event prior to the date Closing Date) and in a manner reasonably satisfactory to Newco, Xxxxx Fargo shall communicate and make available to its officers and home office employees the terms of delivery. Parent shall, its severance policies described above and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit clearly indicate that the distribution terms of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire severance policies shall govern any employee terminations of employment on account of the Company or its subsidiariestransactions contemplated hereby and supersede any prior communications with respect thereto.
(e) The Company shall, and Newco shall cause each assume the liability as of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform for the accrued and consult (or otherwise), under applicable Law unpaid vacation and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations sick days with respect to the employees of Xxxxx Fargo or any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreementof its Subsidiaries.
(f) Parent Newco shall or shall cause promptly reimburse Xxxxx Fargo for the Surviving Corporation liability of Xxxxx Fargo and its Affiliates Subsidiaries for claims incurred and unpaid prior to continue the Closing Date under the WF Employee Benefit Plans which constitute welfare benefit plans (including the related portion of any retrospective insurance premiums, but excluding any WF Casualty and Employee Claims) to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law such liability (i) is not covered under a non-experience-rated insurance contract and (ii) exceeds the amount of the related portion of any retention or reserves (including but not limited to amounts held in a voluntary employee beneficiary association or under an experience-rated insurance contract, and intercompany contributions and insurance premiums paid in excess of claims paid). As of the end of the plan year following the Closing Date, Xxxxx Fargo shall pay to Newco the excess portion of any applicable Collective Bargaining Agreement, Parent shall assume retention or become party reserves under the WF Employee Benefit Plans which constitute welfare benefit plans to any Collective Bargaining Agreements effective upon the Closingextent allocable to Xxxxx Fargo and its Subsidiaries.
(g) At Parent’s requestAs soon as practicable after the Closing Date, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all account balances as of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) Closing Date of the Code Transferred Employees held in the Xxxx- Xxxxxx Security Corporation Investment Plan (the “Company "401(k) Plans”) shall be terminatedPlan"), as of immediately equitably ----------- adjusted for earnings thereon, additional contributions thereto with respect to the period prior to the Closing Date and distributions therefrom through the date of transfer, shall be transferred to a tax-qualified defined contribution plan sponsored, maintained or contributed to by Newco (but conditioned upon "Newco Plan"). Such ---------- transfer shall be effected in accordance with applicable law and regulations. Newco shall make or cause to be made, and Xxxx-Xxxxxx or Xxxxx Fargo, as the occurrence case may be, shall make or cause to be made, any required filings in connection therewith. Newco and Xxxx-Xxxxxx may each require, as a condition to the making of any such transfer, evidence reasonably satisfactory to it of the Closing)qualified status of the 401(k) Plan and Newco Plan, including, without limitation, a copy of a favorable determination letter from the Internal Revenue Service. The Company In consideration of and Parent effective upon such transfer, the Newco Plan shall cooperate in good faith prior assume all liabilities to Transferred Employees under the 401(k) Plan to the Closing with respect extent of the amount of assets transferred by the 401(k) Plan to the preparation and execution Newco Plan. Each of all documentation necessary the parties shall pay its own expenses in connection with such transfer. Newco shall not assume any other obligations or liabilities arising under or attributable to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s requestPlan, the Continuing Employees shall same to be eligible to participate in a 401(k) plan maintained retained or assumed by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing DateXxxx- Xxxxxx.
(h) Nothing Xxxxx Fargo and Xxxx-Xxxxxx, on one hand, and Newco, on the other hand, shall each promptly and reasonably cooperate in this Agreement shall confer upon any Continuing Employee any right good faith with each other to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere ensure that their respective obligations with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, respect to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit planplans are timely and properly satisfied, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance including sharing information regarding employees and coordinating communications with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)employees.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following On the Closing Date), Parent the Seller Entities shall provideterminate any leased employee agreement with a third party.
(b) To the extent the Seller Entities have any Employee Plans; the Seller Entities shall retain all obligations and liabilities related to such Employee Plans. Buyer does not assume any of Seller Entities’ Employee Plans or any obligations or liabilities of such Employee Plans. Buyer shall not have any obligations or liabilities under any Employee Plan or to the Seller Entities, their ERISA Affiliates, or any of their employees, former employees, or beneficiaries with respect to any Employee Plan.
(c) Between the date hereof and the Closing Date, the Seller Entities shall cause the Surviving Corporation cooperate with Buyer to provide, to provide information that Buyer may reasonably request regarding the employees of the Company or its subsidiaries who are not represented by a labor organization Business and who continue allow Buyer to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)interview such employees. At Buyer’s sole discretion, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, Buyer may offer employment to any or all of the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company Business, either with Buyer or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued pursuant to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance a leased employee agreement with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time third party and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectivelyeach case, the on an “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planat will” basis.
(d) To The Seller Entities shall remain solely responsible for the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule satisfaction of all Company employees that sets forth the following information with respect to each individual listed: (i) the base claims for compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt benefits for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior services provided to the date of deliverySeller Entities. Parent shallThe Seller Entities shall pay, or cause to be paid, all such amounts to the appropriate persons as and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiarieswhen due.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees Each employee of the Company Business who, in connection with the Closing, either becomes employed by Buyer or becomes employed by a third party pursuant to a leased employee agreement with Buyer (a “Transferred Employee”) shall be given service credit for the purpose of eligibility under the group health plan; provided, however, that (i) such credit shall be given pursuant to payroll or plan records, at the election of Buyer, in its subsidiaries, with sole and absolute discretion; and (ii) such service crediting shall not be given under Buyer’s 401(k) plan or any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreementother defined contribution retirement plan.
(f) Parent Nothing in this Agreement, whether express or implied, shall diminish Buyer’s or shall cause its affiliates’ right to amend and/or terminate any benefit at any time or from time to time. The provisions of this Agreement are solely for the Surviving Corporation benefit of the parties to this Agreement, and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expirationno current or former employee, modification director or amendment. To the extent required by Law independent contractor or any applicable Collective Bargaining other individual associated therewith shall be regarded for any purpose as a third-party beneficiary of the Agreement, Parent and nothing herein shall assume or become party be construed as an amendment to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored Employee Plan or maintained by the Company or other employee benefit plan for any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing)purpose. The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any be construed to limit the right to continue in the employ or service of ParentSeller, the Surviving Corporation Buyer or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, their respective affiliates to discharge amend or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, to the Surviving Corporation extent such amendment or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their termination is permitted by the terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)applicable plan.
Appears in 1 contract
Employees and Employee Benefits. (a) Buyer shall, or shall cause an Affiliate of Buyer to, offer employment effective on the Closing Date, to all Employees set forth on Section 6.01(a) of the Disclosure Schedules (the Employees who accept such employment and satisfies Buyer’s established objective and nondiscriminatory hiring and onboarding criteria (including, without limitation, applicable background checks, drug screening and verification of employment authorization), the “Transferred Employees”), pursuant to offer letters in substantially the form attached hereto as Exhibit D. Employees who do not accept employment with Buyer will not become employees of Buyer or its Affiliates. Except with respect to any offer letter or other employment agreement that Buyer may enter into with any Transferred Employee, each Transferred Employee shall be an employee “at will” subject to Buyer’s employment policies.
(b) For a period beginning of thirty-six (36) months after the Closing Date, Seller shall retain all liabilities arising prior to the Closing Date in respect of its current and former employees under any and all employee benefit plans, policies or practices of Seller and under applicable Law. Seller agrees to pay prior to the Closing any and all severance payments, termination payments, the value of his or her accrued but unused vacation days, sick days and other paid time off, wages, salaries, commissions, bonuses and other compensation for any services performed for Seller by the Transferred Employees (or otherwise due to the Transferred Employees) prior to the Closing (including without limitation any payments or other bonuses payable as a result of this Agreement and the transactions contemplated by this Agreement or resulting from the termination of any Transferred Employees in connection with this Agreement). Buyer and Seller acknowledge that the termination of Transferred Employees by Seller will result in a termination of “Service” to Seller for each of the Transferred Employees for the purposes of any stock options to purchase shares of Common Stock held by such Transferred Employees. Therefore, the unvested portions of such stock options will expire on the Closing Date and ending the vested portions of such stock options, if any, will expire on the twelve date that is not more than ninety (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (3090) days after the date hereofClosing Date. Buyer shall cooperate with Seller, at Seller’s expense, in distributing notice of this stock option treatment to the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate)Transferred Employees, and bonus; (ii) the titlemaking commercially reasonable efforts, position and/or job classificationat 25 Seller’s expense, date to obtain a signed acknowledgement of hirereceipt of such notice from each Transferred Employee. If applicable, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule Seller shall be true responsible for, and complete as of the date or dates set forth on the scheduleshall comply with, each of which shall be no more than ten (10) days all WARN Act obligations relating to periods prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise)associated with, under applicable Law and the terms of any Collective Bargaining Agreements that govern the wagesor incurred as a result of, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f. Seller shall be responsible for providing health benefit continuation coverage under Section 162(k) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) 4980B of the Code with respect to (the “Company 401(ki) Plans”) shall be terminated, any former employee of Seller and any other qualified beneficiary under any group health plan who as of immediately prior to the Closing Date is receiving or is eligible to receive such continuation coverage and (but conditioned upon the occurrence ii) any employee of the Closing). The Company Seller and Parent shall cooperate in good faith prior to the Closing any qualified beneficiary with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Dateemployee.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (orAssignor shall take all necessary steps, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to providein compliance with applicable Legal Requirements, to transition the employment of all employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof Assignor (the “Continuing Non-Union Assignor Employees”)) to employment with Assignee at or prior to the Effective Time. Assignee shall be solely responsible, and Assignor shall have no obligations whatsoever for, (i) any and all wages, salaries, and other cash compensation (including, without limitation, accrued vacation leave and sick leave, bonuses, commissions and other incentive-based cash compensation) payable to the same base salary Assignor Employees and wage rate as any current independent contractors of Assignor at or prior to the base salary Effective Time and wage rate provided to such Continuing Non-Union Employee immediately any former employees, officers and consultants of Assignor (“Former Assignor Employees”) for periods on and prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable any severance, retention bonus or change in the aggregate than the incentive compensation opportunities provided control payment payable to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Assignor Employees or Continuing Union-Represented Former Assignor Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of that become due or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated owed as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions result of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule consummation of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement, (iii) providing COBRA continuation coverage for any Employee Plan that is a group health plan with respect to any qualifying event that occurs on or before the Effective Time, and (iv) any and all Liabilities relating to or arising in connection with the Employee Plans. If any Assignor Employee does not accept the offer of employment from Assignee or a Subsidiary of Assignee for any reason, and Assignee or its Subsidiaries elects to terminate such Assignor Employee’s employment, any severance or other separation payment will be an Assumed Liability of Assignee.
(fb) Parent Assignor and Assignee shall comply with all obligations under applicable Legal Requirements to notify and/or consult with Assignor Employees or employee representatives, unions, works councils, or other employee representative bodies, if any, and shall cause provide such information to the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent other party as is reasonably required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become that party to any Collective Bargaining Agreements effective upon comply with its notification and/or consultation obligations relating to the Closing.
(g) At Parent’s request, transition of employment of the Company Board Assignor Employees from Assignor to Assignee. Any Liability resulting from the failure by the parties to comply with such obligations shall adopt resolutions providing that no rights to contributions will accrue afterbe borne by Assignee, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) such Liabilities shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Dateconstitute Assumed Liabilities.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Assignment and Assumption Agreement (Myos Rens Technology Inc.)
Employees and Employee Benefits. (a) For Schedule 5.5(a) contains a period beginning true and complete list as of May 16, 2001 showing the names, title, hire date and current annual salary rates, commissions and incentive compensation (including, without limitation, outstanding awards under the LTIP, P.H. Glatfelter Company Management Incentive Plan ("MIP") and any retention agreements), as applicable, total 2000 earnings, status (full or part-time, active or inactive, whether as a result of a Leave of Absence or disability, specifying long-term or short-term) of all Business Employees. With respect to all Business Employees, Buyers shall offer to hire, as of the Closing Date, subject only to completion of an employment application and a Form I-9, and the truthfulness thereof, and any drug testing to the extent required by a requirement of law or any regulation thereunder, the 50 57 Business Employees as of the close of business on the Closing Date and ending including without limitation the Business Employees on Leave of Absence or workers' compensation leave. Each Business Employee who accepts an offer of employment from Buyers shall become an employee of Buyers (the "Transferred Employees"). Beginning on the twelve first Business Day following the execution of this Agreement, Sellers shall provide or make available to Buyers, to the extent permitted by applicable law, such information regarding the Transferred Employees as is contained in Sellers' personnel records, including without limitation information regarding accrued or incurred but unpaid liabilities (12as of the Closing Date) month anniversary for wages, vacations, deferred compensation, medical/dental/vision, workers' compensation, disability and other welfare benefit claims. Sellers shall provide or make available such records as may be reasonably requested by Buyers. Immediately following the Effective Date and if the estimates of accrued liabilities on the Balance Sheet have been determined in accordance with reasonable actuarial and other assumptions and methodologies, Buyers shall assume responsibility and liability for the amounts of accrued or incurred but unpaid salary or wages, commissions, vacations, matching contributions to the Sellers' 401(k) plans (but not the plans themselves), and non- qualified deferred compensation (as applicable) and accrued or incurred but unpaid claims for employee benefits (including without limitation accrued or incurred but unpaid claims for medical, workers' compensation, and short- and long-term disability including payments with respect to medical and income replacement benefits due or payable after the Effective Date with respect to disabilities occurring before the Effective Date) as of the Effective Date, with respect only to the Business Employees who become Transferred Employees at the rate in effect on the Effective Date or, as applicable, in accordance with the terms of Sellers' benefit plans as of the Effective Date. If estimates of such accrued liabilities on the Balance Sheet have been determined in accordance with reasonable actuarial and other assumptions and methodologies, Buyers shall assume, subject to Section 3.10(n), all such liabilities without regard to whether the actual liabilities are less or more than the amounts disclosed with respect to such liabilities on the Balance Sheet. Buyers and Buyers' benefit plans shall be solely responsible for benefits for illnesses or injuries (including without limitation workers' compensation and short- and long- term disability) with respect to any illness or injury suffered after the Effective Date by a Business Employee who becomes a Transferred Employee (except to the extent that a Business Employee who becomes a Transferred Employee is covered by Sellers' group medical plan pursuant to COBRA in connection with a qualifying event occurring on or before the Closing Date). To the extent that Sellers' welfare benefits are provided by means of insurance, Sellers shall be responsible for payment of all premiums due for periods on or before the Effective Date and Buyer, if it assumes such insurance contracts, shall be responsible for all premiums due for periods after the Effective Date. If Buyers and Sellers agree that any accrued but unpaid compensation or benefits to be assumed hereunder by Buyer as of the Effective Date will be paid by Sellers through their own payroll or benefit plans, Buyers shall reimburse Sellers for such payments, including related payroll taxes as applicable. Subject to the same limitations of indemnification in Section 7.3, Buyers agree to indemnify, defend and hold harmless Sellers (and each of Sellers' officers and employees, as applicable) against, and reimburse Sellers for, any loss that Sellers may at any time suffer or incur, or be subject to, with respect to all such obligations for accrued or incurred but unpaid compensation or benefits assumed by Buyers as aforesaid. Sellers' human resources department shall cooperate with Buyers to effect an orderly 51 58 and cost effective transfer of the above-described obligations. Sellers shall, and shall cause its Affiliates to, use reasonable efforts to cause the employees described in the first sentence of this Section 5.5 to make available their employment services to Buyers.
(i) The initial base pay of each Transferred Employee shall be the same as the base pay of such Transferred Employee on the Effective Date, which may reflect an across-the-board percentage increase in the base pay of salaried employees between May 16, 2001 and the Closing Date, any such percentage increase being agreed by Sellers and Buyers prior to the Closing Date. Except as provided in paragraph (b)(ii) below, (A) all other terms of employment of each Transferred Employee shall be determined by Buyers in their sole discretion, except as limited by this Section 5.5, and (B) nothing herein shall constitute an agreement to assume or be bound by any employment agreement or employee plan, or previous or existing collective bargaining agreement between any Seller and any representative of the Business Employees. Employment with any Buyer will be at-will, and Buyers shall have the right to terminate the employment of any Transferred Employee at any time, for any reason, and, except as limited by this Section 5.5, to change the terms of such Transferred Employee's wages, salaries, and benefits consistent with law, subject to obligations of Buyers to such Transferred Employee under any collective bargaining agreement or by a requirement of law or any regulation thereunder. Effective as of the Closing Date and extending to but not beyond September 30, 2001 (oror through such period required by an assumed collective bargaining agreement with respect to unionized Transferred Employees, if shorter, during an employee’s period of employment following the Closing Dateearlier), Parent Buyers shall provide, provide for the coverage of Transferred Employees under one or shall cause the Surviving Corporation to provide, more medical plans or programs providing benefits similar to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to medical plans covering such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Transferred Employees immediately prior to the Effective Time Closing Date and at similar costs. Buyers shall use commercially reasonable best efforts to cause their Plans that are welfare benefit plans to waive restrictions on coverage of such Transferred Employees on account of waiting periods or pre-existing conditions, provided, however, that no such waiver shall apply to preexisting conditions of any Transferred Employee that was excluded from coverage under Sellers' medical plans as of the Closing Date. With respect to any "employee welfare benefit plans" and/or "employee pension benefit plans" (iiiwithin the meaning of Section 3(1) employee and 3(2) of ERISA, respectively, and including without limitation short-term and long-term disability benefits, severance benefits which are substantially comparable and salary continuation in the aggregate (including with respect to event of illness or injury) established or maintained by Buyers on and after the proportion Closing Date for the benefit of employee cost) to the employee benefits provided to Transferred Employees and/or their eligible dependents or beneficiaries, Buyers shall ensure, for purposes of any length of service requirements, waiting periods, or vesting periods in any such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing plan for which a Transferred Employee may be eligible on or after the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered service by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance Transferred Employee with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) Sellers shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations Buyers to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though Sellers recognized such amounts had been paid in accordance with the terms and conditions of the Parent Planservice.
(dii) To Notwithstanding the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rateforegoing Section 5.5(b)(i), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information subject to any third partiesapplicable legal restrictions, (B) limit Buyers shall assume the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wagesAgreement between P.H. Glaxxxxxxx Xx. Ecusta Division Pisgah Forest, hours North Carolina and other terms United Paperworkers International Union AFL-CIO and conditions of employment of employees of the Company or its subsidiariesIts Affiliated Local No. 1971 (effective October 7, with any labor organizations with respect 1996 to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expirationOctober 1, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof2001).
Appears in 1 contract
Employees and Employee Benefits. (a) For Prior to or at the Closing, Purchaser may offer employment to some or all Seller Employees, in the Purchaser's sole discretion, upon such terms and conditions as shall be determined by Purchaser in its sole discretion. ChoicePoint and Seller shall use all reasonable business efforts to assist and support Purchaser in hiring all Seller Employees that Purchaser shall seek to hire as of the Closing Date. The Seller will retain all of the Benefit Plans currently maintained by the Seller as of the date of this Agreement, and Purchaser will not assume any obligations under any such plans. ChoicePoint and Seller will indemnify, defend and hold harmless Purchaser (and its directors, officers, employees and affiliates) with respect to such Benefit Plans for and against any and all claims, actions, judgments or causes of action based upon or arising out of or otherwise in respect of any such plan. Unless prohibited by law, the Seller shall provide to Purchaser all personnel records for the employees of the Seller hired by Purchaser on the date following the Closing (the "Hired Employees"), including, without limitation, names, social security numbers, dates of hire, dates of birth, number of hours worked each year, and salary history. ChoicePoint and Seller hereby agree not to employ, directly or indirectly, for a period beginning of 12 months after the Closing Date, any Seller Employee to whom Purchaser has offered employment prior to or on the Closing Date and ending who decides not to accept employment with Purchaser. At the Closing, Purchaser shall provide ChoicePoint and Seller with a list of Hired Employees. All Hired Employees covered under Seller's health insurance plans who elect coverage under Purchaser's health insurance plan shall be covered effective 12:01 a.m. on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment date following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Closing.
(b) Without limiting any of the provisions herein, Purchaser will not assume any of the Benefit Plans, or any rights, duties, obligations or liabilities thereunder, nor shall it become a successor employer or be responsible in any way for Seller's or a common control entity's (ias such term is defined under section 4.14(a) For or (b) of the twelve (12Internal Revenue Code of 1986, as such term may be amended from time to time) month period following participation in or obligations or responsibilities with respect to any Benefit Plan, nor shall it be obligated by this Agreement to make any provision with respect to employee benefits after the Closing Date, Parent except as required by this Section 5.3 and by Section 1.4(b) other than pursuant to rollover to Purchaser's 401k plan as elected by individual Hired Employees. No assets of any Benefit Plan shall providebe transferred to Purchaser or to any plan of Purchaser other than pursuant to rollover to Purchaser's 401k plan as elected by individual Hired Employees. Seller shall, or shall cause after the Surviving Corporation to provideClosing Date, comply with the continuation coverage requirements of Section 601 through 609 of ERISA and Section 4980B of the Code with respect to the Continuing Non-Union Hired Employees; provided, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Timehowever, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement continuing coverage obligations resulting from a qualifying event that occurs after such Hired Employees are enrolled in accordance with its terms. Parent and Purchaser's health plan shall be the Company hereby agree that the occurrence responsibility of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure SchedulePurchaser.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Lawlaw, no later than thirty (30) days after the date hereof, the Company shall provide Purchaser will be permitted reasonable access to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment records of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation Seller and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately ChoicePoint prior to Closing for the Closing Date (but conditioned upon the occurrence purpose of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Datesetting up Purchaser's benefit plans for Hired Employees.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation Seller shall observe the terms of terminate all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries Business who are covered by such Collective Bargaining Agreements actively at work on the Closing Date, and the Purchaser or one of its Affiliates at the Closing shall offer employment on an at-will basis, effective as of the Closing Date, to all employees who continued to be are employed by the Company or Seller immediately prior to the Surviving Corporation or any subsidiary or Affiliate thereof Closing (the individuals who accept Purchaser’s or such Affiliate’s offer of employment are collectively referred to herein as the “Continuing Union-Represented EmployeesHired Personnel”), in each case (i) at approximately the same location (and Purchaser and its Affiliates agree not to move Hired Personnel to a different location for a period of ninety (90) days after the Closing Date) in a substantially similar capacity in which they were employed by Seller immediately prior to the Closing Date, (ii) at the same or a substantially similar cash salary level paid or payable to such Hired Personnel as was paid or payable by the Seller immediately prior to the Closing Date, and (iii) providing each such Person who is included in the Hired Personnel and such Person’s eligible dependents, comparable employee benefits as are currently available under the Company Benefit Plans listed on Schedule 2.1(a)(xii) if those Company Benefit Plans become Assumed Plans, or, if such Company Benefit Plans do not become Assumed Plans, comparable employee benefits as are currently available to similarly situated employees of Purchaser’s Affiliates through Purchaser’s Affiliates’ Employee Benefit Plans. Each employee of the Business who becomes employed by the Purchaser or one of its Affiliates in connection with the Acquisition shall be given service credit for the purpose of eligibility under the group health plan and eligibility and vesting only under the defined contribution retirement plan for his or her period of service with the Seller prior to the Closing Date; provided, however, that (x) such credit shall be given pursuant to payroll or plan records, at the election of the Purchaser or its applicable Affiliate, in its sole and absolute discretion, and (y) such service crediting shall be permitted and consistent with the Purchaser’s or such Affiliate’s defined contribution retirement plan.
(b) Except for the coverage of (iand any ongoing benefits provided under) For the twelve (12) month Assumed Plans, the Seller shall be solely responsible, and the Purchaser shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including hourly pay, commission, bonus, salary, fringe, pension or profit sharing benefits or severance pay for any period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, relating to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (Seller at any time on or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon and the occurrence of the Closing). The Company and Parent Seller Parties shall cooperate in good faith pay all such amounts to all entitled persons on or prior to the Closing Date or as soon as reasonably practicable thereafter in accordance with respect to the preparation and execution of all documentation necessary to effect the foregoing terminationSeller’s regular pay practices. The Purchaser shall be solely responsible, and the Company Seller shall provide Parent a reasonable opportunity have no obligations whatsoever for, any compensation or other amounts payable to review and comment on all such documentation. To any Hired Personnel, independent contractor or consultant of the extent that Business, including hourly pay, commission, bonus, salary, fringe, pension or profit sharing benefits or severance pay for any post-Closing period relating to the Company 401(k) Plans are terminated pursuant to Parent’s request, service with the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable Purchaser following the Closing Date.
(hc) Nothing in this Agreement shall confer upon Except for the coverage of (and any Continuing Employee any right to continue in ongoing benefits provided under) the employ or service of ParentAssumed Plans, the Surviving Corporation Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or any Affiliate disability benefits brought by or in respect of Parentcurrent or former employees, officers, directors, independent contractors or shall interfere with consultants of the Business or restrict in any way the rights of Parentspouses, the Surviving Corporation dependents or any Affiliate of Parentbeneficiaries thereof, which rights are hereby expressly reserved, claims relate to discharge events occurring on or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except prior to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate Closing Date. The Seller also shall remain solely responsible for all workers’ compensation claims of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider employees, officers, directors, independent contractors or consultants of the Company Business which relate to events occurring on or prior to the Closing Date. The Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due. Purchaser acknowledges and agrees that Purchaser and its representatives shall not be afforded access to any employee records or other records or information the disclosure of which would be prohibited by any applicable Law.
(d) With respect to each Employee Benefit Plan, including severance, vacation and paid time-off plans, policies or practices, sponsored or maintained by the Purchaser or an Affiliate of the Purchaser, the Purchaser or such Affiliate shall recognize, for all of the Hired Personnel, credit for all service with the Seller, for all purposes (including eligibility, vesting, level of benefits, benefit accrual (other than under a defined benefit pension plan), pre-existing condition limitations and early retirement subsidies); provided, that no service credit shall be granted to the extent any duplication of benefits results; provided, further, that the Purchaser’s recognition of accrual of vacation or other paid time off shall not exceed five weeks of accrued vacation or other paid time off.
(e) Effective as of the Closing Date, except as otherwise required by applicable requirements of Law, the Seller’s obligations and Liability with respect to the accrued and unused vacation days of the Hired Personnel shall be transferred to and assumed by the Purchaser and its Affiliates, and the Purchaser and its Affiliates (shall recognize and provide all such unused vacation and pay; provided, that such unused vacation pay is included in the Final Working Capital; provided, further, that the Purchaser will not assume accrued vacation or other paid time off for any beneficiaries or dependents thereof)of the Hired Personnel in excess of five weeks.
Appears in 1 contract
Employees and Employee Benefits. (a) No earlier than two (2) Business Days prior to, and no later than, Closing, the Sellers shall provide to Buyer an updated version of Schedule 2.15(a) that is true and complete as of such date. For a period beginning on the Closing Date and ending on the continuing thereafter for twelve (12) month anniversary months (the “Continuation Period”, provided, that for purposes of subclause (iii) below the Closing Date (orContinuation Period shall, if shorterin no event, during an employee’s period of employment following the Closing Dateextend beyond December 31, 2021), Parent Buyer shall provide, or shall cause the Surviving Corporation Transferred Companies and their respective Affiliates to provide, to the employees Business Employees as of the Company or its subsidiaries who are not represented by a labor organization and Closing who continue to be employed by employment with the Company or the Surviving Corporation Transferred Companies or any subsidiary or Affiliate thereof of their respective Subsidiaries following the Closing (the “Continuing Non-Union Employees”), ) with (i) the same base salary and or wage rate as the base salary and wage rate rates that are no less favorable than those provided to such Continuing Non-Union Employee by the Transferred Companies or their respective Subsidiaries immediately prior to the Effective Time, Closing; (ii) employee target annual cash bonus opportunities and target long-term incentive compensation opportunities which (excluding, for the avoidance of doubt, compensation paid under any deferred compensation, defined benefit, retention, change in control and equity-related compensation arrangements) that are no less favorable in the aggregate than those provided to such Continuing Employees by the Transferred Companies or their respective Subsidiaries immediately prior to the Closing and disclosed in Schedule 2.16(a)(i); (iii) employee benefits (excluding equity-based, change in control, retention, retiree medical benefits, defined benefit plans (other than as required by Law) and nonqualified deferred compensation plans) that are no less favorable in the aggregate than the incentive benefits (excluding equity-based, change in control, retention, retiree medical benefits, defined benefit plans (other than as required by Law) and nonqualified deferred compensation opportunities plans) provided to each such Continuing Non-Union Employees Employee by the Transferred Companies or their respective Subsidiaries immediately prior to the Effective Time Closing; and (iiiiv) employee benefits which are substantially comparable in the aggregate (including with respect to any Continuing Employee whose employment is terminated by Buyer during the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing DateContinuation Period, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent Buyer shall provide, or shall cause the Surviving Corporation its Affiliates to provide, to the Continuing Non-Union Employees, severance benefits to such Continuing Employee, which are no less favorable than those shall be determined and payable in accordance with the severance benefit plan, agreement or policy maintained by the Sellers or any of their Affiliates for the benefit of such Continuing Employee as of the date hereof and as set forth on Schedule 4.5(a), taking into account all service with the Sellers, the Transferred Companies or their respective Subsidiaries, Buyer and their respective Affiliates in determining the amount of severance benefits payable.
(b) Except as set forth in Schedule 4.5(a) or a Labor Contract, nothing herein shall be deemed to limit the right of Buyer, the Transferred Companies or their respective Affiliates to (A) terminate the employment of any Continuing Employee at any time, (B) change or modify the terms or conditions of employment for any Continuing Employee to the extent such change or modification does not violate the requirements of this Section 6.9(b)(i4.5 or (C) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, change or modify any employee benefit plan or arrangement in accordance with their termsterms to the extent such change or modification does not violate the requirements of this Section 4.5. Notwithstanding the foregoing, the compensation and benefits treatment and terms and conditions of employment afforded to all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, such Continuing Employees who are covered by a “Company Agreement”); Labor Contract shall be provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent the applicable Labor Contract and applicable Law, and the Company hereby agree that the occurrence provisions of the Closing Sections 4.5(a) and (b) shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedulenot apply to such Continuing Employees.
(c) With respect to each For all purposes under the employee benefit planplans, program, practice, policy programs and arrangements established or arrangement maintained by Parent Buyer, the Transferred Companies or its subsidiaries (including the Surviving Corporation) following the Effective Time and their respective Affiliates in which any of Continuing Employees may be eligible to participate after the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate Closing (the “Parent New Benefit Plans”), each Continuing Employee shall be credited with the same amount of service as was credited by the Transferred Companies and except to their respective Affiliates as of the extent necessary to avoid duplication of Closing under similar or comparable Company Plans (excluding equity-based, change in control, retention, retiree medical benefits, defined benefit plans (for Continuing Employees who are not entitled to such benefits immediately prior to Closing) and nonqualified deferred compensation plans) (including for purposes of determining eligibility to participate, vesting, benefit accrual and eligibility to receive benefits); provided that such crediting of service shall not operate to duplicate any benefit or the funding of any benefit. In addition, and entitlement without limiting the generality of the foregoing, (i) with respect to benefits (but not for accrual of or entitlement any New Benefit Plans in which the Continuing Employee may be eligible to pension benefitsparticipate following the Closing, post-employment or retiree welfare benefitseach Continuing Employee will immediately be eligible to participate in such New Benefit Plans, special or early retirement programs or window separation programs)without any waiting time, service with the Company and its subsidiaries (or predecessor employers to the extent coverage under such New Benefit Plans replaces coverage under a similar or comparable Company Plan in which such Continuing Employee was eligible to participate immediately before such commencement of participation (such plans, collectively, the Company provides or has recognized past service credit“Old Benefit Plans”) and (ii) for purposes of each New Benefit Plan providing medical, dental, pharmaceutical, vision, short- and long-term disability and/or life insurance benefits to any Continuing Employee, Buyer shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give cause, or shall use commercially reasonable efforts to cause its subsidiaries Affiliates (including the Surviving CorporationTransferred Companies and their respective Subsidiaries) to give the cause, all pre-existing condition exclusions and actively-at-work requirements of such New Benefit Plan to be waived for such Continuing Employees credit under the applicable Parent Plan for amounts paid prior Employee and his or her covered dependents, to the Effective Time extent any such exclusions or requirements were waived or were inapplicable under any similar or comparable Company Plan. Buyer shall use commercially reasonably efforts to cause, or shall use commercially reasonable efforts to cause its Affiliates (including the Transferred Companies and their respective Subsidiaries) to cause, any eligible expenses incurred by such Continuing Employee and his or her covered dependents during the calendar portion of the plan year of the Old Benefit Plan ending on the date such Continuing Employee’s participation in which the Effective Time occurs corresponding New Benefit Plan begins to be taken into account under a corresponding Company such New Benefit Plan for purposes of applying deductiblessatisfying all deductible, copayments coinsurance and maximum out-of-pocket maximums requirements applicable to such Continuing Employee and his or her covered dependents for the applicable plan year as though if such amounts had been paid in accordance with such New Benefit Plan. Buyer shall use reasonable best efforts to establish the New Benefit Plans as promptly as practicable following the date hereof and the Sellers shall use reasonable best efforts to cooperate with Buyer with respect to the foregoing. Subject to the terms and conditions of the Parent PlanTransition Services Agreement, if on the Closing Date, Buyer or its Affiliates have not established the New Benefit Plans for the Continuing Employees who participate in the Seller Plans, Sellers shall cause the Seller Plans to continue to provide coverage to such Continuing Employees through March 31, 2021. If, after Buyer’s reasonable best efforts, Buyer is not able to establish the New Benefit Plans by March 31, 2021, the Sellers shall cause the Seller Plans to extend such coverage until April 30, 2021, subject to the terms of the Transition Services Agreement. Any cost incurred by the Sellers in providing any benefits continuation after the Closing Date pursuant to this Section 4.5(e) shall be reimbursed by Buyer under the Transition Services Agreement.
(d) To the extent permitted by applicable Law, no later than thirty (30) days From and after the date hereofClosing, the Company Buyer shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary honor, or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries Subsidiaries (including the Transferred Companies and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date Subsidiaries) to inform and consult (or otherwise)honor, under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms and shall cause the Transferred Companies and their respective Subsidiaries to honor the terms of each Labor Contract until such agreement otherwise expires pursuant to its terms or is modified by the parties thereto. For the avoidance of doubt, from and after the Closing, Buyer and its Subsidiaries (including the Transferred Companies and their respective Subsidiaries) shall be responsible for all liabilities under any Company Plan that is a defined contribution plan or a defined benefit plan.
(e) The Sellers shall retain all liabilities and obligations for all workers’ compensation, short- and long-term disability, medical, prescription drug, dental, vision, life insurance, accidental death and dismemberment and other welfare benefit claims incurred prior to the Closing Date by a Business Employee while participating in a Seller Plan providing such benefits. With respect to claims (i) incurred prior to, on or after the Closing Date by the Continuing Employees and their eligible dependents under a Company Plan or (ii) incurred on or after the Closing Date by the Continuing Employees and their eligible dependents under a New Benefit Plan, in both cases, providing for workers’ compensation short- and long-term disability, medical, prescription drug, dental, vision, life insurance, accidental death and dismemberment and other welfare benefit claims, the Subject Companies, Buyer or its Affiliates shall be responsible. For these purposes, a claim shall be deemed to be incurred: (i) in the case of short- or long-term disability benefits (including related health benefits), at the time of the injury, sickness or other event giving rise to the claim for such benefits, (ii) in the case of workers’ compensation benefits, when the event giving rise to the claim occurs, (iii) create any third-party rights in any current the case of medical, prescription drug, dental or former service provider vision benefits, at the time professional services, equipment or prescription drugs covered by the applicable plan are obtained, (iv) in the case of life insurance benefits, upon death, and (v) in the case of accidental death and dismemberment benefits, at the time of the Company accident. Notwithstanding any provision of this Section 4.5, the employment of any Business Employee that, prior to the Closing, has a qualifying long-term disability under a Seller Plan providing for long-term disability benefits (such employee, a “Closing LTD Employee”) shall transfer to Sellers or any of their Affiliates prior to the Closing Date and continue to be covered under such Seller Plans, in accordance with the terms and conditions of such plans. Sellers or, if applicable, such Affiliate shall employ such Closing LTD Employee until he or she is cleared to return to work as an active employee, at which time the Closing LTD Employee shall be offered employment with Buyer or one of its Affiliates (including the Subject Companies) and become a Continuing Employee under this Section 4.5; provided that such return-to-work date occurs within one (1) year following the Closing Date or such later date required by applicable Law. Notwithstanding any provision of this Section 4.5, including the foregoing sentence, if a Covered Disabled Employee cannot be covered by Buyer’s (or its Affiliate’s) long-term disability plan as of the time such Covered Disabled Employee is eligible for long-term disability benefits (such date, the “Eligible LTD Date”), the employment of such Covered Disabled Employee shall transfer to the Sellers or any beneficiaries or dependents thereof).of their Affiliates prior to the Eligible LTD Date to the extent necessary to provide such Covered Disabled Employee’s long-term disability
Appears in 1 contract
Employees and Employee Benefits. (a) For As soon as practicable after the date hereof, Sellers and Purchaser shall make a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, joint announcement to the Business Employees that Purchaser has agreed to acquire the Telematics Hardware Business. Such joint announcement may be provided at a meeting of employees of the Company or its subsidiaries who are not represented by a labor organization and who continue pursuant to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Nonan e-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided mail from Sellers to such Continuing Non-Union Employee immediately prior to employees (with the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to content of such Continuing Non-Union Employees immediately prior to the Effective Time e- mail being reviewed and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing commented on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”Purchaser).
(b) Purchaser shall, not later than ten (i10) For Business Days after the twelve (12) month period date of this Agreement, make an offer of employment to each Business Employee Purchaser seeks to employ following the Closing Dateat an annual base salary or hourly wage rate that is not less than that being paid to such employee as of the date of this Agreement, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those as set forth in Section 6.9(b)(ion Schedule 3.17(a)(i) of the Company Disclosure Schedule Schedules. Such offer of employment shall also entitle the Business Employees to the right to participate in Purchaser’s health, dental, vision and (ii) from and after the Effective Time, Parent other employee benefit plans currently available to other similarly situated employees of Purchaser. Each Business Employee who accepts Purchaser’s offer of employment shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, be deemed a “Company AgreementTransferred Employee”); provided . In the event a Business Employee does not accept Purchaser’s offer of employment within five (5) Business Days after such offer of employment was made by Purchaser, it is understood that nothing herein Sellers shall prevent the Surviving Corporation from amending or terminating any terminate such Company Agreement in accordance Business Employee’s employment with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleSellers.
(c) With respect to Purchaser shall provide each benefit plan, program, practice, policy Transferred Employee with the option to: (i) have Purchaser assume some or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any all of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except such Transferred Employee’s vacation time that has accrued as a result of employment with Seller up to the extent necessary to avoid duplication Closing Date and treat such accrued vacation time in accordance with Purchaser’s standard vacation policies; or (ii) have some or all of benefits, for purposes such Transferred Employee’s vacation time that has been accrued as a result of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers Seller up to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiariesClosing Date paid to such Transferred Employee by Sellers in cash. Each applicable Parent Plan shall waive eligibility waiting periods Transferred Employee who has accrued vacation time with Seller and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid who has not, prior to the Effective Time during Closing Date, elected to have Purchaser assume such vacation time, shall be entitled to receive a payment from Seller for such accrued vacation time through the calendar year in which Closing Date, subject to any withholding or similar requirements, on the Effective Time occurs under Closing Date or date of termination, whichever is earlier, and for any Transferred Employee who elects to have vacation time assumed by Purchaser, Purchaser shall be entitled to receive a corresponding Company Plan payment from Seller on the Closing Date for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with accrued vacation time through the terms and conditions of the Parent PlanClosing Date.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company Sellers shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate)be solely responsible, and bonus; (ii) the titlePurchaser shall have no obligations whatsoever for, position and/or job classificationany compensation or other amounts payable to any current or former employee, date of hireofficer, credited service director, independent contractor or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement consultant of the Company’s classification of each such position Telematics Hardware Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or job as exempt profit sharing benefits or non-exempt severance pay for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior any period relating to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, service with any labor organizations with respect to Seller at any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall time on or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon including, for the avoidance of doubt, any such amounts payable as a result of the occurrence of the Closing). The Company Closing Date) and Parent Sellers shall cooperate pay all such amounts to all entitled persons on the Closing Date or the date of termination, whichever is earlier.
(e) Sellers shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in good faith respect of current or former employees, officers, directors, independent contractors or consultants of the Telematics Hardware Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing with respect to the preparation and execution Date. Sellers also shall remain solely responsible for all workers’ compensation claims of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider employees, officers, directors, independent contractors or consultants of the Company Telematics Hardware Business which relate to events occurring on or its Affiliates (prior to the Closing Date. Sellers shall pay, or any beneficiaries or dependents thereof)cause to be paid, all such amounts to the appropriate persons as and when due.
Appears in 1 contract
Employees and Employee Benefits. Schedule 6.1 contains a list of in-scope employees (a“Preliminary List”) For employed by Seller as of the Effective Date in connection with the Transferred Assets (including active employees and employees who are on leave of absence or sick leave) (the “In-scope Employees”). Preliminary List will include a period beginning unique identifier for each employee on the list. Following the Effective Date, Seller will update the Preliminary List with a final listing of In-scope Employees (“Final List”). In the event that Seller is prohibited from providing Buyer with the name of any In-scope Employee as a result of applicable Laws relating to the safeguarding of data privacy, Seller shall include a serial number for such In-scope Employee instead of a name and shall update Schedule 6.1 following the Effective Date to add such In-scope Employee’s name in accordance with applicable Law. This Final List shall be updated prior to the Closing to reflect changes, if any, made between the Effective Date and ending on the Closing Date. Buyer agrees that Buyer or a local Buying Affiliate shall make offers of employment to at least one-hundred fifteen (115) of the In-scope Employees at least twelve (12) month anniversary days prior to the Transfer Date to be effective as of the Closing Date Date. The In-Scope Employees who accept such offers (or, if shorter, during an employee’s period of employment following the Closing Date), Parent “Transferred Employees”) shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company Buyer or the Surviving Corporation or any subsidiary or local Buying Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of set forth in this Article VI. Buyer or a local Buying Affiliate agrees to make offers to all In-scope Employees until there are at least one-hundred fifteen (115) Transferred Employees or offers have been made to all In-scope Employees. Seller shall pay and shall cause Selling Affiliates to pay, all compensation or other money due to the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information Transferred Employees with respect to each individual listed: their employment and resignation of employment with Seller or a Selling Affiliate through and including the Closing Date, including in any event, and to the extent applicable, any sale bonuses, severance, change in control benefits, other bonuses (i) the base compensation (salary or wage rateincluding variable pay in India), and bonus; (ii) the titlecommissions, position and/or job classificationaccrued but unused vacation time, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shallaccrued but unused variable pay, and shall cause its subsidiaries and all other amounts required to be paid to such employees pursuant to applicable law, agreements, policies or awards of Seller or any Selling Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before through the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees as a result of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by consummation of the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, Agreement and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Dateother Transaction Agreements.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of Buyer shall offer employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing effective on the Closing Date, to all Employees set forth on Section 6.01(a) of the Surviving Corporation shall observe Disclosure Schedules (the terms of all existing Collective Bargaining Agreements that govern the wagesEmployees who accept such employment and satisfies Buyer’s established objective and nondiscriminatory hiring and onboarding criteria (including, hours without limitation, applicable background checks, drug screening and other terms and conditions verification of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (authorization), the “Continuing Union-Represented Transferred Employees”). Employees who do not accept employment with Buyer will not become employees of Buyer or its Affiliates. Except with respect to any offer letter or other employment agreement that Buyer may enter into with any Transferred Employee, each Transferred Employee shall be an employee “at will” subject to Buyer’s employment policies.
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent Seller agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid pay prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductiblesClosing any and all severance payments, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereoftermination payments, the Company shall provide value of his or her accrued but unused vacation days, sick days and other paid time off, wages, salaries, commissions, bonuses and other compensation for any services performed for Seller by the Transferred Employees (or otherwise due to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (iTransferred Employees) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date Closing (including without limitation any payments or other bonuses payable as a result of deliverythis Agreement and the transactions contemplated by this Agreement or resulting from the termination of any Transferred Employees in connection with this Agreement). Parent shallBuyer and Seller acknowledge that the termination of Transferred Employees by Seller will result in a termination of “Service” to Seller for each of the Transferred Employees for the purposes of any stock options held by such Transferred Employees. If applicable, Seller shall be responsible for, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information comply with, all WARN Act obligations relating to any third parties, (B) limit the distribution of such information within Parent periods prior to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise)associated with, under applicable Law and the terms of any Collective Bargaining Agreements that govern the wagesor incurred as a result of, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f. Seller shall be responsible for providing health benefit continuation coverage under Section 162(k) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) 4980B of the Code with respect to (the “Company 401(ki) Plans”) shall be terminated, any former employee of Seller and any other qualified beneficiary under any group health plan who as of immediately prior to the Closing Date is receiving or is eligible to receive such continuation coverage and (but conditioned upon the occurrence ii) any employee of the Closing). The Company Seller and Parent shall cooperate in good faith prior to the Closing any qualified beneficiary with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Dateemployee.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Asset Purchase Agreement (OncBioMune Pharmaceuticals, Inc)
Employees and Employee Benefits. (a) For a Buyer shall, or shall cause an Affiliate of Buyer to, offer employment effective on the Closing Date, to substantially all of the Employees (but in any event no less than ninety percent (90%) of the Employees as of the Effective Date), including Employees who are absent due to vacation, family leave, short-term disability or other approved leave of absence (the Employees who accept such employment and commence employment on the Closing Date, the “Transferred Employees”).
(b) During the period beginning commencing on the Closing Date and ending on the twelve date which is one (121) month anniversary year from the Closing (or if earlier, the date of the Closing Date (or, if shorter, during an employeeTransferred Employee’s period termination of employment following the Closing Datewith Buyer or an Affiliate of Buyer), Parent shall provideBuyer shall, or shall cause an Affiliate of Buyer to, provide each Transferred Employee with a compensation package (including base salary or hourly wages, target bonus opportunities, retirement and welfare benefits and severance benefits) that is substantially the Surviving Corporation to provide, same to the employees of compensation packages provided by Buyer to its employees; provided, however, that such compensation packages will not result in a material reduction to the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate compensation packages provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Transferred Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleSeller.
(c) With respect to each any employee benefit plan, program, practice, policy or arrangement plan maintained by Parent Buyer or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any an Affiliate of the Continuing Non-Union Employees or Continuing Union-Represented Employees Buyer (collectively, the “Continuing EmployeesBuyer Benefit Plans”) participate (for the “Parent Plans”)benefit of any Transferred Employee, effective as of the Closing, Buyer shall, or shall cause its Affiliate to, recognize all service of the Transferred Employees with Seller, as if such service were with Buyer, for vesting and except eligibility purposes; provided, however, such service shall not be recognized to the extent necessary to avoid that (x) such recognition would result in a duplication of benefitsbenefits or (y) such service was not recognized under the corresponding Benefit Plan. With respect to each health or welfare Buyer Benefit Plan, for purposes subject only to any required approval of determining eligibility the applicable insurance provider, if any, Buyer shall use commercially reasonable efforts to participate, vesting, accrual of and entitlement (i) cause to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive waived any eligibility waiting periods periods, any evidence of insurability requirements and the application of any pre-existing condition limitations under such Buyer Benefit Plan, and (ii) cause each Transferred Employee to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees be given credit under the applicable Parent such Buyer Benefit Plan for all amounts paid prior to by such Transferred Employee under any similar Seller Benefit Plan for the Effective Time during plan year that includes the calendar year in which the Effective Time occurs under a corresponding Company Plan Closing Date for purposes of applying deductibles, copayments co-payments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planapplicable Buyer Benefit Plan for the plan year in which the Closing Date occurs.
(d) To On or before the Closing Date, Seller will (i) take any necessary action to fully vest as of such date each Transferred Employee’s account balances and other accrued benefits under the XXXX X.X. 401(k) Retirement Plan (the “Seller 401(k) Plan”), (ii) take such actions, if any, as may be necessary to provide for the distribution to each Transferred Employee of his or her vested account balance under the Seller 401(k) Plan, (iii) permit the Transferred Employees to elect on the Closing Date (or as soon thereafter as reasonably practicable) a direct rollover of his or her account balance under the Seller 401(k) Plan to the extent permitted by applicable LawLaws to a defined contribution plan designated by Buyer (the “Buyer 401(k) Plan”), no later than thirty and (30iv) days cause the Seller 401(k) Plan to deliver to the Buyer 401(k) Plan as soon as reasonably practicable after the date hereofClosing Date the promissory notes and other loan documentation, if any, of the Company Transferred Employee if he or she has elected such a direct rollover in accordance with the procedures prescribed by Seller (and, if the Transferred Employee makes a timely election in accordance with such procedures, then Seller will not cause the Transferred Employee’s loan, if any, to be accelerated under the Seller 401(k) Plan). The Buyer 401(k) Plan shall provide to Parent a schedule accept the direct rollover of all Company employees electing Transferred Employees’ benefits in cash and, if applicable, promissory notes that sets forth are not accelerated from the following information Seller 401(k) Plan. Seller represents, covenants and agrees with respect to the Seller 401(k) Plan, and Buyer represents, covenants and agrees with respect to the Buyer 401(k) Plan, that, as of each individual listeddate of a rollover described in this paragraph, such plan will satisfy the requirements of Sections 401(a), (k), and (m) of the Code.
(e) Effective as of the Closing, the Transferred Employees shall cease active participation in the Benefit Plans. Seller shall remain liable for all eligible claims for benefits under the Benefit Plans (including the Pension Plans) that are incurred by the Employees prior to the Closing Date. For purposes of this Agreement, the following claims shall be deemed to be incurred as follows: (i) life, accidental death and dismemberment, short-term disability, and workers’ compensation insurance benefits, on the event giving rise to such benefits; (ii) medical, vision, dental, and prescription drug benefits, on the date the applicable services, materials or supplies were provided; and (iii) long-term disability benefits, on the eligibility date determined by the long-term disability insurance carrier for the plan in which the applicable Employee participates. Notwithstanding the foregoing, during the transition period that begins on the Closing Date and ends on the earlier of: (i) the base compensation (salary four month anniversary of the Closing Date, or wage rate), and bonus; (ii) the titledate the Buyer establishes medical, position and/or job classificationvision and dental insurance plans and Transferred Employees and their eligible spouses and dependents are enrolled under such medical, date vision and dental insurance plans (the “Transition Period”), Seller will provide group health plan continuation coverage to the Transferred Employees and will accept payment from Buyer for the applicable premium cost of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location continuation coverage under Seller’s group health insurance plan. Seller will provide such continued group health plan coverage during the Transition Period if the Transferred Employees elect continuation of each employee; group health plan coverage in accordance with the group health plan continuation coverage provisions of Section 601 et seq. of ERISA and (v) a statement Section 4980B of the Company’s classification of each such position or job Code, as exempt or non-exempt for purposes applicable, and Buyer makes timely payment of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as premium on behalf of Transferred Employees for such coverage in the amount of 102% of the date or dates set forth on applicable premium (as such term is defined in applicable Treasury Regulations) amounts until the scheduleend of the Transition Period. The premium amount will be paid by Buyer as soon as practicable, each of which shall be no more but not later than ten (10) 10 days prior to the date beginning of deliveryeach monthly coverage period, except as may otherwise be required by applicable law. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) Buyer may determine whether or not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with collect a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee portion of the Company or its subsidiariespremium from the Transferred Employees corresponding to the portion of the applicable premium paid by such Transferred Employees immediately prior to the Closing Date, but Buyer will have the sole obligation to collect and remit to Seller the full premium amount on behalf of the Transferred Employees. Seller will have no obligation to collect any share of the premium amount from the Transferred Employees during the Transition Period.
(ef) The Company shall, Buyer and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements Seller intend that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
Agreement should not constitute a separation, termination or severance of employment of any Employee who accepts an employment offer by Buyer that is consistent with the requirements of Section 6.05(b), including for purposes of any Benefit Plan that provides for separation, termination or severance benefits (fother than the Seller 401(k) Parent Plan and the Nonqualified Deferred Compensation Obligations, in which case the transactions contemplated by this Agreement will be treated as a separation from service), and that each such Employee will have continuous employment immediately before and immediately after the Closing. Buyer shall be liable and hold Seller harmless for: (i) any statutory, common law, contractual or shall cause other severance with respect to any Transferred Employee; and (ii) any claims relating to the Surviving Corporation and its Affiliates employment of any Transferred Employee arising in connection with or following the Closing, including without limitation any claims or liabilities related to continue failure to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To comply with the extent required by Law WARN Act or any applicable Collective Bargaining Agreement, Parent shall assume comparable Law in effect in the State of California or become party to any Collective Bargaining Agreements effective upon the ClosingState of Missouri.
(g) At Parent’s request, This Section 6.05 shall be binding upon and inure solely to the Company Board shall adopt resolutions providing that no rights to contributions will accrue afterbenefit of each of the Parties, and nothing in this Section 6.05, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.05. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The Parties acknowledge and agree that all of the Company Plans sponsored terms set forth in this Section 6.05 shall not create any right in any Transferred Employee or maintained by the Company any other Person to any continued employment with Buyer or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Affiliates or any of its subsidiaries compensation or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services benefits of any Continuing Employee at any time for any reason nature or kind whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date 7.6.1 USB anticipates offering employment to all employees of FNB, subject to review of personnel files and ending on the twelve (12) month anniversary of the Closing Date (orsuch employment criteria for particular positions as USB customarily applies, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees Effective Time.
7.6.2 Each employee of the Company or its subsidiaries FNB who are not represented by a labor organization and who continue to be remains employed by USB following the Company or Effective Time (each, a "Continuing Employee") shall be entitled to participate, at the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)option of USB, in (i) such of the same base salary employee benefit plans, deferred compensation arrangements, bonus or incentive plans and wage rate as other compensation and benefit plans of FLFC that USB may continue for the base salary and wage rate provided to such benefit of Continuing Non-Union Employee immediately prior to Employees following the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from whatever employee benefit plans and after other compensation and benefit plans that USB may maintain for the Effective Timebenefit of its similarly situated employees, Parent if such Continuing Employee is not otherwise then participating in a similar plan under subsection (i). Each Continuing Employee shall cause the Surviving Corporation and its subsidiaries to honor, in accordance be credited with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, service as a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, FNB employee for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of his or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included her status under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information USB's policies with respect to each individual listed: (i) the base compensation (salary or wage rate)vacation, and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours sick and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendmentleave. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with With respect to the preparation and execution USB defined benefit pension plan, each Continuing Employee shall be credited with hours of all documentation necessary service as a FNB employee for the prior employment period with FNB in order to effect determine when the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall employee would be eligible to participate in the plan, but not for purposes of calculating benefits under the plan. With respect to the USB defined contribution plan, each Continuing Employee shall be eligible to participate, but will not be credited with prior years of service as a 401(k) FNB employee for purposes of vesting. With respect to any USB plan maintained by Parent which is a health, life or disability insurance plan, each Continuing Employee shall not be subject to any pre-existing condition limitation for conditions covered under such plans and each such plan which provides health insurance benefits. Nothing herein shall limit the ability of USB to amend or terminate any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing USB Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms at any time. After the Effective Time, USB may in its discretion maintain, terminate, merge or (iii) create dispose of any third-party rights in FLFC Employee Plan; provided however, that any current or former service provider action taken by USB shall comply with ERISA and any other applicable laws, including laws regarding the preservation of the Company or its Affiliates (employee benefit plan benefits. USB assumes all obligations under deferred compensation plans of FLFC or any beneficiaries or dependents thereof)FLFC Subsidiary but shall have the right to terminate such plans following the Effective Time.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, Seller shall terminate all employees of the Surviving Corporation Business as of the Closing Date, and, subject to Buyer’s covenant in subsection (b), Buyer shall observe offer employment, on an “at will” basis, to all of such employees. Seller shall bear any and all obligations and liability under the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment WARN Act resulting solely from Seller’s termination of employees of the Company or its subsidiaries Business pursuant to this Section 6.05. Nothing herein shall be deemed to require Buyer to offer any employment to any person who are covered by such Collective Bargaining Agreements does not meet Buyer’s employment standards and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)criteria for similarly situated employees.
(b) Buyer shall offer employment to all employees of the Business (iincluding employees who are absent due to vacation, family leave, short-term disability or other approved leave of absence as noted on Section 4.19(a) For of the twelve (12Disclosure Schedules) month period subject to such employees’ compliance with Buyer’s hiring standards and criteria for similarly situated employees. Each Hired Employee shall be entitled to receive, while in the employ of Buyer, the same salary and wages, bonus opportunities, and employee benefits in the aggregate that are comparable to those provided to similarly situated employees of Buyer. Buyer shall be solely responsible, and Seller shall have no obligations whatsoever, for any decision by Buyer relating to the employment or prospective employment of any employee of the Business following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing . Nothing herein shall prevent the Surviving Corporation from amending or terminating be deemed to require Buyer to retain any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” Hired Employee who does not meet Buyer’s employment standards for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedulesimilarly situated employees.
(c) With Seller shall be solely responsible, and Buyer shall have no obligations whatsoever, for any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation and paid time off, fringe, pension or profit sharing benefits or severance pay for any period of service with Seller at any time on or prior to the Closing Date Buyer shall be solely responsible, and Seller shall have no obligations whatsoever, for any compensation or other amounts payable to any employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay, relating to any period of time after the Closing Date including, but not limited to, in connection with any services provided to Buyer by such employee, officer, director, independent contractor or consultant of the Business.
(d) Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of pre-Closing employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate solely to events occurring on or prior to the Closing Date. Seller also shall remain solely responsible for all workers’ compensation claims of any pre-Closing employees, officers, directors, independent contractors or consultants of the Business which relate solely to events occurring on or prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due (in each case, if and solely to the extent they are actually entitled thereto).
(e) Each Hired Employee shall be given service credit for the purpose of eligibility under Buyer’s group health plan and eligibility and vesting only under Buyer’s defined contribution retirement plan for his or her period of service with Seller prior to the Closing Date; provided, however, that (i) such credit shall be given pursuant to payroll or plan records, at the election of Buyer, in its sole and absolute discretion; and (ii) such service crediting shall be permitted and consistent with Buyer’s defined contribution retirement plan.
(f) This Section 6.05 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.05, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.05. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, practice, policy agreement or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time arrangement. The parties hereto acknowledge and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with agree that the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which in this Section 6.05 shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information create any right in any Hired Employee or any other Person to any third parties, (B) limit the distribution of such information within Parent to those continued employment with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company Buyer or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Affiliates or any of its subsidiaries compensation or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services benefits of any Continuing Employee at any time for any reason nature or kind whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Asset Purchase Agreement (Bassett Furniture Industries Inc)
Employees and Employee Benefits. (a) For a period beginning Except for the employees designation in Schedule 3.13, Buyer hereby agrees to offer employment to all of the Seller's employees on the Closing Date in comparable positions with the same or greater compensation and ending on the twelve to hire those employees of Seller who accept such employment offer. Seller shall be responsible for payment of all cash compensation (12including without limitation, accrued vacation, commissions and sick pay) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation payable to provide, to the all employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by Seller up through the Company or day preceding the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective TimeClosing. Commencing on the Closing Date, the Surviving Corporation Seller shall observe the terms of pay all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms pension liabilities and conditions other employee liabilities to employees or former 30 employees of the Parent Plan.
(d) To Seller related to the extent permitted by applicable Lawperiod prior to the Closing. Seller will retain all of the Employee Benefit Plans in which employees participated prior to the Closing Date, no later and Buyer will not assume obligations under such plans. Seller shall be fully and solely responsible for any costs, expenses, obligations and liabilities, vested or non-vested, arising out of any Employee Benefit Plan obligations attributable to the Seller's current or former employees related to the period prior to the Closing other than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary Change in Control Plan. Seller represents that there is no severance plans or wage rate)agreements applicable to its employees other than the Change in Control Plan. Buyer agrees to indemnify, defend and bonus; (ii) hold Seller and Multimedia harmless from and against all direct and indirect costs, expenses or liabilities arising from or relating to claims made by the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of Seller's employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected termination of employment by reason of the transactions contemplated by this Agreement, including, but not limited to, any claims for improper termination or severance payments. Buyer shall be responsible for any obligations under federal, state and local plant closing statutes, including the WARN Act.
(fb) Parent Buyer, in its sole discretion, shall determine what employee benefits will be made available to the Seller's employees after the Closing Date; provided, however, that Buyer will waive any health plan coverage waiting period or shall cause the Surviving Corporation pre-existing condition rules for such employees and its Affiliates will offer medical coverage to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to Seller's employees on and after the Closing Date (but conditioned upon Date. Buyer agrees that in the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or event it terminates any of its subsidiaries or Affiliates as soon as practicable employee for any reason other than cause within six months following the Closing Date, it will pay to the employee severance equal to one week's pay for each year of service (or portion thereof) with Buyer and Seller (including affiliates and predecessors of Seller) with a minimum of two weeks pay and a maximum of twenty-six weeks.
(hc) Nothing Seller shall discuss with Buyer any communication regarding this transaction and its effect on employees that Seller intends to convey to its employees prior to such communication (and Seller shall accommodate reasonable requests of Buyer with regard thereto) and shall provide copies of any written communication to Buyer prior to delivery of such written communication. All such written communications shall be in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parentform and content approved by Buyer, which rights are hereby expressly reserved, to discharge approval shall not be unreasonably withheld or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)delayed.
Appears in 1 contract
Samples: Asset Purchase Agreement (Protection One Alarm Monitoring Inc)
Employees and Employee Benefits. (ai) For a period beginning on purposes of this Agreement, "Business Employees" shall mean the Closing Date SPPI Transferred Employees and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be actively employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing Economy Companies on the Closing Date, as listed in ss.6(d)(i) of the Surviving Corporation Seller Disclosure Schedule. For purposes of this Agreement, "actively employed" shall observe mean employees who as of the terms Closing Date are currently performing personal services primarily in the conduct of all existing Collective Bargaining Agreements that govern the wagesSPPI Business, hours including employees on temporary leaves of absences and short-term disability who are reasonably expected to return to active employment, but excluding former employees, employees on long-term disability and other terms and conditions of employment of employees on leave who are not expected to return to active employment; it being understood that any employee set forth in ss.6(d)(i) of the Company or its subsidiaries Seller Disclosure Schedule who are covered by such Collective Bargaining Agreements is on long-term disability as of the Closing Date and who continued returns to be employed by the Company or the Surviving Corporation active employment with Buyer or any subsidiary or Affiliate thereof (of its Affiliates, within the “Continuing Unionsix-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall providebe considered a "Business Employee" as of the date of such employee's return to active employment for all purposes hereunder. For at least one year following the Closing Date, Buyer shall provide or shall cause the Surviving Corporation its Affiliates to provide, provide to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Business Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the same or greater base compensation (salary or wage rate), salaries and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job wages as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately effect prior to the Closing Date (but conditioned upon other than reductions based on a change in responsibilities, position or hours), and (ii) employee benefits on a basis no less favorable than those provided to similarly situated employees of Buyer and its Affiliates which are engaged in personal insurance operations. Notwithstanding the occurrence foregoing, during the one-year period commencing on the Closing Date, Buyer shall provide the Business Employees with severance benefits that are at least equal to the schedule of severance benefits set forth in ss.6(d)(ii) of the Closing)Seller Disclosure Schedule. The Company Seller shall be responsible for all accrued salary, wages and Parent bonuses with respect to the Business Employees, as of the Closing Date, but Seller shall cooperate be entitled to receive payment from the Economy Companies of any intercompany debt which is outstanding as of the Closing Date, set forth in good faith ss.6(d)(i) of the Seller Disclosure Schedule, in respect of such items paid by Seller on or prior to the Closing with respect to the preparation and execution of all documentation necessary to effect Date. Notwithstanding the foregoing terminationor anything elsewhere in this ss.6(d), and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict be construed as limiting in any way the rights right of ParentBuyer or its Affiliates to terminate the employment of any Business Employee or to modify, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge amend or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Stock and Asset Purchase Agreement (St Paul Companies Inc /Mn/)
Employees and Employee Benefits. (a) For a period beginning on From and after the Closing Date:
(i) Seller and Seller Parent shall (A) maintain and continue all health Employee Benefit Plans (including medical, dental, prescription, and vision Employee Benefit Plans), and take all actions necessary to ensure the continuance of such health Employee Benefit Plans through the end of the calendar month in which the Closing Date occurs, and ending (B) retain all Liabilities with respect to, and provide in accordance with applicable Laws and be solely responsible and liable for providing to all current or former employees (including Business Employees) of Seller, Seller Parent or their respective Predecessors and Affiliates, and their covered dependents), any applicable benefits or continuing insurance coverage under COBRA or similar benefits, and Purchaser shall not have any Liabilities whatsoever with respect to (or to provide to any current or former employee (including any Business Employee)) any of the foregoing benefits for which Seller or Seller Parent is responsible.
(ii) Seller and Seller Parent shall be and remain solely responsible and liable for (A) the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of any current or former employee (including any Business Employee) or agents of Seller, Seller Parent or their respective Predecessors or Affiliates which relate to events occurring on the twelve (12) month anniversary of or before the Closing Date or their employment with Seller, Seller Parent or their respective Predecessors or Affiliates (orprovided, if shorterhowever, during an employee’s period of employment following that to the Closing Date)extent and when a Transferred Business Employee is eligible for, enrolls in and is accepted for enrollment in any health Employee Benefit Plan provided to the Transferred Business Employees by Purchaser, then Seller and Seller Parent shall provide, not have any further obligation for such claims or shall cause the Surviving Corporation to provide, benefits to the employees of the Company extent such claims or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements the health Employee Benefit Plan made available to the Transferred Business Employees), and who continued (B) all worker's compensation claims of any current or former employee (including any Business Employee) or agent of Seller, Seller Parent or their respective Predecessors or Affiliates which relate to events occurring on or before the Closing Date or their employment with Seller, Seller Parent or their respective Predecessors or Affiliates, and Seller and Seller Parent shall pay or cause to be employed by paid all such amounts to the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)appropriate Persons as and when due.
(b) (i) For To the twelve (12) month period following the Closing Dateextent any Transferred Business Employee is subject to noncompetition, Parent shall providenonsolicitation or similar restrictive covenants in favor of Seller, Seller Parent, any Predecessor or Affiliate of Seller or Seller Parent, or the Business, Seller and Seller Parent hereby waive compliance by each such Transferred Business Employee with such covenants and agrees that such covenants shall cause the Surviving Corporation not apply to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) any such Transferred Business Employee from and after the Effective Time, Parent shall cause Closing Date for so long as the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries Transferred Business Employee is employed (or predecessor employers to the extent the Company provides or has recognized past service creditretained as an independent contractor) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planby Purchaser.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on On the Closing Date Date, the employment agreements of the Employees listed on Section 6.4(a) of the Disclosure Schedule (the “EU Transferred Employees”) shall transfer automatically to the Buyer as a result of the sale and ending on transfer of the twelve (12) month anniversary Purchased Assets to Buyer under and in accordance with the Belgian Collective Bargaining Agreement 32bis of 7 July 1987. Seller shall perform and discharge all of its employer obligations in respect of the EU Transferred Employees in respect of all periods up to and including the Closing Date. All liabilities for any pro rata entitlements, being any proportionate part of remuneration, benefits and allowances, due to a EU Transferred Employee relating to any period of employment prior to the Closing Date (orincluding, if shorterwithout limitation, during an employee’s period of employment following the Closing Date)prorated 13th month payment, Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization prorated holiday pay and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate holiday pay due on departure as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing calculated on the Closing Date, overtime hours that have been performed before or on the Surviving Corporation Closing Date) shall observe be borne by Seller.
(b) Not less than five (5) days prior to the terms Closing Date, Buyer shall deliver to Seller a written list of all existing Collective Bargaining Agreements that govern the wages, hours and Employees (other terms and conditions than the EU Transferred Employees) to whom Buyer has made an offer of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued that has been accepted to be employed by effective on the Company or Closing Date. On the Surviving Corporation or any subsidiary or Affiliate thereof Closing Date, Seller shall terminate such Employees (such Employees plus the EU Transferred Employees, the “Continuing Union-Represented Transferred Employees”).
(bc) (i) For Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation, benefits and/or other amounts payable to any current or former employee or other service provider of Seller, including hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits, and/or severance pay payable to any current or former employee or other service provider of Seller for any period relating to the twelve (12) month period following service with Seller at any time prior to the Closing Date, Parent Date and Seller shall provide, or shall cause the Surviving Corporation pay all such amounts to provide, to the Continuing Non-Union all Transferred Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule when and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary such Transferred Employees are entitled to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planpayments.
(d) To Seller shall remain solely responsible for the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule satisfaction of all Company claims for medical, dental, life insurance, health, accident or disability benefits brought by or in respect of current or former employees that sets forth the following information with respect or agents of Seller which claims relate to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days events occurring prior to the date Closing Date. Seller also shall remain solely responsible for all worker’s compensation claims of deliveryany current or former employees or agents of Seller which relate to events occurring prior to the Closing Date. Parent shallSeller shall pay, or cause to be paid, all such amounts to the appropriate persons as and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiarieswhen due.
(e) The Company shallSeller shall be solely responsible for providing continuation coverage under the Consolidated Omnibus Budget Reconciliation Act of 1985, as amended, and shall cause each of its subsidiaries tothe regulations promulgated thereunder to those individuals who are M&A qualified beneficiaries (as defined in Treasury Regulation Section 54.4980B-9, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwiseQ&A-4(b), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations ) with respect to any Continuing Union-Represented Employees affected by the transactions transaction contemplated by this Agreement.
(f) Parent Seller shall or shall cause be responsible for complying with the Surviving Corporation and its Affiliates WARN Act with respect to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries Employees that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminateddo not become Transferred Employees, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)applicable.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation Seller shall observe the terms of terminate all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries Business who are covered by actively at work on the Closing Date, and, at Buyer’s sole discretion, Buyer may offer employment, on an “at will” basis, to any or all of such Collective Bargaining Agreements terminated employees of the Business who are eligible individuals pursuant to Buyer’s employment practices and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof policies (the “Continuing Union-Represented Employees”). Seller shall bear any and all obligations and liability under the WARN Act resulting from employment losses pursuant to this Section 6.01.
(b) Except for the Specified Obligations, Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus (iincluding any ‘sale’ bonus or ‘stay’ bonus but not the Retention Bonuses), salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to all entitled persons on, or prior to or coincident with, the Closing Date.
(c) For Seller shall remain solely responsible for the twelve satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof; which claims relate to events occurring on or prior to the Closing Date. Seller also shall remain solely responsible for all worker’s compensation claims of any current or former employees, officers, directors, independent contractors or consultants of the Business which relate to events occurring on or prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.
(12d) month period Effective as soon as practicable following the Closing Date, Parent shall provideSeller, or any applicable Affiliate, shall cause effect a transfer of assets and liabilities (including outstanding loans) from the Surviving Corporation to providedefined contribution retirement plan that it maintains, to the Continuing Non-Union Employeesdefined contribution retirement plan maintained by Buyer, severance benefits which are no less favorable than with respect to those set forth employees of the Business who become employed by Buyer, or an Affiliate of Buyer, in connection with the transactions contemplated by this Agreement. Any such transfer shall be in an amount sufficient to satisfy Section 6.9(b)(i414(1) of the Company Disclosure Schedule Code. Upon the transfer of assets and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their termsliabilities into Buyer’s plan, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein transferred account balances from Seller’s plan shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesbecome fully vested.
(e) The Company shallEach Continuing Employee who accepts Buyer’s offer of employment made pursuant to Section 6.01(a) shall be given service credit for the purpose of eligibility under the group health plan of Buyer or their applicable Affiliates, including for any waiting periods, and eligibility and vesting only under the defined contribution retirement plan of Buyer or their applicable Affiliates, if any, for his or her period of service with Seller prior to the Closing Date; provided, however, that (i) such credit shall cause each be given pursuant to payroll or plan records, at the election of its subsidiaries toBuyer, comply in all material respects their sole and absolute discretion; (ii) such service crediting shall be permitted and consistent with each Buyer’s defined contribution retirement plan and (iii) eligibility to participate in any group health plan shall commence on the first day of their respective obligations under applicable Law before the calendar month immediately succeeding the month in which the Closing Date to inform and consult shall occur.
(or otherwise), under applicable Law and f) The provisions of this Section 6.01 are solely for the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees benefit of the Company parties to this Agreement and nothing in this Agreement shall create any third-party beneficiary or its subsidiaries, with any labor organizations other right with respect to any Continuing Union-Represented Employees affected employees of the Business who become employed by Buyer in connection with the transactions contemplated by this Agreement.
(fg) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or Notwithstanding any applicable Collective Bargaining contrary provision of this Agreement, Parent Seller shall assume be responsible and liable for providing, or become party continuing to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s requestprovide, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company health care continuation coverage as required under COBRA for so long as Seller or any of its subsidiaries that are defined contribution plans intended Affiliates sponsors a group health plan with respect to be qualified within the meaning of Section 401(a) of the Code (the any individual who experienced a COBRA “Company 401(k) Plansqualifying event”) shall be terminated, as of immediately such term is defined by COBRA, on or prior to the Closing Date (but conditioned upon under any Benefit Plan subject to COBRA. Without limiting the occurrence generality of the Closing)foregoing, Seller shall continue to maintain any Benefit Plan which is subject to COBRA and shall make COBRA continuation coverage available for participation by any M&A Qualified Beneficiary. The Company parties agree that the intent of this Section 6.01(g) is to allocate to Seller any and Parent shall cooperate in good faith prior all obligation to make COBRA continuation coverage available to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider employees of Seller and that, to the Company or its Affiliates (or any beneficiaries or dependents thereof)maximum extent permitted by applicable law, Buyer be relieved of such obligation.
Appears in 1 contract
Samples: Asset Purchase Agreement (Continental Materials Corp)
Employees and Employee Benefits. (a) For a Buyer shall, or shall cause an Affiliate of Buyer to, offer employment to be effective on the Closing Date, to the Employees (the Employees who accept such employment and commence employment on the Closing Date, the “Transferred Employees”). Such offers of employment, when countersigned, shall confirm each Transferred Employee’s resignation of his or her employment with the Seller Parties effective as of the Closing Date.
(b) During the period beginning commencing on the Closing Date and ending on the twelve date which is nine (129) month anniversary months from the Closing (or if earlier, the date of the Closing Date (or, if shorter, during an employeeTransferred Employee’s period termination of employment following the Closing Datewith Buyer or an Affiliate of Buyer), Parent shall provideBuyer shall, or shall cause the Surviving Corporation to providean Affiliate of Buyer to, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), provide each Transferred Employee with: (i) the same base salary and wage rate as or hourly wages which are no less than the base salary and wage rate or hourly wages provided to such Continuing Non-Union Employee by the Seller Parties immediately prior to the Effective Time, Closing; (ii) employee incentive compensation target bonus opportunities (excluding equity-based compensation), if any, which are no less than the target bonus opportunities (excluding equity-based compensation) provided by the Seller Parties immediately prior to the Closing; (iii) retirement and welfare benefits, that are no less favorable in the aggregate than the incentive compensation opportunities greater of those provided to such Continuing Non-Union Employees by the Seller Parties immediately prior to the Effective Time Closing and those provided to similarly situated employees of Buyer or the applicable Affiliate of Buyer; and (iiiiv) employee severance benefits which that are substantially comparable no less favorable than the practice, plan or policy described on Schedule 6.03(b). Notwithstanding the above, Transferred Employees will be employees at-will and may be terminated by Buyer at any time for any reason or no reason at all, unless otherwise prohibited by applicable Law. The provisions in this paragraph do not guarantee employment with Buyer (or the applicable Affiliate of Buyer) for a fixed duration of nine (9) months or for any length of time, nor will Buyer (or the applicable Affiliate of Buyer) be obligated to pay such base salary or hourly wages, target bonuses, or retirement and welfare benefits in the aggregate event that a Transferred Employee’s employment is terminated.
(c) For the avoidance of doubt, the Seller Parties acknowledge and agree that any and all liability, obligation or commitment of any of the Seller Parties to pay any employee or former employee of any of the Seller Parties (including the Transferred Employees) for any salary, bonus, commission, vacation pay, severance, separation or other compensation earned or accrued as of or prior to the Closing Date, shall be an Excluded Liability and be borne solely by the Seller Parties, except as set forth explicitly in (i) Section 2.03(d) and to the extent set forth in Schedule 2.03(d) with respect to each such Employee or (ii) or Section 2.08(e).
(d) With respect to any employee benefit plan maintained by Buyer or an Affiliate of Buyer for the proportion benefit of employee costany Transferred Employee (collectively, “Buyer Benefit Plans”), effective as of the Closing, Buyer shall, or shall cause its Affiliate to, recognize, to the extent permitted under applicable Law, all service of the Transferred Employees with the Seller Parties, as if such service were with Buyer, for purposes of any applicable Buyer Benefit Plan; provided, however, such service shall not be recognized to the extent that (x) such recognition would result in a duplication of benefits or (y) such service was not recognized under the corresponding Benefit Plan. Further, with respect to each Buyer Benefit Plan, in which any Transferred Employee will be eligible to participate effective as of the Closing, Buyer shall, or shall cause its applicable Affiliate(s) to, (i) waive, to the extent permitted under applicable Law, all pre-existing conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to such Transferred Employee under any such Buyer Benefit Plan in which such Transferred Employee may be eligible to participate on or after the Closing, except to the extent such pre-existing conditions, exclusions or waiting periods would apply under the analogous Benefit Plan; and (ii) to the employee benefits provided to extent permitted under applicable Law, provide each such Continuing NonTransferred Employee with credit for any payments made under any cost-Union Employees immediately sharing provisions prior to the Closing (to the same extent such credit was given under the analogous Benefit Plan prior to the Closing) in satisfying any applicable cost-sharing provisions in any Buyer Benefit Plan in which such Transferred Employee may be eligible to participate on or after the Closing.
(e) Effective Time. Commencing on as of the Closing Date, the Surviving Corporation Transferred Employees shall observe cease active participation in the terms of Benefit Plans. The Seller Parties shall remain liable for all existing Collective Bargaining Agreements eligible claims for benefits under the Benefit Plans that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed incurred by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following Employees prior to the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for reflected as a Current Liability in Closing Working Capital. For purposes of determining eligibility to participatethis Agreement, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) following claims shall be treated deemed to be incurred as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listedfollows: (i) the base compensation (salary or wage rate)life, accidental death and dismemberment, short-term disability, and bonusworkers’ compensation insurance benefits, on the event giving rise to such benefits; (ii) medical, vision, dental, and prescription drug benefits, on the titledate the applicable services, position and/or job classification, date of hire, credited service materials or seniority, supplies were provided; and (iii) full time versus part time statuslong-term disability benefits, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of eligibility date determined by the long-term disability insurance carrier for the plan in which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesapplicable Employee participates.
(ef) The Company shall, Buyer shall provide and shall cause be responsible for the provision of continuation coverage as required by COBRA to each of its subsidiaries to, comply M&A Qualified Beneficiary (as defined in all material respects with each of their respective obligations under applicable Law before the Closing Date Treasury Regulation Section 54.4970B-9) pursuant to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause , solely in connection with the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the ClosingTransferred Employees.
(g) At Parent’s requestBuyer and the Seller Parties intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Employee who accepts an employment offer by Buyer that is consistent with the Company Board requirements of Section 6.03(b), including for purposes of any Benefit Plan that provides for separation, termination or severance benefits (if any). Each Transferred Employee shall adopt resolutions providing resign from Seller and accept employment with Buyer at the same time resulting in no period of unemployment. Buyer shall be liable and hold the Seller Parties harmless for any claims relating to the employment of any Transferred Employee only to the extent such claims relate to activity occurring after the Closing Date or otherwise are set forth explicitly in (i) Section 2.03(d) and to the extent set forth in Schedule 2.03(d) with respect to each such Employee or (ii) Section 2.08(e). For the avoidance of doubt, Buyer shall not assume or be responsible for any payments that no rights are paid by the Seller Parties to contributions will accrue afterXxxxxx Xxxxxx in connection with the transactions contemplated by this Agreement and her current employment relationship with the Seller Parties
(h) This Section 6.03 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.03, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.03. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that all of the Company Plans sponsored terms set forth in this Section 6.03 shall not create any right in any Transferred Employee or maintained by the Company any other Person to any continued employment with Buyer or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning Affiliates or compensation or benefits of Section 401(aany nature or kind whatsoever.
(i) of the Code (The Seller Parties and Buyer shall follow the “Company 401(kstandard procedure” for preparing and filing Internal Revenue Service Forms W-2 (Wage and Tax Statements), as described in Revenue Procedure 2004-53 for Transferred Employees. Under this procedure, (i) Plans”each Seller Party shall provide all required Forms W-2 to (x) all Transferred Employees reflecting wages paid and Taxes withheld by such Seller Party in respect of such Transferred Employees’ employment with such Seller Party through the Closing Date, and (y) all other employees and former employees of a Seller Party who are not Transferred Employees reflecting all wages paid and taxes withheld by such Seller Party, and (ii) Buyer (or one of its Affiliates) shall be terminated, as of immediately prior provide all required Forms W-2 to the Closing Date all Transferred Employees reflecting all wages paid and taxes withheld by Buyer (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any one of its subsidiaries or Affiliates as soon as practicable following Affiliates) on and after the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, Seller shall terminate the Surviving Corporation shall observe the terms of employment all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees Employees of the Company or its subsidiaries Business who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following actively at work on the Closing Date, Parent and Buyer shall provideoffer employment, or shall cause the Surviving Corporation to provideon an “at will” basis, to all Employees of the Continuing Non-Union Employees, severance benefits which are no less favorable than those Business set forth in on Section 6.9(b)(i) 6.01 of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, on terms substantially consistent with or in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) excess of the Company Disclosure Schedule level of compensation and benefits received by such Employees as of immediately prior to such termination of employment the Closing. All Offerees who accept Buyer’s offer of employment (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Transferred Employees”) participate (the “Parent Plans”), and except shall be given credit for his or her years of service with Seller prior to the extent necessary to avoid duplication of benefits, Closing Date for purposes of determining eligibility to participate, vesting, accrual participate in and vesting under employee benefit plans of and entitlement to benefits (but not for accrual of Buyer or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year Affiliates in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days Transferred Employees become eligible to participate after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), the extent permitted under applicable Law and the terms of such plans; provided, however, that the foregoing shall not result in the duplication of any Collective Bargaining Agreements that govern benefits. With respect to each Transferred Employee, and to the wages, hours and other extent permitted under the terms and conditions of employment of employees of the Company applicable benefit plan, (i) Buyer shall waive all limitations as to preexisting conditions, exclusions and waiting periods with respect to participation and coverage requirements applicable to the Transferred Employees (and their covered dependents) under any welfare or fringe benefit plan maintained by Buyer or its subsidiariesAffiliates in which Transferred Employees become eligible to participate on or after the Closing Date, with other than any labor organizations such limitations that are in effect with respect to any Continuing Union-Represented Employees affected Transferred Employee (or his or her covered dependents) and that have not been satisfied under the corresponding welfare or fringe benefit plan maintained by the transactions contemplated by this Agreement.
(f) Parent shall Seller or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all as of the Company Plans sponsored Closing Date; and (ii) Buyer shall provide each Transferred Employee with credit under any welfare or fringe benefit plans maintained by the Company Buyer or any of its subsidiaries that are defined contribution plans intended Affiliates in which Transferred Employees become eligible to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to participate on or after the Closing Date (but conditioned upon for any co-payments and deductibles paid by such Transferred Employee for the occurrence then current plan year under the corresponding Benefit Plan as of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(hb) Nothing in this Agreement Seller shall confer upon be solely responsible, and Buyer shall have no obligations whatsoever for, any Continuing compensation or other amounts payable to any Employee any right to continue in the employ (or service former Employee) of ParentSeller, the Surviving Corporation including, without limitation, hourly pay, commission, bonus, salary, accrued vacations, fringe, pension or any Affiliate of Parentprofit sharing benefits, or shall interfere severance pay payable to any Employee (or former Employee) of Seller for any period relating to the service with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee Seller at any time for any reason whatsoever, with or without cause, except prior to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company Closing Date and Seller shall pay all such amounts to all entitled Employees on or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement prior to the contraryClosing Date.
(c) Seller shall remain solely responsible for the satisfaction of all claims for medical, nothing dental, life insurance, health accident or disability benefits brought by or in this Section 6.9 respect of Employees (or former Employees) or agents of Seller which claims relate to events occurring prior to the Closing Date. Seller also shall remain solely responsible for all worker’s compensation claims of any Employees (ior former Employees) be deemed or construed agents of Seller which relate to events occurring prior to the Closing Date. Seller shall pay, or cause to be an amendment or other modification of any Company Planpaid, Parent Plan or any other employee benefit plan, (ii) prevent Parent, all such amounts to the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)appropriate persons as and when due.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, Global GP shall terminate the Surviving Corporation employment of each of the Business Employees, and subject to Section 6.05(b), at Buyers’ sole discretion, Buyers may offer employment, on an “at will” basis, to any or all of such employees. Sellers shall observe bear any and all obligations and liability under the terms WARN Act resulting from employment losses pursuant to this Section 6.05. Sellers and Global GP hereby agree that any non-competition or other agreement between either Seller and any Business Employee hired by the Buyers that could in any way restrict the activities of all existing Collective Bargaining Agreements that govern such Business Employee on behalf of the wagesBuyers will be terminated and of no further force or effect as to such Business Employee’s employment with Buyers. Global GP may continue to employ any Business Employees not offered employment by Buyers, hours and other terms and conditions but shall not under any circumstances make any offer of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation with Global GP or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)of its Affiliates that competes with any offer of employment made by Buyers.
(b) For each of the Business Employees hired by Buyers, (i) For the twelve (12) month period following Global GP will pay all compensation, including commissions, owed to such sales representatives through the Closing DateDate in such amounts and at such times as required by applicable Law, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and Buyers will pay all commissions that become due on existing Assigned Contracts after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, Closing Date in accordance with their terms, all Company Plans set forth the commission structure currently in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any place with respect to such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleAssigned Contracts.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any If a Business Employee rejects Buyers’ offer of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectivelyemployment, the “Continuing Employees”) participate (the “Parent Plans”)employee will not become an employee of Buyers, and except to Buyers will not be responsible for the extent necessary to avoid duplication payment of benefitsseverance or any other payment obligations. If a Business Employee is offered and accepts employment with Buyers, such Business Employee will maintain eligibility for purposes a potential future severance payment based on Buyers’ severance practices, with their years of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past Global GP being credited as part of any length of service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid determination; provided that, if Buyers terminate such Business Employee’s employment prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions first anniversary of the Parent PlanClosing Date, such Business Employee’s severance will be in the amounts set forth in a side letter of even date herewith among the parties, which amounts are based on Global GP’s current severance policy.
(d) To Except as otherwise expressly set forth in the extent permitted by applicable LawTransition Services Agreement, no later than thirty (30) days after the date hereof, the Company Sellers and Global GP shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate)be solely responsible, and bonus; (ii) the titleBuyers shall have no obligations whatsoever for, position and/or job classificationany compensation or other amounts payable to any current or former employee, date of hireofficer, credited service director, independent contractor or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement consultant of the Company’s classification of each such position Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, accrued sick time, accrued holidays, other accrued paid time off, fringe, pension or job as exempt profit sharing benefits or non-exempt severance pay for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior any period relating to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit service with the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law Seller and/or Global GP or any applicable Collective Bargaining Agreement, Parent shall assume or become party to other Affiliate of Sellers at any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately time prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent Sellers shall cooperate in good faith pay all such amounts to all entitled persons on or prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(he) Nothing Sellers and Global GP shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in this Agreement shall confer upon any Continuing Employee any right to continue in respect of current or former employees, officers, directors, independent contractors or {W5940181.1} consultants of the employ Business or service of Parentthe spouses, the Surviving Corporation dependents or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parentbeneficiaries thereof, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except claims arise prior to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate Closing Date. Sellers and Global GP also shall remain solely responsible for all workers’ compensation claims of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider employees, officers or directors of the Company or its Affiliates (or any beneficiaries or dependents thereof)Business which relate to events occurring prior to the Closing Date.
Appears in 1 contract
Employees and Employee Benefits. From and after the Closing Date, the Purchaser shall grant all employees of the Partnership and the Subsidiaries credit for all service (ato the same extent as service with the Purchaser or any subsidiary of the Purchaser is taken into account with respect to similarly situated employees of the Purchaser and the subsidiaries of the Purchaser) For a period beginning on with the Partnership and any Subsidiary and their respective predecessors (including, without limitation, United and Covia Partnership) prior to the Closing Date for all purposes as if such service with the Partnership or any Subsidiary or predecessor was service with the Purchaser or any subsidiary of the Purchaser (provided, however, that no such past service credit shall be granted to the extent it would result in duplicative accrual of benefits for the same period of service), and, with respect to any medical or dental benefit plan, the Purchaser shall waive any pre-existing condition exclusions and ending on actively-at-work requirements (provided, however, that no such waiver shall apply to a pre-existing condition of any employee of the twelve (12) month anniversary Partnership or any Subsidiary who was, as of the Closing Date, excluded from participation in a Plan by virtue of such pre-existing condition) and provide that any covered expenses incurred on or before the Closing Date (or, if shorter, during by an employee or an employee’s period 's covered dependent shall be taken into account for purposes of employment following satisfying applicable deductible, coinsurance and maximum out-of-pocket provisions after the Closing Date), Parent Date to the same extent as such expenses are taken into account for the benefit of similarly situated employees of the Purchaser and subsidiaries of the Purchaser. The Purchaser shall provide, provide or shall cause the Surviving Corporation Partnership and each Subsidiary to provide, provide benefits to the employees any employee of the Company or its subsidiaries who Partnership and each Subsidiary which are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities benefits provided to similarly situated employees of the Purchaser and subsidiaries of the Purchaser, excluding flight benefits; provided, however, that nothing in this Section 5.12 shall require the Purchaser to provide benefits to any such employee that are more favorable than the benefits provided or proposed to be provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation Partnership or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of Subsidiary immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: General Partnership Interest Purchase Agreement (Galileo International Inc)
Employees and Employee Benefits. (a) For Attached as Schedule 7.4(a) is a period beginning on true and correct report listing each employee employed at the Closing Date and ending on the twelve (12) month anniversary Branches as of the Closing Date (ordate the report is prepared to include name, if shorterposition, during an employee’s period of employment following the Closing Date), Parent shall provide, exempt or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classificationnonexempt status, date of hire, credited service present salary and employment status (permanent or senioritytemporary, (iii) full full-time versus part time statusor part-time, active or leave status; (ivrecipient and type of leave). Seller represents and warrants to Purchaser that the report and all information delivered in connection with this Section 7.4(a) location of each employee; will be complete and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete accurate in all material respects as of the date or dates set forth on the schedule, each of which shall report is prepared and updated. The report will be no more than updated within ten (10) calendar days prior to Closing. Purchaser shall maintain in confidence the date of delivery. Parent shall, information on the employees and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those use it only for legitimate business purposes in connection with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(fb) Parent Except as set forth on Schedule 7.4(b), Purchaser shall offer employment to all employees at the Branches. Each such employee who accepts Purchaser’s offer of employment shall be a “Transferred Employee” for purposes of this Agreement effective upon the later of the close of business on the Closing Date or the return of such employee to active employment. On such date as the parties shall agree, Seller and Purchaser shall jointly notify in writing all Branch employees that the Branches are being transferred to Purchaser and that the employment of the Transferred Employees by Seller shall terminate as of the close of business on the Closing Date. Concurrently with the delivery of such notice, Purchaser shall offer employment to each of the Transferred Employees. The positions in which such Transferred Employees shall be employed by Purchaser, and the terms and conditions of employment, shall be substantially the same as the positions in which they were employed by Seller immediately prior to the Closing Date. In addition, each Transferred Employee’s base salary or hourly wage rate shall be at least equal to the rate of annual base salary or regular hourly wage rate, as applicable, paid by Seller to such Transferred Employee as of the Business Day prior to the Closing Date, each Transferred Employee shall be offered employment at a job location that is no more than thirty (30) miles from such Transferred Employee’s primary workplace immediately prior to the Closing Date, and upon a termination without cause of a Transferred Employee within twelve (12) months following the Closing Date, Purchaser shall provide severance benefits consistent with Schedule 7.4(b), giving effect to service with Seller and any of its subsidiaries prior to the Closing Date.
(c) Purchaser shall provide employee benefits for the Transferred Employees substantially similar to those provided by Purchaser to similarly-situated employees of Purchaser. Subject to applicable Law and applicable Tax qualification requirements, Purchaser shall, or shall cause the Surviving Corporation and its Affiliates to continue to honor subsidiary to, recognize all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all service of the Company Plans sponsored or maintained by the Company or Transferred Employees with Seller and any of its subsidiaries that are defined contribution plans intended to be qualified within is reflected in the meaning books and records of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminatedSeller, as the case may be, for vesting, eligibility and level of immediately prior benefits purposes (but not for benefit accrual purposes, except for vacation and severance) in each benefit plan, severance plan and time-off program maintained, sponsored, adopted or contributed to by Purchaser in which Transferred Employees are eligible to participate after the Closing Date (but conditioned upon collectively, the occurrence “Purchaser Benefit Plans”). In addition, Purchaser shall cause each Transferred Employee to be immediately eligible to participate, without any waiting time, in the Purchaser Benefit Plans (with the exception of the ClosingAthens Federal Community Bank Employee Stock Ownership Plan (the “Purchaser ESOP”). The Company and Parent shall cooperate in good faith prior ), subject to the Closing with respect terms of the applicable arrangement and any applicable law, including ERISA. Purchaser shall not be required to recognize service for any purpose under the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Purchaser ESOP if Transferred Employees shall be become eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable the Purchaser ESOP following the Closing Date.
(hd) Nothing (A) Seller and its Affiliates shall be solely responsible for (1) claims for welfare benefits and for workers’ compensation, in each case that are incurred by or with respect to any Branch employee who does not become a Transferred Employee (and his or her spouse, dependents or beneficiaries) before the Closing Date, and (2) claims relating to COBRA Continuation Coverage (and for providing any notices related thereto) attributable to “qualifying events” with respect to any Branch employee who does not become a Transferred Employee and his or her beneficiaries and dependents, whether occurring before, on or after the Closing Date; and (B) Purchaser and its Affiliates shall be solely responsible for (1) claims for welfare benefits and for workers compensation, in each case that are incurred by or with respect to any Transferred Employee on or after the Closing Date, and (2) claims relating to COBRA Continuation Coverage attributable to “qualifying events” with respect to any Transferred Employee and his or her beneficiaries and dependents that occur on or after the Closing Date. For purposes of the foregoing, (i) a medical/dental claim shall be considered incurred when the services are rendered, the supplies are provided or prescription is actually filled, and not when the condition arose, (ii) a life insurance claim shall be considered incurred on the date of death, (iii) a disability claim shall be considered incurred when the date of disability occurs and (iv) a workers’ compensation claim shall be considered incurred on the date of the occurrence as determined under the applicable state regulations.
(e) Except as expressly provided in this Section 7.4, (A) Seller shall remain solely responsible for any and all liabilities and obligations arising under the Benefit Plans, and Purchaser shall not assume or otherwise acquire any of the Benefit Plans, and (B) for purposes of this Agreement, liabilities under the Benefit Plans shall be considered Excluded Liabilities.
(f) With respect to any employee benefit plan maintained by Purchaser or any of its subsidiaries that is a welfare plan (a “Purchaser Welfare Plan”) in which any Transferred Employee will participate effective as of or after the Closing Date, Purchaser and its subsidiaries will, to the extent permitted by the terms and conditions of the subject Purchaser Welfare Plans and applicable Law, use commercially reasonable efforts to cause all (i) pre-existing condition limitations which otherwise would be applicable to such Transferred Employee and his or her covered dependents to be waived to the extent satisfied under a Benefit Plan of Seller comparable to such Purchaser Welfare Plan immediately prior to the Closing Date or, if later, immediately prior to such Transferred Employee’s commencement of participation in such Purchaser Welfare Plan, (ii) participation waiting periods under each Purchaser Welfare Plan that would otherwise be applicable to such Transferred Employee to be waived to the same extent waived or satisfied under the Benefit Plan of Seller comparable to such Purchaser Welfare Plan immediately prior to the Closing Date or, if later, immediately prior to such Transferred Employee’s commencement of participation in such Purchaser Welfare Plan and (iii) co-payments and deductibles paid by Transferred Employees under Benefit Plans of Seller in the plan year in which the Closing Date occurs or, if later, the plan year in which the Transferred Employee commenced participation in such Purchaser Welfare Plan, to be credited for purposes of satisfying any applicable deductible or out of pocket requirement under any such Purchaser Welfare Plan. In addition, to the extent that any Transferred Employee has begun a course of treatment with a physician or other service provider who is considered “in network” under a Benefit Plan of Seller and such course of treatment is not completed prior to the Closing Date, Purchaser will use reasonable efforts to arrange for transition care, whereby such Transferred Employee may complete the applicable course of treatment with the pre-Closing physician or other service provider at “in network” rates.
(g) A Transferred Employee’s employment with Purchaser shall be on an “at-will” basis, and nothing in this Agreement shall confer upon be deemed to constitute an employment agreement with any Continuing Employee such person or to obligate Purchaser to employ any such person for any specific period of time or in any specific position or to restrict Purchaser’s right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services employment of any Continuing Employee such person at any time and for any reason whatsoeversatisfactory to it.
(h) With respect to each Branch employee who does not become a Transferred Employee, with Seller shall be responsible for all “Continuation Coverage” under Section 4980B of the Code and Section 601 of ERISA.
(i) Each Transferred Employee shall cease to be covered by the employee welfare benefit plans, including plans, programs, policies and arrangements which provide medical and dental coverage, life and accident insurance, disability coverage, and vacation and severance pay of Seller and all other benefit and compensation plans of Seller, including retirement plans (collectively, “Benefit Plans”) on the date the Transferred Employee becomes a Transferred Employee or without cause, except on such later date specified under the terms of an applicable Benefit Plan or other plan of Seller.
(j) Seller shall pay in full all bonuses and incentive payments to employees of the Branches that have been earned or that are otherwise owed through the Closing Date.
(k) This Section 7.4 shall be binding upon and inure solely to the extent expressly provided otherwise in a written agreement between Parentbenefit of each of the Parties to this Agreement, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 7.4, express or implied, is intended to confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 7.4. Nothing contained herein shall (i) be deemed or construed to be treated as an amendment or other modification of any Company Plan, Parent particular Benefit Plan or any other employee benefit plan, of Seller; (ii) prevent Parent, give any third party any right to enforce the Surviving Corporation or any Affiliate provisions of Parent from amending or terminating any Company Plans in accordance with their terms this Section 7.4; or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (require Purchaser or any beneficiaries of its subsidiaries to (A) create, modify or dependents thereof)maintain any particular Benefit Plan; or (B) retain the employment of any particular employee.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Athens Bancshares Corp)
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation Seller shall observe the terms of terminate all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries Business who are covered by such Collective Bargaining Agreements actively at work on the Closing Date, and who continued Buyer shall offer employment to be employed by the Company or individuals on Schedule 6.05 of the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Disclosure Schedules.
(b) (i) For Seller shall be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the twelve (12) month Business, including, without limitation, hourly pay, commission, bonus, salary, fringe or pension or profit sharing benefits for any period following relating to the service with Seller at any time on or prior to the Closing Date and Seller shall pay all such amounts to all entitled persons on or prior to the Closing Date, Parent provided, however, that Buyer shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, assume all accrued PTO and severance benefits which are no less favorable than those pay obligations for such employees as set forth in Section 6.9(b)(i) on Schedule 2.03 of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleSchedules.
(c) With Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect to each benefit planof current or former employees, programofficers, practicedirectors, policy independent contractors or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any consultants of the Continuing Non-Union Employees Business or Continuing Union-Represented Employees (collectivelythe spouses, the “Continuing Employees”) participate (the “Parent Plans”)dependents or beneficiaries thereof, and except which claims relate to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of events occurring on or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during Closing Date. Seller also shall remain solely responsible for all worker's compensation claims of any current or former employees, officers, directors, independent contractors or consultants of the calendar year in Business which relate to events occurring on or prior to the Effective Time occurs under a corresponding Company Plan for purposes of applying deductiblesClosing Date. Seller shall pay, copayments and out-of-pocket maximums as though or cause to be paid, all such amounts had been paid in accordance with to the terms appropriate persons as and conditions of the Parent Planwhen due.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries[intentionally omitted].
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees Each employee of the Company or its subsidiaries, Business who becomes employed by Buyer in connection with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this AgreementAgreement shall be eligible to receive the salary and benefits maintained for employees of Buyer on substantially similar terms and conditions in the aggregate as are provided to similarly situated employees of Buyer.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all Each employee of the Company Plans sponsored or maintained Business who becomes employed by Buyer in connection with the Company or any transaction shall be given service credit for the purpose of its subsidiaries that are eligibility under the group health plan and eligibility and vesting only under the defined contribution plans intended to be qualified within retirement plan for his or her period of service with the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately Seller prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing terminationDate; provided, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent however, that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) such credit shall be deemed given pursuant to payroll or construed to be an amendment or other modification plan records, at the election of any Company PlanBuyer, Parent Plan or any other employee benefit plan, in its sole and absolute discretion; and (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance such service crediting shall be permitted and consistent with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)Buyer's defined contribution retirement plan.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on Seller shall terminate all Employees set forth in Section 6.01(a) of the Closing Date and ending on the twelve (12) month anniversary Disclosure Schedules effective as of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide. Buyer shall, or shall cause the Surviving Corporation to providean Affiliate of Buyer to, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing offer employment effective on the Closing Date, to all Employees set forth in Section 6.01(a) of the Surviving Corporation shall observe Disclosure Schedules. Effective as of the terms of all existing Collective Bargaining Agreements that govern the wagesClosing Date, hours and other terms and conditions except as set forth herein, each Employee who accepts an offer of employment with Buyer extended in accordance with the immediately preceding sentence (including acceptance through receipt of employees disability benefits) by beginning active employment with Buyer or otherwise accepting the offer of employment in accordance with its terms within the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued three month period following Closing is referred to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the herein as a “Continuing Union-Represented EmployeesTransferred Employee”).
(b) (i) For During the twelve (12) month period following commencing on the Closing DateDate and ending December 31, Parent shall provide2014 (or if earlier, the date of the Transferred Employee’s termination of employment with Buyer or an Affiliate of Buyer), Buyer shall, or shall cause the Surviving Corporation to providean Affiliate of Buyer to, to the Continuing Non-Union Employees, severance benefits provide each Transferred Employee with base salary or hourly wages which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after base salary or hourly wages provided by Seller immediately prior to the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleClosing.
(c) With respect to each any employee benefit plan, program, practice, policy or arrangement plan maintained by Parent Buyer or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any an Affiliate of the Continuing Non-Union Employees or Continuing Union-Represented Employees Buyer (collectively, the “Continuing EmployeesBuyer Benefit Plans”) participate (for the “Parent Plans”)benefit of any Transferred Employee, and except effective as of the Closing, Buyer shall, or shall cause its Affiliate to, recognize all service of the Transferred Employees with Seller, to the extent necessary to avoid duplication of benefitspermitted by Law, as if such service were with Buyer, for purposes of determining eligibility to participate, vesting, eligibility and accrual of and entitlement to benefits (but purposes; provided, however, such service shall not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers be recognized to the extent the Company provides that (x) such recognition would result in a duplication of benefits or has (y) such service was not recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Benefit Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though The Buyer Benefit Plans shall reflect such amounts had been paid in accordance with the terms and conditions of the Parent Planservice credit.
(d) To As soon as administratively practicable following the extent permitted Closing Date, Seller, or any applicable Affiliate, and Buyer shall cooperate and take all actions necessary to effect a transfer of assets and liabilities (including outstanding loans) from the Code section 401(k) defined contribution retirement plan that it maintains to the defined contribution retirement plan maintained by applicable LawBuyer, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (ithe Transferred Employees, in connection with the transactions contemplated by this Agreement. Any such transfer shall be in an amount sufficient to satisfy Section 414(l) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the CompanyCode. Upon the transfer of assets and liabilities into Buyer’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule plan, all transferred account balances from Seller’s plan shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesbecome fully vested.
(e) The Company shallEffective as of the Closing, the Transferred Employees shall cease active participation in the Benefit Plans. Seller shall remain liable for all eligible claims for benefits under the Benefit Plans that are incurred by the Employees on or prior to the Closing Date. For purposes of this Agreement, the following claims shall be deemed to be incurred as follows: (i) life, accidental death and dismemberment, short-term disability benefits for hourly workers, and workers’ compensation insurance benefits, on the event giving rise to such benefits; (ii) medical, vision, and prescription drug benefits, on the date the applicable services, materials or supplies were provided; and (iii) long-term disability benefits, on the eligibility date determined by the long-term disability insurance carrier for the plan in which the applicable Employee participates. Short-term disability benefits for salaried workers provided by Seller shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before terminate on the Closing Date to inform and consult (or otherwise)Date. After the Closing Date, Seller shall be responsible for providing continuation coverage required under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees Section 4980B of the Company Code and Title I, Part 6 of ERISA to all former Employees of Seller who terminated employment on or its subsidiaries, before such date and to all persons who are considered “M&A qualified beneficiaries” as defined under Treas. Reg. Section 54.4980B-9 in connection with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent This Section 6.01 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.01, express or implied, shall cause confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.01. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and agree that the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law terms set forth in this Section 6.01 shall not create any right in any Transferred Employee or any applicable Collective Bargaining Agreement, Parent shall assume or become party other Person to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company continued employment with Buyer or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Affiliates or any of its subsidiaries compensation or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services benefits of any Continuing Employee at any time for any reason nature or kind whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary Upon consummation of the Closing Date (orMerger and the Bank Merger, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the all employees of the Company or its subsidiaries who are not represented by a labor organization and who continue Laurel Savings will be deemed to be employed by at-will employees of Purchaser and FCB, respectively, subject only to those written employment agreements which have been disclosed on the Company or Disclosure Schedule. At the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)discretion of Purchaser, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior subject to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees requirements of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements Code and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those except as expressly set forth in this Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) 5.5, from and after the Effective Time, Parent shall all Company Benefit Plans will continue to be maintained separately, will be consolidated with similar plans of the Purchaser or FCB, as appropriate, or will be frozen or terminated, subject, in each case, to the terms of such Plans. To the extent the Company Benefit Plans are not continued after the Effective Time, Employees of the Company and Laurel Savings who continue as employees of Purchaser and FCB (“Continuing Employees”) will be entitled to participate, commencing at the Effective Time, on an equitable basis in the same benefit plans, programs or policies as are generally available to employees of Purchaser or FCB, as the case may be, of similar rank and status. For purposes of eligibility, vesting, accrual of benefits (but not for benefit accrual purposes under any qualified or nonqualified defined benefit type plan maintained by Purchaser) and determination of the level of benefits under any employee benefit plans, arrangements or policies (including, without limitation, severance, vacation, sick and other leave policies) maintained by Purchaser or FCB, Continuing Employees will be credited with prior years of service with the Company and Laurel Savings (and their respective predecessors, if applicable). Purchaser and FCB will give service credit to Continuing Employees and their dependents with respect to the satisfaction of the limitations as to pre-existing condition exclusions, evidence of insurability requirements and waiting periods for participation and coverage that are applicable under the employee welfare benefit plans (within the meaning of Section 3(1) of ERISA) of Purchaser or FCB, equal to the credit that any such employee had received as of the Effective Time towards the satisfaction of any such limitations and waiting periods under the comparable employee welfare benefit plans of the Company or Company Subsidiaries and will waive pre-existing condition limitations to the same extent waived under the corresponding plans of the Company or Company Subsidiaries. Nothing contained in this Agreement will obligate Purchaser to provide severance or other benefits that are based on years of service with duplicative benefits for the same years of service.
(b) No Continuing Employee will be subject to any waiting period under any welfare benefit plan of Purchaser or FCB, as applicable, to the extent that such period is longer than the period, if any, to which such Continuing Employee was subject under the applicable welfare benefit plan of the Company or any Company Subsidiary. Continuing Employees will not be subject to any waiting period under a welfare benefit plan of Purchaser or FCB if the applicable waiting period under the corresponding Company or Laurel Savings plan had been satisfied as of the Effective Time. To the extent that the initial period of coverage for Continuing Employees under any plan of Purchaser or FCB that is an “employee welfare benefit plan” as defined in Section 3(1) of ERISA is not a full twelve (12) month period of coverage, Continuing Employees will be given full credit under the applicable welfare plan for any deductibles and co-insurance payments made by such Continuing Employees under the corresponding welfare plan of the Company or any Company Subsidiary during the balance of such twelve (12) month period of coverage. Nothing contained herein will obligate Purchaser or FCB to provide or cause the Surviving Corporation and its subsidiaries to be provided any duplicative benefits.
(c) Purchaser agrees to honor, and, where applicable will cause FCB to honor, the severance, employment, change in accordance with their termscontrol and deferred compensation agreements, all Company Group Term Carve-Out Plans and Trustee Split Dollar Agreements set forth in Section 6.9(b)(ii5.5(c) of the Company Disclosure Schedule (eachSchedule, a “Company Agreement”); except as otherwise provided that nothing herein shall prevent in Section 5.5(f) below and in the Surviving Corporation from amending or terminating any such Company Agreement agreements referred to in accordance with its termsSection 5.5(g) below. Parent and the Company hereby agree Purchaser acknowledges that the occurrence consummation of the Closing Merger shall constitute a “Change in Control” of the Company for all purposes under such agreements and plans.
(d) Any employee of all the Company Stock Plansor any of its Subsidiaries whose employment is actually terminated by Purchaser or any Purchaser Subsidiary within one year after the Effective Time other than for “cause” (as defined below) at or following the Effective Time, Company Plans and related trusts set forth other than the employees entitled to severance or other termination benefits pursuant to existing employment agreements or change in control severance agreements or the agreements referred to in Section 6.9(b)(iii5.5(g) below, shall receive, upon termination of employment, a severance payment from Purchaser or its Subsidiaries as determined in accordance with Sections C and D of the general severance policy covering the employees of Purchaser and the Purchaser Subsidiaries as in effect on the date of this Agreement (notwithstanding any amendment, expiration or termination of such policy after the date of this Agreement) and as attached as Section 5.5(d) of the Company Disclosure Schedule.
(c, except as otherwise set forth in Section 5.5(d) With respect to each benefit planin the Company Disclosure Schedule. For purposes of this Section 5.5(d), program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any “cause” shall mean termination because of the Continuing Non-Union Employees employee’s personal dishonesty, incompetence, willful misconduct, breach of fiduciary duty involving personal profit, intentional failure to perform stated duties or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms willful violation of any Collective Bargaining Agreements that govern the wageslaw, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parentrule, or shall interfere with regulation (other than traffic violations or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereofsimilar offenses).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provideBuyer shall, or shall cause an Affiliate of Buyer to, offer employment effective on the Surviving Corporation to provideClosing Date, to the employees of the Company or its subsidiaries all Employees, including Employees who are not represented by a labor organization and who continue absent due to be employed by the Company vacation, family leave, short-term disability or the Surviving Corporation or any subsidiary or Affiliate thereof other approved leave of absence (the Employees who accept such employment and commence employment on the Closing Date, the “Continuing Non-Union Transferred Employees”).
(b) Buyer shall, or shall cause an Affiliate of Buyer to, provide each Transferred Employee with: (i) the same base salary and wage rate as or hourly wages that are no less than the base salary and wage rate or hourly wages provided to such Continuing Non-Union Employee by Seller immediately prior to the Effective Time, Closing; (ii) employee incentive compensation target bonus opportunities which (excluding equity-based compensation) that are no less than the target bonus opportunities (excluding equity-based compensation), if any, provided by Seller immediately prior to the Closing; (iii) retirement and welfare benefits that are no less favorable in the aggregate than the incentive compensation opportunities those provided to such Continuing Non-Union Employees by Seller immediately prior to the Effective Time Closing; and (iiiiv) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which that are no less favorable than those set forth the practice, plan or policy in Section 6.9(b)(i) of effect for such Transferred Employee immediately prior to the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure ScheduleClosing.
(c) With Buyer and Seller intend that the transactions contemplated by this Agreement should not constitute a separation, termination or severance of employment of any Employee who accepts an employment offer by Buyer that is consistent with the requirements of Section 6.04(b), including for purposes of any Seller benefit plan that provides for separation, termination or severance benefits, and that each such Employee will have continuous employment immediately before and immediately after the Closing. Buyer shall be liable and hold Seller harmless for: (i) any statutory, common law, contractual or other severance with respect to any Employee, other than an Employee who has received an offer of employment by Buyer on terms and conditions consistent with Section 6.04(b) hereof and declines such offer; and (ii) any claims relating to the employment of any Transferred Employee arising in connection with or following the Closing.
(d) Seller shall terminate all group health plans within ten (10) days of the Closing Date (the “Health Plan Termination Date”) and Buyer shall be obligated to offer COBRA continuation coverage on or after the Health Plan Termination Date to any of the following described individuals who elect COBRA continuation coverage: (i) individuals (employees of Seller or their dependents) who are eligible for and elect COBRA continuation coverage on or after the Closing Date; and (ii) any individuals who were employees of Seller prior to the Closing Date, and dependents of such employees, who have the right to elect, or who previously elected, COBRA continuation coverage under a Seller group health plan, as of the Closing Date (collectively, individuals described in (i) or (ii) of this sentence referred to herein as “Qualified Beneficiaries”). For purposes of this paragraph, “COBRA continuation coverage” means group health coverage, and all other rights, as required under Section 4980B of the Internal Revenue Code of 1986, as amended, and regulations thereunder, and Part 6 of Subtitle B of Title 1 of the Employee Retirement Income Security Act of 1974 (ERISA) (29 U.S.C. Sec. 1161-1168), and regulations thereunder.
(e) This Section 6.04 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 6.04, express or implied, shall confer upon any other Person any rights or remedies of any nature whatsoever under or by reason of this Section 6.04. Nothing contained herein, express or implied, shall be construed to establish, amend or modify any benefit plan, program, practice, policy agreement or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time arrangement. The parties hereto acknowledge and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with agree that the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which in this Section 6.04 shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information create any right in any Transferred Employee or any other Person to any third parties, (B) limit the distribution of such information within Parent to those continued employment with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company Buyer or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Affiliates or any of its subsidiaries compensation or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services benefits of any Continuing Employee at any time for any reason nature or kind whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Asset Purchase Agreement (Recruiter.com Group, Inc.)
Employees and Employee Benefits. (a) For a period beginning on 7.5.1 NAB anticipates employing branch office customer service employees of Cornerstone and such other employees of Cornerstone as NAB shall reasonably require for the Closing Date and ending on the twelve (12) month anniversary conduct of the Closing Date (or, if shorter, during an employeeNAB’s period of employment business following the Closing Date)Effective Time. NAB may, Parent shall providein its sole discretion, or shall cause the Surviving Corporation pay a retention bonus to provide, to the certain key employees of the Company or its subsidiaries who are not represented by a labor organization and who continue in an amount to be determined by NAB in its sole discretion, in the event such employee remains in the employ of Cornerstone through the Effective Time and is not offered permanent employment with NAB.
7.5.2 Except as set forth below, each employee of Cornerstone who remains employed by NAB following the Company or the Surviving Corporation or any subsidiary or Affiliate thereof Effective Time (the each, a “Continuing Non-Union EmployeesEmployee”), ) shall be entitled to participate in (i) such of the same base salary employee benefit plans, deferred compensation arrangements, bonus or incentive plans and/or other compensation and wage rate as benefit plans of Cornerstone that NAB may continue for the base salary and wage rate provided to such benefit of Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to following the Effective Time and (iiiii) whatever employee benefits which are substantially comparable benefit plans and other compensation and benefit plans that NAB may maintain for the benefit of its similarly situated employees, if such Continuing Employee is not otherwise then participating in a similar plan of Cornerstone then provided by NAB, in each case other than as set forth in the aggregate (including Retention Agreements referred to in Section 7.5.4 hereof. The parties hereto acknowledge that Continuing Employees shall not be entitled to receive any specific level of grants under any stock option plan or restricted stock plan which NewAlliance may implement subsequent to the date of this Agreement. Any grants that may be made to the Continuing Employees under any of such plans will be subject to the sole discretion of the Board of Directors of NewAlliance or the committee administering such plans. Continuing Employees shall be eligible to participate in all NewAlliance employee benefit plans in accordance with plan documents, including, but not limited to, NewAlliance’s 401(k) plan, employee stock ownership plan and defined benefit plan. Continuing Employees shall not receive credit for service with CBI and the CBI Subsidiaries under any existing NewAlliance employee plan or any NewAlliance benefit plan in which such employees would be eligible to enroll for any purposes under any NewAlliance benefit plan, except as set forth below. With respect to the proportion NewAlliance defined benefit pension plan and employee stock ownership plan, each Continuing Employee shall be credited with service as a Cornerstone employee for purposes of determining eligibility to participate under such plans (but not for purposes of benefit accrual or vesting). With respect to any NewAlliance plan which is a health, life or disability insurance plan, each Continuing Employee shall be credited with service as a Cornerstone employee cost) for purposes of determining eligibility under such plans and shall not be subject to any pre-existing condition limitation for conditions covered under such plans, and each such plan which provides health insurance benefits shall honor any deductible and out-of-pocket expenses incurred under any comparable Cornerstone plan for the employee benefits provided plan year in which the Effective Time occurs. Nothing herein shall limit the ability of NewAlliance to such Continuing Non-Union Employees immediately prior to amend or terminate any of the CBI Employee Plans in accordance with their terms at any time after the Effective Time. Commencing on At the Closing DateEffective Time, NewAlliance shall become the plan sponsor of each CBI Employee Plan. CBI agrees to take or cause to be taken such actions as NewAlliance may reasonably request to give effect to such assumption. NewAlliance shall have the right and power at any time following the Effective Time to amend or terminate or cease benefit accruals under any CBI Employee Plan or cause it to be merged with or its assets and liabilities to be transferred to a similar plan maintained by NewAlliance.
7.5.3 Section 7.5.3 of the CBI DISCLOSURE SCHEDULE contains all employment and change of control, severance, deferred compensation, retirement, salary continuation and similar agreements, arrangements, policies or programs with any employee or director of CBI or any CBI Subsidiary (“Benefit Agreements”). At and following the Effective Time, NewAlliance shall honor, and the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation obligated to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honorperform, in accordance with their terms, all Company Plans benefit obligations of CBI existing as of the Effective Time under the Benefit Agreements other than those employment agreements and change in control agreements covered by the Release, Consulting and Noncompetition Agreements or the Retention Agreements referenced in Section 7.5.4 hereof. NewAlliance acknowledges (i) that the consummation of the Merger will constitute a “change-in-control” of CBI for purposes of any of the Benefit Agreements of CBI (except where otherwise set forth in Section 6.9(b)(ii) 7.5.3 of the Company Disclosure Schedule (each, CBI DISCLOSURE SCHEDULE). Any employee or director of CBI or any of its Subsidiaries who is a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts party to an agreement which has been set forth in Section 6.9(b)(iii) 7.5.3 of the Company Disclosure Schedule.
CBI DISCLOSURE SCHEDULE excluding the employment agreements and change in control agreements covered by the Release, Consulting and Noncompetition Agreements or the Retention Agreements referenced in Section 7.5.4 hereof (cwith the agreements not excluded referred to herein as the “Executive Agreements”) With respect who becomes entitled to each benefit planbenefits thereunder shall be entitled to receive the cash benefits payable under such agreement at the time and in the amounts provided for by the agreement; provided, programhowever, practicethat the employee or director executes and delivers to NewAlliance an instrument in form and substance satisfactory to NewAlliance releasing NewAlliance and its affiliates from any further liability for monetary payments under such agreement. To the extent that an employee of CBI or any of its Subsidiaries is entitled to the continued receipt of health insurance, policy life insurance, disability insurance, or arrangement maintained by Parent other similar fringe benefits pursuant to an Executive Agreement, and such employee becomes an officer, employee or consultant of NewAlliance or any of its subsidiaries (including the Surviving Corporation) Subsidiaries following the Effective Time and as a result becomes entitled to receive the same fringe benefits in which his or her capacity as an officer, employee or consultant of NewAlliance or any of its Subsidiaries, then the Continuing Non-Union Employees fringe benefits provided to such person shall be deemed to be provided in connection with such person’s service as an officer, employee or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”)consultant of NewAlliance or any of its Subsidiaries for so long as such person serves in such capacity and shall be in lieu of, and except not in addition to (and for the extent necessary sole purpose to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers same fringe benefits that would have otherwise been provided pursuant to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Executive Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For The Seller will use all commercially reasonable efforts to cause its employees who are employed or retained primarily in connection with its business to make available their employment services to the Purchaser. Except for the employees listed on Schedule 2.10(a)(viii), the Purchaser is not obligated to hire any employee of the Seller but may interview and make offers of employment to any or all of the Seller’s employees. The Purchaser will promptly provide the Seller with a period beginning list of the Seller’s employees to whom the Purchaser has made an offer of employment that has been accepted to be effective on the Closing Date (collectively, the “Hired Employees”). Subject to applicable Law, the Purchaser will have reasonable access to the facilities and ending on the twelve personnel records (12including performance appraisals, disciplinary actions, grievances and medical records) month anniversary of the Closing Date (or, if shorter, during an employeeSeller for the purpose of preparing for and conducting employment interviews with any or all of the Seller’s period of employment following employees and will conduct the interviews as expeditiously as possible prior to the Closing Date), Parent shall provide, or shall cause . Access will be provided by the Surviving Corporation to provide, Seller upon reasonable prior notice during normal business hours. Prior to the employees of Closing, the Company or its subsidiaries who are not represented by a labor organization Seller will provide the Purchaser with completed I-9 forms and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including attachments with respect to all Hired Employees, except for such employees as the proportion of employee cost) Seller will certify in writing to the employee benefits provided to Purchaser are exempt from such Continuing Non-Union Employees requirement. Effective immediately prior to before the Effective Time. Commencing on the Closing DateClosing, the Surviving Corporation shall observe Seller will terminate the terms employment of all existing Collective Bargaining Agreements that govern of the wages, hours and other Hired Employees.
(b) The Purchaser will set its own initial terms and conditions of employment of for the Hired Employees and others it may hire, including work rules, benefits and salary and wage structure, all as permitted by applicable Law. The Purchaser is not obligated to assume any collective bargaining agreements under this Agreement. The Seller will be solely liable for any severance payment required to be made to its employees due to the transactions contemplated by this Agreement. Any bargaining obligations of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued Purchaser with any union with respect to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, bargaining unit employees subsequent to the Continuing Non-Union EmployeesClosing, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) whether such obligations arise before or after the Closing, will be the sole responsibility of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure SchedulePurchaser.
(c) With Except for the Employment Agreements, it is understood and agreed that (i) the Purchaser’s expressed intention to extend offers of employment as set forth in this Section will not constitute a Contract (express or implied) on the part of the Purchaser to a post-Closing employment relationship of any fixed term or duration or upon any terms or conditions other than those that the Purchaser may establish pursuant to individual offers of employment, and (ii) employment offered by the Purchaser is “at will” and may be terminated by the Purchaser or by an employee at any time for any reason (subject to any written commitments to the contrary made by the Purchaser or an employee and applicable Laws governing employment). Nothing in this Agreement will be deemed to prevent or restrict in any way the right of the Purchaser to terminate, reassign, promote or demote any of the Hired Employees after the Closing, or to change adversely or favorably the title, powers, duties, responsibilities, functions, locations, salaries, other compensation or terms or conditions of employment of such employees.
(d) From and after the Closing, the Seller will remain solely responsible for all Liabilities to or in respect of its employees and former employees, including Hired Employees, and beneficiaries and dependents of any such employee or former employee, relating to each or arising in connection with or as a result of (i) the employment of any such employee or former employee or the actual or constructive termination of employment of any such employee or former employee (including in connection with the consummation of the transactions contemplated by this Agreement and including the payment of any termination or severance payments and the provision of health plan continuation coverage in accordance with the requirements of COBRA), (ii) the participation in or accrual of benefits or compensation under, or the failure to participate in or to accrue compensation or benefits under, any Seller Plan or other employee or retiree benefit or compensation plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any other Contract of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or senioritySeller, (iii) full time versus part time statusaccrued but unpaid salaries, active wages, bonuses, incentive compensation, vacation or leave status; sick pay or other compensation or payroll items (including deferred compensation) or (iv) location of each employee; payments required under the WARN Act. In addition, from and (v) a statement after the Closing Date, the Seller will remain solely responsible for all Liabilities to or in respect of the Company’s classification Hired Employees and their beneficiaries or dependents relating to or arising in connection with any claims, whether such claims are asserted before, on or after the Closing Date, for life, disability, accidental death or dismemberment, supplemental unemployment compensation, medical, dental, hospitalization, other health or other welfare or fringe benefits or expense reimbursements which claims relate to or are based upon an occurrence on or before the Closing Date (including claims for continuing treatment in respect of each such position any illness, accident, disability, condition or job as exempt confinement which occurs or non-exempt for purposes of commences on or before the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesClosing Date).
(e) The Company shall, and shall cause each All Hired Employees who are participants in the Seller Plans that are pension plans as defined in Section 3(2) of its subsidiaries to, comply in all material respects with each ERISA will retain their accrued benefits under such Seller Plans as of their respective obligations under applicable Law before the Closing Date to inform and consult Date. The Seller (or otherwise), the applicable Seller Plan) will retain sole liability for the payment of such benefits as and when such Hired Employees become eligible for them under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall such Seller Plans. The Seller will cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended Hired Employees to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, fully and immediately vested in their accrued benefits under each such Seller Plan as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Asset Purchase Agreement (Nova Biosource Fuels, Inc.)
Employees and Employee Benefits. (a) For a period beginning on From and after the Closing Date:
(i) Seller shall (A) to the extent Seller or any member of the Selling Group offers or provides Employee Benefit Plans to Business Employees, maintain and continue all health Employee Benefit Plans (including medical, dental, prescription, and vision Employee Benefit Plans), and take all actions necessary to ensure the continuance of such health Employee Benefit Plans through the end of the calendar month in which the Closing Date occurs, and ending (B) retain all Liabilities with respect to, and provide in accordance with applicable Laws and be solely responsible and liable for providing to all current or former employees (including Business Employees) of Seller and its Predecessors and Affiliates, and their covered dependents), any applicable benefits or continuing insurance coverage under COBRA or similar benefits, and Purchaser shall not have any Liabilities whatsoever with respect to (or to provide to any current or former employee (including any Business Employee)) any of the foregoing benefits for which Seller is responsible.
(ii) Seller shall be and remain solely responsible and liable for (A) the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of any current or former employee (including any Business Employee) or agents of Seller or its Predecessors or Affiliates which relate to events occurring on the twelve (12) month anniversary of or before the Closing Date or their employment with Seller or its Predecessors or Affiliates; (or, if shorter, during an employeeB) all worker’s period compensation claims of employment following any current or former employee (including any Business Employee) or agent of Seller or its Predecessors or Affiliates which relate to events occurring on or before the Closing Date)Date or their employment with Seller or its Predecessors or Affiliates, Parent and Seller shall provide, pay or shall cause the Surviving Corporation to provide, be paid all such amounts to the employees of the Company appropriate Persons as and when due; (C) any salary, wages, incentive payments, bonuses or its subsidiaries who are not represented by a labor organization and who continue other compensation relating to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately period prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time Closing; and (iiiD) employee benefits which are substantially comparable in the aggregate (including with respect any payments or amounts due to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Business Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions resulting from their termination of employment of employees of the Company by Seller, including any accrued vacation, sick, or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)personal time off .
(b) (i) For To the twelve (12) month period following the Closing Dateextent any Purchaser-Hired Former Employee is subject to noncompetition, Parent shall providenonsolicitation or similar restrictive covenants in favor of Seller or any other Selling Group Member, any Predecessor or Affiliate of Seller, or the Business, Seller and the applicable Selling Group Member hereby waives compliance by each such Purchaser-Hired Former Employee with such covenants and agrees that such covenants shall cause the Surviving Corporation not apply to provide, to the Continuing Nonany such Purchaser-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) Hired Former Employee from and after the Effective Time, Parent shall cause Closing Date for so long as the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing NonPurchaser-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries Hired Former Employee is employed (or predecessor employers to the extent the Company provides or has recognized past service creditretained as an independent contractor) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planby Purchaser.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. The provisions of this Section 5.09 shall govern the treatment of the Selected Employees, Excluded Employees, Business Employees and Acquired Employees.
(a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation Prior to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, Employers Insurance and/or one or more of its Affiliates as Employers Insurance may designate shall make a written offer of employment, either individually and/or as a group, effective as of the Surviving Corporation Service Date, to a selected group of the individual Business Employees that it and/or one or more of its Affiliates choose to hire from the Business Employees identified on Schedule 3.13(a) hereto (the "Selected Employees"), which Selected Employees shall observe be listed on Schedule 5.09(a) hereto. Employers Insurance and/or one or more of its Affiliates shall use their sole discretion in determining the terms Business Employees to whom it and/or its designated Affiliate make an offer of employment. The Selected Employees who accept, on or prior to the Closing Date or a later date as permitted by Employers Insurance, employment with Employers Insurance, effective as of the Service Date, shall be referred to as the "Acquired Employees." Fremont shall transfer or cause to be transferred the employment of all existing Collective Bargaining Agreements that govern Acquired Employees effective as of 11:59 P.M., Pacific Daylight Time, on the wagesdate immediately preceding the Service Date and may terminate any remaining Business Employees who are not Acquired Employees on or before the Closing Date. Nothing in this Agreement shall be construed as limiting in any way the right of Employers Insurance or any of its Affiliates, hours on and after the Service Date, to terminate the employment of any Acquired Employee, to change his or her salary or wages or to modify benefits or other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Acquired Employees”).
(b) Fremont agrees that for a period of two (i2) For the twelve (12) month period years following the Closing Service Date, Parent it will not solicit for re-hire, without Employers Insurance's and/or its designated Affiliates' prior consent, any employee who is an Acquired Employee; provided, however, Fremont shall provide, or shall cause the Surviving Corporation not be prohibited from re-hiring any Acquired Employees who seeks employment with Fremont in response to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” general solicitation for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Scheduleemployment.
(c) With Fremont hereby covenants and agrees that (i) with respect to each benefit planBusiness Employee, programfor the period from the date of this Agreement to the Service Date, practiceneither it nor any of its Affiliates shall, policy directly or arrangement maintained by Parent or its subsidiaries (including indirectly, solicit for employment for the Surviving Corporation) period following the Effective Time and in which Service Date with Fremont or any of its Affiliates, any current employee, agent, broker or distributor of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”)Business, and except (ii) for a period of two (2) years following the Service Date, neither it nor any of its Affiliates shall, without the prior written consent of Employers Insurance, directly or indirectly, solicit for employment or enter into an agency relationship with Fremont or any of its Affiliates, any current employee, agent, broker or distributor of the Business; provided, however, that nothing shall preclude Fremont or any of its Affiliates from employing any Business Employee to the extent necessary that such Business Employee was not offered employment by Employers Insurance or any of its Affiliates pursuant to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service creditSection 5.09(a) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planhereof.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of Fremont remains solely responsible and liable in all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), respects for any Business Employee and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) Excluded Employee who is not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesan Acquired Employee.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects In connection with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions transfer of employment of employees Acquired Employees by Fremont and/or its Affiliates, Fremont agrees to:
(i) Be responsible for all welfare benefits relating to Acquired Employees and which are accrued prior to the Service Date. For this purpose, a benefit shall be deemed to accrue when the medical or other service giving rise thereto is performed, except that: (i) in the case of a death benefit, such accrual shall be deemed to occur on the date of death, and (ii) in the case of short-term disability, such accrual shall be deemed to occur on the effective date of the Company first short-term disability benefit payment, and (iii) in the case of long-term disability, such accrual shall be deemed to occur on the effective date of the first long-term disability benefit payment, or if applicable, the date the first short-term disability benefit was paid relating to the same disability; and
(ii) Make available to Employers Insurance and any of its subsidiariesdesignated Affiliates as soon as practicable after the Service Date data and records regarding the Acquired Employees that the parties mutually agree are appropriate to possess.
(f) Fremont shall be responsible for compliance with all applicable requirements of the Worker Adjustment and Retraining Notification Act or any similar state or local law ("WARN") arising out of, with or relating to, any labor organizations actions taken by Fremont and/or its Affiliates with respect to any Continuing Union-Represented Employees affected by the transactions transaction contemplated by this Agreement.
(fg) Parent shall or shall cause the Surviving Corporation Employers Insurance and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expirationshall not assume any liabilities or obligations under any Fremont and/or any Affiliates' Plan, modification Severance Plan and any other employment, incentive, retirement, benefit and severance plan, policy, agreement or amendment. To the extent required by Law arrangement or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit similar plan, (ii) prevent Parentpolicy, the Surviving Corporation agreement or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)arrangement.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date Purchaser understands and ending on the twelve (12) month anniversary acknowledges that, effective as of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation employee benefits currently provided to Employees under the Employee Benefit Plans listed on Schedule 3.15 shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof terminate (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary benefits under any Employee Benefit Plan may be available after the Closing under the terms of any such plan, to avoid duplication the extent required by Law). Following the Closing, Purchaser covenants to Sellers to comply with all applicable Law regarding the continuance of benefitscurrent compensation and benefits for the Employees. Except to the extent that any employee benefits will continue to be available to the Employees under any Employee Benefit Plans, Purchaser shall either provide employee benefits to the Employees under one or more employee benefit plans offered by Purchaser to its employees or to employees of other companies affiliated with Purchaser or shall establish new employee benefit plans for purposes of determining eligibility the Employees (any such employee benefit plans are referred to participateas “Purchaser Sponsored Plans”). Purchaser shall use commercially reasonable efforts to provide, vestingwhere applicable, accrual of that: (i) any waiting periods or limitations regarding pre-existing conditions with respect to the Employees and entitlement their beneficiaries under any Purchaser Sponsored Plans will be waived to benefits the extent waived or satisfied under the applicable Employee Benefit Plan; (but not ii) any covered expenses incurred by an Employee under any Employee Benefit Plan for accrual of any plan period prior to the Closing will be credited towards any deductibles, limits or entitlement to pension benefits, postout-employment or retiree welfare benefits, special or early retirement programs or window separation programs), of-pocket maximums under any Employee Benefit Plan; and (iii) each Purchaser Sponsored Plan will give each Employee credit for such Employee’s service with the Company and its subsidiaries (or respective predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately companies prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company for eligibility and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing terminationvesting purposes only, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, such service was credited under the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company applicable Employee Benefit Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on All individuals employed by the Bank, First Capital or any of their Affiliates immediately prior to the Closing Date and ending on the twelve (12“Bank Employees”) month anniversary shall automatically become employees of Landmark as of the Closing Date (orfor the purposes of any Landmark Benefit Plans. Following the Closing, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provideLandmark shall, or shall cause the Surviving Corporation to provideits Affiliate to, to the employees of the Company or its subsidiaries who are not represented by a labor organization maintain employee benefit plans and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable for the benefit of Bank Employees that provide employee benefits and compensation opportunities that, in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which aggregate, are substantially comparable in the aggregate (including with respect to the proportion of employee cost) similar to the employee benefits provided and compensation opportunities that are made available to such Continuing Nonsimilarly-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of situated employees of Landmark under the Company Landmark Benefit Plans; provided, however, that: (i) in no event shall any Bank Employee be eligible to participate in any closed or its subsidiaries who are covered by frozen Landmark Benefit Plan; and (ii) until such Collective Bargaining Agreements and who time as Landmark shall cause Bank Employees to participate in the Landmark Benefit Plans, a Bank Employee’s continued participation in the Bank Benefit Plans shall be deemed to be employed by satisfy the Company or foregoing provisions of this sentence (it being understood that participation in the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”Landmark Benefit Plans may commence at different times with respect to each Landmark Benefit Plan).
(b) For all purposes (iother than purposes of benefit accruals) For under the twelve Landmark Benefit Plans providing benefits to the Bank Employees (12the “New Plans”), each Bank Employee shall be credited with his or her years of service with the Bank or First Capital and their respective predecessors (including accrued vacation that is reflected in the Bank Financial Statements) month period following to the same extent as such Bank Employee was entitled to credit for such service under any applicable Bank Benefit Plan in which such Bank Employee participated or was eligible to participate immediately prior to the Closing Date; provided, Parent however, that the foregoing shall provide, or shall cause the Surviving Corporation to provide, not apply to the Continuing Non-Union Employees, severance extent that its application would result in a duplication of benefits which are no less favorable than those set forth in Section 6.9(b)(i) with respect to the same period of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Scheduleservice.
(c) With respect to each benefit planAs of the Closing, programLandmark shall assume all obligations and liabilities of the Bank, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time First Capital and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information their Affiliates with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time COBRA continuation coverage for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing EmployeeM&A qualified beneficiaries under Treas. Notwithstanding any provision in this Agreement to the contrary, nothing in this Reg. Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)54.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on Buyer hereby agrees to offer employment, effective the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following day after the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries all individuals who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)are, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wagesactive, hours and other terms and conditions of employment of full or part-time employees (including employees on short-term leave) of the Company or its subsidiaries Newspaper. With respect to each such employee to whom Buyer offers employment, Buyer shall offer to employ such person at a base compensation that is no less than the base compensation that was paid to such employee immediately prior to Closing. Each employee of the Newspaper who are covered by such Collective Bargaining Agreements and who continued accepts employment with Buyer on the Closing Date is hereinafter referred to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the as a “Continuing Union-Represented EmployeesNew Employee”).
(b) Except as set forth in subsection (ia) For the twelve (12) month period following above, Buyer, in its sole discretion, shall determine what employee benefits will be made available to New Employees; provided, however, that Buyer will offer medical coverage to New Employees on and after the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Nonextent permitted by any applicable health plans, shall waive for New Employees any pre-Union existing condition limitations and waiting periods that may apply under its health plans, and shall recognize New Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) ’ service with Sellers or any of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance their respective affiliates as if it were service with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” Buyer for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) satisfying any vesting requirements under any benefit plans offered by Buyer (but not for purposes of benefit accrual or for determining the Company Disclosure Scheduleamount of benefits payable under any benefit plan other than a vacation plan).
(c) With respect to each benefit planBuyer shall be responsible for any obligations under federal, programstate or local plant closing statutes, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectivelyWARN Act, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before events occurring after the Closing Date to inform and consult (or otherwise), under applicable Law and other than any such obligations arising from the terms consummation of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(fd) Parent Sellers shall or be responsible for and timely pay all compensation owed to the New Employees and shall cause be responsible for and timely provide New Employees with all benefits owed under the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendmentEmployee Benefit Programs through the Closing Date. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions Sellers will accrue after, and that retain all of the Company Plans sponsored or maintained by the Company or Employee Benefit Programs, including all employee benefit plans and pension plans, and Buyer will not assume obligations under any of its subsidiaries that are defined contribution plans intended to such programs. Sellers shall be qualified within the meaning of Section 401(a) fully and solely responsible for any costs, expenses, obligations and liabilities arising out of the Code (pension or retirement obligations attributable to the “Company 401(k) Plans”) shall be terminated, as of immediately Newspaper’s current or former employees related to the period on or prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, Seller and its Affiliates shall (i) assign to Buyer the Surviving Corporation shall observe Employee Confidentiality Agreement signed by each employee of the terms Business who is actively employed by Seller or its Affiliates on the Closing Date and (ii) terminate the employment of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries Business who are covered by such Collective Bargaining Agreements and who continued to be actively employed by Seller on the Company or Closing Date, and Buyer will issue a confirmation letter to each such employee, except for those employees of the Surviving Corporation or Business set forth on Section 6.02(a) of the Disclosure Schedules, offering employment on an “at will” basis and stating each such employee’s title, compensation and benefits. Seller shall bear any subsidiary or Affiliate thereof (and all obligations and liability under the “Continuing Union-Represented Employees”)WARN Act resulting from employment losses pursuant to this Section 6.02.
(b) (i) For the twelve (12) month period following the Closing DateSeller shall be solely responsible, Parent and Buyer shall providehave no obligations whatsoever for, any compensation or shall cause the Surviving Corporation other amounts payable to provideany current or former employee, to the Continuing Non-Union Employeesofficer, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) director, independent contractor or consultant of the Company Disclosure Schedule and (ii) from and after the Effective TimeBusiness, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included amounts payable under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information agreements with respect to each individual listed: (i) a disposition of the base compensation (salary Business or wage rate)the Purchased Assets, and including, without limitation, hourly pay, commission, bonus; (ii) the title, position and/or job classificationsalary, date of hireaccrued vacation, credited service fringe, pension or seniority, (iii) full time versus part time status, active profit sharing benefits or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt severance pay for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior any period relating to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to service with Seller at any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit time on or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon including severance pay resulting from any termination of employment pursuant to Section 6.02(a)), and Seller shall pay all such amounts to all entitled persons on a time schedule consistent with Seller’s normal pay practices.
(c) Seller shall remain solely responsible for the occurrence satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Closing). The Company and Parent shall cooperate in good faith Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring on or prior to the Closing with respect to the preparation and execution Date. Seller also shall remain solely responsible for all worker’s compensation claims of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider employees, officers, directors, independent contractors or consultants of the Company Business which relate to events occurring on or its Affiliates prior to the Closing Date. Seller shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.
(d) Seller shall pay or any beneficiaries or dependents thereof)cause to be paid to Buyer the amounts set forth on Section 6.02(d) of the Disclosure Schedules.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation Sellers shall observe the terms of effectively terminate all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries Business who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after actively at work at the Effective Time, Parent and, Buyer shall cause the Surviving Corporation and (directly or through its subsidiaries applicable Affiliate) offer employment, on an "at will" basis, to honor, in accordance with their terms, substantially all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (eachRestaurant level employees and, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any at Buyer’s sole discretion, offer employment to such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with Business as necessary not to trigger any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all obligation of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services Sellers of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to nature under the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing EmployeeWARN Act. Notwithstanding any provision provisions in this Agreement to the contrary, nothing Buyer agrees to offer employment, on an “at will” basis to such number of employees so as not to trigger any obligation of Sellers of any nature under the WARN Act. Buyer acknowledges that Sellers will not send any notices that may be required under any WARN Act in this Section 6.9 reliance upon Buyer’s agreement to hire sufficient number of employees to ensure that no liability will arise under any WARN Act. If Buyer does not intend to offer employment to any employee of Sellers who works in the corporate office, then it will notify Sellers at least thirty (30) days prior to Closing of the identities of the individuals who will not be offered employment.
(b) Sellers shall (i) be deemed or construed to be an amendment solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in amounts payable to any current or former service provider employee, officer, director, independent contractor or consultant of the Company Business, including hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Sellers or their applicable Affiliates at any time prior to the Effective Time and Sellers shall pay all such amounts to all entitled persons prior to the Effective Time. Buyer shall be solely responsible for all compensation or other amounts payable to any employee, officer, director, independent contractor or consultant of the Business hired or retained by Buyer on or after the Effective Time, including hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period on or after the Effective Time.
(c) Sellers shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate to events occurring prior to the Effective Time. Sellers also shall remain solely responsible for all workers’ compensation claims of any current or former employees, officers, directors, independent contractors or consultants of the Business which relate to events occurring prior to the Effective Time. Sellers shall pay, or cause to be paid, all such amounts to the appropriate persons as and when due.
(d) Each employee of the Business who becomes employed by Buyer (or its Affiliates applicable Affiliate) in connection with the transactions contemplated by this Agreement shall be eligible to receive the salary and benefits maintained for employees of Buyer on substantially similar terms and conditions in the aggregate as are provided to similarly situated employees of Buyer.
(e) Each employee of the Business who becomes employed by Buyer (or any beneficiaries its applicable Affiliate) in connection with the transaction shall be given service credit for the purpose of eligibility under the group health plan and eligibility and vesting only under the defined contribution retirement plan for his or dependents thereof)her period of service with the Sellers prior to the Effective Time; provided, however, that (i) such credit shall be given pursuant to payroll or plan records, at the election of Buyer, in its sole and absolute discretion; and (ii) such service crediting shall be permitted and consistent with Buyer's defined contribution retirement plan.
Appears in 1 contract
Samples: Asset Purchase Agreement (Diversified Restaurant Holdings, Inc.)
Employees and Employee Benefits. (a) For a 7.5.1 NAB anticipates employing branch office customer service employees of WB and such other employees of WB as NAB shall reasonably require for the conduct of NAB's business following the Effective Time. In addition, NAL and WB may wish to provide retention bonuses to employees of WB who remain employed at WB through the Effective Time, or at NAB for an interim period beginning on following the Closing Date and ending on the twelve (12) month anniversary Effective Time as disclosed in Section 7.5.1 of the Closing Date (orNewAlliance DISCLOSURE SCHEDULE, if shorterand pursuant to a retention agreement substantially similar to agreements used by NewAlliance in previous acquisitions.
7.5.2 Except as set forth below, during an employee’s period each employee of employment WB who remains employed by NAB following the Closing Date)Effective Time (each, Parent a "Continuing Employee") shall provide, or shall cause the Surviving Corporation be entitled to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), participate in (i) such of the same base salary employee benefit plans, deferred compensation arrangements, bonus or incentive plans and/or other compensation and wage rate benefit plans of WB that NAB may continue for the benefit of Continuing Employees following the Effective Time and (ii) whatever employee benefit plans and other compensation and benefit plans that NAB may maintain for the benefit of its similarly situated employees, if such Continuing Employee is not otherwise then participating in a similar plan of WB then provided by NAB, in each case other than as set forth in the base salary Termination, Release and wage rate provided Noncompetition Agreements or the Termination and Release Agreements referred to in Section 7.5.7 hereof. The parties hereto acknowledge that Continuing Employees shall not be entitled to receive any specific level of grants under any stock option plan or restricted stock plan of NewAlliance. Any grants that may be made to the Continuing Employees under any of such plans will be subject to the sole discretion of the Board of Directors of NewAlliance or the committee administering such plans. Continuing Employees shall be eligible to participate in all NewAlliance employee benefit plans in accordance with plan documents, including, but not limited to, NewAlliance's 401(k) plan, employee stock ownership plan and defined benefit plan. Continuing Employees shall not receive credit for service with Westbank and the Westbank Subsidiaries under any existing NewAlliance employee plan or any NewAlliance benefit plan in which such employees would be eligible to enroll for any purposes under any NewAlliance benefit plan, except as set forth below. With respect to the NewAlliance defined benefit pension plan, each Continuing Employee shall be credited with service as a WB employee for purposes of determining eligibility to participate and vesting under such plan (but not for purposes of benefit accrual); with respect to the NewAlliance employee stock ownership plan, each Continuing Employee shall be credited with service as a WB employee for purposes of determining eligibility to participate under such plan and for purposes of vesting under Section 7.4(b)(1) of the employee stock ownership plan only with respect to employer matching contributions related to the NewAlliance 401(k) plan (but not in any event for purposes of benefit accrual or for vesting of any other amounts under the employee stock ownership plan, including but not limited to employer contributions made pursuant to Section 4.1(b) of the employee stock ownership plan); and with respect to the NewAlliance 401(k) plan, each Continuing Employee shall be credited with service as a WB employee for purposes of determining eligibility and vesting. NewAlliance and NAB shall credit the accrued but unused vacation and sick time of the Continuing Employees at the Effective Time under the applicable policies of Westbank, as set forth on Section 7.5.2 of the Westbank DISCLOSURE SCHEDULE. Nothing herein shall limit the ability of NewAlliance to amend or terminate any of the Westbank Employee Plans in accordance with their terms at any time after the Effective Time. At the Effective Time, NewAlliance shall become the plan sponsor of each Westbank Employee Plan. Westbank agrees to take or cause to be taken such actions as NewAlliance may reasonably request to give effect to such assumption. NewAlliance shall have the right and power at any time following the Effective Time to amend or terminate or cease benefit accruals under any Westbank Employee Plan or cause it to be merged with or its assets and liabilities to be transferred to a similar plan maintained by NewAlliance.
7.5.3 If Continuing NonEmployees become eligible to participate in a medical, dental, health or disability plan which is a NewAlliance Employee Plan, NewAlliance shall cause each such plan to (i) waive any preexisting condition limitations to the extent such conditions are covered under the applicable medical, health, dental or disability plans that are NewAlliance Employee Plans and are covered under the applicable medical, health, dental or disability plans that are Westbank Employee Plans, (ii) credit under such plans any deductible, co-Union payment and out-of-pocket expenses incurred by the employees and their covered dependents during the portion of the plan year prior to such participation and (iii) waive any waiting period limitation or evidence of insurability requirement which would otherwise be applicable to such employee on or after the Effective Time, unless such employee had not yet satisfied any similar limitation or requirement under an analogous Westbank Employee immediately Plan prior to the Effective Time, .
7.5.4 NAB and NewAlliance shall pay and provide severance benefits to Continuing Employees as provided under the NAB and NewAlliance severance plan (ii) employee incentive compensation opportunities a copy of which are no less favorable in the aggregate than the incentive compensation opportunities has been provided to such Continuing Non-Union Employees immediately prior Westbank and is referred to as the Effective Time "Severance Plan") treating service with Westbank, WB and any Westbank Subsidiary as service with NAB and NewAlliance for all purposes (iii) employee providing benefits which are substantially comparable in as if the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately Severance Plan had been adopted by Westbank, WB, and all Westbank Subsidiaries prior to the Effective Time. Commencing ) in accordance with its terms as in effect on the Closing Datedate of this Agreement for a period of twelve months following the Effective Time.
7.5.5 For a period of six months following the Effective Time, NewAlliance shall make available (through written or intra-net notice) to Continuing Employees of Westbank, WB or a Westbank Subsidiary notification regarding opportunities for positions with NewAlliance or NAB, and shall respond to inquiries concerning open positions at NewAlliance from any former employees of Westbank, WB or a Westbank subsidiary, whose employment was terminated at or following the Effective Time other than for cause, disability or retirement ("Terminated Employees") and shall consider any application submitted by such persons, provided, however, that any decision to offer employment to any such person shall be made in the sole discretion of NewAlliance.
7.5.6 Section 7.5.6 of the Westbank DISCLOSURE SCHEDULE contains all employment and change of control, severance, deferred compensation, retirement, salary continuation and similar agreements, arrangements, policies or programs with any employee or director of Westbank or any Westbank Subsidiary and all Westbank Employee Plans ("Benefit Agreements"). At and following the Effective Time, NewAlliance shall honor, and the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation obligated to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honorperform, in accordance with their terms, all Company Plans benefit obligations of Westbank existing as of the Effective Time under the Benefit Agreements other than those employment agreements and change in control agreements covered by the Termination, Release and Noncompetition Agreements or the Termination and Release Agreements referenced in Section 7.5.7 hereof. NewAlliance acknowledges that the consummation of the Merger will constitute a "change-in-control" of Westbank for purposes of any of the Benefit Agreements of Westbank (except where otherwise set forth in Section 6.9(b)(ii) 7.5.6 of the Company Disclosure Schedule (each, Westbank DISCLOSURE SCHEDULE). Any employee or director of Westbank or any of its Subsidiaries who is a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts party to an agreement which has been set forth in Section 6.9(b)(iii) 7.5.6 of the Company Disclosure Schedule.
Westbank DISCLOSURE SCHEDULE excluding the employment agreements and change in control agreements covered by the Termination, Release and Noncompetition Agreements or the Termination and Release Agreements referenced in Section 7.5.7 hereof (cwith the agreements not excluded referred to herein as the "Executive Agreements") With respect who becomes entitled to each benefit planbenefits thereunder shall be entitled to receive the cash benefits payable under such agreement at the time and in the amounts provided for by the agreement; provided, programhowever, practicethat the employee or director executes and delivers to NewAlliance an instrument in form and substance satisfactory to NewAlliance acknowledging that the employee or director has received the payment in full satisfaction of his or her rights under such agreement. To the extent that an employee of Westbank or any of its Subsidiaries is entitled to the continued receipt of health insurance, policy life insurance, disability insurance, or arrangement maintained by Parent other similar fringe benefits pursuant to an Executive Agreement, and such employee becomes an officer, employee or consultant of NewAlliance or any of its subsidiaries (including the Surviving Corporation) Subsidiaries following the Effective Time and as a result becomes entitled to receive the same fringe benefits in which his or her capacity as an officer, employee or consultant of NewAlliance or any of its Subsidiaries, then the Continuing Non-Union Employees fringe benefits provided to such person shall be deemed to be provided in connection with such person's service as an officer, employee or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”)consultant of NewAlliance or any of its Subsidiaries for so long as such person serves in such capacity and shall be in lieu of, and except not in addition to (and for the extent necessary sole purpose to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service the same fringe benefits that would have otherwise been provided pursuant to the Executive Agreement.
7.5.7 Concurrently with the Company and its subsidiaries (or predecessor employers to execution of this Agreement by the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductiblesparties hereto, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate)each of Donald R. Chase, Gary L. Briggs and John M. Lilly shall enter into a Xxxxxxxxxxx, Xxlexxx xxx Xxxxxxpetitxxx Xxxxxxxxx with Westbank, WB, and bonus; NewAlliance substantially in the form of Exhibit C hereto, and (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which Kathleen A. Jalbert and Trenton E. Taylor shall be no more than ten (10) days prior to the date of delivery. Parent shallenter into a Terminatxxx xxx Xxxxxxx Xxxeemenx xxxx Xxxxxxxx, WB and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue NewAlliance substantially in the employ or service form of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)Exhibit D hereto.
Appears in 1 contract
Samples: Merger Agreement (Westbank Corp)
Employees and Employee Benefits. (a) For a During the period beginning on commencing at the Closing Date and ending on the twelve date which is the one (121) month year anniversary of the Closing Date (oror if earlier, if shorter, during an the date of the applicable employee’s period termination of employment following with the Closing DateCompany, Buyer and any of its Affiliates), Parent Buyer shall provide, or shall cause the Surviving Corporation Company, Buyer or their Affiliates to provide, to the employees provide each employee of the Company who remains employed immediately after the Closing who is not party to an Employment Agreement or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof Consulting Agreement (the “Continuing Non-Union EmployeesEmployee”), ) (i) the same base salary compensation and wage rate as the base salary and wage rate incentive compensation opportunities that are no less favorable, in each case, than those provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time Closing, and (iiiii) other employee benefits which (other than equity compensation opportunities) that are substantially comparable to, in the aggregate (including with respect to the proportion of employee cost) to the employee benefits aggregate, those provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of similarly situated employees of the Company Buyer or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Affiliates, as applicable.
(b) Buyer shall as of the Closing (i) For the twelve (12) month period following the Closing Date, Parent shall providerecognize, or shall cause the Surviving Corporation to providebe recognized, to the each Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of Employee’s employment service with the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, credit for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries Affiliates as recognized under the applicable Company Employee Benefit Plans), as provided by Sellers to Buyer pursuant to Section 3.18(b), for participation, vesting and benefit eligibility purposes under any employee benefit plan (excluding defined benefit and equity compensation plans) that Buyer or predecessor employers its Affiliates may provide to such Continuing Employees (but only to the extent that such service is currently recognized for such purpose under a corresponding Company Employee Benefit Plan) and provided that benefits under any such Buyer or Affiliate of Buyer employee benefit plan shall only be made available or accrue to such Continuing Employees with respect to their employment service on and after the Company provides Closing Date, and that such crediting of service shall not operate to duplicate any benefit or has recognized past service creditthe funding of any such benefit; (ii) for the employee benefit plan year that includes the Closing Date, Buyer shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and cause all pre-existing condition limitations exclusions to the extent be waived for each Continuing Employee and his or her covered dependents, unless such conditions were not included satisfied or waived under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give Employee Benefit Plan in which the Continuing Employees credit under the applicable Parent Plan for amounts paid Employee participated prior to the Effective Time during Closing; and (iii) not require any Continuing Employees, or their covered dependents or beneficiaries, in the calendar plan year in which the Effective Time occurs Closing occurs, to satisfy any deductible, co-payment, out of pocket maximum or similar requirement under a Buyer’s or any of its Affiliates’ employee benefit plans to the extent of amounts previously credited for such purposes under the corresponding Company Employee Benefit Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Planplan year.
(dc) To This Section 5.06 shall be binding upon and inure solely to the extent permitted by applicable Law, no later than thirty (30) days after benefit of each of the date hereof, the Company shall provide parties to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate)this Agreement, and bonus; (ii) the titlenothing in this Section 5.06, position and/or job classificationexpress or implied, date of hire, credited service shall confer upon any other Person any rights or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms remedies of any Collective Bargaining Agreements that govern nature whatsoever under or by reason of this Section 5.06. Subject to Buyer’s compliance with the wages, hours and other terms and conditions contained in this Section 5.06, this Section 5.06 shall not be construed to establish, amend or modify any benefit plan, program, agreement or arrangement, or limit the right of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company Buyer or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code Affiliates (the “Company 401(k) Plans”) shall be terminatedincluding, as of immediately prior to the Closing Date (but conditioned upon the occurrence of without limitation, after the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible Company) to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parentamend, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge modify or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parentprogram, agreement or arrangement at any time and for any reason. The parties hereto acknowledge and agree that the Surviving Corporation terms set forth in this Section 5.06 shall not create any right in any employee or any Affiliate other Person to any continued employment for any specific period of Parent from amending time or terminating under any Company Plans in accordance specific terms, with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (Company, Buyer or any beneficiaries of their respective Affiliates subject to applicable Laws. No employee or dependents other agent, nor any beneficiary or dependent thereof), shall be a third party beneficiary of this Agreement or be entitled to bring any action or claim hereunder.
Appears in 1 contract
Samples: Membership Interest Purchase Agreement (Riot Blockchain, Inc.)
Employees and Employee Benefits. (a) For a period beginning Subject to and with effectiveness upon the Closing, the Buyer shall offer employment to such Employees on such terms and conditions as presented to the respective Employees at the time of Buyer’s offer and the Seller shall provide the Buyer with access to the Facilities, personnel records, employee data and other information as may be reasonably required to make such offers of employment. Nothing herein shall be deemed to affect or to limit in any way the management of the Business after the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to any Transferred Employee, including the proportion Buyer’s ability to modify compensation, terminate employment (for any reason), or to create any claims or causes of employee cost) to action of any kind or nature against the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company Buyer or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued Affiliates, at any time after Closing with respect to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)Transferred Employee.
(b) (i) For the twelve (12) month period following the Closing DateThe Seller has performed and discharged all requirements, Parent shall provideif any, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including WARN Act and under applicable Laws for the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each notification of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms employees of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of “employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified loss” within the meaning of Section 401(a) of the Code (the WARN Act or any “Company 401(k) Plans”) shall be terminated, as of immediately mass termination” under applicable Law which occurred on or prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(hc) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ On or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except prior to the extent expressly provided otherwise in a written agreement between ParentClosing Date, Seller will have paid all accrued salaries, bonuses, commissions, wages, vacation pay and paid time off of the Surviving CorporationEmployees, directors or individual independent contractors of the Company or any Affiliate of Parent Seller due to be paid through and including the Closing Date.
(d) The Seller shall remain solely responsible, and the Continuing Employee. Notwithstanding Buyer shall have no obligations whatsoever for, any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment compensation or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in amounts payable to any current or former service provider employee (including the Employees), officer, director, independent contractor or consultant of the Company Seller, including hourly pay, commission, bonus, salary, accrued vacation, fringe, sharing benefits or its Affiliates (severance pay for any period relating to the service with the Seller at any time on or any beneficiaries or dependents thereof).prior to 11:59 p.m.
Appears in 1 contract
Samples: Purchase and Sale Agreement (Sonoma Pharmaceuticals, Inc.)
Employees and Employee Benefits. (a) For a period beginning on 7.5.1 NAB anticipates employing branch office customer service employees of Cornerstone and such other employees of Cornerstone as NAB shall reasonably require for the Closing Date and ending on the twelve (12) month anniversary conduct of the Closing Date (or, if shorter, during an employee’s period of employment NAB's business following the Closing Date)Effective Time. NAB may, Parent shall providein its sole discretion, or shall cause the Surviving Corporation pay a retention bonus to provide, to the certain key employees of the Company or its subsidiaries who are not represented by a labor organization and who continue in an amount to be determined by NAB in its sole discretion, in the event such employee remains in the employ of Cornerstone through the Effective Time and is not offered permanent employment with NAB.
7.5.2 Except as set forth below, each employee of Cornerstone who remains employed by NAB following the Company or the Surviving Corporation or any subsidiary or Affiliate thereof Effective Time (the “each, a "Continuing Non-Union Employees”), Employee") shall be entitled to participate in (i) such of the same base salary employee benefit plans, deferred compensation arrangements, bonus or incentive plans and/or other compensation and wage rate as benefit plans of Cornerstone that NAB may continue for the base salary and wage rate provided to such benefit of Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to following the Effective Time and (iiiii) whatever employee benefits which are substantially comparable benefit plans and other compensation and benefit plans that NAB may maintain for the benefit of its similarly situated employees, if such Continuing Employee is not otherwise then participating in a similar plan of Cornerstone then provided by NAB, in each case other than as set forth in the aggregate (including Retention Agreements referred to in Section 7.5.4 hereof. The parties hereto acknowledge that Continuing Employees shall not be entitled to receive any specific level of grants under any stock option plan or restricted stock plan which NewAlliance may implement subsequent to the date of this Agreement. Any grants that may be made to the Continuing Employees under any of such plans will be subject to the sole discretion of the Board of Directors of NewAlliance or the committee administering such plans. Continuing Employees shall be eligible to participate in all NewAlliance employee benefit plans in accordance with plan documents, including, but not limited to, NewAlliance's 401(k) plan, employee stock ownership plan and defined benefit plan. Continuing Employees shall not receive credit for service with CBI and the CBI Subsidiaries under any existing NewAlliance employee plan or any NewAlliance benefit plan in which such employees would be eligible to enroll for any purposes under any NewAlliance benefit plan, except as set forth below. With respect to the proportion NewAlliance defined benefit pension plan and employee stock ownership plan, each Continuing Employee shall be credited with service as a Cornerstone employee for purposes of determining eligibility to participate under such plans (but not for purposes of benefit accrual or vesting). With respect to any NewAlliance plan which is a health, life or disability insurance plan, each Continuing Employee shall be credited with service as a Cornerstone employee cost) for purposes of determining eligibility under such plans and shall not be subject to any pre-existing condition limitation for conditions covered under such plans, and each such plan which provides health insurance benefits shall honor any deductible and out-of-pocket expenses incurred under any comparable Cornerstone plan for the employee benefits provided plan year in which the Effective Time occurs. Nothing herein shall limit the ability of NewAlliance to such Continuing Non-Union Employees immediately prior to amend or terminate any of the CBI Employee Plans in accordance with their terms at any time after the Effective Time. Commencing on At the Closing DateEffective Time, NewAlliance shall become the plan sponsor of each CBI Employee Plan. CBI agrees to take or cause to be taken such actions as NewAlliance may reasonably request to give effect to such assumption. NewAlliance shall have the right and power at any time following the Effective Time to amend or terminate or cease benefit accruals under any CBI Employee Plan or cause it to be merged with or its assets and liabilities to be transferred to a similar plan maintained by NewAlliance.
7.5.3 Section 7.5.3 of the CBI DISCLOSURE SCHEDULE contains all employment and change of control, severance, deferred compensation, retirement, salary continuation and similar agreements, arrangements, policies or programs with any employee or director of CBI or any CBI Subsidiary ("Benefit Agreements"). At and following the Effective Time, NewAlliance shall honor, and the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation obligated to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honorperform, in accordance with their terms, all Company Plans benefit obligations of CBI existing as of the Effective Time under the Benefit Agreements other than those employment agreements and change in control agreements covered by the Release, Consulting and Noncompetition Agreements or the Retention Agreements referenced in Section 7.5.4 hereof. NewAlliance acknowledges (i) that the consummation of the Merger will constitute a "change-in-control" of CBI for purposes of any of the Benefit Agreements of CBI (except where otherwise set forth in Section 6.9(b)(ii) 7.5.3 of the Company Disclosure Schedule (each, CBI DISCLOSURE SCHEDULE). Any employee or director of CBI or any of its Subsidiaries who is a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts party to an agreement which has been set forth in Section 6.9(b)(iii) 7.5.3 of the Company Disclosure Schedule.
CBI DISCLOSURE SCHEDULE excluding the employment agreements and change in control agreements covered by the Release, Consulting and Noncompetition Agreements or the Retention Agreements referenced in Section 7.5.4 hereof (cwith the agreements not excluded referred to herein as the "Executive Agreements") With respect who becomes entitled to each benefit planbenefits thereunder shall be entitled to receive the cash benefits payable under such agreement at the time and in the amounts provided for by the agreement; provided, programhowever, practicethat the employee or director executes and delivers to NewAlliance an instrument in form and substance satisfactory to NewAlliance releasing NewAlliance and its affiliates from any further liability for monetary payments under such agreement. To the extent that an employee of CBI or any of its Subsidiaries is entitled to the continued receipt of health insurance, policy life insurance, disability insurance, or arrangement maintained by Parent other similar fringe benefits pursuant to an Executive Agreement, and such employee becomes an officer, employee or consultant of NewAlliance or any of its subsidiaries (including the Surviving Corporation) Subsidiaries following the Effective Time and as a result becomes entitled to receive the same fringe benefits in which his or her capacity as an officer, employee or consultant of NewAlliance or any of its Subsidiaries, then the Continuing Non-Union Employees fringe benefits provided to such person shall be deemed to be provided in connection with such person's service as an officer, employee or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”)consultant of NewAlliance or any of its Subsidiaries for so long as such person serves in such capacity and shall be in lieu of, and except not in addition to (and for the extent necessary sole purpose to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service the same fringe benefits that would have otherwise been provided pursuant to the Executive Agreement.
7.5.4 Concurrently with the Company and its subsidiaries (or predecessor employers to execution of this Agreement by the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductiblesparties hereto, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) each of Xxxxxxx X. Xxxxxxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxx, Xxxxx X. Xxxxxxxx and Xxxxxxx Xxxxxxx shall enter into a Retention Agreement with CBI, Cornerstone and NAB substantially in the base compensation (salary or wage rate)form of Exhibit C hereto, and bonus; (ii) each of Xxxxx X. Xxxxxxx and Xxxx X. Reader shall enter into a Release, Consulting and Noncompetition Agreement with CBI, Cornerstone, NewAlliance and NAB substantially in the title, position and/or job classification, date form of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of Exhibit D hereto. The dollar amounts to be paid to each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes officers named in this Section 7.5.4 and the titles of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates officers who will enter into a Retention Agreement are set forth on Section 7.5.4 of the schedule, each NEWALLIANCE DISCLOSURE SCHEDULE. In consideration of which shall the amounts to be no more than ten (10) days prior paid to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing officers named in this Section 6.9 shall (i) be deemed or construed 7.5.4 pursuant to be an amendment their respective Retention Agreement and Release, Consulting and Noncompetition Agreement, CBI and Cornerstone agree that they will make no severance or other modification change in control payments or benefits to such officers pursuant to the existing employment or change of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance control agreements with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)such officers.
Appears in 1 contract
Employees and Employee Benefits. (a) For Schedule 4.17(a) sets forth, with respect to each of the Transferred Employees, such Transferred Employee’s name and position, date of employment and title or job position, the total annual salary, wages, bonus or other compensation. Except as set forth on Schedule 4.17(a), (i) none of the Companies is a period beginning on party to any written or oral employment contract or agreement with any of such Transferred Employees which precludes their termination at will, (ii) none of such Transferred Employees is now, or will by the passage of time hereafter become, entitled to receive any vacation time, vacation pay or severance pay attributable to services rendered prior to the Closing Date Date, and ending on (iii) since June 30, 2004, there has been no change of, or agreement to change, any terms of employment for such Transferred Employees, including without limitation, salary, wage rates, commission formulae, or other compensation, except for normal “merit” raises given in the twelve ordinary course of business. No such Transferred Employee has indicated any intention to terminate his or her employment. There is no union contract or other collective bargaining agreement in existence affecting any of the Companies or any of their respective Subsidiaries.
(12b) month anniversary Schedule 4.17(b)(i) contains a true and complete list of all Benefit Plans in which Transferred Employees or Former Employees participate as of the Closing Date (or“Company Benefit Plans”). Except as set forth on Schedule 4.17(b)(ii), if shorternone of the Companies or any of their respective Subsidiaries maintains or contributes to or has any liability with respect to, during an employee’s period or will have any liability as a result of employment following the consummation of this transaction with respect to, any Company Benefit Plans on behalf of Transferred Employees or Former Employees as of the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Company Benefit Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans is intended to be qualified within the meaning of Section 401(a) of the Code has received a determination from the Internal Revenue Service (the “Company 401(k) PlansIRS”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence that such Company Benefit Plan is qualified under Section 401(a) of the ClosingCode, and, to Seller’s Knowledge, nothing has occurred since the date of such determination that would adversely affect the qualification of such Benefit Plan in form. Each Company Benefit Plan and any related trust, insurance contract or fund has been maintained, funded and administered in compliance in all material respects with its respective terms and with all applicable laws and regulations, including, but not limited to, ERISA and the Code. Seller has complied in all material respects with the health care continuation requirements of Part 6 of Subtitle B of Title I of ERISA and Section 4980B of the Code (“COBRA”); and Seller has no obligation under any Company Benefit Plan or otherwise to provide post employment health or life insurance benefits to current or former employees of the Companies or their Subsidiaries, except as specifically required by COBRA. The Company and Parent shall cooperate Neither Seller nor, to Seller’s Knowledge, any other “disqualified person” (within the meaning of Section 4975 of the Code) or “party in good faith prior to interest” (within the Closing meaning of Section 3(14) of ERISA) has taken any action with respect to any of the preparation and execution Company Benefit Plans which could subject any such Company Benefit Plan (or its related trust) or Seller or the Companies or any officer, director or employee of all documentation necessary to effect any of the foregoing termination, and to any material penalty or tax under Section 502(i) of ERISA or Section 4975 of the Company shall provide Parent a reasonable opportunity to review and comment on all such documentationCode. To No asset of any of the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent Companies or any of its subsidiaries Subsidiaries is subject to any lien under ERISA or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon Code, and neither the Companies nor any Continuing Employee of its Subsidiaries has incurred, nor reasonably expects to incur, any right to continue in the employ liability under Title IV of ERISA or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, Pension Benefit Guaranty Corporation. None of the Surviving Corporation, the Company Companies has any liability (potential or otherwise) with respect to any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other “employee benefit plan, ” (iias defined in Section 3(3) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iiiERISA) create any third-party rights in any current or former service provider solely by reason of being treated as a single employer under Section 414 of the Company or its Affiliates (or Code with any beneficiaries or dependents thereof)other entity.
Appears in 1 contract
Employees and Employee Benefits. (a) For Schedule 11.1(a) hereto is a period beginning on the Closing Date complete and ending on the twelve (12) month anniversary accurate list of the Closing Date (orEmployees employed in the Business, which list contains the following information for each such Employee: name, position held, retention or stay bonus, if shorterany, during an employee’s period in accordance with the stay bonus program, if any, current salary, anticipated salary increase date if prior to December 31, 2005 and specified anticipated amount of employment following the Closing Datesuch increase, official title, annual bonus and/or sales commission amounts, if any, annual guaranteed bonus and/or sales commission targets and/or amounts (if any) and Seller's current intentions for such bonuses for 2005, annual vacation entitlement and whether such vacation entitlement is grandfathered, accrued but unused vacation, Fair Labor Standards Act status, date of hire, current salary grade, schedule of work, year to date overtime, shift differential, (if any), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof special work arrangements (the “Continuing Non-Union Employees”with description), (i) the same base salary whether Employee is employed based upon an employer sponsored non-resident visa program, work locations, and wage rate as the base salary social security number and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) service date for employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”)benefit plan purposes.
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, The Buyer will prepare and deliver to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than Seller within thirty (30) days after the date hereof, of this Agreement a Schedule (the Company shall provide to Parent a schedule "Buyer Employee Offer Schedule") setting forth the names of all Company employees that sets forth Employees to whom the following information Buyer intends to offer employment (collectively, "Designated Employees") and as soon as practicable thereafter will offer employment to those Employees as described in Section 11.1 (c)and obtain either acceptances or rejections of such offers of employment.
(c) Buyer's employment of a Designated Employee is conditioned upon the Closing taking place and compliance with respect all customary and appropriate conditions established by the Buyer, including, but not limited, to each individual listed: (i) the base compensation (salary or wage rate)Buyer's interview, background check, reference check, fingerprinting, and bonus; drug test, an offer of employment with the Buyer and a written response to such offer from the Designated Employee receiving the offer within two (ii2) weeks after the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location such offer. Any such offer of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule employment shall be true and complete take effect as of the date or dates set forth Closing Date.
(d) All Designated Employees who are employed on the scheduleClosing Date, each having accepted an offer of which employment with the Buyer, shall be no more than ten (10) days prior referred to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesherein as "Transferred Employees."
(e) The Company shallExcept as set forth in Schedule 11.1(e) hereto, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations there are no stock based awards held by Employees outstanding under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this AgreementSeller's stock based plans.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Transferred Employees shall be eligible to participate as of the effective date of their employment with Buyer in a the employee benefit plans and other fringe benefits of the Buyer on the same basis as such plans and benefits are offered to similarly situated employees of Buyer. The Buyer will recognize any prior service of any Transferred Employee with the Seller as if it had been service with the Buyer for purposes of (i) eligibility for participation and vesting but not benefit accruals (i.e. no salary credit service) under its cash balance retirement plan, (ii) eligibility for participation and vesting under its 401(k) plan maintained by Parent plan, (iii) eligibility to participate in the Buyer's medical, dental and other welfare plans, but not for purposes of determining eligibility for post-retirement medical, dental and other similar benefits, (iv) subject to subsection 11.1(h) below, accruing annual vacation under the appropriate schedule applicable to Transferred Employees from time to time, and (v) determining the amount of severance due to any Transferred Employee on the termination of their employment under the Buyer's then existing severance program.
(g) The Seller shall remain responsible for all employment and benefit related liabilities or obligations of whatever nature with respect to all Transferred Employees arising from or relating to their employment with the Seller prior to their employment with the Buyer with respect to claims incurred or based on events, acts, omissions, conduct or course of conduct, to the extent that such claims were incurred or such events, acts, omissions, conduct or course of conduct occurred on or before the Closing Date. Buyer shall be responsible for all employment related liabilities or obligations with respect to any Transferred Employee, with respect to claims incurred or based on events, acts, omissions, conduct or course of its subsidiaries conduct, to the extent that such claims were incurred or Affiliates as soon as practicable following such events, acts, omissions, conduct or course of conduct occurred after the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service By way of Parentamplification of Section 11.1(f)(iv), the Surviving Corporation Buyer shall be responsible for payments and accrued vacation benefit days not taken by or any Affiliate of Parentotherwise not paid to a Transferred Employee prior to the Closing, except that in no event shall the Buyer be required to compensate or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time provide vacation days for any reason whatsoeverunused vacation attributable to periods prior to January 1, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall 2005.
(i) be deemed or construed to be an amendment or other modification of The Buyer agrees that any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any thirdpre-party rights existing condition clause in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).Buyer's health insurance plans and policies shall not be applicable to any
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, Buyer will offer employment, on an “at will” basis, to the Surviving Corporation shall observe employees of Seller listed on Section 6.05 of the terms Disclosure Schedules who remain employed by Seller as of all existing Collective Bargaining Agreements that govern immediately prior to Closing. Seller shall, at the wagesrequest of Buyer in Buyer’s sole discretion, hours and other terms and conditions amend Section 6.05 of the Disclosure Schedules to add any employees hired by Seller prior to Closing but following the date hereof. All employees of Seller who accept such offer of employment are hereinafter referred to as the “Transferred Employees.” Buyer will have no obligation to any current or former employee of employees Seller not listed on Section 6.05 of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation Disclosure Schedule or any subsidiary employee of Seller listed on Section 6.05 of the Disclosure Schedule who does not become a Transferred Employee, including but not limited to any obligation to pay severance, vacation or Affiliate thereof (any other amounts. Each Transferred Employee’s active participation in the “Continuing Union-Represented Employees”).
(b) Benefit Plans that are (i) For health, medical, dental, vision and/or prescription drug plans shall cease on the twelve (12) last day of the month period following in which the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule occurs and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule “employee welfare benefit plans” (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a3(1) of ERISA) that are not described in clause (i) (e.g., life insurance, AD&D and disability plans) shall cease as of the Code Closing. In the event that, following receipt of his or her final paycheck from Seller, a Transferred Employee has not contributed the full premium for coverage under any plan described in clause (i) above for the month in which the Closing occurs, Buyer will collect the unpaid premium from such Transferred Employee and remit such amount to Seller promptly upon collection; provided, however, that Seller shall use its best efforts to collect all premiums for such plans for such month from all Transferred Employees on or prior to their receipt of their last paycheck from Seller. For the avoidance of doubt, (i) Seller and the Benefit Plans which are health, medical, dental, vision and/or prescription drug plans shall retain Liability for all claims incurred by the current and former employees of Seller (including the Transferred Employees) and their dependents prior to the first day of the month following the month in which the Closing occurs and (ii) Seller and the Benefit Plans that are “Company employee welfare benefit plans” (within the meaning of Section 3(1) of ERISA) that are not described in clause (i) (e.g., life insurance, AD&D and disability plans) shall retain Liability for all claims incurred by the current and former employees of Seller (including the Transferred Employees) and their dependents prior to the Closing, in each case, regardless of when a claim is submitted. All Liabilities described in the preceding sentence shall be treated as an Excluded Liability for all purposes of this Agreement. A claim shall be deemed incurred (i) on the date of the occurrence of death or dismemberment in the case of claims under life insurance and accidental death and dismemberment plans, (ii) on the date of the occurrence of the injury or illness in the case of claims under disability plans and (iii) on the date on which the service or treatment is provided in the case of claims under medical, hospital, dental and similar plans. Each Transferred Employee shall be given service credit for purposes of (i) eligibility and coverage under Buyer’s group health plan and paid time off program and (ii) vesting (but not eligibility to participate in) the MWI Veterinary Supply, Inc. 401(k) Plans”) shall be terminated& Profit Sharing Plan, as in each case, for his or her period of immediately service with Seller and its predecessors prior to the Closing Date (but conditioned upon to the occurrence of the extent recognized under a comparable Benefit Plan prior to Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing contained in this Agreement shall confer upon any Continuing Transferred Employee any right with respect to continue in the employ employment by Buyer or service of Parentits Affiliates, the Surviving Corporation or any Affiliate of Parent, or nor shall anything herein interfere with the right of Buyer or restrict in its Affiliates, following any way the rights employment of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reservedTransferred Employee, to discharge or terminate the services employment of any Continuing such Transferred Employee at any time for any reason whatsoevertime, with or without cause, except to or restrict Buyer or its Affiliates in the extent expressly provided otherwise exercise of their independent business judgment in a written agreement between Parent, modifying any of the Surviving Corporation, terms and conditions of the Company or employment of any Affiliate of Parent and the Continuing such Transferred Employee. Notwithstanding The provisions of this Agreement, including Section 6.05, are for the benefit of the parties to this Agreement only and shall not be construed to grant any rights, as a third party beneficiary or otherwise, to any person who is not a party to this Agreement, nor shall any provision in of this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be the adoption of, or an amendment or other modification of to, any Company Plan, Parent Plan or any other employee benefit plan, as that term is defined in Section 3(3) of ERISA, or otherwise limit the right of the Buyer to amend, modify or terminate and such employee benefit plan. As of the Closing, Buyer shall cause each Transferred Employee to be credited under Buyer’s health care flexible spending account plan, if any, and dependent care spending account plan, if any (each, a “Buyer Spending Account”) with an amount available for reimbursement between the Closing and the end of the calendar year in which the Closing occurs equal to the amounts available for reimbursement for such period under Seller’s spending account plans of corresponding type (each, a “Seller Spending Account”) with respect to such Transferred Employee immediately prior to the Closing. Buyer shall give effect under the Buyer Spending Accounts to elections made by the Transferred Employees with respect to the corresponding Seller Spending Accounts in respect of the calendar year in which the Closing occurs, subject to the terms and conditions then applicable to the Buyer Spending Accounts (including dollar limitations in effect for the year). If the amounts contributed (by salary reduction or otherwise) by a Transferred Employee under a Seller Spending Account arrangement for the portion of the calendar year ending on the Closing exceed the sum of the claims under such Seller Spending Account already reimbursed to the Transferred Employee or claimed for reimbursement by the Transferred Employee in respect of the calendar year in which the Closing occurs, Seller shall transfer to Buyer on the Closing Date an amount equal to the lesser of (i) such excess or (ii) prevent Parentthe excess of the dollar limitation for the year applicable to the corresponding Buyer Spending Account over the sum of the claims reimbursed to or claimed for reimbursement by the Transferred Employee. If the sum of the claims reimbursed to or claimed for reimbursement by the Transferred Employee under such Seller Spending Account in respect of the calendar year in which the Closing occurs exceeds the amount contributed to such Seller Spending Account as of the Closing, Buyer shall transfer to Seller on the Surviving Corporation or any Affiliate Closing Date an amount equal to the lesser of Parent from amending or terminating any Company Plans in accordance with their terms (i) such excess or (iiiii) create any third-party rights in any current or former service provider the excess of the Company or its Affiliates (or any beneficiaries or dependents thereof)dollar limitation for the year applicable to the corresponding Buyer Spending Account over the amount contributed by such Transferred Employee to such Seller Spending Account prior to Closing.
Appears in 1 contract
Samples: Asset Purchase Agreement (MWI Veterinary Supply, Inc.)
Employees and Employee Benefits. (a) For Attached as Schedule 8.4 is a period beginning on true and correct report listing each employee employed at the Closing Date and ending on the twelve (12) month anniversary Branches as of the Closing Date (ordate the report is prepared to include name, if shorterposition, during an employee’s period of employment following the Closing Date), Parent shall provide, exempt or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classificationnonexempt status, date of hirehire and total years of service, credited service present salary, date of last salary increase, employment status (permanent or senioritytemporary, (iii) full full-time versus part time statusor part-time, active or leave status; (ivrecipient and type of leave). Seller represents and warrants to Purchaser that the report and all information delivered in connection with this Section 8.4(b) location of each employee; will be complete and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Actaccurate in all material respects. Such schedule shall The report will be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than updated within ten (10) calendar days prior to of Closing. Purchaser shall maintain in confidence the date of delivery. Parent shall, information on the employees and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those use it only for legitimate business purposes in connection with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(fb) Parent Purchaser may, but is not required to, offer employment to employees at the Branches. Each such employee who accepts Purchaser’s offer of employment shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements be a “Transferred Employee” for purposes of this Agreement effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all later of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon or the occurrence return of such employee to active employment. Within 45 days of this Agreement, Purchaser shall deliver to Seller a confidential list identifying the employees to whom Purchaser intends to make an offer of employment. On such date as the parties shall agree, Seller shall notify in writing all Branch employees that the Branches are being transferred to Purchaser and that the employment of the Closing)Transferred Employees by Seller will terminate as of the end of business on the Closing Date. Concurrently with the delivery of such notice by Seller, Purchaser shall offer employment to the Transferred Employees. The Company and Parent positions in which such Transferred Employees shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing terminationbe employed by Purchaser, and the Company shall provide Parent a reasonable opportunity to review terms and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s requestconditions of employment, the Continuing Employees shall be eligible to participate determined by Purchaser in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) sole discretion. Nothing in this Agreement shall confer upon obligate Purchaser to employ any Continuing Employee person or to continue to employ any person for any period of time.
(c) A Transferred Employee’s employment with Purchaser shall be on an “at-will” basis, and nothing in this Agreement shall be deemed to constitute an employment agreement with any such person or to obligate Purchaser to employ any such person for any specific period of time or in any specific position or to restrict Purchaser’s right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services employment of any Continuing Employee such person at any time and for any reason whatsoeversatisfactory to it.
(d) With respect to each Branch employee who does not become a Transferred Employee, Seller shall be responsible for all “Continuation Coverage” under Section 4980B of the Code and Section 601 of ERISA and any severance costs associated with or without cause, except to terminating the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate employment of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other such employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their the Seller’s severance policies and practices.
(e) Each Transferred Employee shall cease to be covered by the employee welfare benefit plans, including plans, programs, policies and arrangements which provide medical and dental coverage, life and accident insurance, disability coverage, and vacation and severance pay (collectively, “Benefit Plans”) of Seller and all other benefit and compensation plans of Seller on the date the Transferred Employee becomes a Transferred Employee or on such later date specified under the terms of an applicable Benefit Plan or (iii) create any third-party rights in any current or former service provider other plan of the Company or its Affiliates (or any beneficiaries or dependents thereof)Seller.
Appears in 1 contract
Samples: Purchase and Assumption Agreement (Fidelity Southern Corp)
Employees and Employee Benefits. (a) For After the Closing Date, Sellers shall pay directly to each of their employees employed at the Cleveland Facility and the Detroit Facility that portion of all compensation and benefits which has been accrued on behalf of or is otherwise due and owing to that employee (or is attributable to expenses properly incurred by that employee) as of the Closing Date. Subject to the provisions of Section 7.1(b) hereof, Sellers shall be responsible for payment of severance benefits to employees employed at the Buffalo Facility, subject to the right to reimbursement for such severance benefits, if any, as may be provided for by the Transition Agreements. Subject to the provisions of Section 7.1(b) hereof, Purchaser or Worthington Warehouse, as applicable, shall be responsible for payment of severance benefits, if any, due to employees employed at the Cleveland Facility (other than Xxxx Xxxxxxx) and the Detroit Facility, but only to the extent such potential severance benefits are disclosed in SCHEDULE 7.1(a). Subject to the provisions of Section 7.1(b) hereof, nothing contained in the preceding sentence shall be deemed or construed to limit, impair or otherwise affect the Liabilities and Obligations of Purchaser or Worthington Warehouse (assumed by Purchaser or Worthington Warehouse, as applicable, pursuant to Section 1.4.1(e) hereof) to pay to employees (other than Xxxx Xxxxxxx) employed at the Cleveland Facility and the Detroit Facility, any amounts which may be required to be paid to any such employees under the WARN Act in connection with the termination of their employment with GSSI (in the case of employees employed at the Cleveland Facility) and the termination of their employment with GSCNY (in the case of employees employed at the Detroit Facility) or any Liabilities and Obligations which Purchaser or Worthington Warehouse, as appropriate, may have in connection with any termination of the employment of any such employees by Purchaser or Worthington Warehouse, as appropriate, after the Closing Date, which Liabilities and Obligations are hereby expressly acknowledged and agreed by Purchaser to be Liabilities and Obligations of Purchaser or Worthington Warehouse, as appropriate. No portion of the assets of any Employee Plan (and no amount attributable to any such Employee Plan) shall be transferred to Purchaser or Worthington Warehouse, and neither Purchaser nor Worthington Warehouse shall be required to continue any such Employee Plan after the Closing Date. The amounts payable on account of all Employee Plans shall be determined with reference to the date of the event by reason of which such amounts become payable, without regard to conditions subsequent, and none of Purchaser or any Purchaser Affiliate shall be liable for any claim for insurance, reimbursement or other benefits payable by reason of any event which occurs prior to or after the Closing Date. Subject to the preceding provisions of this Agreement relating to severance benefits, all amounts payable directly to employees of Sellers, or to any fund, shall be paid by Sellers within the time period required in the applicable Employee Plan.
(b) Purchaser has expressed a period beginning on potential interest in making offers of employment to up to eight (8) individuals employed by GSSI at the Buffalo Facility (such employees being hereinafter the “Buffalo Employees”). The Sellers acknowledge and agree that the Purchaser shall have the right to make offers of employment to any or all of the Buffalo Employees prior to the Closing Date or within sixty (60) days thereafter and, on or prior to the Closing Date, the Purchaser shall identify which of the Buffalo Employees it intends to make offers of employment. If any of the Buffalo Employees who receive offers of employment from the Purchaser accepts employment with the Purchaser (those of the Buffalo Employees who receive offers of employment from the Purchaser and ending agree to accept such offers of employment being hereinafter referred to as the “Buffalo New Hires”), the Purchaser agrees to and hereby assumes any obligation of the Sellers for payment of any severance or other termination of employment benefits to the Buffalo New Hires (the aggregate amount of the severance or other termination of employment benefits which would have been paid by Sellers to the Buffalo New Hires being hereinafter the “Buffalo New Hire Severance”). In connection with the foregoing, Sellers agree to reimburse the Purchaser or Worthington Warehouse, as appropriate, for payment of severance benefits paid by Purchaser to employees employed at the Cleveland Facility and/or the Detroit Facility who do not receive offers of employment from Purchaser or Worthington Warehouse, as appropriate, if any, and severance benefits, if any, paid by Purchaser or Worthington Warehouse, as appropriate, to employees employed by the Sellers as of the Closing Date who receive offers of employment from Purchaser or Worthington Warehouse, as appropriate, and whose employment is terminated by Purchaser or Worthington Warehouse, as appropriate, on or before the twelve (12) month first anniversary of the Closing Date (or, if shorter, during in an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, amount equal to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), lesser of: (i) the same base salary and wage rate total amount of any such severance benefits paid by Purchaser or Worthington Warehouse, as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provideappropriate, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(iany such employees within such one (1) of the Company Disclosure Schedule year period; and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) aggregate amount of the Company Disclosure Schedule (eachBuffalo New Hire Severance. Payment to Purchaser or Worthington Warehouse, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence as appropriate, of the Closing amount Purchaser or Worthington Warehouse, as appropriate, is entitled to be reimbursed for by the preceding sentence shall constitute a “Change in Control” for purposes be made by Sellers within ten (10) days following receipt by Sellers of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) reasonably satisfactory evidence of the Company Disclosure Schedulepayment by Purchaser or Worthington Warehouse, as appropriate, of the amount of severance benefits which Purchaser is entitled to be reimbursed for by the preceding sentence.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including Sellers shall be responsible for complying with the Surviving Corporation) following the Effective Time and in which any provisions of Section 4980B of the Continuing Non-Union Employees or Continuing Union-Represented Employees Code and Sections 601 through 608, inclusive, of ERISA (collectively, the such Code and ERISA provisions hereafter referred to as “Continuing EmployeesCOBRA”) participate (pertaining to notice to be provided to such employees of the “Parent Plans”), and except Buffalo Facility or other employees of Sellers who do not become employees of Purchaser or Worthington Warehouse to the extent necessary COBRA notices are required to avoid duplication be provided to such employees as a result of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement. In addition, Sellers shall provide health care continuation coverage required by COBRA for employees employed at the Buffalo Facility or other employees of Sellers who do not become employees of Purchaser or Worthington Warehouse through an Employee Plan or Employee Plans maintained after the Closing Date by Sellers or by an entity related to Sellers, and Sellers shall make every effort to maintain such an Employee Plan or Employee Plans for the duration of any COBRA continuation coverage period.
(fd) Parent shall or shall cause Although it is anticipated that Purchaser will make offers of employment to most employees presently employed at the Surviving Corporation and its Affiliates Cleveland Facility, Purchaser is under no obligation to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendmentemploy any personnel presently employed by Sellers. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior Prior to the Closing Date (but conditioned upon Date, Purchaser may offer employment to such employees presently employed by the occurrence Business as Purchaser in its sole discretion shall determine. Subject to any obligation that Purchaser may have to recognize the collective bargaining agent of the Closing)employees employed by the Business at the Cleveland Facility, Purchaser shall have the absolute right to establish all terms and conditions of employment, including wages, benefits and benefit plans, for any employees of the Business to whom Purchaser chooses to make an offer of employment. The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all All such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees offers shall be eligible to participate in a 401(k) plan maintained on terms established by Parent or any of its subsidiaries or Affiliates as soon as practicable Purchaser and shall be contingent upon employment commencing with Purchaser only following the Closing Date.
(h) Nothing in this Agreement . Sellers agree not to discourage any Persons who are offered employment by Purchaser from accepting employment with Purchaser. Any prior employment by Sellers of such employees shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parentnot affect entitlement to, or shall interfere with the amount of, salary or restrict in any way the rights of Parentother compensation or benefits, the Surviving Corporation current or any Affiliate of Parentdeferred, which rights are hereby expressly reserved, Purchaser may make available to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)employees.
Appears in 1 contract
Samples: Asset Purchase Agreement (Gibraltar Industries, Inc.)
Employees and Employee Benefits. (a) For 7.6.1 NHSB anticipates employing substantially all branch office customer service employees of SBM and such other employees of SBM as NHSB shall reasonably require for the conduct of NHSB’s business following the Effective Time. NHSB may, after consultation with SBM, pay a retention bonus to certain key employees in an amount to be determined by NHSB in its sole discretion, in the event such employee remains in the employ of Connecticut Bancshares or SBM through the Effective Time and is an employee of NHSB or NEWCO for a period beginning on of time to be negotiated between NHSB and each such key employee. Each SBM employee whose employment is terminated at the Closing Date and ending on the twelve (12) month anniversary Effective Time shall be eligible to receive COBRA health care continuation benefits as required by law.
7.6.2 Each employee of the Closing Date (or, if shorter, during an employee’s period of employment SBM who remains employed by NEWCO or NHSB following the Closing Date)Effective Time (each, Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union EmployeesEmployee”), ) shall be entitled to participate in (i) such of the same base salary employee benefit plans, deferred compensation arrangements, bonus or incentive plans and wage rate as other compensation and benefit plans that NEWCO or NHSB may continue for the base salary and wage rate provided to such benefit of Continuing Non-Union Employee immediately prior to Employees following the Effective Time, Time and (ii) whatever employee incentive benefit plans and other compensation opportunities which are no less favorable in and benefit plans that NEWCO or a NEWCO Subsidiary may maintain for the aggregate than the incentive compensation opportunities provided to benefit of its similarly situated employees on an equitably equivalent basis, if such Continuing NonEmployee is not otherwise then participating in a similar plan. The parties hereto acknowledge that Continuing Employees shall be eligible to participate in any stock option plan or employee stock ownership plan implemented by NEWCO after the Effective Time based upon the same criteria as other employees of NHSB or NEWCO. Continuing Employees shall be eligible to receive credit for service with Connecticut Bancshares and the Connecticut Bancshares Subsidiaries under any existing NHSB employee plan, NHSB benefit plan or NHSB personnel policy in which such employees would be eligible to enroll or participate for purposes of determining eligibility to participate and vesting therein but not for purposes of calculating benefits thereunder; provided, however, that such service shall not be recognized to the extent that such recognition would result in a duplication of benefits. Each Continuing Employee shall be credited with service as an SBM employee for purposes of determining their status under NHSB’s policies with respect to vacation, sick and other leave. With respect to the NHSB defined benefit pension plan, each Continuing Employee shall be credited with service as an SBM employee for purposes of determining eligibility under the early retirement, normal retirement and disability provisions of such plan. With respect to any NHSB plan which is a health, life or disability insurance plan, each Continuing Employee shall not be subject to any pre-Union Employees immediately existing condition limitation for conditions covered under such plans and each such plan which provides health insurance benefits shall honor any deductible and out-of-pocket expenses incurred under any comparable SBM plan for the year in which the Effective Time occurs. Nothing herein shall limit the ability of NHSB or NEWCO to amend or terminate any of the Connecticut Bancshares Employee Plans in accordance with their terms at any time. NHSB shall consult with Connecticut Bancshares prior to the Effective Time and (iii) employee benefits which are substantially comparable as to the advisability of outplacement assistance for any Continuing Employee whose employment is terminated within six months of the Effective Date. The structure of such assistance will be in the aggregate sole discretion of NHSB, at a cost not to exceed $30,000.
7.6.3 Section 7.6.3 of the Connecticut Bancshares Disclosure Schedule contains all employment and change of control, severance and similar agreements, arrangements, policies or programs with any employee or director of Connecticut Bancshares or any Connecticut Bancshares Subsidiary (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to “Benefit Agreements”). At and following the Effective Time. Commencing on the Closing Date, NHSB and NEWCO shall honor, and the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation obligated to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honorperform, in accordance with their terms, all Company Plans benefit obligations of Connecticut Bancshares existing as of the Effective Time under the Benefit Agreements other than those employment agreements, change in control agreements and supplemental executive retirement plans covered by the Termination and Release Agreements referenced in Section 7.6.5 hereof. NHSB acknowledges (i) that the consummation of the Merger will constitute a “change-in-control” of Connecticut Bancshares for purposes of any of the Benefit Agreements of Connecticut Bancshares (except where otherwise set forth in Section 6.9(b)(ii) 7.6.3 of the Company Connecticut Bancshares Disclosure Schedule Schedule). Any employee of Connecticut Bancshares or any of its Subsidiaries who is a party to an agreement (eachexcluding the employment agreements, a “Company Agreement”); provided that nothing herein shall prevent change in control agreements and supplemental retirement agreements covered by the Surviving Corporation from amending or terminating any such Company Agreement Termination and Release Agreements referenced in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts Section 7.6.5 hereof) which has been set forth in Section 6.9(b)(iii) 7.6.3 of the Company Connecticut Bancshares Disclosure Schedule (the “Executive Agreements”) who becomes entitled to benefits thereunder shall be entitled to receive the cash and other benefits payable or provided under such agreement; provided, however, that the employee executes and delivers to NHSB an instrument in form and substance satisfactory to NHSB releasing NHSB and its affiliates from any further liability for monetary payments under such agreement. Connecticut Bancshares represents and warrants that the amounts set forth in Section 7.6.3 of the Connecticut Bancshares Disclosure Schedule (A) have been calculated in a manner consistent with, and according to, the provisions of the Executive Agreements (copies of which have been furnished by Connecticut Bancshares to NHSB) and (B) represent good faith estimates of the amounts payable as of the future date specified therein based upon assumptions regarding interest rates, compensation or the assumed Closing Date, which have been set forth in Section 7.6.3 of the Connecticut Bancshares Disclosure Schedule.
, and (cii) With respect the amounts payable under such Executive Agreements will not exceed, individually or in the aggregate, the amounts set forth in Section 7.6.3 of the Connecticut Bancshares Disclosure Schedule (except to each benefit planthe extent that any good faith estimates set forth in Section 7.6.3 of Connecticut Bancshares’s Disclosure Schedule change due to changes in interest rates or the assumed Closing Date). To the extent that an employee of Connecticut Bancshares or any of its Subsidiaries is entitled to the continued receipt of health insurance, programlife insurance, practicedisability insurance, policy automobile allowance or arrangement maintained by Parent other similar fringe benefits pursuant to an Executive Agreement, and such employee becomes a director, officer, employee or consultant of NEWCO or any of its subsidiaries (including the Surviving Corporation) Subsidiaries following the Effective Time and as a result becomes entitled to receive the same fringe benefits in which his or her capacity as a director, officer, employee or consultant of NEWCO or any of its Subsidiaries, then the Continuing Non-Union Employees fringe benefits provided to such person shall be deemed to be provided in connection with such person’s service as a director, officer, employee or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”)consultant of NEWCO or any of its Subsidiaries for so long as such person serves in such capacity and shall be in lieu of, and except not in addition to (and for the extent necessary sole purpose to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers same fringe benefits that would have otherwise been provided pursuant to the extent the Company provides or has recognized past service credit) Executive Agreement.
7.6.4 The ESOP shall be treated terminated as service of the Effective Time (all shares held by the ESOP shall be converted into the right to receive the Merger Consideration), all outstanding ESOP indebtedness shall be repaid as of the Effective Time, and the balance remaining with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations respect to unallocated shares held by the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid ESOP prior to the Effective Time during shall be allocated and distributed to the calendar year ESOP participants (subject to the receipt of a determination letter from the IRS), as provided for in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments ESOP and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted unless otherwise required by applicable Law, no later than thirty (30) days law. As soon as practicable after the date hereof, Connecticut Bancshares shall file a request for a determination letter from the Company shall provide to Parent a schedule of all Company employees that sets forth IRS regarding the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement continued qualified status of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards ActESOP upon its termination. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior Prior to the date of delivery. Parent shallEffective Time, and Connecticut Bancshares and, following the Effective Time, NHSB shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate reasonable best efforts in good faith prior to obtain such favorable determination letter (including, but not limited to, making such changes to the Closing with respect ESOP and the proposed allocations described herein as may be requested by the IRS as a condition to its issuance of a favorable determination letter). NHSB and NEWCO will adopt such additional amendments to the preparation and execution of all documentation necessary to effect ESOP as may be reasonably required by the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except IRS subsequent to the extent expressly Effective Time as a condition to granting such favorable determination and termination letters provided otherwise that such amendments do not substantially change the terms outlined herein or would result in a written agreement between Parent, an additional material liability to NHSB or NEWCO. Neither Connecticut Bancshares nor NHSB shall make any distribution from the Surviving Corporation, the Company or any Affiliate ESOP except as may be required by applicable law until receipt of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)such favorable determination letter.
Appears in 1 contract
Employees and Employee Benefits. (a) For Seller’s board of directors shall have adopted a period beginning on the Closing Date and ending on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately resolution at least one day prior to the Closing Date (but conditioned upon i) terminating Seller’s 401(k) plan, and (ii) authorizing the occurrence officers of the Closing)Sellers to take any action necessary or appropriate to terminating the plan.
(b) As of the Closing Date, Seller’s employees listed on Schedule 5 shall be offered employment by Buyer and retain their current title and salaries except as designated in their Offer Letter. The Company All such employees shall be “at will” employees of the Buyer, except and Parent to the extent set forth in their Offer Letter or in any other agreement an employee may enter into with Buyer.
(c) Seller shall cooperate in good faith be solely responsible, and Buyer shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Seller at any time at or prior to the Closing with respect and Seller shall pay all such amounts to all entitled persons when such amounts are due. Buyer shall be solely responsible, and Seller shall have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, director, independent contractor or consultant of the Business, including, without limitation, hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the preparation service with Buyer at any time after Closing.
(d) Buyer and execution of all documentation necessary to effect the foregoing termination, and the Company its Affiliates shall provide Parent the Seller’s employees and their “qualified beneficiaries” (as defined in Section 4980B(g)(1) of the Code) with required notices and continuation coverage in accordance with the Consolidated Omnibus Budget Reconciliation Act (COBRA) as a reasonable opportunity result of any “qualifying events” (as defined in Section 4980B(f)(3) of the Code) that occur on or after the Closing Date. In addition, for the avoidance of doubt, the Buyer and its Affiliates shall provide required notices and continuation coverage in accordance with COBRA to review (i) each individual who is or becomes an “M&A Qualified Beneficiary” (as defined in Treas. Reg. Section 54.4980B-9) in connection with the consummation of the transaction contemplated by this Agreement or (ii) any current or former Seller employee or their dependents otherwise eligible for or receiving COBRA coverage as of the Closing Date. Buyer and comment on all such documentation. To its Affiliates shall also provide Seller’s current or former employees and their dependents with health care continuation coverage to the extent that required under applicable state law.
(e) Effective as of the Company 401(k) Plans are terminated pursuant to Parent’s requestClosing Date, the Continuing Employees Seller employees shall be eligible to participate in a 401(k) Buyer’s benefit plan maintained by Parent to the same extent as similarly situated employees of the Buyer. Buyer shall cause its benefit plans to, only to the extent excluded under the Seller’s current plan(s), remove all pre-existing conditions, limitations, exclusions, evidence of insurability or good health, waiting periods, or actively-at-work exclusions or other limitations or restrictions on coverage with respect to all Seller’s employees and their dependents and beneficiaries under any of its subsidiaries or Affiliates as soon as practicable following the Closing DateBuyer benefit plans that are welfare benefit plans.
(hf) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of ParentSeller, or its insurers, as applicable, shall interfere with remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or restrict disability benefits brought by or in any way respect of current or former employees, officers, directors, independent contractors or consultants of the rights of ParentBusiness or the spouses, the Surviving Corporation dependents or any Affiliate of Parentbeneficiaries thereof, which rights are hereby expressly reserved, claims relate to discharge events occurring at or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except prior to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company Closing; other than claims that would be covered by Buyer or any Affiliate Affiliates pursuant to Section 6.01(d) above. Seller also shall remain solely responsible for all worker’s compensation claims of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider employees, officers, directors, independent contractors or consultants of the Company Business which relate to events occurring at or its Affiliates (prior to the Closing. Seller shall pay, or any beneficiaries or dependents thereof)cause to be paid, all such amounts to the appropriate persons as and when due.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning As of the Closing Date, and conditioned upon compliance with the Purchaser’s normal hiring processes and requirements, Purchaser shall make offers of comparable employment effective as of the Closing Date on an “at-will” basis to at least those employees of Seller who are actively employed by the Purchaser on the Closing Date and ending are listed on the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period Schedule 7.2(a). Those individuals who accept such offer of employment following the Closing Date), Parent from Purchaser shall provide, or shall cause the Surviving Corporation be referred to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the herein as “Continuing Non-Union Hired Employees”), . Such offers of employment shall provide for: (i) the same base salary and wage rate as or hourly wages which are no less than the base salary and wage rate or hourly wages provided to such Continuing Non-Union Employee by the Seller immediately prior to the Effective Time, Closing; (ii) employee incentive compensation opportunities which welfare benefits that are no less favorable in the aggregate than those provided by the incentive compensation opportunities provided to such Continuing Non-Union Employees Seller immediately prior to the Effective Time Closing; and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which that are no less favorable than those benefits set forth in Section 6.9(b)(i) Schedule 7.2(a)(iv). Effective as of the Company Disclosure Schedule Closing Date, Seller agrees to terminate the Hired Employees and (ii) from they shall cease to be employees of Seller. The transactions contemplated hereby shall not constitute a severance of employment of any Hired Employee prior to the consummation of the transactions contemplated hereby, and each Hired Employee will have continuous and uninterrupted employment before and immediately after the Effective TimeClosing.
(b) Seller shall be solely responsible, Parent and Purchaser shall cause have no obligations whatsoever for, any compensation or other amounts payable to any current or former employee, officer, independent contractor, or consultant of the Surviving Corporation Business, including, without limitation, hourly pay, bonus, salary, accrued unused vacation, fringe, pension or profit sharing benefits or severance pay for any period relating to the service with Seller at any time on or prior to the Closing Date, and its subsidiaries Seller shall pay all such amounts to honorall entitled persons on or prior to the Closing Date. Notwithstanding the foregoing, in accordance with their termsSeller shall pay, all Company Plans on or before the Closing Date, the bonus compensation and the unused accrued vacation amounts set forth in Section 6.9(b)(ii) of Schedule 7.2(b), relating to the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of current performance period up to the Closing Date, and such payments, to the extent payable to the Hired Employees, shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedulebe recognized as an adjustment to net working capital.
(c) With Seller shall remain solely responsible for the satisfaction of all claims for medical, dental, life insurance, health accident or disability benefits including, but not limited to, any and all claims before the Workers’ Compensation Appeals Board brought by or in respect of current or former employees, officers, directors, independent contractors or consultants of the Business or the spouses, dependents or beneficiaries thereof, which claims relate to each benefit events occurring on or prior to the Closing Date in accordance with the governing plan documents. Seller also shall remain solely responsible for all worker’s compensation claims of any current or former employees, officers, directors, independent contractors or consultants of the Business which relate to events occurring on or prior to the Closing Date.
(d) Each Hired Employee of the Business who becomes employed by Purchaser in connection with the transaction shall be given service credit for the purpose of eligibility under the group health plan, programeligibility and vesting for purposes of any defined contribution retirement plan for his or her period of service with Seller prior to the Closing Date; provided, practicehowever, policy that (i) such credit shall be given pursuant to payroll or arrangement maintained by Parent or its subsidiaries plan records and would otherwise be recognized under the corresponding Seller Benefit Plan; and (including the Surviving Corporationii) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except that such service shall not be recognized to the extent necessary to avoid that such recognition would result in a duplication of benefits. Without limiting the foregoing, for purposes effective as of determining eligibility the Closing Date and thereafter, Purchaser shall, or shall cause one of its Affiliates to, (i) allow the Hired Employees to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree participate in each plan providing welfare benefits, special including medical, life insurance, long-term disability insurance and long-term care insurance, as applicable, without regard to preexisting-condition limitations, waiting periods, evidence of insurability or early retirement programs other exclusions or window separation programs), service with limitations not imposed on the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Hired Employees by a corresponding Benefit Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid immediately prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductiblesClosing Date and (ii) fully credit each Hired Employee with all deductible payments, copayments co-payments and other out-of-pocket maximums expenses incurred by such Hired Employee and his or her covered dependents under the Benefit Plans that are medical, dental, pharmaceutical or vision benefit plans prior to the Closing Date during the plan year in which the Closing Date occurs for the purpose of determining the extent to which such Hired Employee and his or her covered dependents have satisfied the deductible, co-payments, or maximum out- of-pocket requirements applicable to such Hired Employee and his or her covered dependents for such plan year under any new medical, dental, pharmaceutical or vision benefit plans that cover the Hired Employee after the Closing Date, as though if such amounts had been paid in accordance with the terms such plan. Seller agrees to cooperate in providing necessary and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), appropriate records and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit Purchaser in order for Purchaser to comply with the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesabove covenants.
(e) The Company shallThis Section 7.2 shall be binding upon and inure solely to the benefit of each of the parties to this Agreement, and nothing in this Section 7.2, express or implied, shall cause each confer upon any other person or party any rights or remedies of its subsidiaries toany nature whatsoever under or by reason of this Section 7.2. Nothing contained herein, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date express or implied, shall be construed to inform establish, amend or modify any benefit plan, program, agreement or arrangement. The parties hereto acknowledge and consult (or otherwise), under applicable Law and agree that the terms set forth in this Section 7.2 shall not create any right in any Hired Employee to any employment with the Purchaser or compensation or benefits of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company nature or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreementkind whatsoever.
(f) Parent shall Except as otherwise provided in this Agreement or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining AgreementLaw, Parent shall assume or become party to any Collective Bargaining Agreements effective upon from and after the Closing.Closing Date:
(gi) At Parent’s requestSeller shall retain Liability and responsibility for any and all employment and employee-benefit related Liabilities, the Company Board shall adopt resolutions providing obligations, claims or losses that no rights relate to contributions will accrue after, (A) any employee (or his or her dependent or beneficiary) and that all arise as a result of the Company Plans sponsored an event or maintained by the Company or any of its subsidiaries events that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately occurred prior to the Closing Date Date, (but conditioned upon the occurrence B) any employee (or his or her dependent or beneficiary) who does not become a Hired Employee and that arise as a result of the Closing). The Company and Parent shall cooperate in good faith prior to an event or events that occurred on or after the Closing with respect to the preparation Date and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k(C) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing DateBenefit Plan.
(hii) Nothing in this Agreement Purchaser shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time assume and be solely responsible for any reason whatsoeverand all employment and employee-benefits related Liabilities, with obligations, claims or without cause, except losses that relate to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates Hired Employee (or any beneficiaries his or dependents thereof)her dependent or beneficiary) and that arise as a result of an event or events that occurred the day immediately after the Effective Time.
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on the Closing Date and ending on the twelve (12) month anniversary 7.5.1 Liberty anticipates offering employment to many of the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue NVSL, subject to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”)review of personnel files and such employment criteria for particular positions as Liberty customarily applies, (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to following the Effective Time of the Merger.
7.5.2 Each employee of the Company and NVSL who remains employed by Liberty following the Effective Time of the Merger (iiieach, a “Continuing Employee”) shall be treated on an equal basis with other Liberty employees as to compensation and promotion, and shall be entitled to participate in whatever employee benefits which are substantially comparable in benefit plans and other compensation and benefit plans that Liberty may maintain for the aggregate (including benefit of its similarly situated employees. Each Continuing Employee shall be credited with service as a Company employee for purposes of determining his or her status under Liberty’s policies with respect to the proportion of employee cost) vacation, sick and other leave. With respect to the Liberty defined benefit pension plan, each Continuing Employee shall be credited with hours of service as a Company employee benefits provided to such Continuing Non-Union Employees immediately for the prior employment period with the Company for purposes of eligibility and vesting under the Liberty defined benefit pension plan, but not for purposes of benefit accruals under the plan. With respect to the Effective TimeLiberty defined contribution plan, each Continuing Employee shall be credited with prior years of service as a Company employee for purposes of eligibility and vesting. Commencing on With respect to any Liberty plan which is a health, life or disability insurance plan, each Continuing Employee shall not be subject to any pre-existing condition limitation for conditions covered under such plans. Nothing herein shall limit the Closing Date, ability of Liberty to amend or terminate any of the Surviving Corporation Liberty Employee Plans in accordance with their terms at any time.
7.5.3 Liberty shall observe honor the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those Employee Plans set forth in on Section 6.9(b)(i) 4.14.9 of the Company Disclosure Schedule and such Schedule contains all employment and change of control, severance and similar agreements, arrangements, policies or programs with any employee or director of the Company or any of the Company Subsidiaries (ii“Benefit Agreements”). In no circumstance shall Liberty make or agree to make any payment that would result in any “excess” golden parachute payment as defined in Section 280G of the Internal Revenue Code, fail to comply with Section 409A of such Code, or violate provisions of law, rule or regulation.
7.5.4 In accordance with the terms of the Naugatuck Valley Savings and Loan KSOP Plan (“KSOP”) upon consummation of the Merger, the KSOP shall terminate and, as soon as practicable thereafter, the KSOP trustee shall repay in full any outstanding exempt loans. In connection with such repayment, the trustee shall apply the Merger Consideration received with respect to the unallocated shares of Company Common Stock acquired with the proceeds of the exempt loans. After repayment of the exempt loans, all remaining shares of Company Common Stock (if any) held in the KSOP loan suspense account, all other stock or securities, and any cash proceeds from and after the Effective Time, Parent sale or other disposition shall cause the Surviving Corporation and its subsidiaries to honor, be allocated in accordance with their terms, all Company Plans the terms of the KSOP.
7.5.5 Liberty agrees to the funding of a stay bonus pool set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) 7.5.5 of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and . Any such stay bonus shall be in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”)addition to, and except to the extent necessary to avoid duplication of benefitsnot in lieu of, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information any payment made pursuant to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Benefit Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Employees and Employee Benefits. (a) For a period beginning on On the First Closing Date and ending on or as promptly thereafter as is practicable, the twelve (12) month anniversary of the Closing Date (or, if shorter, during an employee’s period Purchaser shall extend offers of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation to provide, to the Group I Employees. From and after the First Closing, the Purchaser shall have the right, but not the obligation, at any time or from time to time to extend offers to any other employees of the Company or Business that the Purchaser so chooses. All such offers of employment shall be on such terms as the Purchaser determines in its subsidiaries sole discretion and the Sellers shall use their good faith efforts to encourage such employees to accept such offers. Employees of the Business who accept the Purchaser’s offer of employment are not represented by a labor organization and who continue referred to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the as “Continuing Non-Union Transferring Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For Except as consented to in writing by the twelve (12) month period following Purchaser, the Closing Date, Parent Sellers shall provide, or and shall cause their Affiliates to terminate the Surviving Corporation employment, on or about March 1, 2021, of the Group I Employees and Group II Employees. The Sellers shall be responsible to provide, issue (and shall be liable for) final paychecks to the Continuing Non-Union Group I Employees and Group II Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) shall include salary/wages and accrued vacation through the termination date, and to make all related payroll Tax deposits, on the termination date. The Purchaser shall not assume any Liability under any of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Employee Benefit Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect The Sellers shall and shall cause their Affiliates to each benefit plan, program, practice, policy terminate (i) any contractual provisions or arrangement maintained by Parent other restrictions that would otherwise prevent any employees of the Business from becoming an employee of the Purchaser or its subsidiaries Affiliates and (including the Surviving Corporationii) following the Effective Time and in which any of the Continuing Non-Union Employees confidentiality or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”), and except other obligations to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of or entitlement to pension benefits, post-they would prevent any employees who accept employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (Purchaser from using or predecessor employers transferring to the extent the Company provides Purchaser or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations Affiliates any information related to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent PlanBusiness.
(d) To the extent permitted Unless required by applicable Law, no later than thirty any offer of employment by the Purchaser to an employee of the Business who is not actively at work as of the First Closing Date due to an approved leave of absence will be effective on the date following the First Closing Date on which such individual returns to active employment, so long as such date is within six (306) days after months following the date hereof, the Company shall provide to Parent a schedule . If any such employee who is on an approved leave of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete absence as of the date Closing Date does not return to active employment within such six (6)-month period, then the Sellers will continue to employ such employee or dates set forth on terminate such employee at the schedule, each of which shall be no more than ten (10) days prior to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiariesSellers’ sole expense.
(e) The Company shall, and shall cause each of its subsidiaries to, comply Except as otherwise provided in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations Management Services Agreement with respect to the Group III Employees or as otherwise expressly provided in this Section 4.10, the Sellers shall be solely responsible for, and the Purchaser shall have no obligations whatsoever for, any Continuing Union-Represented compensation or other amounts payable to any current or former employee, officer, director, independent contractor, or consultant of the Business, including hourly pay, commission, bonus, salary, accrued vacation, fringe, pension or profit sharing benefits, or severance pay for any period relating to their service with the Sellers, and the Sellers shall pay all such amounts to all entitled persons on or prior to their termination date. Payroll for the Group III Employees affected for the period in which the First Closing occurs shall be administered in accordance with the historical practices of the Sellers and the payment of accrued vacation shall not be required to be made to the Group III Employees by reason of the occurrence of the First Closing. Upon termination of the Management Services Agreement, (i) if the Xxxxxxxxx Lease Assignment Condition has been satisfied, the Purchaser shall be responsible for all severance and termination costs for the Group III Employees and (ii) if the Xxxxxxxxx Lease Assignment Condition has not been satisfied, then (x) the Sellers shall be responsible for all severance and terminations costs (other than unpaid wages and accrued vacation) for the Group III Employees and (y) the Purchaser shall reimburse the Sellers for the accrued and projected vacation costs for the Group III Employees reserved by the transactions contemplated by this AgreementPurchaser pursuant to Section 1.4(d)(i)(D)(V).
(f) Parent shall or shall cause The Purchaser will cooperate reasonably with the Surviving Corporation and its Affiliates Sellers to continue provide notices of termination to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent Group III Employees required by Law the WARN Act and similar state Laws provided that neither Beachwood nor the master landlord with respect to the Xxxxxxxxx Property objects to, interferes with or seeks to interfere with BNC’s occupancy of all or any applicable Collective Bargaining portion of the BNC Premises and BNC, under Purchaser’s supervision pursuant to the Management Services Agreement, Parent is able to fully and peaceably enjoy the use of the full BNC Premises. For the avoidance of doubt, the Sellers shall assume retain responsibility for providing any notices required under the WARN Act or become party to any Collective Bargaining Agreements effective upon the Closingsimilar state Laws.
(g) At Parent’s requestThe Sellers shall remain solely responsible for the satisfaction of all claims for medical, the Company Board shall adopt resolutions providing that no rights to contributions will accrue afterdental, and that all life insurance, health accident, or disability benefits brought by or in respect of current or former employees, officers, directors, independent contractors, or consultants of the Company Plans sponsored Business or maintained by the Company spouses, dependents, or any beneficiaries thereof, which claims, in the case of its subsidiaries that are defined contribution plans intended Transferring Employees, relate to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately conditions or events occurring prior to the commencement of their employment (if any) with the Purchaser, provided that in the case of the Group III Employees, the Purchaser shall be responsible for such claims which relate to conditions or events occurring following the First Closing Date (but conditioned upon to the occurrence extent provided under the Management Services Agreement. The Sellers also shall remain solely responsible for all worker’s compensation claims of any current or former employees, officers, directors, independent contractors, or consultants of the Closing). The Company and Parent shall cooperate Business, which claims, in good faith the case of Transferring Employees, relate to conditions or events occurring prior to the commencement of their employment (if any) with the Purchaser, provided that in the case of the Group III Employees, the Purchaser shall be responsible for worker’s compensation claims which relate to conditions or events occurring following the First Closing with respect Date to the preparation and execution of all documentation necessary extent provided under the Management Services Agreement. The Sellers shall pay, or cause to effect the foregoing terminationbe paid, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To amounts for which they are responsible to the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates appropriate persons as soon as practicable following the Closing Dateand when due.
(h) Nothing in this Agreement shall confer or the other Transaction Documents confers upon any Continuing Employee any right to continue in the employ rights or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services remedies of any Continuing Employee at any time for any nature or kind whatsoever under or by reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).Section
Appears in 1 contract
Samples: Asset Purchase Agreement
Employees and Employee Benefits. (a) For a period beginning on 7.5.1 Except as otherwise provided in this Agreement, Xxxxxx will review all the Closing Date and ending on CMS Bancorp Employee Plans to determine whether to maintain, terminate or continue such plans after the twelve (12) month anniversary Effective Time of the Closing Date Bank Merger. In the event that any CMS Bancorp Employee Plan is frozen or terminated by Xxxxxx, former employees of CMS Bancorp who become employees of Xxxxxx after the Effective Time of the Bank Merger (or“Continuing Employees”) who were participants in such plan shall be eligible to participate in any Xxxxxx Employee Plan of similar character (to extent that one exists, if shorterother than any Xxxxxx non-qualified deferred compensation plan, during an employee’s period employment agreement, change in control agreement or equity incentive plan or other similar-type of employment following the Closing Date), Parent shall providearrangement, or shall cause the Surviving Corporation to provideXxxxxx Defined Benefit Plan). Continuing Employees who become participants in a Xxxxxx Employee Plan shall, to the employees for purposes of the Company or its subsidiaries who are determining eligibility for and any applicable vesting periods of such employee benefits only (and not represented by a labor organization for benefit accrual purposes) be given credit for meeting eligibility and who continue to be employed by the Company or the Surviving Corporation vesting requirements in such plans for service as an employee of CMS Bancorp or any subsidiary or Affiliate thereof (the “Continuing Non-Union Employees”), (i) the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately predecessor thereto prior to the Effective Time of the Bank Merger. This Agreement shall not be construed to limit the ability of Xxxxxx to terminate the employment of any CMS Bancorp employee or to review any CMS Bancorp Employee Plan from time to time and (iii) employee benefits which are substantially comparable in the aggregate to make such changes (including with respect to terminating any such plan) as they deem appropriate.
7.5.2 Xxxxxx shall honor the proportion of employee cost) to the employee benefits provided to such Continuing Non-Union Employees immediately prior to the Effective Time. Commencing on the Closing Date, the Surviving Corporation shall observe the contractual terms of all existing Collective Bargaining Agreements that govern employment, consulting, change in control, severance and deferred compensation agreements, if any, listed on CMS Bancorp Disclosure Schedule 4.14.1, except to the wagesextent any such agreement is superseded or terminated as of, hours and other terms and conditions of employment of employees or following, the Effective Time of the Company or its subsidiaries who Bank Merger. The estimated amounts payable under the CMS Bancorp Employee Plans are covered by such Collective Bargaining Agreements and who continued to be employed by the Company or the Surviving Corporation or any subsidiary or Affiliate thereof (the “Continuing Union-Represented Employees”).
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company CMS Bancorp Benefits Schedule. Notwithstanding anything contained in Disclosure Schedule and (ii) from and after the Effective Time4.14.1, Parent no payment shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided be made that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall would constitute a “Change in Controlparachute payment” for purposes of all Company Stock Plans, Company Plans and related trusts set forth (as such term is defined in Section 6.9(b)(iii) 280G of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and in which any of the Continuing Non-Union Employees or Continuing Union-Represented Employees (collectively, the “Continuing Employees”) participate (the “Parent Plans”Code), and except to the extent any payments or benefits would constitute a “parachute payment,” such payments and/or benefits will be reduced to the extent necessary to avoid duplication penalties under Sections 280G and 4999 of benefitsthe Code. Any such determination to reduce payments or benefits shall be made in accordance with a written determination by Xxxxxx’x independent accounting firm that such reduction is necessary to avoid penalties under Sections 280G and 4999 of the Code, and such determination shall be provided to each affected person. Xxxxxx shall consider whether to offer any employee whose employment is terminated in connection with the Merger a consulting agreement or to request that an employee enter into a non-compete agreement for appropriate consideration.
7.5.3 For purposes of Xxxxxx’x vacation and/or paid leave benefit programs, Xxxxxx will give each Continuing Employee credit for such individual’s years of employment and accrued paid-time off balance with CMS Bancorp or CMS Bank as of the Effective Time of the Bank Merger.
7.5.4 Any employee of CMS Bancorp or a CMS Bancorp Subsidiary who is not a party to an employment, change in control or severance agreement or other separation agreement that provides a benefit on termination of employment, whose employment is terminated involuntarily (other than for cause) at the Effective Time of the Bank Merger or within six (6) months following the Effective Time of the Bank Merger shall receive a lump sum severance payment from Xxxxxx equal to two week’s base salary or base rate of pay at the rate then in effect, for purposes each full year of determining eligibility employment, beginning with the original hire date and ending on the date of termination of employment, with CMS Bancorp or a CMS Bancorp Subsidiary, subject to participatea minimum of four weeks and a maximum of 26 weeks, vestingprovided, accrual however that such employee enters into a release of claims against Xxxxxx and entitlement its affiliates in a customary form reasonably satisfactory to benefits Xxxxxx. A “for cause” termination shall mean any termination of employment due to the occurrence of one or more of the following events: (but not for accrual A) the Continuing Employee’s failure of willful refusal to comply in any material respect with lawful Xxxxxx’x (or entitlement to pension benefitsany applicable Subsidiary’s) employment policies or directives, post-employment (B) the Continuing Employee’s commission of misconduct or retiree welfare benefitsan act of fraud, special theft or early retirement programs embezzlement against Xxxxxx (or window separation programsany applicable Subsidiary), service (C) the Continuing Employee’s conviction or plea of nolo contendere to any felony or crime involving moral turpitude, or (D) the Continuing Employee’s failure to substantially perform the duties and responsibilities of such Continuing Employee’s position. The estimated amounts payable under the CMS Bancorp Severance Plan are set forth in the CMS Bancorp Benefits Schedule.
7.5.5 In the event of any termination of any CMS Bancorp health plan or consolidation of any such plan with any Xxxxxx health plan, Xxxxxx shall make available to Continuing Employees and their dependents employer-provided health coverage on the Company same basis as it provides such coverage to Xxxxxx employees. Unless a Continuing Employee affirmatively terminates coverage under a CMS Bancorp health plan prior to the time that such Continuing Employee becomes eligible to participate in the Xxxxxx health plan, no coverage of any of the Continuing Employees or their dependents shall terminate under any of the CMS Bancorp health plans prior to the time such Continuing Employees and its subsidiaries (their dependents become eligible to participate in the health plans, programs and benefits common to all employees of Xxxxxx and their dependents. In the event of a termination or predecessor employers consolidation of any CMS Bancorp health plan, terminated CMS Bancorp employees and qualified beneficiaries will have the right to continued coverage under group health plans of Xxxxxx in accordance with COBRA.
7.5.6 Following the Closing Date, Xxxxxx shall take all steps necessary or desirable to obtain a favorable determination letter on the termination of the CMS Bancorp 401(k) Plan to the extent that such determination letter has not been received before the Company provides or has recognized past service creditClosing Date. As soon as administratively practicable following the receipt of an IRS favorable determination letter on the termination of the CMS Bancorp 401(k) Plan, the account balances of all participants and beneficiaries in the CMS Bancorp Plan shall be treated either distributed to participants and beneficiaries or transferred to an eligible tax-qualified retirement plan or individual retirement account as service with Parent and its subsidiariesa participant or beneficiary may direct. Each applicable Parent Xxxxxx agrees to permit Continuing Employees to roll over their account balances in the CMS Bancorp 401(k) Plan to the Xxxxxx 401(k) Plan.
7.5.7 Following the Closing Date, Xxxxxx shall waive eligibility waiting periods and pre-existing condition limitations take all steps necessary or desirable to obtain a favorable determination letter on the termination of the CMS Bancorp Defined Benefit Plan to the extent waived or that such determination letter has not included under been received before the corresponding Company Closing Date. As soon as administratively practicable following the receipt of an IRS favorable determination letter on the termination of the CMS Bancorp Defined Benefit Plan. Parent agrees , Xxxxxx shall take all necessary steps, including working with appropriate vendors to use commercially reasonable efforts obtain deferred annuities for participants, to give or cause its subsidiaries (including distribute the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes accrued benefits of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid participants in accordance with the terms and conditions of the Parent CMS Bancorp Defined Benefit Plan.
(d) To the extent permitted by applicable Law, no 7.5.8 Not later than thirty (30) days after the date hereofEffective Time, all remaining shares of CMS Bancorp Common Stock held by the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listed: (i) the base compensation (salary or wage rate), and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete CMS Bancorp ESOP as of the date or dates set forth Effective Time shall be converted into the right to receive the Merger Consideration. In connection with the termination of the CMS Bancorp ESOP, CMS Bancorp, CMS Bank, and/or Xxxxxx following the Effective Time of the Bank Merger, shall use their best efforts to seek a favorable determination letter from the IRS on the scheduletermination of the CMS Bancorp ESOP. As soon as administratively practicable following the receipt of a favorable determination letter on the termination of the CMS Bancorp ESOP, each of which the account balances in the ESOP shall be no more than ten (10) days prior either distributed to the date of delivery. Parent shallparticipants and beneficiaries or transferred to an eligible tax-qualified retirement plan or individual retirement account as a participant or beneficiary may direct, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit in accordance with the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee of the Company or its subsidiaries.
(e) The Company shall, and shall cause each of its subsidiaries to, comply in all material respects with each of their respective obligations under applicable Law before the Closing Date to inform and consult (or otherwise), under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees of the Company or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) requirements of the Code (the “Company 401(k) Plans”) shall be terminated, as of immediately prior to the Closing Date (but conditioned upon the occurrence of the Closing). The Company and Parent shall cooperate in good faith prior to the Closing with respect to the preparation and execution of all documentation necessary to effect the foregoing termination, and the Company shall provide Parent a reasonable opportunity to review and comment on all such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall be eligible to participate in a 401(k) plan maintained by Parent or any of its subsidiaries or Affiliates as soon as practicable following the Closing DateERISA.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except to the extent expressly provided otherwise in a written agreement between Parent, the Surviving Corporation, the Company or any Affiliate of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof).
Appears in 1 contract
Samples: Merger Agreement (CMS Bancorp, Inc.)
Employees and Employee Benefits. (a) For From the Closing and for a period beginning on of eighteen (18) months after the Closing, the Purchaser or any Affiliate thereof shall provide to those employees of the Company and/or its Subsidiaries as of immediately prior to the Closing Date and ending on who continue as employees of the twelve (12) month anniversary of Company and/or its Subsidiaries after the Closing Date (or, if shorter, during an employee’s period of employment following the Closing Date), Parent shall provide, or shall cause the Surviving Corporation “Continuing Employees”) compensation and benefits that are substantially similar to provide, those provided to the employees of the Company or its subsidiaries who are not represented by a labor organization and who continue to be employed Continuing Employees by the Company or and/or its Subsidiaries prior to Closing and shall provide credit for Company Group service under those benefits. In addition, during such eighteen (18) month period, the Surviving Corporation or any subsidiary or Affiliate thereof (the “Purchaser shall provide Continuing Non-Union Employees”), (i) Employees with substantially the same base salary and wage rate as the base salary and wage rate provided to such Continuing Non-Union Employee immediately prior to the Effective Time, (ii) employee incentive compensation opportunities which are no less favorable in the aggregate than the incentive compensation opportunities provided to such Continuing Non-Union Employees immediately prior to the Effective Time and (iii) employee benefits which are substantially comparable in the aggregate (including with respect to the proportion of employee cost) to the employee severance benefits provided to such Continuing Non-Union Employees immediately by the Company and/or its Subsidiaries prior to the Effective TimeClosing. Commencing on the Closing Date, the Surviving Corporation shall observe the terms of all existing Collective Bargaining Agreements that govern the wages, hours and other The terms and conditions of employment of employees of the Company and/or its Subsidiaries as of the Closing whose terms and conditions of employment are subject to collective bargaining or its subsidiaries who are covered by such Collective Bargaining Agreements and who continued to other collective labor representation shall be employed governed by the Company applicable collective bargaining agreement. Nothing herein, express or the Surviving Corporation implied, shall confer upon any Continuing Employee, or legal representative or beneficiary thereof, any subsidiary rights or Affiliate thereof (the “Continuing Union-Represented Employees”)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.
(b) (i) For the twelve (12) month period following the Closing Date, Parent shall provide, or shall cause the Surviving Corporation to provide, to the Continuing Non-Union Employees, severance benefits which are no less favorable than those set forth in Section 6.9(b)(i) of the Company Disclosure Schedule and (ii) from and after the Effective Time, Parent shall cause the Surviving Corporation and its subsidiaries to honor, in accordance with their terms, all Company Plans set forth in Section 6.9(b)(ii) of the Company Disclosure Schedule (each, a “Company Agreement”); provided that nothing herein shall prevent the Surviving Corporation from amending or terminating any such Company Agreement in accordance with its terms. Parent and the Company hereby agree that the occurrence of the Closing shall constitute a “Change in Control” for purposes of all Company Stock Plans, Company Plans and related trusts set forth in Section 6.9(b)(iii) of the Company Disclosure Schedule.
(c) With respect to each benefit plan, program, practice, policy or arrangement maintained by Parent or its subsidiaries (including the Surviving Corporation) following the Effective Time and any Employee Benefit Plan in which any of Continuing Employee first becomes eligible to participate at or after the Continuing Non-Union Employees or Continuing Union-Represented Employees Closing (collectively, the “Continuing Employees”) participate (the “Parent PlansNew Company Plan”), and except to the extent necessary to avoid duplication of benefits, for purposes of determining eligibility to participate, vesting, accrual of and entitlement to benefits (but not for accrual of Purchaser or entitlement to pension benefits, post-employment or retiree welfare benefits, special or early retirement programs or window separation programs), service with the Company and its subsidiaries (or predecessor employers to the extent the Company provides or has recognized past service credit) shall be treated as service with Parent and its subsidiaries. Each an applicable Parent Plan shall waive eligibility waiting periods and pre-existing condition limitations to the extent waived or not included under the corresponding Company Plan. Parent agrees to use commercially reasonable efforts to give or cause its subsidiaries (including the Surviving Corporation) to give the Continuing Employees credit under the applicable Parent Plan for amounts paid prior to the Effective Time during the calendar year in which the Effective Time occurs under a corresponding Company Plan for purposes of applying deductibles, copayments and out-of-pocket maximums as though such amounts had been paid in accordance with the terms and conditions of the Parent Plan.
(d) To the extent permitted by applicable Law, no later than thirty (30) days after the date hereof, the Company shall provide to Parent a schedule of all Company employees that sets forth the following information with respect to each individual listedAffiliate shall: (i) the base compensation (salary or wage rate)waive all pre-existing conditions, exclusions and bonus; (ii) the title, position and/or job classification, date of hire, credited service or seniority, (iii) full time versus part time status, active or leave status; (iv) location of each employee; waiting periods with respect to participation and (v) a statement of the Company’s classification of each such position or job as exempt or non-exempt for purposes of the Federal Fair Labor Standards Act. Such schedule shall be true and complete as of the date or dates set forth on the schedule, each of which shall be no more than ten (10) days prior coverage requirements applicable to the date of delivery. Parent shall, and shall cause its subsidiaries and Affiliates to: (A) not disclose such information to any third parties, (B) limit the distribution of such information within Parent to those with a legitimate need for such information and (C) not use such scheduled information to solicit or hire any employee employees of the Company or and/or its subsidiaries.
(e) The Subsidiaries under any New Company shall, and shall cause each of its subsidiaries to, comply Plan in all material respects with each of their respective obligations under applicable Law before which such employees may be eligible to participate after the Closing Date to inform the extent such pre-existing conditions, exclusions and consult (waiting periods were waived or otherwise), otherwise satisfied under applicable Law and the terms of any Collective Bargaining Agreements that govern the wages, hours and other terms and conditions of employment of employees a corresponding Employee Benefit Plan of the Company or and/or its subsidiaries, with any labor organizations with respect to any Continuing Union-Represented Employees affected by the transactions contemplated by this Agreement.
(f) Parent shall or shall cause the Surviving Corporation and its Affiliates to continue to honor all Collective Bargaining Agreements until their respective expiration, modification or amendment. To the extent required by Law or any applicable Collective Bargaining Agreement, Parent shall assume or become party to any Collective Bargaining Agreements effective upon the Closing.
(g) At Parent’s request, the Company Board shall adopt resolutions providing that no rights to contributions will accrue after, and that all of the Company Plans sponsored or maintained by the Company or any of its subsidiaries that are defined contribution plans intended to be qualified within the meaning of Section 401(a) of the Code (the “Company 401(k) Plans”) shall be terminated, as of Subsidiaries immediately prior to the Closing Date or would have been so waived or satisfied but for such Employee Benefit Plan’s termination; (but conditioned upon ii) cause deductibles, coinsurance or maximum out-of-pocket payments to be made by such employees during the occurrence applicable plan year in which such employee first participates in the applicable New Company Plan to reduce the amount of deductibles, coinsurance and maximum out-of-pocket payments under a New Company Plan to the extent taken into account under the corresponding Employee Benefit Plan of the Closing). The Company and/or its Subsidiaries in respect of the same plan year or would have been so taken into account but for such Employee Benefit Plan’s termination and Parent shall cooperate in good faith (iii) recognize service credited by the Company and/or its Subsidiaries prior to the Closing with respect for purposes of eligibility to participate and vesting credit (and for purposes of severance and paid time off only, for purposes of determining the preparation and execution amount or level of all documentation necessary to effect the foregoing termination, and the benefit) in any New Company shall provide Parent a reasonable opportunity to review and comment on all Plan in which such documentation. To the extent that the Company 401(k) Plans are terminated pursuant to Parent’s request, the Continuing Employees shall Employee may be eligible to participate after the Closing; provided, however, that in a 401(k) plan maintained by Parent or no event shall any of its subsidiaries or Affiliates as soon as practicable following the Closing Date.
(h) Nothing in this Agreement shall confer upon any Continuing Employee any right to continue in the employ or service of Parent, the Surviving Corporation or any Affiliate of Parent, or shall interfere with or restrict in any way the rights of Parent, the Surviving Corporation or any Affiliate of Parent, which rights are hereby expressly reserved, to discharge or terminate the services of any Continuing Employee at any time for any reason whatsoever, with or without cause, except credit be given to the extent expressly provided otherwise it would result in a written agreement between Parent, the Surviving Corporation, duplication of benefits for the Company or any Affiliate same period of Parent and the Continuing Employee. Notwithstanding any provision in this Agreement to the contrary, nothing in this Section 6.9 shall (i) be deemed or construed to be an amendment or other modification of any Company Plan, Parent Plan or any other employee benefit plan, (ii) prevent Parent, the Surviving Corporation or any Affiliate of Parent from amending or terminating any Company Plans in accordance with their terms or (iii) create any third-party rights in any current or former service provider of the Company or its Affiliates (or any beneficiaries or dependents thereof)service.
Appears in 1 contract
